AFIA AFEREWA BOAKYE & 3 ORS. VRS NATIONAL INVESTMENT BANK PROFESSIONAL & MANAGERIAL STAFF UNION (NIB-PMSU) (C2/13/2023) [2023] GHACC 1112 (14 June 2023)

IN THE CIRCUIT COURT (11) HELD IN ACCRA ON WEDNESDAY, THE 14TH DAY OF JUNE 2023, BEFORE H/H ISAAC OHENEBA-KUFFOUR, CIRCUIT COURT JUDGE 1. AFIA AFEREWA BOAKYE 2. YVONNE FAFA AMEYIBOR 3. MAVIS SARKODIE 4. MARTIN KONADU BOAKYE VS. SUIT NO. C2/13/2023 ) ) ) PLAINTIFFS ) ) ) DEFENDANT NATIONAL INVESTMENT BANK PROFESSIONAL & MANAGERIAL STAFF UNION (NIB-PMSU) PARTIES: Plaintiffs absent Defendant represented by Michael Narh Davies (President) LEGAL REPRESENTATION: Francis Osei Bonsu Esq. with him, Barima Ntiamoah Esq. for Bright Okyere Agyekum Esq. for Defendant/Applicant Samir Fuseini Esq. for Plaintiffs/Respondent RULING ON APPLICATION TO SET ASIDE DEFAULT JUDGMENT ENTERED ON 23RD JANUARY, 2023 BACKGROUND The Plaintiffs obtained judgment in default of defence against the Defendant on 23rd January 2023, for various sums of money and interest as stated on the entry of judgment filed on 7th March 2023, by Counsel for Plaintiffs. The writ of summons was issued on 19th August 2022, and served on the Defendant on the same day. The Defendant/Applicant, in the instant motion had entered conditional appearance on the 2nd September 2022, through E. Larbi Amoah Esq. On 13th October 2022, Counsel for Defendant filed an application to set aside the suit. The Court, then differently constituted, dismissed the said application on 16th November 2022. The Defendant failed to file a defence until judgment in default of defence was obtained by Counsel for the Plaintiffs on 23rd January 2023. Upon filing of the entry of judgment on 7th March 2023, and the service thereof, the Defendant engaged another lawyer to file an application for stay of execution and an order setting aside the default judgment and for leave to file a defence out of time. The primary reason for Defendant’s failure to file a defence as stated in the affidavit in support of the application was that the Defendant’s first lawyer, Larbi Amoah Esq. fell under health challenges which incapacitated him from filing a defence within time. The lawyer had to be taken out of the jurisdiction for treatment according to Counsel for the Applicant. Counsel for the Defendant Applicant has apologised for this failure on behalf of the Defendant and prayed that the Court does not visit the sins of the lawyer on his client, the Defendant. Applicant’s Counsel cited the case of Botchway v Daniels (1991) 2GLR 262 and added that the Applicant has a good defence to the action which has been attached to the instant application. The Court was therefore invited to set aside the default judgment obtained by Plaintiffs and determine the case on its merits. Counsel for Plaintiffs/Respondents argued that the claim that the first Counsel of the Defendant was having health challenges was untenable without any documentary evidence to support same. He stated the peculiar circumstances of the application for default judgment which was heard and determined after three adjournments with hearing notice served on the previous Counsel for the Defendant. The previous Counsel did not show up on any of the adjournments. Neither was there any defence nor reaction to the application filed. Counsel for the Respondent cited the case of the Republic v High Court, Commercial Division, Tema, Ex Parte 1st Atlantic Bank J8/2/2015 and relied on the dictum of Benin JSC therein. He further quoted Akoto Bamfo JSC in Ankomahyi and Another Vs. Buckman and Others (J4/43/ 2013) [2014] GHASC 130 that the ‘Rules of Court are not ornamental pieces. They are meant to be complied with.’ In the Botchway v Daniels case, Kpegah J, as he then, stated, ‘The next point for consideration is whether the Defendant have shown by their affidavits evidence that they have a reasonable defence for the claim.’ His Lordship was dealing with a default judgment as in this case. The Defendant/Applicant has by virtue of the affidavit in support, and the attached proposed defence, invited the Court to consider if there is any reasonable defence to the Plaintiffs’ claims. The Defendant says at paragraph 4 of the proposed statement of defence, that it played a facilitator's role in the transaction whereby the Plaintiffs paid for plots of land through Defendant as members of the Defendant’s Union. The Defendant, admittedly, is a worker’s welfare Union which is committed to facilitating the acquisition of parcels of land by its members. Such may be a noble welfare policy. According to the Defendant, it has forwarded all money paid by the Plaintiffs to a certain Terra Bella Company in return for a promise of availability of bare lands for members of the Defendant Union. (see paragraph 20 of the proposed defence) The transaction of intended land purchase to which the Plaintiffs contributed has however gone bad to the point of a High Court suit at Tema, between two rival claimants to the subject land. By virtue of this litigation, the Plaintiffs have not had access or possession to the subject land, and they do not have control over the case pending in respect of the land. According to the proposed statement of defence, at paragraph 17, the company to whom the Defendant gave the Plaintiffs’ money, is not a party to the said suit, and therefore not laying any claim to the subject land. The Defendant contends that the Plaintiffs’ action is premature and they are therefore not entitled to their claims. From the proposed defence I gather that the Plaintiffs have no contractual relationship with Terra Bella Company. Any legitimate expectation of the Plaintiffs in relation to this transaction is for the Defendant, holding itself as a workers welfare Union, to negotiate for a good land sale deal and take steps to facilitate the investment made by its members. This legitimate expectation is protected by common law rules on the concepts of part performance and specific performance. Also, the rules of evidence on estoppel by conduct apply strongly in regulating the relationship between the Plaintiffs and the Defendant. Section 26 of the Evidence Act, NRCD 323 provides for estoppel by statement or conduct. It is arguable that as the Defendant Union, by conduct, led its members on to believe that it had capacity to procure or facilitate the purchase of land by the members, the Defendant Union should be held to the standard of that competence which it led its members to believe in. In Social Security Bank v Agyarkwa [1991] 2GLR192, the Court observed that under circumstances where it would be unjust, inequitable or unconscionable to permit a party to go back on his word or conduct, it was just to invoke estoppel by conduct against such a party. CONCLUSION On ground of the admitted fact that the Plaintiffs paid money to the Defendant in exchange for plots of land to be facilitated by Defendant, I hold that the Plaintiffs had a sustainable cause of action against the Defendant at the time the action was commenced, because the object of the payments made by the Plaintiffs had failed. The action is therefore not a premature one. So far, the proposed defence has not disclosed any reasonable defence to the Plaintiffs claims. In other words, there is nothing in the proposed defence that suggests that legally, the Defendant cannot be held liable to refund the Plaintiffs’ money to them. It is even more advisable for the Defendant to pay the Plaintiffs off, if they are no more interested in the transaction, owing to the unexpected turn of events. If indeed it is a genuine transaction in land which would serve investment purposes for the members, the Defendant should not be worried if any member opts out. It is the member who quits who will lose out on the ultimate gains of the investment scheme. But at this stage, there is no rule of law that binds the Plaintiffs to wait on the land facilitation scheme by Defendant until its success. I am inclined to declare the right of the Plaintiffs to back out of the transaction and have their money refunded to them. By the reasoning above, I am unable to accord the instant application any merits worthy of leading the Court to set aside the default judgment. The application is dismissed. Cost of Two thousand Ghana Cedis (GH¢2,000.00) is awarded against Defendant/Applicant. (SGD) H/H ISAAC OHENEBA-KUFFOUR CIRCUIT COURT JUDGE 5