Seeking Default Judgments over Declaratory Reliefs Under Ghana Law – Navigating the Procedural Nuances
Voice Summary by Author:
Introduction.
The objective of every Plaintiff who commences an action either by issuance of writ,[1] petition[2] or an originating motion on notice[3], is to obtain a favourable judgment, either for the reliefs claimed or for better reliefs if any. When a Writ of Summons and Statement of Claim is issued and served on the Defendant, the rules of Court require that the Defendant(s) (as the case may be) has(have) eight (8) days to enter appearance[4], file a Statement of Defence within fourteen days[5]. The number of days for filing a Statement of Defence depends on the kind of Appearance that will be filed by the Defendant. If a Defendant files a Conditional Appearance,[6] the Defendant has fourteen days within which to file an application to set aside the Writ or service or same,[7] and fourteen days from then to file a Statement of Defence. When a defense is filed, a reply may be filed if need be[8] and pleadings are deemed closed seven days after service of reply.[9] Application for Directions are taken within one month after close of pleadings[10], Orders are made for compliance with CI 87 regarding Witness Statements among others for trial to commence after Case Management Conference is conducted. When a Defendant refuses to file an Appearance or Defence, there is a default and the rules provide for how a Plaintiff in that regard must proceed.
In this article, the author discusses the procedural nuances on proceeding in a suit for declaratory reliefs where a Defendant defaults in taking a step, discusses some judicial decisions in this regard, explore the options available to such a Plaintiff under the High Court Civil Procedure Rule and concludes that in such instances, the Plaintiff has two options to adopt.
Default Judgments
A default judgment is a type of judgment taken against a party who refused to take a step in civil litigation. It could be default of Appearance and default of Defence. According to the Random House Webster’s Dictionary of the Law, default judgment is “a judgment against a party for failing to appear or to proceed with a case.”
The Procedure Rules provide that, if the relief is for liquidated demand[11] and the Defendant fails to enter appearance, the Plaintiff can apply for Final Judgment in Default of Appearance.[12] If the relief is for unliquidated demand[13], the Plaintiff can apply for interlocutory judgment and proceed to prove damages[14]. If the Defendant files an Appearance and fails to file a Defence, the above also applies, i.e. the Plaintiff applies to the Court for a final judgment for default of Defence for a liquidated demand[15], and interlocutory judgment for unliquidated demand[16].
When the relief being sought is neither liquidated nor unliquidated, the Plaintiff cannot proceed in default by motion for judgment under the rules of Court. Declaratory relief in a suit is when a Plaintiff sues and seeks from the court orders that are declaratory in nature. For instance, a declaration that an act by the defendant is unlawful, negligent, a declaration that the comment of a defendant Is defamatory etc. When the Plaintiff’s action is for a declaratory relief and the Defendant does not file appearance, the rules provide with the caption ‘Actions not specifically provided for’ thus, “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 as if the defendant had file appearance”.[17] The Rules further provides thus “Whether the Plaintiff makes a claim of a description not mentioned in rules 1 to 4 but because the defendant satisfies the claim or complies with the demand or for some other reason becomes unnecessary for the plaintiff to proceed with the action, then if the defendant fails to file appearance, the plaintiff may, after the time limited for appearance, apply for the award of costs against the defendant[18]”. With regard to instance where the relief is declaratory and the Defendant files appearance without a defense, the rules provides that “Where the plaintiff makes against a defendant a claim of a description not mentioned in rules 1 to 4 and the defendant fails to file a defense to the claim, the plaintiff may, after the expiration of the period fixed by the Rules for filing the defence, apply to the Court for judgment”
Cardinal Importance of Procedure in Litigation.
In the administration of justice, there is the substantive law and the procedural law. Substantive law is the substance of the law, the core issues grounding the cause of action for a person to mount an action, it could be contract, tort, immovable property, insurance etc. Procedural law has to do with the procedure with which a person can ventilate his or her rights. The law is that if the law prescribes a particular procedure or way of doing something, it is that and only that procedure or way that a person can use to do that thing without more. “The law was clear that where an enactment had prescribed a special procedure by which something was to be done, it was that procedure alone that was to be followed.”[19] This shows the importance of the rules of procedure in civil litigation. Practitioners often fall into the temptation of inviting the Courts to waive certain irregular steps they may have taken in civil litigation before the Court and the reliance is usually placed on the ‘Almighty’ Order 81 of C.I. 47. The said Order 81 (1) of the High Court Civil Procedure Rules provides that “Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left to undone, been a failure to comply with the requirement of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall [not] be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order in it”. Sub rule 2 thereof provides that “The Court may, on such ground that there has been such a failure as stated in sub rule (1), and on such terms as to costs or otherwise as it considers just (a) set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein; or (b) exercise its powers under these Rules to allow such amendments to be made and to make such order dealing with the proceedings generally as it considers just.” This rule, unlike the effect of its previous provision in LN 140A[20], allows the court to cure certain irregularities in steps taken in civil litigation. Although this rule so provides, it is not an omnibus ground to run for cure in certain missteps. Indeed, the Courts in some cases[21] have held that, not all irregularities can be cured by Order 81 of C.I 47.
In essence, when the irregularity affects only the procedural rules, the court may use its discretion to cure the irregularity, but if for instance the breach or irregularity in addition to the procedure rules also breaches certain fundamental rules like, capacity, jurisdiction and the cardinal principle of the rules of natural justice, such breaches or irregularities cannot be cured with the powers bestowed on the courts by Order 81.
The Courts have emphasized on the importance of adhering strictly to the procedural Rules of the Court. It is through the procedure, that a party asserts his or her rights at substantive law. In the case of Patrick Ankomanyi v Hannah Buckman[22], the Supreme Court speaking through Vida Akoto Bamfo JSC, sounded a warning to senior members of the bar and commented on the importance of the rules of court thus, “Senior members of the Bar owe a duty to the profession to nurture junior members in the best practices of the Bar. Rules of Court are not ornamental pieces; they are meant to be complied with….” Archer JA (as he then was) in the case of GIHOC v Vincentia Publication[23]likened the rules of Court to the Queensbury Rules in boxing when he said, Rules of Court, like the Queensbury rules in boxing are meant to be observed by litigants and enforced by the courts. Their Lordships per Akamba JSC in the case of Republic v High Court Accra, Ex Parte Tweneboah Koduah[24] (cited with approval in Nana Ampofo Kyei Baffour v Justmoh Construction Company Limited 113 (2017) GMJ 119 SC per S.O.A Adinyira JSC, “There is an emerging tendency in practice today to consider that the rules of procedure indeed do not matter, so long as an application is placed before the court. Yet, the rules of procedure are an integral as the substantive law to the success of the trial processes. It is therefore essential that time lines set down under the rules of Court are adhered to, to facilitate timely trials. Infringement of these rules without reasonable justification should be met with corresponding sanctions or denials.” Lastly, stressing on the equality of the importance of the rules of Court vis-àvis substantive law rules, this is what their Lordships had to say in the famous case of Standard Bank Offshore Trust Co. Ltd v National Investment Bank and Others[25] “The Rules of Court form an integral part of the laws of Ghana, see article 11(1)(c) of the 1992 Constitution. Consequently, they must be treated with equal amount of respect in order to produce sanity in court proceedings”
Most practitioners and even sometimes some judges, miss this step on proceeding in taking default judgments when the relief in the suit are declaratory in nature. Evidence of this is seen from the cases being discussed in this paper by the author. Therefore, in a civil action where the reliefs by the Plaintiff include declaratory reliefs, the obvious step to take is not to proceed ex parte in default of appearance as if the relief is liquidated demand. It is the submission of the author that in such an instance the Plaintiff would have about two options to proceed in obtaining judgment against the Defendant who fails to enter appearance, and in each instance same must be on notice. This article shall briefly discuss these two options, throw light on them and draw attention through case law on the way to proceed in such matters, since it is not uncommon to see instances where litigants on advice of counsel proceed in error in this regard.
It is seen under the rules of Court that Order 10 of CI 47 deals with taking judgments in default of appearance. The law is clear that for liquidated demand in which a defendant fails to enter appearance, final judgment[26] may be taken against such defendant and the Plaintiff in this regard can proceed ex parte[27], in the event of a non-liquidated demand, the Plaintiff can take interlocutory judgment against that defendant and prove damages…[28]. The rules also provide for other reliefs like Claim in detinue[29], Claim for possession of immovable property,[30] mixed claims[31]. For all other reliefs for which the rules have not expressly provided for, there is a way to proceed and that is the focus of this piece.
The Courts have had cause to pronounce on such matters in a number of cases and the same shall be discussed presently.
In the case of Republic v. The High Court, Winneba, Ex Parte Professor Mawutor Avoke (Supi Kofi Kwayera, University of Education, Winneba and Ministry of Education as Interested Parties)[32], the Supreme Court had an opportunity in a judicial review application to speak on this issue. The Applicant, who was the Vice Chancellor of the University of Education Winneba prayed for an order of certiorari directed at the High Court Winneba presided over by His Lordship Ato Mills Graves dated 2nd May 2018 in the suit entitled Supi Kofi Kwayera v University of Education, Winneba and Another[33]. The facts forming the basis for this application were that, the 1st Interested Party, a former Assembly man for Efutu (Donkoyem), commenced an action by originating motion on notice against the 2nd and 3rdInterested Party, praying for about 10 declaratory reliefs.
The 2nd Interested Party through its counsel[34] challenged the procedure adopted in seeking these reliefs. Their Counsel therefore filed an application to the High Court, Winneba to dismiss the suit on two main grounds, namely (a) that the action ought to have been commenced by a writ of summons but not a motion and (b) that the 1st Interested Party had no capacity to institute the action against them. The learned trial Court refused the application and thereafter granted an application for injunction filed by the 1stapplicant against the 2nd and 3rd Interested Party. The 2nd and 3rd Interested Party filed an appeal at the Court of Appeal but did not pursue the said appeal. The University Teachers Association of Ghana (UTAG) Winneba Chapter filed an application for joinder to protect the interest of its members, which was also refused. The UTAG Winneba therefore applied to the Supreme Court for an order of certiorari which was granted and quashed the decision of 10/07/2017. The Supreme Court speaking through Pwamang JSC, in setting aside the ruling of the court below, said that they were at liberty to issue a writ of summons to have the grievances addressed. With this liberty, the 1st interested Party issued a new writ at the High Court Winneba against the 2nd and 3rd Defendants and prayed for four declaratory reliefs, namely (i) A declaration that the extension of the mandate of the Governing Council of the 1st Defendant by the 2nddefendant to stay in office to perform such functions as properly appointed council was in breach of section 8 of Act 672, (ii) A declaration that no authority or institution of state has any power to extend the tenure of a member of the Governing Council of the 1st defendant unless such extension is in accordance with Act 672, (iii) A declaration that all appointments made by the defunct Governing Council which constituted themselves as the Governing Council of the 1st Defendant by virtue of the directives of the 2nd Defendant are null and void and of no legal effect, (iv) A declaration that all decisions taken by the de facto body of persons who constituted themselves as Governing Council is null and void and of no effect. The 1st Interested Party (Plaintiff therein) on the 2nd May 2018 made an ex parte application for judgment in default of defence against the 2nd and 3rd Interested Parties(Defendants therein) on the grounds that they had not entered both appearance and defence, which application was erroneously granted by the learned trial High Court judge. Again the 2nd and 3rd Interested did nothing about this ex parte judgment against them. It took the Applicant in this case, Prof Mawutor Avoke, who was a stranger in the suit below whose judgment is the subject matter of the certiorari application, to bring a certiorari application before the supreme court to quash the erroneous ex parte judgment granted by the learned High Court judge on 2nd August 2018. The Applicant advanced two grounds for the application. The second ground of which is relevant to this discussion. The said ground read thus “that since the reliefs sought by the plaintiff were all declaratory, the rules of the High Court [C.I 47] and settled authorities of this Court do not permit the trial court to enter default judgment in such claims without any legal arguments and/or testimony from the plaintiff in proof of the reliefs. For entering judgment in default of defence in respect of declaratory claims, the trial court had committed a fundamental error of law which the decision complained of must be quashed on certiorari”.
In arguing this ground, learned Counsel for the Applicant[35] contended and rightly so in the author’s view that, the rules of the High Court did not lend support to the grant of default judgment in respect of declaratory reliefs as the learned trial court did. They argued that, since the reliefs claimed by the 1st Interested Party (Plaintiff therein) in his writ of summons were declaratory ones, the trial judge could not have entered default judgment simpliciter against the 2nd and 3rd interested parties either in default of appearance or defence without calling on the plaintiff to establish his claim, even granted they were served with the writ of summons but failed to enter appearance or file defence. Not only was this argument acceptable to the Supreme Court, but in the view of their Lordships, the Applicant’s argument was inviolable and the 1st Interested party could not provide any answer to that argument. The Supreme Court speaking through His Lord Yaw Appau said thus in conclusion “Having failed to take evidence and /or legal arguments from the 1stinterested party in proof of his declaratory reliefs before entering judgment against the 2nd and 3rd Interested Parties in his favour on same in default of both appearance and defence, the trial court seriously erred for which reason its decision must not be made to stand. This is a clear case where certiorari must lie. In the circumstances, we grant the application for certiorari and order that the judgment of the High Court dated 2nd May 2018 be brought before this Court for the purpose of it being quashed and same is hereby quashed.”
From the reasoning of the Court in the Ex Parte Avoke case supra, one can infer that once the reliefs being sort is or includes declaratory reliefs, if the defendant fails to enter appearance, the Plaintiff can only proceed as if the Defendant has entered appearance as per Order 10 rule 6. In that regard, it is the submission of the author that any subsequent application or step must be on notice to the Defendant who has failed to enter appearance. Proceeding ex parte in that regard is not only procedurally defective, but amounts to a breach in the rules of natural justice and such a judgment devoid of its merit is susceptible to a quashing order under the supervisory jurisdiction of the Supreme Court.
The other case worth considering is the case of Rev. De-Graft Sefa and Others v Bank of Ghana[36] cited with approval in the Avoke case supra, his Lordship Gbadegbe JSC expressed the sentiments of the Supreme Court in these words “the settled practice of the courts is that a declaratory relief cannot be obtained by a motion in the cause but after hearing the parties either by way of legal argument or a full scale trial.” The Plaintiffs had taken out a writ against the Defendants for two declaratory reliefs and one relief for recovery of a liquidated sum. The two declaratory reliefs were (a) A declaration that the deliberate and or intentional act of the 1st defendant, 2nd defendant and 3rd defendant permitting and or indulging the 4th defendant to operate commercially as a bank concern in the Greater Accra Region, Ashanti Region and Brong Ahafo Region respectively for over 2 (two) years without the requisite Bank of Ghana banking licence was not only negligent and or unconscionable but unconstitutional, fraudulent and legally impermissible and as result have caused substantial miscarriage of justice and civil injuries to the plaintiffs. (b) A declaration that by the testimony of the Representative of the Governor of the Bank if Ghana and Head of Banking Supervision (i.e. 2nd and 3rd defendants) herein on oath in Civil Suit No RPC 102/2012 admitting and confirming that the Bank of Ghana was aware that the 4th Defendant was operating and also failing to warn the General Public from dealing with 4th defendant who was operating illegally and fraudulently in foreign transactions/exchange amounted to breach of article 183(2) of the 1992 Constitution of Ghana and Banking Act, 2004 (Act 673.)
Upon service of the Writ and Statement on the defendants, the plaintiff applied for judgment in default of appearance against the defendants on July 16, 2012. The learned trial court delivered itself in this manner, Motion is granted as it has merits. Plaintiffs are at liberty to enter final judgment for relief (d) and interlocutory judgment for the other reliefs. Cost calculated at 10% of the amount stated in relief (d) is allowed for plaintiffs”. The court in essence entered interlocutory judgment for the declaratory reliefs and final judgment for the liquidated demand. The defendants entered appearance subsequently out of time and applied to the court to transfer the suit to Accra, but unknown to them judgment had been recovered against them a day earlier. Defendants then applied for leave to enter appearance out of time and filed for stay of execution. The two applications were refused by the trial High Court, Kumasi and an appeal to the Court of Appeal Kumasi was also unsuccessful. On a further appeal to the Supreme Court, the Court observed that, there is also a question of procedure of some importance which is disclosed by the appeal herein that unfortunately was not adverted to by the learned justices of the Court of Appeal whose function it was in the nature of re-hearing. The proceedings of July 16, 2012 at which default judgment the subject of the appeal was entered….. The Supreme Court said that “At law, the said declaratory reliefs which were proceeded with by the learned trial judge without jurisdiction on July 16, 2012 are still pending and creates a compelling reason that leaves us with no discretion in the matter but to annul the said award in order to preserve the procedural integrity of the court.” The Court further that, “In our view, the trial court erred in considering the applications to sign default judgment at that stage as it is precluded by Order 10 rule 6 from doing so. The said rule provides: “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 of service of the writ and statement of claim on the defendant proceed with the action as if the defendant had filed a defence””. Their Lordships clarified this point when they said “A careful reading of Order 10 of the High Court (Civil Procedure) Rules, CI 47 reveals that a declaratory relief does not come within the reliefs mentioned in rules 1 to 4 of the order and this is justifiably so because the settled practice of the court is that a declaratory relief cannot be obtained by a motion in the cause but after hearing parties either by way of legal argument or a full scale trial…….” They emphasized the point being made thus, “The point being made here is that as the judgment ex parte was not authorized by the rules and had the learned justices in their corrective function adverted their minds to this procedural lapse, they will in all probability have intervened to grant the application of the appellant.” From the dictum of their Lordships, one could be fortified in the view that in proceeding for default judgment in declaratory relief, the plaintiff ought not to proceed ex parte even if the defendant has not yet filed an appearance.
The same approach is adopted under Order 13 which deal with Judgment in default of defence. The rules provide in similar fashion that, “Where the plaintiff makes against a defendant a claim of a description not mentioned in rules 1 to 4 against a defendant, and the defendant fails to file a defence to the claim, the plaintiff may after the expiration of the period fixed by these Rules for filing a defence, apply to the court for judgment.”[37] In the earlier case of the Republic v The High Court, Accra Ex Parte Dr. Ernest Asiedu Osafo[38] even though the declaratory judgment was in default of defence, the Supreme Court did not give its assent to the said judgment on the basis that it was a clear departure from the well-known and settled practice of the court and the mandatory requirement of order 13 rule 6(1) and (2). The Court speaking through Gbadegbe JSC posited that “…. The question that comes up is whether in making the said order the court acted in accordance with due process. Since the substantive order made is a declaration, by the settled practice of the courts, such orders to be good must be made only after hearing all the parties to the action or at least offering them an opportunity to be heard”. He cites the case of Metzger v Department of Health & Social Security[39]per Megarry VC at 451 thus “The court does not make declaration just because the parties to litigation have chosen to admit something. The court declares what it has found to be the law after proper argument, not merely after admission by the parties. There are no declarations without argument; that is quite plain.” The Court opined that “the purpose of the insistence that the court makes declarations only after hearing the parties is sufficiently retained in Order 13 rule 6 (1) and (2) of the High Court Rules, CI47 by the requirement that in actions to which the claim that resulted in the judgment in which declaratory judgment was granted (actions not specifically provided for), the court shall give such judgment as the plaintiff may be entitled by his statement of claim.
In our view, the rule that authorizes the court to enter judgment in default of pleadings in the cases to which Order 13 rule 6 (1) and (2) apply by the words in which it is expressed make it subject to among other the practice of the court as is contained in previous determinations and practice books as regulating the exercise by the court of its power to grant default judgments in respect of specific reliefs.” In further emphasizing the need to put the defaulting defendant on notice on these proceedings, the court proceeds thus, “From the references made in respect of declaratory judgments in the course of this delivery, we think that since declarations belong to a particular class or type of relief that may be allowed by a court in favour of a party, the use of the words “such judgment as the plaintiff appears entitled to….” means that in making such order the judge before whom the application is placed should take into account matters, such as for example the practice of the court that regulates the exercise of the power conferred on him. In the instant case, we think that before making a declaratory order, the court should receive evidence from the parties in the manner as appears from the statements alluded to which we accept as correct expositions on the practice of the court in such matters. The insistence on hearing the parties, in our thinking enables the judge who is invited to make the order hear from them before making pronouncement that are good and not limited to only the parties in dispute. This requirement in our view is settled when the judges ensures that the parties to the dispute particularly the one against its pronouncement is sought is served to appear before the court.”
What then does it mean to proceed as if the defendant has entered appearance under Order 10 rule 6?
As discussed supra and from the cases, when the relief is declaratory and the defendant does not enter appearance, one can only have judgment by full trial or legal argument by proceeding as if appearance has been entered. In proceeding as if the defendant has entered appearance, does it mean the plaintiff can apply on notice for judgment in default of defence? Or it means the Plaintiff can file for directions and file witness statement? In the case of Nii Odai Ayiku IV The Attorney General and Wor-Nii Bortei Bortelabi Laweh XIV[40] their lordships of the Supreme Court considered the meaning of the phrase “”the plaintiff may proceed as if the defendant has filed an appearance. In that case, the Plaintiff issued a Writ of Summons and Statement of Claim against the Attorney General for declarations (i) That E.I 18 Nungua Chieftaincy Affairs (Nii Odai Ayiku IV) (prohibition Instrument 1983 E.I 18 is null and void having been based on facts which are untrue” (ii) That the E.I cannot operate to “destool” the Plaintiff without judicial process and (iii) That notwithstanding E.I. 18 the plaintiff is the lawfully enstooled Mantse of Nungua and entitled to exercise the function appertaining to that status”. Even though the writ was served on the Attorney General, a search revealed that they failed to file an appearance whereupon the Plaintiff filed for an application for judgment in default of appearance on 7th May 2001. On 10th May 2001, the application having been heard by Ebiasah J was granted in the following words, “Judgment is hereby entered for the plaintiff/applicant against the defendant for all the reliefs on his writ”.
There were attempts subsequently by the Attorney General to set aside the default judgment but the application was unsuccessful. The Respondent also applied to set aside same as it affected him. That Application was opposed by the Plaintiff. The Application was heard and granted by the court per Dr. Justice Ebiasah on 10th May, 2001 thus, “The judgment itself appears to have been entered ex parte it reads tersely as follows “Judgment is hereby entered for the Plaintiff/Applicant for all the reliefs endorses on his writ. The writ itself had asked for certain reliefs annulling E. I 18 which deals with Nungua Chieftaincy Affairs. It appears to me that the learned trial judge did not consider the substance of the claim. The claim deals with an executive instrument and the question which arises ex facie was whether the High Court had jurisdiction to deal with a cause or matter affecting Chieftaincy. The claim had purported to raise matter in relation to who is a chief of Nungua. That being to the learned judge ought to have declined jurisdiction. In the light of the above, I shall set aside the judgment as a (SIC) null and void. Application granted as prayed, No order as to costs”.
The Plaintiff being dissatisfied appealed unsuccessfully to the Court of Appeal, the appeals being dismissed on 31st July 2008 by a unanimous decision. The Plaintiff on 4th August 2008 filed another appeal to the Supreme Court. On what is meant by the action may proceed as of the party had filed appearance. Counsel for Plaintiff under thus ground asked thus “what it means to say that the action may proceed as if the party who failed to file appearance to the writ of summons had appeared. He posed the following questions which he answered. Does it mean that the Plaintiff should proceed to file a reply (to what?). Take out issues for trial (based on what rival contentions and proceed to trial by calling evidence to establish the plaintiff’s claim)? These were questions that weighed on the mind of Counsel for Appellant. To these questions, their Lordships answered thus, “With all due respect to counsel, it is not procedurally impossible indeed ridiculous for the plaintiff to proceed as if such party had appeared. The plaintiff cannot file a reply when no appearance had been entered and for that matter, a defence filed. Neither can summons for directions be taken when no issues are joined. All that “proceed as if such a party had appeared” means is that the case is set down for hearing. The plaintiff must lead evidence in proof of his claim. Where a plaintiff claims a declaration of title, he still has to lead evidence in proof of his title notwithstanding failure on the part of the defendant to enter appearance.” In this case therefore the Supreme Court has laid more emphasis of the way to proceed with emphasis on what it means to proceed as if the other party had filed appearance, which means in their Lordships’ view is to set the case down for hearing and lead evidence, of course on notice, because the defendant is deemed to have entered appearance and therefore in the matter before the court.
From the above discussion, it is the submission of the author that if the defendant fails to file appearance in a matter which has declaratory reliefs, the Plaintiff cannot proceed ex party in any step he or she takes. Any step after the default must be on notice. Such Plaintiff cannot obtain judgment merely by motion. He must either submit legal arguments or set down the action from trial, lead evidence to establish his claim before judgment is obtained. Any other step will be against the rules and such breaches can cause any further step to be set aside.
Conclusion
It is therefore worthy of note that, although the rules of court provide for proceeding against a party who fails to enter appearance to a Writ of Summons, the way to proceed or procedure to adopt is spelt out in the rules (by legal arguments or full trial by leading evidence) and failure to use that procedure may render any order or judgment a party obtained not only irregular or a breach of the procedural rules, but also null and void and incurable by Order 81 of C.I 47. After all, just as Christians believe the only way to reach God is through Jesus Christ, (Jesus said, I am the way the truth and light and the life, no one comes to the Father except by me) and Muslims believe they reach Allah through Mohammed, litigants can also assert their rights at substantive law, by following the right procedural rule. Litigants and Practitioners, Beware!!
[1] High Court (Civil Procedure) Rules 2004 CI 47, Order 2 rule 2
[2] Ibid order 65 rule 2
[3] Ibid 55 and where any legislation provides for commencing an action by such mode
[4] Ibid Order 9 rule 5(a)
[5] Ibid Order 11 rule 2(1)
[6] Ibid Order 9 rules 7
[7] Ibid Order 9 rule 8
[8] Ibid Order 11 rule 3
[9] Ibid Order 11 rule 19
[10] Ibid Order 32 rule 2(1)
[11] S. Kwami Tetteh, Civil Procedure, A Practical Approach, p. 327
[12] Supra (n.1) Order 10 rule 1
[13] Ibid
[14] Ibid Order 10 rule 2
[15] Ibid Order 13 rule 1
[16] Ibid Order 13 rule 2
[17] Ibid Order 10 rule 6(1)
[18] Ibid Order 10 rule 6(2)
[19] Boyefio v NTHC [1997-98] 1 GLR 768 holding 3
[20] Order 70 of LN140A”
[21] Republic v High Court Accra; Ex Parte Allgate Co. Ltd [2007-2008] SCGLR 1041, Boakye v Tutuyehene [2007-2008] SCGLR 980
[22] Unreported Civil Appeal No. J4/43/2013 judgment on 26/02/2014
[23] 1971 GLR 24 @ 26
[24] [2015] 81 GMJ
[25] Civil Appeal No. J4/63/2018 judgment on 21/06/2017
[26] Supra n. 1Order 10 rule 1 CI 47
[27] On the face of the Writ of Summons, the defendant is notified thus “You are hereby commanded that within eight days after service of this writ on you inclusive of the day of service you cause an appearance to be entered for you….And take notice that in default of your so doing, judgment may be given in your absence without further notice to you”
[28] Order 10 rule 2 of CI 47
[29] Order 10 rule 3
[30] Order 10 rule 4
[31] Order 10 rule 5.
[32] Civil Motion No. J5/45/2018 dated 31st October 2018
[33] Suit No. E12/30/18
[34] Peter Zwennes Esq with him Frederick Gurah Sampson Esq.
[35] Prof Raymond Atuguba with him Harold Atuguba Esq
[36] Civil Appeal No. J4/51/2014 decision on 19 November 2015
[38] [2011] 2 SCGLR 966
[39] [1977] All 444
[40] Civil Appeal No. J4/16/2009 judgment on 17/02/2010
