HORTHMAN VRS ABUBAKAR (H1/175/2022) [2023] GHACA 198 (13 July 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA CORAM: BARTELS-KODWO J. A. (PRESIDING) NOBLE-NKRUMAH J. A CHRIS ARCHER J. A. SUIT NO: H1/175/2022 DATE: 13TH JULY, 2023 EDWIN ANSAH HORTHMAN PLAINTIFF/RESPONDENT VRS. MASAUD ABUBAKAR DEFENDANT/APPELLANT JUDGMENT BARTELS-KODWO (MRS.) JA INTRODUCTION This is an appeal from the decision of the High Court, Accra (General Jurisdiction Division) dated 21st October, 2019 which decision upheld the Plaintiff/Respondent’s (hereinafter called “the Respondent”) action brought against the Defendant/Appellant (hereinafter called “the Appellant”). BACKGROUND By an amended Writ of summons and accompanying Statement of Claim filed on the 4th of April 2018 and amended on the 5th of April 2019, the Respondent brought the instant action against the Appellant seeking the following reliefs; a. A declaration that the sale or purported sale of the land by the Defendant to the Plaintiff which is situate at North-Labone, Accra, and being the subject matter of this suit was fraudulently made. b. An order for the recovery of USD 600,000 or its equivalent in Ghana Cedis at the time of payment plus an additional sum of GHC 80,000 being monies owed by Defendant to the Plaintiff. c. Interest on the said amount at the prevailing commercial bank rate from the 19th of May 2017 till date of final payment. d. An order for the sale of the said property located at Mantey-Tsuru Accra and registered as No. G. A. 48747 to offset the debt as agreed. e. Costs, including solicitors’ fees. f. Any other orders that the Honourable Court would deem fit. In his Amended Statement of Claim the Respondent contended that sometime in 2016, the Appellant represented to him that he had a plot of land at Labone in Accra for sale. According to the Respondent, based on such representation, he paid an amount of US$ 600,000.00 and an additional sum of GH¢ 80,000.00 to the Appellant. The Respondent further claimed that upon making the payment, he attempted to enter into possession of the land only to realize that the Appellant did not actually own the land in question and that “the documents of transfer executed by him for Plaintiff turned out to be fake”. The Respondent claimed that following this discovery, the Appellant signed an undertaking dated 19th May 2017 wherein he agreed to refund the money paid to him within 30 days. According to his Claim, as security for this undertaking, the Appellant gave the Respondent original copies of his Land Title Certificate No. G. A. 48747 covering a property located at Mantey-Tsuru, Accra; parcel no. 263 Block 1, Section 093. It was agreed between the parties that upon failure to pay the amount, the Appellant’s property would be sold to defray part of the debt. The Respondent stated that the Appellant failed to pay the debt at the appointed time and had evinced an intention not to pay the said sum. In his Statement of Defence, the Appellant on his part denied that the sale of land transaction was executed between the Respondent and himself. He averred that the transaction actually occurred between the Respondent and a company he named as Regards Promotions. He added that the company was represented in that transaction by its Managing Director Bahoumson Omar. The Appellant also averred in his Statement of Defence that the undertaking was not made voluntarily, but failed to state whether it was made under threat, undue duress, misrepresentation, fraud or any other factor that would ordinarily vitiate his perceived consent to the terms of the undertaking. In response, the Respondent in his Reply to the Statement of Defence contended that the undertaking was signed willingly by the Appellant in the presence of witnesses. On the 3rd of July 2019, the Respondent caused his solicitors to file a notice of a Request to the Appellant to admit the central facts of this case at the Registry of the High Court. Specifically, the Respondent requested that the Appellant admit the following facts reproduced verbatim: 1. Sometime in 2016, you collected USD 600,000.00 from the Plaintiff as payment for 0.58 acres of land situated at North Labone, Accra 2. You subsequently collected GHC80,000.00 for stamp duty from the Plaintiff. 3. You failed to give possession of the said land to the Plaintiff after receiving the said payments. 4. On the 19th of May, 2017 you signed an undertaking to refund the said USD 600,000.00 and the additional GHC 80,000.00 within thirty (30) days. 5. You again failed to pay within 30 days? (sic) On the 11th of October, 2019 the Respondent again caused his solicitors to file an application for Judgement on Admissions. Attached to this motion was the result of a search that established that the Appellant, despite being served, had not responded to the Request to admit facts. This application was not opposed by the Appellant. Based on this, the trial High Court gave judgement in favour of the Respondent. In doing so, the Court cited Order 23 and the cases of Ewusie Mensah v. Ewusie Mensah (1992) 1 GLR 271, SSB v. Biney [1997-1998] 2 GLR 886 and Micheletti Dolla v. Crabbe (1976) 1 GLR 108. The Honourable Court held that the failure of the Appellant to respond to the request to admit facts, compounded by the Appellant’s failure to oppose the motion for judgement on admission amounted to an admission of the facts in question. GROUNDS OF APPEAL The Appellant, by an amended notice of appeal, canvasses two grounds of appeal; 1. The Court below erred in law by granting the Plaintiff/Respondent/Respondent’s application for judgement on admission. 2. The judgement is against the weight of evidence. The first ground of appeal was particularised as follows; a. The Court below ought to have considered the entire record, statement of defence and pleadings of the Defendant in determining the application for judgement on admission. b. The matters sought to be the basis of the judgement of admission had been denied by the Defendant in the entire record, statement of defence and pleadings of the defendant. c. The Court can only grant declaratory reliefs as endorsed on the Plaintiff’s writ of summons and statement of claim only after the adduction of evidence and argument by the parties. d. An allegation and relief for fraud as pleaded by the plaintiff in his statement of claim could only be determined by the Court below upon trial on evidence and argument. ARGUMENTS OF THE APPELLANT The cardinal argument of the Appellant is that, given the fact that the Appellant had filed a defence to the action, and in that defence, had denied the claims of the Respondent from the Statement of Claim, the High Court could not have proceeded to find that the Appellant, by his failure to respond to the notice to admit facts, had admitted to the claims made by the Respondent and given final judgement against the Appellant. As an ancillary point to that argument, the Appellant also contends that “where a party seeks declarative reliefs which consequentially affect the entire reliefs sought by the party, a judgement on admission cannot be granted by the Court below.” In support of the latter point, the Appellant cites the dictum of his lordship Marful Sau JSC (as he then was) in the case of Jbril Mahama v. Akwasi Mensah Civ. Appeal No. J4/45/2019 (14th November 2019) wherein the eminent jurist stated as follows; “Beside the fact that the procedural law would not allow the Appellant the right to enter judgement on admissions, having endorsed the writ of summons with the relief of declaration of title, it is trite that a plaintiff who endorses such a claim cannot avoid a trial. By the relief of declaration of title, the Appellant was required by law to lead evidence in a trial to prove title; and for that reason, the application for judgement on admissions by the Appellant was incompetent.” Counsel for the Appellant further argued that all the reliefs sought by the Respondent as set out on the amended statement of claim are inextricably linked to the first relief, and that the first relief, being declaratory, renders the other reliefs incapable of being granted as reliefs in a judgement on admissions as explained by the learned Marful Sau JSC in Jbril Mahama (supra). As a result, the Appellant states that the Respondent would have had to establish fraud by evidence in a trial in order to be entitled to any of his reliefs. The Appellant cites the case of Ecobank Nigeria Plc v. His Hands Housing Agency & Anor. Civil Appeal No. J4/23/2021 in support of this assertion. The Appellant then contends that the trial High Court ought not to have ignored the statement of defence filed on behalf of the Appellant when it decided the application for Judgement on Admissions as that statement of defence contained denials of facts sought to be admitted by the Respondent’s request for admission. In essence, the Appellant contends that since there was a Statement of Defence on the record, and it contained denials of the claims in the Statement of Claim, the Court could not purport to have made a judgement on admissions in spite of the fact that the Appellant ignored the request for admissions and failed to oppose the motion for judgement on admissions. Counsel for the Appellant cites the dictum of Yeboah JSC in the case of Republic v. High Court (Commercial Division) Accra; Ex Parte Ports Handling Co. Ltd. (Crosswind Consulting & Financial Services - Interested Party) wherein the learned judge stated, “It thus follows that when a defence is on the docket as filed, a trial judge in entertaining an application for judgement in default of defence is disabled by settled practice and authorities referred to above from disregarding the defence on the docket. In summary judgement applications, the court may after scrutinising the statement of defence and finding out that it is no answer to the claim or part thereof, in appropriate cases, proceed to enter judgement in favour of an applicant. The motion may even be filed after delivery of a statement of defence, whereas in motions for judgement in default of defence, a trial court must not disregard a statement of defence filed before the hearing of the motion. To put it simply, a trial judge has no jurisdiction to disregard a statement of defence on record when entertaining an application for judgement in default of defence. In my opinion, even though the learned trial judge had jurisdiction to hear the case to finality, the order which he made by disregarding the statement of defence already filed and proceeding to give judgement in my view exceeded his jurisdiction.” In citing this authority, counsel for the Appellant admits that while the above deals with summary judgement and judgement in default of defence applications, the principles espoused therein are applicable in the instant case. Counsel for the Appellant then submits that there was no admission of the facts by the Appellant and therefore that the Court below was wrong in granting the motion. ARGUMENTS OF THE RESPONDENT In the written submission filed on behalf of the Respondent, it was contended that the trial court did not err in granting the application for Judgement on Admission. The Respondent submits that the Request to admit facts was only made after the Appellant failed to file a witness statement for trial to proceed. The Respondent claims that upon his application for Judgement on Admission, the learned High Court Judge granted that motion and found in his favour only on reliefs b - f, but not relief a, since that relief, being a declaratory relief, had been abandoned by the Respondent. The Respondent avers that although it is claimed by counsel for the Appellant that the Statement of Defence amounted to an uncategorical denial of the claims in the Statement of Claim (and consequently of the facts of the request for admission), the Appellant alleged that he signed the undertaking at the heart of this case involuntarily, but failed to state what vitiating factor rendered his consensual accession to the undertaking inoperative. The Respondent cites Order 11 Rule 12 of CI 47 and contends that the failure to particularise or plead what vitiating factor leads to his claim that the signing of the undertaking was involuntary, renders that defence one which the Court cannot go into, and cites the case of Bank of West Africa v. Holdbrook [1966] GLR 164 in support of this assertion. The Respondent also argues that even if the Statement of Defence put forward a sufficient denial of the Respondent’s claims, resulting in a joinder of issues, this would not operate as a bar to the right of the Respondent to file and serve on the Appellant a request to admit facts. In support of this, the Respondent cites the case of Armah v. Addoquaye [1972] 1 GLR 109, wherein Anin JA (as he then was) held in part, “a plaintiff may move for judgement on admissions in the defence, at any stage in the action and notwithstanding that he has joined issues on the defence, and given notice of trial. It is therefore clear that if the solicitor for the defendant omits either through negligence or slovenly pleading to deny specifically any fact which he should on his instructions have denied, he is liable to incur the penalty of having judgement or any suitable order entered against his client on the facts deemed thereby to have been admitted.” The Respondent also cites the U. S. Southern District of New York case of United States v. Young No. 87 CIV 9159 1990 WL 135734, wherein the U. S. Court stated, “The mere fact that a party has previously denied the matter about which an admission is sought does not obviate the need to respond to a Rule 36 request for admission.” The Respondent therefore submits that despite the fact that issues have been joined to by a Defendant’s denial, a Plaintiff is still entitled to serve a Request to Admit Facts on a matter, and the Defendant would have to specifically respond to and deny the facts for that denial to be operative for the purposes of a resultant motion for judgement on admission. The Respondent also submitted that the ex parte Ports Handling Co. Ltd. case (supra) cited by the Appellant has nothing to do with this case and should not be applied to the facts of this case as that case has to do with applications for summary judgement and judgements in default of appearance. The Respondent further denies the assertion by the Appellant that the judgement on admission granted reliefs that are in respect of a declaratory relief and says that the judgement clearly demonstrates to the contrary that none of the reliefs granted were declaratory. LAW AND ANALYSIS The rules of the High Court, contained in C. I. 47 govern the procedures of court concerning admissions. Specifically, Order 23 covers requests for admissions and the effect of such admissions or the failure to admit or deny after being served with a request for admission. Order 23 reads in part as follows; “Rule 2—Request to Admit Fact or Document (1) A party may at any time, by serving a request to admit, request any other party to admit for the purposes of the cause or matter only, the truth of a fact or the authenticity of a document. The request shall be as in Form 12 in the Schedule. Rule 3—Effect of Request to Admit (1) A party on whom a request to admit is served shall respond to it within fourteen days after it is served by serving on the requesting party a response to request to admit. … (2) Where the party on whom the request is served fails to serve a response as required by subrule (1), the party shall be deemed, for the purposes of the cause or matter only, to admit the truth of the facts or the authenticity of the documents mentioned in the request to admit. Rule 6—Order Based on Admission of Fact or Document (2) Where an admission of the truth of a fact or the authenticity of a document is made by a party in a pleading or is made or deemed to be made by a party in response to a request to admit, any party may apply by motion to the Court or to the Judge for such order as the party may be entitled to on the admission without waiting for the determination of any question between the parties, and the Court or the Judge may make such order as is just.” (emphasis supplied) From the above, a number of things are clear which are relevant to this suit and cannot be disputed. First, a failure to respond to a Request for Admission, according to the rules, constitutes an admission of the facts sought to be admitted. (emphasis ours) Secondly, where an admission of facts is made, any party may apply to the Court for a consequential order, and if the Court deems the order requested just under the circumstances, the Court may grant that order. Where a dispute arises herein is the contention by counsel for the Appellant that the Statement of Defence filed on behalf of the Appellant at the early stages of the action should be considered by a Court, and should constitute a response to or denial of the Request to admit facts filed by the Respondent. The contention here put otherwise suggests that where a Plaintiff files a request for Admission of facts under Order 23 and there already exists a statement of defence on the record, the Court is obligated to consider that statement of defence as a response to the request for admission. This Court is of the view that the position espoused by counsel for the Appellant is not borne out by the law as set out in Order 23. In essence, Counsel for the Respondent is saying that if there is a statement of defence on the record and that statement of defence denies some of the facts that are requested to be admitted in an application for such by a plaintiff, the Court should not consider the application or even require the defendant to respond and should dismiss the Request for admission out of hand. This Court holds the view that this was not the purpose of Order 23 Rule 2. That rule of Court is to save the Court valuable time by limiting or reducing the outstanding issues joined by avoiding a trial on facts that are admitted by a party. This Court cites with approval the dictum of the Southern District of New York Federal District Court in the United States v. Young case (supra) and reiterates that a traversal of facts done in a statement of defence does not preclude a plaintiff (at any time, as the rules prescribe) from bringing a notice seeking an admission by his opponent on certain facts that should not be in dispute in order to save the Court valuable time. And as the rules provide, if such a notice is served on a defendant, he must as a matter of necessity respond within 14 days and failure to do so, and deny the facts sought to be admitted constitutes an admission. The rule does not even require that a party denying facts that it is requested to admit, supports their denial with evidence at that stage. A simple response containing a denial would suffice to maintain the joinder of issue on those particular facts. However, the rules are clear on the effect of a failure to respond. This amounts to an admission of the facts. What then does the law say on this? See Order 23 Rule 3(2). A party which does not respond to a request for admission of facts (or as is the case herein, neglects, fails or refuses to oppose an application for judgement on admission) cannot turn around and claim that the judgement given based on that admission is wrong in law. In this instant matter the Appellant failed, refused or neglected to respond to the request to admit facts and contended that so long as it had a defence filed which denied the Respondent’s case and issues had been joined the trial court should not have granted a judgement based on admission more so when the reliefs granted in his view were predicated upon a declaratory relief. The Appellant cited the Supreme Court case of JIBRIL MAHAMA V AKWASI MENSAH CA NO, J4/45/2019 in support of his position. In learned counsel for the Appellant’s view the application for Judgment on Admission was incompetent with the judgment granted being an error hence this Appeal should be upheld. This cited case differs from the present circumstances in that the admissions in the Jibril Mahama case which the Plaintiff sought to rely on were not clear and unequivocal because the Statement of Defence watered down the admissions rendering them ambiguous. In this instant case however Judgment was rendered in accordance with law on the failure of the Appellant to respond to the request to admit facts. (Emphasis ours) Order 23 (2) reads ‘Where the party on whom the request is served fails to serve a response as required by subrule (1), the party shall be deemed, for the purposes of the cause or matter only, to admit the truth of the facts or the authenticity of the documents mentioned in the request to admit.’ With the failure to respond to the Request having turned into admission of the facts in issue the court was entitled to make any orders under Order 23 rule 6 (2) Rule 6—Order Based on Admission of Fact or Document (2) Where an admission of the truth of a fact or the authenticity of a document is made by a party in a pleading or is made or deemed to be made by a party in response to a request to admit, any party may apply by motion to the Court or to the Judge for such order as the party may be entitled to on the admission without waiting for the determination of any question between the parties, and the Court or the Judge may make such order as is just.” (emphasis supplied) This is exactly what happened at the trial court. It is therefore not correct that the Court below erred in law by granting the Plaintiff/Respondent/Respondent’s application for judgement on admission. This ground of Appeal therefore fails. With regard to the Omnibus ground of Appeal that the Judgment is against the weight of evidence we take issue with the Appellant on this because normally this will apply in matters that evidence has been led at trial and the appellate court is being invited to evaluate the evidence on record or rehear the matter as it were. In this case no evidence was led and the order being appealed on was interlocutory and there was no basis to apply this ground of Appeal. See the case of ZIKPUITOR AKPATSU, BENJAMIN ATSU, EDWARD MARSHALL KOBLA PENU KAREEM ABU & ALEXANDER PONS PETRO V THE ATTORNEY GENERAL, MINISTRY OF WATER RESOURCES DREDGING INTERNATIONAL LTD & ENVIRONMENTAL PROTECTION AGENCY [2018] DLSC 2489 @ 3. This ground of appeal ought not to have been canvassed at all. Consequently the Appeal on this ground is also unsuccessful. As a result, this Court finds that this appeal is entirely without merit and same is dismissed accordingly. (Sgd.) JANAPARE A. BARTELS-KODWO (MRS.) (JUSTICE OF APPEAL) (Sgd.) Noble-Nkrumah, (J. A.) I agree JEROME NOBLE-NKRUMAH (JUSTICE OF APPEAL) (Sgd.) Archer, (J. A.) I also agree CHRISTOPHER ARCHER (JUSTICE OF APPEAL) COUNSEL: ❖ Charles Tetteh with David Owusu Kessie for Plaintiff/Respondent ❖ Nana Boakye Mensah Bonsu for Defendant/Appellant 14