THE REPUBLIC vs. THE HIGH COURT AND AMALGAMATED BANK LIMITED EX PARTE: ALLGATE COMPANY LTD. [2008]DLSC6764

THE REPUBLIC vs. THE HIGH COURT AND AMALGAMATED BANK LIMITED EX PARTE: ALLGATE C... [2008]DLSC6764

Date	2008-06-16
Suit No.	CIVIL MOTION NO. J5/22/2008
Citation No.	[2008]DLSC6764

BROBBEY J.S.C. (PRESIDING)

DR. DATE-BAH J.S.C.

ANSAH J.S.C.

ADINYIRA J.S.C.

BAFFOE-BONNIE J.S.C.

CHRIS ARCHER FOR THE APPLICANT WITH HIM IS KORNA BONEY.

FELIX NTRAWAH FOR THE 2ND RESPONDENT WITH ANTHONY FORSON JNR. &

NANA YAW NTRAWAH JNR. BEN NUTSUPUI.

[2008]DLSC6764
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>THE HIGH COURT AND AMALGAMATED BANK LIMITED<o:p></o:p>EX PARTE: ALLGATE
COMPANY LTD.<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><o:p>&nbsp;</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="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL
MOTION NO. J5/22/2008 &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 16TH JUNE 2008.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>CHRIS ARCHER FOR THE APPLICANT WITH
HIM IS KORNA BONEY. <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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FELIX NTRAWAH FOR THE 2ND RESPONDENT
WITH ANTHONY FORSON JNR. &amp; NANA YAW NTRAWAH JNR., BEN NUTSUPUI. <o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp; <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">

BROBBEY J.S.C. (PRESIDING), DR.
DATE-BAH J.S.C., ANSAH J.S.C., ADINYIRA J.S.C., BAFFOE-BONNIE J.S.C.<o:p></o:p>

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

</div>DR. DATE-BAH, J.S.C. <o:p></o:p>A
bank, the second respondent, brought action against the applicant in this case
and two others to recover a debt owed it. After the defendants had been served
with the writ and they had entered appearance, the bank filed a motion for
summary judgment against them on 6th December, 2007. The motion was fixed for
hearing on 18th December, 2007 and the applicant was served with it on
Wednesday 12th December, 2007. On 18th December, 2007, the bank moved its
motion, in the absence of the applicant. The trial High Court, the first
respondent in this case, granted the application on 28th February, 2008 and
entered judgment in favour of the bank. The applicant's complaint is that the
bank did not comply with the mandatory rule of procedure that there should be
four clear days between the date of service of the motion for summary judgment
and the return date. It contended that since the applicant was served on a
Wednesday 12th December, the fourth clear day was 18th December, 2007 and thus
the application should not have been moved on that date. It was his case that
the consequence of the application having been moved on 18th December, 2007 was
that it rendered the proceedings based on it null and void. He therefore argues
that the judgment of 28th February 2008 is null and void and should be set
aside.<o:p></o:p>Though
the second respondent bank admitted that the return date of its motion was 18th
December, 2007, it contended that on that date the case had been adjourned to
enable the applicant to be given more time before the hearing of the
application. The second respondent, however, admitted that it moved its
application on 18th December, before the trial judge adjourned the case sine
die and directed that hearing notice be served on the applicant. On these
facts, there had been short-service. What this Court has to consider are the
legal consequences of such short-service. <o:p></o:p>There
is authority in this jurisdiction for the proposition that where proceedings
are taken by a plaintiff in the absence of the defendant, there should be
strict compliance with the rules of procedure. It has been held that if there
is non-compliance with a mandatory rule in the default procedure, such
non-compliance cannot be waived. A judgment taken after such non-compliance is
void. The relevant case law includes: Attoh-Quarshie v Okpote [1973] 1 GLR 59
(per Hayfron-Benjamin J. as he then was) and Azinogo v W E Augustt and Co. Ltd
[1989-90] 2 GLR 278. In the Azinogo case, Ampiah JA, as he then was, noted that
the English courts had held that in certain situations non-compliance with the
rules was not an irregularity which could be waived and that a plaintiff not
having complied with the rule was not entitled to proceed by default and that
any judgment or order obtained after such non-compliance would be set aside. He
endorsed and followed this line of English case law. He therefore held that
where, in an application for summary judgment under Order 14 of the High Court
(Civil Procedure) Rules, 1954 (LN 140A), the defendant had been given less than
four clear days notice between the date of service of the process and the
hearing date, the summary judgment obtained would be set aside as being void. <o:p></o:p>Thus,
in spite of the language of the old Order 70, r. 1 of LN 140A, there are some
non-compliances with the rules that could not be saved by that rule. It will be
recalled that that provision was as follows: <o:p></o:p>“Non-compliance
with any of these Rules, or with any rule of practice for the time being in
force, shall not render any proceedings void unless the Court or a Judge shall
so direct, but such proceedings may be set aside either wholly or in part as
irregular, or amended, or otherwise dealt with in such manner and upon such
terms as the Court or Judge shall think fit.” <o:p></o:p>In
spite of this language, Taylor JSC, for instance, held in Amoakoh v Hansen
[1987-88] 2 GLR 26 that where there had been non-service of summons for
direction and other irregularities, this rendered the subsequent proceedings a
nullity and they could not be saved under Order 70. He referred with approval
to Benn v Hagan and Nelson (1922) D.Ct. ’21-’25 in which Hall J had made a
distinction between irregular and void process, relying on the old classic
statement by De Grey LCJ in Parson v Lloyd (1772) 95 ER 1089 at 1092 that: <o:p></o:p>“There
is a great difference between erroneous process and irregular (that is to say
void) process, the first stands valid and good until it is reversed, the latter
is an absolute nullity from the beginning: the party may justify under the
first until it be reversed; but he cannot justify under the latter, because it
was his own fault that it was irregular and void at first.” <o:p></o:p>The
enactment of a successor to the old Order 70 has raised the issue whether this
received learning remains as true today as before. The new provision, Order
81(1) of the High Court (Civil Procedure) Rules 2004 (CI 47), is in the
following terms: <o:p></o:p>