PROGRESSIVE IMPORTS & EXPORTS SHIPPING LTD. vs. MUELLER [1989]DLHC2290

Date	1989-02-16
Suit No.
Citation No.	[1989]DLHC2290

PIESARE J.

NANA AKUFO-ADDO (WITH HIM BROOKMAN-AMISSAH) FOR THE DEFENDANT-APPLICANT.

MANFOR SIAW FOR THE PLAINTIFF-RESPONDENT.

[1989]DLHC2290
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													<main id="main" class="content" style="min-height: 60rem" >PROGRESSIVE
IMPORTS &amp; EXPORTS SHIPPING LTD.<o:p></o:p>vs.<o:p></o:p>MUELLER<o:p></o:p>[HIGH
COURT, ACCRA]<o:p></o:p>[1991] 1
GLR 94<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 16 FEBRUARY 1989<o:p></o:p>

</div>COUNSEL:<o:p></o:p>NANA
AKUFO-ADDO (WITH HIM BROOKMAN-AMISSAH) FOR THE DEFENDANT-APPLICANT.<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">

MANFOR
SIAW FOR THE PLAINTIFF-RESPONDENT. <o:p></o:p>

</div>JUDGMENT
OF PIESARE J.<o:p></o:p>On 16
January 1989, I dismissed the defendant’s application to set aside the summary
judgment entered against the defendant on 30 June 1987. And this is my ruling.<o:p></o:p>On 30
June 1987, a summary judgment was entered against the defendant under the new
Order 14, r. 1 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) as
amended by the High Court (Civil Procedure (Amendment) (No 2) Rules, 1977 (L.I.
1129). The summons for summary judgment was filed on 12 May 1987. On 30 June
1987, the application came up for hearing. Counsel on either side was present,
and counsel for the defendant orally submitted to judgment. Judgment was
therefore accordingly entered for the plaintiff against the defendant by
Lamptey J. (as he then was). It was against that summary judgment that the
instant application was brought, seeking to set it aside upon a number of
grounds.<o:p></o:p>Four main
grounds were discernible: That the defendant has a good defence to the action;
that it is necessary to set aside the judgment to enable the defendant
prosecute his counterclaim raised in this application; that the judgment was in
the nature of a “consent judgment” but that it did not comply with the rules
governing “consent judgment”; and that the defendant’s counsel had no
instructions to submit to the said judgment.<o:p></o:p>On the
counterclaim raised only in this application after the said summary judgment,
the authorities are clear that a counterclaim is not an independent action: see
Kamara v. Traore [1968] G.L.R. 1009 per Annan J. (as he then was).<o:p></o:p>That case
originated from the district court. The plaintiff-respondent took action
against the defendant-appellant for the sum of N¢1,000, on the undefended list
and the defendant filed an affidavit admitting the claim. In the same
affidavit, the defendant put in a counterclaim for N¢2,000 damages which was
beyond the jurisdiction of the trial court, and he again in the same affidavit
asked for stay of execution pending the hearing and determination of his said
counterclaim.<o:p></o:p>The trial
court entered judgment for the plaintiff for the N¢1,000 he claimed against the
defendant, and struck out the counterclaim for N¢2,000 which was beyond the
trial court’s jurisdiction. The application for stay of execution was also
struck out. On appeal to the High Court, Annan J. (as he then was) said at 1011
as follows:<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">“A
counterclaim is a cross-action and is therefore a separate action and it is
filed to commence proceedings in the court in which the plaintiff’s claim is
filed. Clearly a counterclaim cannot come into being independently of a claim
by a plaintiff and it cannot be said that a counterclaim issued in the district
court is a claim for the commencement of an action in either the High Court or
a circuit court.”<o:p></o:p>In the
instant application, the counterclaim was raised not before judgment in the
suit, but after judgment, and only at this stage in this application. This
counterclaim cannot therefore be said to be a cross-action; for, I am of the
view, that after the judgment the claim ceased to exist.<o:p></o:p>The
proper construction of Order 14, r. 5(2) of L.I. 1129, referred to me
therefore, is that the counterclaim envisaged under this rule must be a
counterclaim raised in the suit as a cross-action before the judgment is
entered under Order 14, r. 1. Order 14, r. 5(2) reads:<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">&nbsp;“(2) The Court may by Order, and subject to
any just conditions, stay execution of a judgment given against a defendant
under this rule until after the trial of any counterclaim made or raised by the
defendant.”<o:p></o:p>This rule
obviously does not envisage a counterclaim raised after a final judgment under
Order 14, r. 1. The counterclaim must exist before judgment. The grounds was
therefore misconceived.<o:p></o:p>