Locus Standi of a Stranger to a Judgment: Analysis on the Decisions in Jacques v Harrison , Gbagbo v Owusu & Lamptey v Hammond
Introduction
A brief discussion on the origin of the term ‘locus standi’ or simply standing will be very useful to readers for the purpose of better clarity of the article.
Origin of the doctrine
In England, during the 19th century, courts were reluctant to allow anyone gain entry into its sanctuary unless he is a person aggrieved, and is usually has been shown that he had a specific right of his own which has been infringed or that his properties have been wrongfully seized or detained. To be entitled to a hearing he shares with others in common, he must be “a person aggrieved.”
Lord Justice James, a distinguished English Judge laid down the principle in 1880 in the case of Ex parte Sidebotham[1], case in which Lord Justice showed the meaning of the term ‘person aggrieved’ in the English Bankruptcy Act, he held that: “a person aggrieved’ is not a man who is disappointed of a benefit which he might have received if some other order had been made, but a man who has suffered a legal grievance, a man against whom a decision had been pronounced which has wrongfully deprived him something, or wrongfully refused him something, or wrongfully affected his title to something.”
His Lordship was dealing with an appeal by the insolvent where the court had refused to act on the comptroller’s report. He observed that the appellant has suffered no grievance, he had hardly sustained even a “damnum” .The appellant was entitled to apply to the first court and make his own case against the trustee but he had nothing to do with the comptroller’s report.
This decision became the locus classicus on locus standi in England. But the position was much altered under direct attacks on the restrictive approach starting from Lord Denning who challenged the doctrine of locus standitowards the end of the 20th century in England. The wind of change swept through the shores of England in a series of cases known as the Blackburn cases.[2] In the 1970s Mr. Raymond Blackburn, once a member of parliament came to the court with four successive cases with issues not of his own but involving the general public. In each of these cases, it came to be established that anyone having a ‘sufficient interest’ in the matter in hand acquires locus standi. Lord Denning reacted to the Blackburn cases, by stating that:
“If Blackburn had no ‘sufficient interest’, no other citizens had and in that event, an action for enforcing the law and transgression of the law would continue un-abated.”
Also in Arsenal Football Club v Ende[3] , the House of Lords approved the above finding of Lord Denning.
Capacity and Locus standi in Ghana
According Osei-Tutu J. in his article; “Capacity: A Janus-Faced Concept in Ghanaian Jurisprudence”, at page 2, the legal commentator brilliantly said: “….until recently, capacity and locus standi were perceived as one; often used interchangeably by judges. For instance, in the case of Debora Boafo v Comfort Oduro[4], Her Ladyship Irene Charity Larbi (Mrs) JA in espousing the principle on capacity said: “It is trite among lawyers that the issue of capacity or locus standi is a point of law which can be raised at any time after trial.”
Osei-Tutu J. further opined:
“In 2021, His Lordship Pwamang JSC in Fiorini Luca & Anor v Mr Samir & Ors[5] took pains to distinguish between the two concepts thus:
“Capacity properly so called relates to the juristic persona and competence to sue in a court of law and it becomes an issue where an individual sues in her own personal right but states a certain capacity on account of which she is proceeding in court. But locus standi relates to the legal interest that a person claims in the subject matter of a suit in court…generally, locus standing depends on whether the party has a legal or equitable right that she takes to enforce or protect by suing in court.”
About three months after the decision, the learned judge Pwamang JSC further expatiated in George Agyemang Sarpong v Google Ghana & Google Incorporated LLC[6]
“Although separate, the two (capacity and locus standi) operate as twin concepts for capacity, the power or right to sue, is often bound with a right that exists to be asserted or defended. It is this right that vest a person who has that right or interest with a locus standi….that they are distinct in their significance cannot be denied. In Dallas Fort Worth International Airport v Cox 261 SW 3d 378 (Court of Appeal of Texas at Dallas) Justice Ritcher drew the distinction succinctly thus: “A plaintiff has standing when he is personally aggrieved, regardless of whether he acts with legal authority; a party has capacity when it has legal authority to act, regardless of whether it has justifiable interest in the controversy.”
Final and default judgments distinguished
It is trite learning that a judgment can be final or default (interlocutory) judgment. Distinguishing between the two types of judgments will be useful for the purpose of this article. In Republic v High Court (Fast Track Division) Accra; Ex parte State Housing Co. Ltd (No.2) Koranten Amoako Interested Party),[7] Georgina Wood CJ noted thus:
“In our view. A judgment or order which determines the principal matter in question is termed ‘final’, whilst an ‘interlocutory’ order has also been defined in Haslbury’s Laws of England[8], as:
“An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure; or (2) is made after judgment and merely directs how the declarations of right already given in the final judgment are to be worked out, is termed interlocutory.”
The common principle that runs through the cases in Jacques v Harrison, Gbagbo v Owusu and Lamptey v Hammond supra are as follows:
“It is well established that there are only two methods whereby a stranger to a judgment who is adversely or injuriously affected can set it aside. That, he can obtain the defendant’s leave to use the defendant’s name and then apply in the defendant’s said name to have the judgment set aside. Or where he cannot use the name of the defendant, he can take out a summons in his name to be served on both the plaintiff and the defendant, asking to have the judgment set aside and for him to intervene.”
This principle has been followed in host of recent decisions including Hydrafoam Estate Ltd v Moi Ashong[9], Board of Governors of Achimota School v Nii Ako Nortei II & 2 Others[10]. The lists of cases stated here are not exhaustive as there are more authorities which has dealt with this principle. The author is respectfully of the firm view that the principle in the Lamptey v Hammond has been applied loosely without considering whether the judgment is final or default judgment.
It was the minority view of Pwamang JSC in the Board of Governors of Achimota School case supra, that lucidly differentiated whether the term ‘judgment’ as stated in the oft- quoted case of Lamptey v Hammond is final or default. The author agrees with the line of reasoning of His Lordship Pwamang JSC. In the Hydrafoam Estate Ltd v Moi Ashong supra, one of the issues was whether the respondent had the capacity to maintain an action to set aside the judgment which he is a stranger to on the ground of fraud and whether the said fraud was proved.
In this paper the author will delve into the various cases stated supra and examine how a person can acquire locus standi to fall into the rule in Lamptey v Hammond. Also whether the principle of law in Lamptey v Hammond can be invoked to set aside a judgment obtained by default or is a final judgment. The author submits that the main principle in the above cases is whether a non- party has the locus standi to set aside default judgment not final judgment.
Genesis of the principle; Jacques v Harrison.
The oft quoted decision in Jacques v Harrision was followed in Lamptey v Hammond and Gbagbo v Owusu by Abban J. (as he then was).
Though it is now common place in our jurisprudence to cite the procedure as the rule in Lamptey v Hammond, the procedure in question was first applied in our jurisdiction in the case of Gbagbo v Owusu supra. That case was a decision of the High Court delivered by Abban J (as he then was) who incidentally authored the opinion in Lamptey v Hammond at the time his lordship was on the Court of Appeal bench. For the purpose of this article, I will begin the discussion with an examination of the decision in Gbagbo v Owusu.
Facts of the case are as follows: the applicant, an Ivorian national resident in Ghana, was sued by the plaintiff over a piece of land. The applicant could take any further step in the case, the applicant was compelled to leave the country on account of the Aliens Compliance Order of 1969. Subsequently, the plaintiff got to know that before leaving the country, the applicant sold the land to the defendant, and so the plaintiff got the buyer substituted to the original defendant. The processes in the case were served on the new defendant by substituted service but the defendant did not enter appearance, so the plaintiff applied for and was granted a judgment in default of appearance for a declaration of title to the land, damages and an order for recovery of possession. When the applicant was informed of the judgment, the applicant returned to the country and filed a motion to have the default judgment aside. Upon service of the motion on the plaintiff, counsel for the plaintiff raised a preliminary objection to the application on the ground that the applicant was a stranger in the case. At page 253 of the Report,Abban J. stated as follows:
“The applicant’s main ground is that it was he who sold the land in dispute to the defendant, and the judgment, if allowed to stand, would eventually affect him adversely. Counsel for the plaintiff has raised a preliminary objection to the application. The basis of his said objection is that the applicant was not a party to the judgment and cannot therefore apply to have it set aside.
I think the applicant cannot be said to be a party to the judgment in question. Admittedly, he was the original defendant. But the defendant was regularly and properly substituted in his place, after it had become clear that the applicant sold his interest in the land and left the country for good. The applicant admits that he completely disposed of whatever interest he (the applicant) had in the land to the defendant before leaving Ghana in pursuance of the Aliens Compliance Order.
To my mind, at the time judgment was entered, the applicant had no interest whatsoever in the land in dispute, and I do not see how his interest is adversely affected. He is a stranger to the judgment and he has not and cannot acquire a locus standi in this matter.
It is well established that there are only two methods whereby a stranger to a judgment who is adversely or injuriously affected can set it aside. That is, he can obtain the defendant’s leave to use the defendant’s name and then apply in the defendant’s said name to have the judgment set aside. Or where he cannot use the name of the defendant, he can take out a summons in his name to be served on both the plaintiff and the defendant, asking to have the judgment set aside and for him to intervene. See Jacques v Harrison [1883] 12 QBD 136”
What is clear from this case is that the principle of the stranger to a judgment acquiring a locus standi was applied here to set aside a default judgment and not a final judgment. As opined in the dissenting view by Pwamang JSC in the Board of Governors of Achimota School v Nii Ako Nortei II & 2 Others case supra: “…in sum, in my understanding, the rule in Lamptey v Hammond applies only in an application by which a stranger who is adversely affected by a default judgment seeks to have it set aside. It does not apply where a final judgment has been recovered on the merits.”
Also another principle that was established was whether a non-party has locus standi to bring the application in the manner in which the applicant did.
Lamptey v Hammond principle
The facts were that the court dealt with an application to set aside judgment in default of the defendant attending trial. Pleadings had closed in the case and summons for direction were taken and hearing notice was served on the defendant. When the defendant failed to attend the trial, the court proceeded with the trial in the absence of the defendant pursuant to Order 36 rule 16 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) (now repealed). The case involved a family house which had been sold to defray the personal debt of an administratrix of the estate of the original owner. The plaintiff as head of family, sued the purchaser to recover the house and judgment was given in favour of the plaintiff after the defendant failed to attend the trial. The defendant died after the judgment. Two years later, the applicant who claimed to have bought the house from the defendant while the case was pending in court, obtained the consent of the successor of the defendant to apply to set it aside the default judgment \\and for leave to defend the action. At the hearing of the application, the plaintiff’s lawyer challenged the procedure by which the applicant, a stranger to have the judgment set aside, relying on Jacques v Harrison (supra). The High Court judge held that the applicant, by obtaining the consent of the successor of the defendant, made an effort to bring himself within the first rule in Jacques v Harrison, so in order to avoid failure of justice, he would mould the order so as to grant standing to the applicant. The court then proceeded to set aside the default judgment. The learned judge quoted the English Court of Appeal case of Minet v Johnson[11]
The plaintiff appealed to the Court of Appeal. In the Court of Appeal, Abban JA (with Wuaku and Ampiah JJA concurring), repeated what his lordship stated in Gbagbo v Owusu concerning the two alternative modes by which a stranger to an action who is injuriously or adversely affected by a judgment may acquire standing to apply to set aside. At page 508 of the Report, Abban JA, after referring to Order 38 rule 18 of LN 140A (dealing with the setting aside of a judgment obtained in default of defendant attending at the trial) said as follows:
“It seems to me that the person who can apply to set aside the judgment under Order 36 r 18 LN 140A is the defendant or any other third person who is adversely or injuriously affected by the judgment, provided he adopts one of the two modes outlined earlier in the judgment, so as to acquire locus standi. Only those who have or can acquire locus standi can bring the application; and the provisions do not give a locus standi to a person who has none.”
The Court of Appeal distinguished the case before it from Jacques v Harrison and Minet v Johnson by saying that in those cases, there was a defendant in existence from whom the applicant could obtain permission or who could be served with the application of the stranger, but in the case at bar, the defendant had died and there had been no substitution. The court, accordingly held that the applicant did not properly acquire locus standing to apply to set aside the default judgment. But the Court of Appeal allowed the appeal on the main ground that the applicant did not have any defence on the merits, as the sale of family property to satisfy the personal debt of an administratrix was void and conferred no title in the purchaser. The court observed that no useful purpose would be served by setting aside the judgment.
From the above analysis, it can be observed that the decision in Lamptey v Hammond was in respect of an application to set aside a default judgment which was permitted by the rules of court. The issue in the case was about the locus standing of a non-party to the action to apply to set aside the judgment. That notwithstanding, Abban JA, in stating the rule did not qualify it as applying only in applications to set aside default judgment, just as he held in Gbagbo v Owusu. It is therefore necessary to trace the rule to its origin in English law, from where it was adopted, to ascertain whether it applies to final judgments as well or it is only applicable to judgment entered in default by a party. The case which Abban JA relied on is Jacques v Harrison. It is that case which first laid down the rule for the English courts.
Jacques v Harrison’s take
The facts are as follows, the action was brought by the plaintiff against the defendant for the recovery of a parcel of land following a forfeirure of the lease for breach of covenants in the building lease which was granted by the defendant. The lease had been deposited by the defendant with a housing society which had advanced a large sum of money on the security of the lease. At the time the defendant was sued, the defendant had no interest in the matter, so the defendant did not contest the matter seriously and judgment in default was entered against the defendant. A writ of possession was subsequently issued in the matter, under which the plaintiff took possession of the land. The society who were the equitable mortgages of the lease, went into liquidation before the plaintiff’s action was brought, and the official liquidator got to know of the case when the plaintiff took possession of the property. The liquidator cause proceedings to be taken in the Chancery Division to set aside the order of forfeiture, on the ground that no proper notice under the Conveyancing Act, 1881 (44 & 45 Vict c 41), s 14 had been given by` the plaintiff before the action was brought. Bacon V-C, before whom the matter came, considered that the judgment ought to be set aside, as the want of notice as required by the Conveyancing Act was a defence to the action. However, under the Judicature Act, the case was not cognizable in the Chancery Division, so Bacon V-C directed that the application for the purpose should be made to the Queen’s Bench Division.
An application by summons was, accordingly, made to Field J. in chambers, for an order to set aside the judgment, but such summons was taken out by the official liquidator in his own name without making the defendant a party to it. Field J, therefore, dismissed the application, as it was made by a stranger to the action. The Queen’s Bench Division reversed that decision, and set aside the judgment on the ground that the court had power to do so under Order 27 r 15 of the English Rules, as the rule gave the official liquidator a locus standi. The plaintiff appealed to the Court of Appeal. Order 27 r 15(1) of the English rules provided as follows: “Any judgment by default, whether under this order or under any other of these rules, may be set aside by the court or judge upon such terms as to costs or otherwise as such court or judge may think fit.” Bowen LJ who delivered the opinion of the court stated at pages 167-168 of the Report as follows:
“There are, so far as we can see, only two modes open by which a stranger to an action, who is injuriously affected through any judgment suffered by a defendant by default, can set that judgment aside; and these two modes are amply sufficient to protect any such stranger in all cases in all his rights. He may, in the first place; obtain the defendant’s leave to use the defendant’s name, if the defendant has not already bound himself to allow such use of his name, apply to have the judgment set aside on such terms as the judge may think reasonable or just. Or he may, if he is not entitled without further proceedings to use the defendant’s name, take out a summons in his own name at chambers to be served on both the defendant and plaintiff, asking leave to have the judgment set aside, and to be at liberty either to defend the action for the defendant on such terms of indemnifying the defendant as the judge may consider right, or, at all events, to be at liberty to intervene in the action in the manner pointed out by the Judicature Act, 1873, s 24, subs. 5”.
As to whether the Order 27 r 15(1) gave standing to a stranger to an action to apply to set aside the judgment, his lordship stated as follows: at pages 169-170 of the Report:
“The Divisional Court decided in his favour, reversing the judgment of Field J., on the ground that Order XXVII, r 15, gave the respondent a locus standi. Strictly, speaking we should have been disposed to think that this decision was incorrect as matter of practice and a misconception of the effect of the rule, which was not designed to give a locus standi to persons who had non, but to enable judgments by default to be set aside on terms by those who had or who could acquire a locus standi.”
By this decision, the English Court of Appeal was explicit in stating that the procedure it laid down by which a stranger could acquire standing to apply to set aside a judgment, applied only specifically in instances where the application is for the setting aside of a judgment entered as a result of the defendant’s default.
Conclusion
I will conclude by arguing stating that locus standing or simply standing, is one of the core principles on which the common law operates. At common law, the jurisdiction of the court can only be invoked by persons who have interest in the subject matter in respect of which they seek relief. The policy consideration is to make maximum use of the resources of the court by dealing with only live issues.[12]
Secondly, the oft-quoted principle in Gbagbo v Owusu and followed subsequently in Lamptey v Hammond which traces its root from the English case of Jacques v Harrison has laid out the rule clearly from the analysis that the principle can be invoked when the judgment is in default and not when the judgment final. Also a stranger who is adversely affected by a default judgment and who wished to have such judgment set should satisfy the requirements under the rules in the above cases. In Board of Governors of Achimota School v Nii Ako Nortei II & 2 Others, case the venerable Dotse JSC poignantly stated: “….the Court of Appeal erred in relying on the rule in Lamptey v Hammond, supra and its subsequent application in In re Nungua Chieftaincy Affairs: Odai Ayiku IV v Attorney-General (Borketey Laweh XIV-Applicant)[13] The rule does not apply under the special circumstances of this case, particularly so, when the plaintiff has raised the issue of fraud against the defendants.”
Also, when application is filed in court to set aside a judgment or order of the court, it is the duty of the court to determine first, the status of the judgment or order which is sought to be set aside, before determining the issue of the procedure to be adopted to set aside the judgment or order, and the requirement of locus standi. The procedure by which a non-party may set aside a default judgment is different from the procedure to be adopted if the judgment is void or is final.[14] As brilliantly opined by Pwamang JSC in Board of Governors of Achimota School v Nii Ako Nortei II & 2 Others case. “The final judgment of a court may be set aside by way of an appeal, certiorari, or by instituting a fresh action alleging voidness, fraud or collusion.”[15]
[1] [1880] 14 CH D 458 at 463
[2] R c Commissioner of Police, exparte Blackburn v Attorney-General (1971) 1 WLR 1037; R v Police Commissioner, Ex parte Blackburn, (1973) QB W241; R v CLC, Exparte Blackburn (1976) 1 WLR 550
[3] (1977) 2 WLR 974
[4] Debora oduro suiing per her lawful next friend and father Anthony Boafo v Comfort Oduro and Another, Civil Appeal, No. H1/21/2018, dated 27th February 2019, CA (Unreported)
[5] Civil App. No. J4/49/2020, dated 21st April 2021, SC (unreported).
[6] Civil Appeal, No. 1/235/2016 dated 28th July, 2016 SC, (Unreported).
[7] [2009] SCGLR 185
[8] (4th ed) Vol. 26 para 506
[9] [2012] 49 GMJ 144 CA
[10] [2019-2020] 2 SCLRG 125
[11] [1890]] 63 LT 507
[12] Ware v Regent’s Canal’s Co [1858] 3 De G&J 212.
[13] [2012] SCGLR 413
[14] See Nai Otu Tetteh v Opanyin Kwadwo Ababio [2017-2018] 2 SCLRG 641.
[15] Punjabi Brothers v Namih [1962] 2 GLR 48; Arnold v National Westminster Bank Plc [1991] 2 AC 93; Osei-Ampong v Ghana Airports Co. Ltd [2013-2014] 1 SCGLR 25
