BLESSING VRS DOGBE & 2 OTHERS [2022] GHACA 110 (14 July 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL DIVISION) ACCRA – GHANA CORAM: HENRY A. KWOFIE JA PRESIDING P. BRIGHT MENSAH JA RICHARD A. FRIMPONG JA SUIT NO. H1/129/2022 14TH JULY 2022 BETWEEN: REV. BERNARD BLESSING … PLAINTIFF/RESPONDENT vs ) … 1ST DEFENDANT/APPELLANT SGT GODWIN DOGBE JUBILEE S LARYEA ) ABLORH ANIMA ) … DEFENDANTS ========================================================= JUDGMENT BRIGHT MENSAH JA: The 1st defendant/appellant herein has launched the instant appeal against the ruling of the High Court, Accra delivered 15/06/2015 that by which the lower court refused to set aside a judgment that had earlier on gone in favour of the plaintiff/respondent. The ruling, the subject of the appeal appears on pp 187-184 of the record of appeal [roa]. As we proceed along, the 1st defendant who has appealed in this case shall be referred to as the appellant whilst the plaintiff shall be referred to simply as the respondent, respectively. The suit and judgment of the lower court: The respondent on the 12th March 2008 cause to issue a writ of summons against the appellant herein and the other defendants in that case, claiming: 1. Declaration of title to all that piece of land situate being and lying at Okpoi Donno in the Greater Accra Region of the Republic of Ghana covering approximate area of 0.54 acre and bounded on the north by donors land measuring 130 feet more or less in the east by the donors land measuring 180 feet more or less on the south by proposed road measuring 90 feet more or less and on the west by proposed road measuring 140 feet more or less and on the south west by the first circular link measuring 50 feet more or less. 2. Order for perpetual injunction to restrain the defendants howso- ever their agents servants workmen privies assigns from dealing or interfering with the land the subject matter of the suit until the determination of the suit. 3. Order for recovery of possession. 4. General damages and cost. On record, the respondent upon filing the writ, successfully obtained an exparte interim injunction order that was to last for 10 days, to be served on the appellant and the other defendants. Copies of the writ of summons and statement of claim were to be served the same time as the injunction order. However, per an affidavit of non-service deposed by the bailiff entrusted with the service of the processes, the appellant could not be traced for service on the ground as disclosed in the affidavit that the appellant was unknown to the Unit in which he served as an army officer as stated on the writ. On the writ it was indicated that he was with the Field Engineers Detachment IBN, Burma Camp. In the result, the respondent applied for and obtained an order for service of those processes by substituted service. See: p. 40 [roa]. The respondent eventually obtained a default judgment against the appeallant in default of appearance and proceeded to recover a final judgment when evidence was led in proof of the case. However, upon being served with the entry of final judgment the appellant complains that he was never with any process. Pursuant to that contention the appellant applied to the court below to set the judgment. Upon the court’s refusal to set aside the judgment upon the grounds clearly stated in its ruling of 15/06/2015 the appellant has launched the instant appeal on a number of grounds indicated here infra. The appeal: Per a notice of appeal that appears on pp 185-186 [roa] the appellant complains that: 1. The learned trial judge erred by failing to grant the appellant’s application to set aside the default judgment. 2. The learned trial judge erred by upholding the default judgment which was based on evidence that had no foundation in law. 3. The ruling is against the weight of the evidence on record. To begin with, the instant appeal is an invitation to this court to interfere in a judicial discretion exercised by the lower court by which the 1st defendant’s contention that the plaintiff never led evidence in the case was dismissed. As a general rule, an appellate court cannot or would not ordinarily substitute its own discretion for the court exercising a discretion. However, there may be exceptional circumstances justifying questioning the exercise of the judicial discretion. The principles governing exercising judicial discretion and the power of an appellate court to interfere in the exercise of a court’s discretion were considered extensively in Sappor v Wigatap (2007-2008) SCGLR 676 in which case the Supreme Court set the perimeters of the rules as follows: “………………. [A]n appellate court would [only] interfere with the exercise of a court’s discretion where the court below applied wrong principles or the conclusions reached would work manifest injustice or that the discretion was exercised on wrong inadequate material. Arbitrary, capricious and uninformed conclusions stand in danger of being reversed on appeal.” It is worth noticing that Crabbe JSC in R v Registrar of High Court; Exparte Attorney General (1982-83) GLR 407 @ 420 has reiterated that the grounds upon which the exercise of judicial discretion may be impeached include: i) where it can be demonstrated that the judge or judicial officer violated the duty to be fair and candid; ii) where the discretion was exercised capriciously or arbitrary; iii) that the judge or judicial officer was biased either by resentment or prejudices; iv) the trial judge did not act in accordance with due process of law. It bears emphasizing that there are no binding precedents in exercise of judicial discretion as each case is decided on its own merit provided the judge or judicial officer took into consideration, all the necessary facts and circumstances of the case; the judge or the judicial officer was not biased or capricious or that he did not take into account, extraneous matters. See: Agyeman v Ghana Rly & Ports Auth. (1969) CC 60 C/A. In summary, therefore, there are no hard and fixed rules as to how the judge or judicial officer must exercise his discretion in an application put before him except that the conclusion reached was not perverse or occasioned any miscarriage of justice. If the conclusion was supported by the [affidavit] evidence on record, the exercise is said to be right and judicially exercised. Consequently, the appellate court will not interfere with the exercise of the court’s discretion save in exceptional circumstances. See: Nartey Tokoli v Valco No. 3 (1989- 1990) 2 GLR 530. Fundamental issue: The fundamental question to address the instant appeal raises is whether the lower court did not exercise its judicial discretion in accordance with due process of law. Put differently, whether the court below did not exercise its discretion judicially. The main ground for the application to set aside the judgment in the instant case as captured in paragraph 5 of the supporting affidavit was that no evidence was led in the case apparently on misleading search report appearing on p. 144 [roa] that no evidence was led in the case. On that basis, it has been argued that the appellant was denied a right to hearing and therefore, the proceedings were a nullity. In support, learned Counsel for the appellant has referred us to R v High Court, Accra; Exparte Osafo [2011] 2 SCGLR 966; R v High Court, Accra; Exparte Salloum (Senyo Coker – Interested Party) [2011] 1 SCGLR 574 and Bank of Ghana (No.3) v Sefa & ors [2015-2016] 1 SCGLR 741. It has also been submitted on behalf of the appellant premised on Order 10 r 8 and Order 13 r 8 of CI 47 that generally the courts will set aside a default judgment on terms where good reason has been provided for the default and where the defaulting party has shown a defence to the action. A party has party has the right to have the dispute determined upon the merits and the courts ought to give a party a hearing, Counsel insisted. In support, he relied on Ojikutu v Odei [1954] 14 WACA 640. In an affidavit in opposition to the application that appears on pp 146-148 [roa] asserts the contrary, giving chronological events as to the initiation of the case and the steps taken in the matter, to the recovery of the judgment. It was therefore submitted on behalf of the respondent that the judgment entered by the trial court on 28/05/2010 as found on pp 174-176 [roa] was regular. Learned Counsel for the respondent in construing the expression “proceed with the action as if such a party has appeared” submitted it only meant that the case has to be set down for hearing and the party must lead evidence in proof of his claim as was done in this case. In support, he referred us to In re Nungua Chieftaincy Affairs – Odai Ayiku IV v Attorney General (Borketey Laweh XIV Applicant) [2010] SCGLR 413, in which case the Supreme Court had endorsed the principle established in Conca Engineering (Gh) v Moses [1984-86] 2 GLR 319 C/A. In Counsel’s view, therefore, a respondent i a situation where the appellant has not entered appearance does not have to file for judgment in default of defence but to proceed with the case for the taking of evidence in proof of his case. Learned Counsel has also urged on us to dismiss the appeal on ground that the instant appeal is not properly before this court in that the time limited to appeal against the judgment has since elapsed. He contended that where a court refuses to set aside a judgment given in default of either an appearance or defence the proper practice was to appeal against both the refusal and the default judgment. In support, Counsel relied on dictum stated in GFA v Appade Lodge Ltd [2009] SCGLR 103. Insofar as the judgment entered after full trial was on 28/05/2010 and the appellant never appealed against it with the statutory period for appealing has since lapsed but only appealed against the refusal to set aside the judgment, Counsel for the respondent has urged on this court to dismiss the appeal. Resolution of the appeal: The starting point on an application to setting aside a judgment is Order 10 of the High Court [Civil Procedure] Rules, 2004 (C. I 47). Rule 6(1) of Order 10 provides: “(1) Where the plaintiff makes a claim of a description not mentioned in rules 1 to 4 against a defendant, and the defendant fails to file appearance, the plaintiff may, after the time limited for appearance and upon filing an affidavit proving due service of the writ and statement of claim on the defendant, proceed with the action if the defendant had filed appearance.” It needs reiterating, subject to rule 8 of Order 10, the court may on such terms as it thinks fit, set aside or vary any judgment entered in pursuance of the rules. The word “any judgment” is construed to mean either a default or final judgment. Therefore, upon a good cause shown an applicant may successfully set aside a judgment. The test for setting aside a judgment is that the applicant must show the following: i) The promptness with which the application was made, ii) The prospect of the defence succeeding. and It is right statement of law to emphasize that in considering an application to setting aside judgment, the court has to take all the circumstances of the case into consideration. The court in that judicial decision-making process, requires the applicant has to show a good cause why he delayed in coming to court after judgment has been recovered against him. Having shown a good cause, the applicant has to additionally demonstrate that he has a triable defence to the claim and that refusal of the court to set aside the judgment shall occasion a miscarriage of justice to him. In other words, there shall be a travesty of justice if the applicant’s case was left unadjudicated upon. Now, it must be stressed, the court in exercising that judicial discretion takes account of only the peculiar facts of the case as each case turns on its own specific facts. The exercise of the discretion is therefore guided by the principles so stated supra and generally, whether the trial judge did not act in accordance with due process of law. It has been strongly impressed on us in the instant case that the appellant was never served before judgment was recovered against him. Therefore, the proceedings leading to, and the judgment were a nullity. Ordinarily, a court taking decision in a case where a party does not appear because he has not been notified is doing an act that is a nullity on the ground of absence of jurisdiction and on the principle of audi alteram partem rule. See: Vasquez v Quarshie [1968] GLR 62; Acheampong v Asare Manu [1976] 1 GLR 287. However, where the court is satisfied that the party so affected was sufficiently aware of the hearing date or was duly served but he failed or neglected in responding to the service, the position of the law is that is that the court would be entitled to proceed with the trial and determine the matter on the basis of the basis of the evidence led on record. See: In re West Coast Dyeing Ind. Ltd; Adams v Tandoh [1986-87] GLR 2 GLR 561. We have carefully scrutinized the records of appeal and we think that the appellant was slothful in applying to set aside the judgment that was regularly obtained against him. The respondent after obtaining interlocutory judgment took steps to serve the entry of the default judgment and hearing notice on the appellant before proceeding to lead evidence in the case in proof of his claim in compliance with the order of the substituted service so directed by the lower court. There is sufficient evidence on record to show that the appellant was served with all the court processes meant for his attention and response but regrettably he either refused, failed or neglected to react to the claims of the respondent. This is buttressed by the opening statement of the learned trial judge when he set out to deliver his judgment in the case. It was observed: “By Court: This suit was filed by the plaintiff on 12th March 2008. The 1st defendant [appellant herein] is alleged to be a serving military personnel with Field Engineers Detachment IBN, Burma Camp, Accra. Attempts to serve the 1st defendant through the Unit under which he is alleged to belong proved futile as it was shown from the affidavit of non-service that the 1st defendant was not known to them. The 2nd defendant was served personally. The 3rd defendant, the court was informed, died during the pendency of the case. The 1st defendant was served on 4th August 2008 by way of substituted service after leave was granted by the court. On 14th November 2008 default judgment was entered against the defend- ants and the case was adjourned for the plaintiff to proof [sic] of his title and assessment of damages.” See: p. 67 [roa] It bears stressing that the steps the respondent took in establishing his claim was in accord with well-established principle that in a declaration for title to land where the defendant defaulted in entering appearance and or a defence, the plaintiff should proceed as though the defaulting party appeared. That is to say, the defaulting party ought to be served with all processes and the plaintiff shall lead evidence in proof of his case before there can be a recovery of judgment in his favour. See: Conca Engineering (Gh) v Moses [1984- 86] GLR The judgment of the lower court the appellant herein complains of, was delivered on 28/05/2010. The record of appeal is replete with orders of the court for substituted service of court processes meant for service on the appellant because he could not be traced for service. On p. 144 [roa] for eg., there is that record of search on the case docket that proved that the appellant was served with the writ of summons and the statement of claim by substituted service on 04/08/2008. Additionally, it is on record that the respondent successfully applied for a default judgment after which he applied for substituted service of the entry of the default judgment and hearing notice on the appellant before offering evidence in proof of title. Indeed, at a stage the court had to adjourn hearing of the case to ensure and be satisfied that the order for the substituted service was carried out. See: pp 55-58 & 59 [roa]. Furthermore, it is on record that after recovering judgment when evidence was led in the case, the respondent applied by substituted service of an amended entry of judgment on the appellant. See: p. 107 [roa]. According to a search report as appearing on p. 121 [roa] the appellant was served on 11/07/2014. It was at that stage that the appellant took steps to file an application to have the judgment set aside the judgment. See: pp 141-143 [roa]. Obviously, there was an inordinate delay. Now, having regard to the fact that the appellant never appealed against both the impugned judgment and the refusal to set aside the judgment but appealed against only the refusal of the lower court to set aside the judgment, we are persuaded to hold that the appeal is not properly before the court. See: GFA v Appade Lodge Ltd [2009] SCGLR 103. Besides, we think that the learned trial judge in refusing to set aside the judgment stated the obvious that the appellant was sufficiently served with all the processes that needed to be brought to his attention for him to respond to challenge the claim of the respondent if he was minded to. He blew away that opportunity by his slothfulness and neglect. In the result, he cannot be heard to say that the trial court did not observe the audi alteram partem rule. On the authorities, where a trial court that heard the evidence has made findings based on the evidence led on record and come to the conclusion in a case, an appellate court is not required ordinarily, to disturb those findings except where there is lack of evidence to support the findings or the reasons for the findings are unsatisfactory. As Pwamang JSC stated in Prof Stephen Adei & Mrs Georgina Adei v Grace Robertson & Sempe Stool (Civ. App. No. J4/2/2015) delivered 10/03/2016) (unreported), an appellate court may reverse findings of a lower court where they are based on a wrong proposition of law or a rule of evidence or the findings are inconsistent with documentary evidence on record. Overall, we think that the learned trial judge duly exercised his discretion judicially and in all circumstances of the case, the exercise of the judicial discretion in refusing to set aside the judgment regularly obtained was in accord with due process of law and on established principles. In conclusion, we think that the appellant has been unable to make a case to warrant our intervention in upsetting the ruling of the lower court that refused to set aside the judgment regularly obtained. The appeal therefore fails in its entirety and is hereby dismissed. Respondent’s costs assessed at Gh¢5000.00. I agree I also agree SGD P. BRIGHT MENSAH (JUSTICE OF APPEAL) SGD HENRY A. KWOFIE (JUSTICE OF APPEAL) SGD RICHARD A. FRIMPONG (JUSTICE OF APPEAL) COUNSEL S. K. AMOAH FOR THE 1ST DEFENDANT/APPELLANT ALFRED ADJEI MENSAH FOR THE PLAINTIFF/RESPONDENT 13