AMEYIBOR vs. KOMLA [1980]DLCA1028

Date	1980-01-10
Suit No.
Citation No.	[1980]DLCA1028

APALOO C.J

SOWAH JA

KINGSLEY-NYINAH J.A.

E. D. KOM FOR THE APPELLANT.

NO APPEARANCE BY OR FOR THE RESPONDENT.

[1980]DLCA1028
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													<main id="main" class="content" style="min-height: 60rem" >AMEYIBOR<o:p></o:p>&nbsp;vs. <o:p></o:p>KOMLA<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>&nbsp;[1980] GLR 820<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
10 JANUARY 1980<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

E. D. KOM FOR THE APPELLANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

APALOO C.J., SOWAH AND KINGSLEY-NYINAH
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO C.J.<o:p></o:p>The suit
which culminated in this appeal was an application by the respondent to set
aside a judgment obtained against him by default. His professed ground for
seeking this relief was that neither the writ of summons nor the default
judgment was served on him. The appellant disputed this and issue was joined on
the facts.<o:p></o:p><o:p>&nbsp;</o:p>The
judgment sought to be vacated was delivered some time in 1967. Evidence was
produced by both sides and the resolution of the issue raised a simple question
of fact. The learned judge said he “had no hesitation whatsoever in
disbelieving the applicant’s (meaning the respondent’s) assertion that he was
not served with the writ of summons and with the 1967 default judgment.” In
other words, the judge was satisfied with the appellant’s evidence that the
respondent was served not only with the writ of summons but with the default
judgment as well. By this finding, the pedestal on which the respondent sought
to vacate the judgment was gone and ordinarily, his application would have
failed. The learned judge said as much.<o:p></o:p><o:p>&nbsp;</o:p>However,
in the course of the argument, it was pointed out that the writ of summons by
which the suit was commenced, was not indorsed in the manner required by Order
9, r. 17 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), and that
therefore the judgment was a nullity and should be set aside. The learned judge
acceded to this submission. He said he had himself examined the writ of summons
and was in a position to agree that it was not indorsed in the manner required
by the rule. He said he found it difficult to appreciate the rationale behind
the rule but inasmuch as default was made in complying with it, the court had
no power to grant leave for the signing of the default judgment and that it
must be set aside notwithstanding the fact that the respondent delayed in
bringing the application for three years. The judge accordingly proceeded to
set the judgment aside. It is this order that the appellant seeks by this
appeal to reverse.<o:p></o:p>

Order 9,
r. 17—the rule admittedly infringed, provides:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“17. The
person serving a writ of summons shall, within three days at most after such
service, indorse on the writ the day of the month and week of the service
thereof, otherwise the plaintiff shall not be at liberty, in case of
non-appearance, the proceed by default; and every affidavit of service of such
writ shall mention the day on which such endorsement was made. This rule shall
apply to substituted as well as other service.”<o:p></o:p>The true
effect of non-compliance with this procedural rule has come before the courts
on a number of occasions and two divergent views have been expressed. In
Attoh-Quarshie v. Okpote [1973] 1 G.L.R. 59, Hayfron-Benjamin J. (as he then
was) held that failure to comply with this rule was not a mere irregularity which
could be waived but a matter which prevented any further proceedings from being
taken. He accordingly held that the court had an inherent power to set aside a
judgment signed in breach of the rule and proceeded to set the judgment aside.
That is precisely the way the judge reasoned and acted in the case at issue. In
the later case of Fofie v. Pomaa [1974] 2 G.L.R. 6 at p. 10, Osei-Hwere J.
refused to follow Attoh-Quarshie v. Okpote (supra). He thought failure to
comply with the rule in question was a mere irregularity which could be waived
or cured under Order 70, r. 1 of the High Court Rules. Again in Kwasi v. Dunkwa
Goldfields [1975] 1 G.L.R. 10, Koranteng-Addow J. followed Osei-Hwere J. and
regarded non-compliance with Order 9, r. 17 as a mere irregularity which could
be cured by amendment. He thought in the circumstances of this country, the
rule was pointless and suggested that it be scrapped. Indeed, the judge
expressed himself in strong terms on the purposelessness of this rule.<o:p></o:p><o:p>&nbsp;</o:p>