ALFRED KUDAH & ANOR VRS NDK FINANCIAL SERVICES LTD. (GJ/0896/2023) [2024] GHAHC 315 (10 May 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE [COMMERCIAL DIVISION] HELD IN ACCRA ON 10TH MAY, 2024 BEFORE HIS LORDSHIP JUSTICE EMMANUEL ATSU LODOH GJ/0896/2023 1. ALFRED KUDAH 2. MILLICENT MAWULORM DORDUNU C45 RING ROAD EST GL-005-5762, ACCRA PLAINTIFFS/APPLICANTS VRS NDK FINANCIAL SERVICES LTD NO. 2 28TH FEBRUARY ROAD OSU-ACCRA DEFENDANTS/RESPONDENTS RULING ON MOTION FOR SUMMARY JUDGMENT Introduction This ruling is the outcome of a motion on notice for summary judgment filed by the Plaintiffs/Applicants (hereinafter to be called “Plaintiffs”) against the Defendants/Respondents (hereinafter to be called “Defendants”). The Plaintiffs are seeking for summary judgment for all the reliefs endorsed on their Writ of Summons. Procedural History The procedural history of this case is that the Plaintiff on 2nd June, 2023 took out a writ of summons against the Defendant seeking the following reliefs: 1 of 7 (a) An order directed at the Defendant to pay the accrued sum of One Hundred and Twenty seven thousand nine hundred and eighty two Ghana Cedis and Twenty-Eight Pesewas (GHS127, 982.28) being invested amount and the interest thereon as at the 18th day of October, 2022. (b) Interest on the said amount from the 18th day of October, 2022 to the date of final payment. (c) Damages (d) Cost The Defendants entered appearance to the suit on 3rd August, 2023. Subsequent to the entry of appearance by both defendants, the record will show that only the 1st Defendant filed a Statement of Defence on 7th December, 2023. On the same day counsel for the Defendant filed an application for the misjoinder of the 2nd Defendant. The said application for misjoinder was granted on 5th February, 2024. Competency of the Application Before I proceed to determine the merits of the application, I find it necessary to determine the issue regarding the competency of the application raised by the defendant in their Affidavit in Opposition filed on 17th April, 2024. The facts circumscribing the competence of the application were deposed to in paragraph 5 and 6 of the affidavit in opposition as follows: 5. That I am advised by Counsel and verily believe same to be true that in an application for summary judgment the reliefs sought by the Applicant must be set out on the face of the motion paper. 6. That I am advised by Counsel and verily believe same to be true that the instant process filed by Applicants is incompetent under the rules of the Honourable Court. 2 of 7 As correctly stated by the deponent in the affidavit in opposition, an examination of motion paper will disclose that counsel for the Plaintiff failed to disclose the reliefs sought in the instant application on the face of the notice. The Law Counsel for the Defendant in his written submissions submitted that Order 14 rule 2(1) requires that the motion paper shall set out specifically the reliefs sought by an applicant for summary judgment. Order 14 Rule (2) of the High Court (Civil Procedure) Rules, 2004 (CI 47) set out the procedure under which applications for summary judgment shall be initiated. It provides a four steps approach. The first step is that it must be initiated by an application on notice (see Order 14 rule 1 of C.I. 47). Order 14 rule 2 of C.I. 47 then provides as follows: 2. (1) The notice of the application shall set out the reliefs sought by the plaintiff. (2) The notice shall be supported by an affidavit verifying the facts on which the relevant claim or part of a claim is based, and stating that in the deponent's belief (there is no defence to that claim or part of a claim, or no defence except as to the amount of any damages claimed. (3) Notice of the application, a copy of the affidavit in support and of any exhibit relating to it shall be served on the defendant not less than four clear days before the day named in the notice for hearing the application. 3 of 7 So the question before the court is whether or not the non-compliance with the rules as indicated earlier is fatal to the proceedings. Counsel for the Defendant in his legal submissions filed on 6th May, 2024. “May Lord, in the case of Boyefio v NTHC [1997-98] 1 GLR 768, the Supreme Court held that, “Where an enactment has prescribed a special procedure by which something is to be done, it is that procedure alone that is to be followed”. Again in the case of Hannah Buckman v Ankomayi [2013-14] 2 SCGLR 1372, the Supreme Court noted that “Rules of Court are not ornamental pieces. They are meant to be complied with.”” Akamba JSC in the case of in Republic V High Court (Financial Division) Accra, Ex- Parte Tweneboah Kodua, Civil Motion No. J5/22/2014 dated 29th July, 2014, also had this to say regarding non-compliance with the rules of Court. He stated as follows: “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 as integral as the substantive law to the success of the trial process. It is therefore essential that time lines set down under the rules of Court are adhered to, to facilitate timely trials” Counsel for the Defendant also referred to the Standard Bank Offshore Trust Ltd v National Investment Bank and 2 ors (Civil Appeal No J/63/206) dated 21st June, 2017. I will however rely on a different part of the decision. The Supreme Court speaking through Benin JSC stated as follows: “Before winding down, it must be noted that in all the cases cited whereby this court had declared non-compliance with a rule of practice to be fatal to the proceedings, it has been based on mandatory provisions of the rules. The 4 of 7 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. Where a rule is mandatory by the use of the expression ‘shall’, it should be so regarded in view of section 42 of the Interpretation Act, 2009, (Act 792). Where a court finds it necessary to express ‘shall’ as directional only, it must be forthcoming with reasons before deciding to exercise discretion to waive non-compliance. There must be reasons why some of the rules are mandatory whilst others are discretionary, a fact which the court must always bear in mind in deciding whether to waive non-compliance or otherwise.” Indeed in a case Bronya v Asafo II [1980] GLR 384 which dealt with similar provisions under the old rules (Order 14 of LI1129 which amended Order 14 of LN140A) which provides a follows: “1. Where in an action begun by writ a defendant has been served with a statement of claim and has entered an appearance, the plaintiff may apply to the Court for judgment against him on the ground that he has no defence to a claim included in the writ, or to a particular part of such a claim, or that he has no defence to such a claim or part except as to the amount of any damages claimed. 2. (1) The application must be made by summons setting out or having attached thereto the reliefs sought by the plaintiff, and supported by affidavit verifying the facts on which the relevant claim or part of a claim is based. (2) The affidavit must state that in the deponent’s belief there is no defence to that claim or part, or no defence except as to the amount of any damages claimed.” It was reported in holding 1 of the Report as follows: 5 of 7 “in an application brought under the new Order 14 of L.N. 140A as substituted by the schedule to the High Court (Civil Procedure) (Amendment) (No. 2) Rules, 1977 (L.I. 1129), the deponent was not only required to swear to an affidavit as has been done by the deponent in this application, but had to do more than that; she had to conform with Order 14, r. 2 (1) of L.N. 140A and either set out clearly the reliefs sought in the summons or attach thereto a statement of claim setting out the reliefs and the facts upon which the claim was based. She must also depose that in her belief the defendant had no defence to the claim.” From the cases cited supra, my view on the matter is simple. I do not find any reason why I should construe the word “shall” as used in the aforementioned provision to mean permissive. It is therefore my considered view that the non-compliance herein renders the proceedings in this matter a nullity for failing to disclose the reliefs sought on the notice. Be that as it may, it is my considered view that a more temperate view of looking at the non-compliance with Order 14 rule 2(1) is that, notwithstanding the mandatory parameters of the affidavit in support as provided for under Order 14 Rule (2) sub rule (2), I do not find these parameters limiting. Therefore where an affidavit in support discloses specifically the reliefs sought, the implication for the non-compliance may probably be watered down, since the Respondent would have had notice of the specific reliefs sought in the application for summary judgment. Interestingly a reading of the entirely of the affidavit in support will disclose that nowhere in the 25 paragraphed affidavit did the Plaintiff specifically set out the reliefs sought, as if the court should automatically infer same from the disclosures on the writ of summons and Statement of Claim. 6 of 7 Conclusion From the evaluation of the law, it is apparent that the failure of the Plaintiff to depose to the reliefs on the face of the application renders the application incompetent. The instant application is accordingly struck out. Justice Emmanuel A. Lodoh (HIGH COURT JUDGE) Lawyers 1. Leslie J. Anim, Esq. Counsel for Plaintiff/Applicant 2. Andrew Appau Obeng Esq. for the Defendant/Respondent 7 of 7