Tchagodomou Vrs Boateng [2023] GHAHC 209 (15 June 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HO – VOLTA REGION CORAM: CHARITY A. ASEM (MRS.) J. SUIT NO. E11/07/2023 DATE: 15TH JUNE, 2023 PLAINTIFF/APPLICANT DEFENDANT/RESPONDENT TCHAGODOMOU AYUBA VRS. GEORGE KOFI BOATENG Parties – Plaintiff Present Defendant - Present : : JUDGMENT This is an appeal from the decisions of the District Magistrate sitting at the District Court, Jasikan in Oti Region in its decision on the 13/09/2022. In the notice of Appeal filed on the 06/12/2022 and the additional grounds of appeal filed without the leave of the court the trial Magistrate decision was attacked on the following grounds namely, I) That the trial Judge breached the Audi Alteram Partem rule of natural justice in the trial and delivering judgment without notice to the Defendant. II) The Judgment is against the weight of evidence and record. The additional grounds filed without the leave of the court are, a) That the plaintiff’s writ filed on the 10/09/2020 was statute barred and therefore the judgment emanating from the said writ of Summons is a nullity. b) That the respondent’s vehicle a Kia Avella Taxi Cab as at the time of the accident occurred was not insured and same should not have been on the road and as such the respondent is not entitled to his claim under his own wrong doing. Accompanying the Notice of Appeal is a written submission delivered to the court on the 24/02/2022 where counsel for the appellant expressed himself and argued the two grounds stated. It is to be noted that the plaintiff/respondent is without legal representation. BRIEF FACTS. Firstly, it will be appropriate that, I recount as briefly as I can the facts leading to the instant appeal. On the 10/09/2020 the plaintiff/respondent caused to be issued a writ of summons at the District Court, Jasikan against the defendant/Appellant for the following reliefs. a. An order of the Court to compel the defendant to compensate the plaintiff with GH¢20,000.00 for causing harm to the plaintiff and for causing damage to plaintiff’s Taxi when defendant drove carelessly and crashed into plaintiff’s taxi on the Jasikan Bodada Motor Road. b. Cost. The events leading to the above summons is traced to an accident which occurred on the Bodada – Jasikan road on the 19/12/2013 where the defendant/appellant herein drove his pickup vehicle into plaintiff’s taxi cab. The plaintiff/respondent sustained injuries and damage to his taxi cab. After Police investigation the defendant/appellant has charged on two counts of offenses and put before court. (1) Careless and inconsiderate Driving country to regulations 3 of RTA 683/2004 as amended by RTA 761/2008. (2) Negligently causing harm section 72 of Act 29/60. The defendant/appellant then the accused plead not guilty to the charges when put before the District Court, Jasikan differently constituted. After full trial the court in its Judgment delivered on 25/07/2017 found the (accused) now defendant/appellant guilty on both counts and sentenced him as follows, On count (1) to a hundred penalty units or in default 3 months imprisonment. On count (2) hundred penalty units or in default 3 months imprisonment to run concurrently. After his conviction that plaintiff/respondent instituted the present civil action claiming the endorsement afore stated. The writ was issued sealed and served on the defendant/appellant who caused a defence to be lodged on his behalf, filed on the 22/03/2021. The plaintiff who was without a lawyer filed a reply to the statement of defence on 27/04/2021. It is observed that hearing notices were issued and directed to be served on the defendant herein. From the record of appeal at pages 33 the proof of service of the Hearing Notices were effected on one Afriyie Boateng the daughter of the defendant/appellant. It is indicated also that the court did not sit as scheduled. Subsequent sittings, no order was made to inform the defendant by way of Hearing Notice. For instant the matter was adjourned on 23/04/2021 to 27/01/2022, and adjourned again to 24/03/2022. There were further adjournments by the court, many times. There were instances where the court sat but the parties were absent. It is observed that the defendant was absent at all the dates aforementioned. Then on the 1/06/2022 the respondent herein presented an application to the court for consideration. A Motion Ex-parte - for an order to enter default judgment for non- appearance of the defendant in court and supported by an affidavit, on grounds for which he prayed the court. The court allowed the above motion. The same day, Plaintiff/respondent was again sworn to testify. Based on that, the court delivered judgment on the matter on 13/09/2022 as appears at pages 43 – 49 of the record and made decree against the defendant/appellant. Dissatisfied with the decision the defendant/appellant appealed to this court on the grounds stated (supra). In the opinion of this court there were many procedural errors committed by the trial Magistrate especially where he proceed to hear the ex-parte motion for judgment in default of non-attendance in court by the defendant/appellant. Candidly, such procedure is unknown to our civil procedure rules of court. A very strange development. I have examined the entire record of appeal. And l found as a fact that the court had sat a few times and defendant was not notified by the court. The proof of service on his daughter is defective. It is clear therefore that the trial magistrate denied the defendant the right to be heard when he proceeded to conduct the trial without ensuring that defendant has been afforded the opportunity to appear but failed to avail himself. In Republic v. Court of Appeal & Thomford Ex-parte Ghana Chattered Institute of Bankers (2011) 2 SCGLR 941 where the Supreme Court held that (pages 945 – 947) referred to its recent decisions that non-compliance with the Audi Alteram Partem rule would result in nullity. Similarly, in Barclays Bank of Ghana Limited v. Ghana Cable Co. Ltd. (1998 – 99) SCGLR page 1, the apex court stated in no uncertain terms that, “A court has generally no jurisdiction to proceed against a party who has not been served. Accordingly when a defendant complained that he has not been served with a writ of summons or any process which requires his personal service, the court is duty bound to examine the complaint thoroughly …..” The case of In Re West Coast African Dying Company Ltd. v. Adams (1984 – 86) 2 GLR page 561 CA, from my study gives a better understanding of the current situation on the duty of a judge before he proceed to make orders directed at persons to be judiciary affected. At holding (5d) thereof, the court of appeal held amongst others that, “The court should 1st give due hearing to persons to be pre-judiciary affected that is, should be given opportunity to testify on his own behalf and to adduce evidence in defence of himself. Where the trial judge had given every conceivable opportunity to the party to rebut the evidence but had steadfastly refused, the trial Judge had observed these fundamental rules of judicial procedure.” In determining this appeal I will adopt the following approach to set out further issues in line with the evidence before the court, which fundamentally is whether or not the trial court observed the Audi Alteram Partem rule of natural justice. I believe this will resolve the entire appeal and other issues raised by the counsel for the defendant/appellant. This court found as a fact that, though some hearing notices were issued to be served on the defendant, he did not receive any. The proof of service on two occasions were made on two individuals who are not parties to this litigation. In the considered view of this court and guided by the judicial pronouncements referred to above, with all due respect, the trial Magistrate failed to observe the rule of natural justice in arriving at the decision being complained about. As chronicle above, it is obvious that there were times the court did not sit, there were times the plaintiff/respondent himself did not attend court though the case was fixed, there were times both parties were absent. So, where the trial Magistrate decided to go to trial, he ought to have ensured that all parties concerned were made aware. The next issue to address is The Strange Process, the court received from the plaintiff and acted upon it. “The Motion Ex-parte for an order to enter default judgment for non-appearance of defendant in court.” No doubt, the above process is alien to our laws and I cannot agree better with counsel for the appellant on that point. It should be noted that when the plaintiff/respondent presented the said strange application, the court had not struck out the defendants defence, as provided by Order 25 r 1 (2a) of C. I. 59 and so the application did not invoke the jurisdiction of the trial court, and the question to ask is what was the default? The honest inference and conclusion, which can be drawn from the happenings above is that, the court failed in its duty to ensure that defendant is notified of the trial before proceeding against him in the matter it did. I agree with counsel for the defendant/appellant and that is the law, that the failure to notify the defendant appellant of the trial proses, the proceedings emanating thereof offends against the rule of natural justice and for the reasons afore said a nullity. The appeal succeeds on that ground alone. GROUND 2 OF THE APPEAL Amongst others, the plaintiff claimed compensation for damages for personal injury and damage caused to his vehicle on the 19/012/2013 when the defendant run into him resulting in the present litigation. Counsel for the defendant appellant submitted that the above claims are statute barred and the windows available to plaintiff for redress are closed. According to counsel, the incident herein (accident) occurred more than 7 years before the plaintiff issued his writ against the defendant. He contended that since this is a running down case the writ cannot be sustained in the face of Section 3 (1) of Limitation Act, 1972 (NRCD 323). He contended further that the plaintiff/respondents vehicle was not road worthy when the accident occurred. He submitted forcefully that, the said vehicle ought not to be on the road on the day in question for which reason the plaintiff/respondent cannot benefit from his own wrong doing. I have examined the record of appeal thoroughly and found no record on the plaintiff’s said vehicle. Though this court may turn to agree with learned counsel on the above position on the law, when properly ceased with the full facts and satisfactory evidence, the game of the court is fact backed by satisfactory and reliable evidence and law. Since there is no record from the record of appeal on plaintiffs’ taxi cab, the court has not been afforded the investigation by the police into the accident except that defendant was charged, put before court, convicted and sentenced. Therefore, since I have no record to analyze on whether or not the car was roadworthy at the time of the accident, in absence of proof of the above facts therefore, I am unable to accede to ground 2 of the appeal. For the above reasons stated, this court is of the view that the trial court may be capable of that determination and so will order a retrial of the case herein. CONCLUSION To conclude, the Court of Appeal recently in the case of ALFRED AGBESI WAYOME (2018) 121 GMJ at page 92-140, discusses the subject of audi alteram partem rule of natural justice as a sine qua non for court whose decisions affect the rights of persons. Similarly, in AWUNI V WEST AFRICAN EXAMINATIONS COUNCIL (2003-04) SCGLR 471. The Supreme Court discussed extensively the question of whether a decision made in breach of the rule of natural justice would be quashed even if made correctly, the court decided that; “It is important to emphasize, that what underpins our jurisprudence as a common law jurisdiction – that no man be condemned before he is heard, be upheld at all times, in all circumstances, and for all persons. We are reinforced in our opinion, ruling on the dictum of Bamford-Addo JSC (citing with approval the dictum of Lord Wright in General Medical Council v. Spackman (1943) AC 627 at 644), in Republic v. Commission of Inquiry into Nungua Traditional Affairs; Ex parte Odai iv and Ors. (1996-97) SCGLR 401 AT 414; “A decision made in breach of the rules of natural justice would be quashed even if made correctly.” Taking in to consideration the applicable law and embolden by the sound judicial pronouncements cited above, I therefore hold that the judgment under challenge is void and proceed to quash the judgment delivered by the District Court Jasikan dated the 13/09/2022, for reasons afore stated and for that matter, all consequential orders made pursuant to the said void judgment, is hereby set aside. In view of the forgoing, and in order that justice will be served, the court holds the view that a retrial will be appropriate in the circumstances, where the reliefs of the parties can be properly determined on the merit. I therefore direct a retrial. The appeal succeeds. Cost of GHC1, 000.00 in favour of the defendant appellant. CHARITY A. ASEM (MRS.) (JUSTICE OF THE HIGH COURT) (SGD.) LEGAL REPREENTATION THOMAS GBLOVU FOR DFENDANT/APPELLANT – PRESENT PLAINTIFF/RESPONDENT IN PERSON. 8