KWABI VRS. PROJECT MANAGER CROWNMILLE ENTERPRISES GHANA LIMITED (C1/08/24) [2025] GHACC 3 (21 January 2025)

IN THE CIRCUIT COURT HELD AT KIBI, EASTERN REGION ON TUESDAY THE 21ST DAY OF JANUARY 2025 BEFORE HIS HONOUR PETER OPPONG-BOAHEN ESQ CIRCUIT COURT JUDGE SUIT NO C1/08/24 EDWARD KWABI PLAINTIFF/APPLICANT VERSUS THE PROJECT MANAGER CROWNMILLE ENTERPRISES GHANA LIMITED DEFENDANT/RESPONDENT RULING The Plaintiff, on 28th June, 2024, caused a writ of summons to be issued at this registry against the Defendant for the following reliefs: 1. A declaration that the Defendant has breached the 10th May, 2010 agreement between the Plaintiff and the Defendant 2. An order that the Plaintiff reclaims his land from the Defendant 3. Recovery of the arrears owed the Plaintiff since the year 2010 to date 4. Any order(s) the Honourable Court may deem fit. 1 | P age The Plaintiff/Applicant in this motion filed on 06/01/25 seeks an order of this court: “… entering judgment in his favour against the Defendant for his default or failure to file an appearance...” In moving the Court for the grant of the application, learned Counsel relied on all the depositions as contained in the affidavit in support. According to counsel, he Defendant has duly been served with the Writ of Summons and statement of claim through substituted service but he failed to enter appearance within the stipulated time under the rules. Counsel therefore prayed the Court to enter a final judgment against the Defendant for his default in entering appearance. Though Counsel did not come under any rule, it was conspicuously clear the application was premised on Order 10 of the High Court (Civil Procedure) Rules, 2004 (CI 47). It has been averred to in the affidavit in support of the motion, inter alia, that a search conducted at the Registry of this Court on 06/01/25 revealed that the Defendant was served with the Writ of Summons and the Statement of Claim through substitution on 10/10/24 but he failed to enter appearance. So far as the proceedings in this action are concerned, I must admit, the Plaintiff has taken steps which were procedurally perfect. The writ was regularly issued. To it, was attached a statement of claim. All processes have regularly been served. The records reveal the Defendant failed to enter appearance within the 2 | P age time limited by the rules. The Plaintiff is therefore entitled to move his application for judgment in default of appearance and he rightly did so. However, what went wrong are the reliefs the Plaintiff seeks from this Court. It is this that I see as inappropriate, because in the exercise of its judicial power, this Court cannot grant the Plaintiff a relief which it has no power to grant, namely declaration of breach of contract at this stage of the proceedings. From the entire reading and analysis of Order 10 of the C.I. 47, I find no provision made for the grant of either an interlocutory judgment or final judgment in favour of the Plaintiff in respect of the relief for declaration against a defaulting Defendant. The practice has been that most lawyers respectfully erroneously come under Order 10 rule 4 for such applications. While I must acknowledge others do apply for an interim or interlocutory judgment in respect of declaratory reliefs such as declaration of breach of contract and subsequently for final judgment after the Plaintiff has proved his case, it is my respectful view that such a practice or procedure is not in tandem with the rules i.e. the High Court (Civil Procedure) Rules 2004 (C.I. 47). In the instant case, though the Plaintiff seeks to ask the Court to assess or quantify part of his claims i.e. Reclamation of his land from the Defendant and Recovery of arrears owed the Plaintiff since the year 2010, the Court would be wrong in entering final judgment in respect of these two reliefs first without determining or declaring there was a lease (contract) between Plaintiff and Defendant and the said contract has been breached. 3 | P age Order 10 r 4 deals with Claim for possession of immovable property and it provides as follows; “(1) Where the Plaintiff’s claim against a Defendant is for possession of immovable property only, and the Defendant fails to file appearance, the Plaintiff may, after the time limited for appearance, apply for judgment for possession of the immovable property and costs as against the Defendant; provided that the Plaintiff may proceed with the action against other Defendants, if any, who have filed appearance. Courts of law must follow the law…Thus, in any proceedings, where the step taken by a party or parties violates any constitutional or statutory provision or is not sanctioned by any substantive rule of law or procedure; the Court has a duty to reject it, notwithstanding the fact that it was based on the mutual agreement of the parties. A Court should not, in the face of substantive disputed facts yield to parties’ invitation to resolve a case through legal arguments only. See the case of Agyemang (Substituted by) Banahene v Anane [2013-2014] 1 SCGLR 703 The law as I know is that, a declaratory order or judgment must be final. In Republic v High Court, Accra; Ex Parte Osafo [2011] 2 SCGLR the Court emphatically stated that: 4 | P age “A declaratory judgment or order should be final, in the sense of finally determining the rights of the parties, but should not be granted in the course of interlocutory proceedings or by way of an interim declaration” On a proper appreciation of the relevant procedure rules specifically under Order 10 of C. I. 47, I have no jurisdiction to rule that there was a lease/contract between the Plaintiff and Defendant of which the Defendant has breached same without first taking evidence or going through a full scale trial. The Plaintiff averred in his writ declaration of breach of contract on the part of Defendant, reclamation of his land from Defendant and recovery of the arrears owed the Plaintiff. Evidently, the Defendant made default of appearance; this Court is empowered by the clear provision of this rule to make an order granting Plaintiff recovery/reclamation of the land. The rule as plainly designed, omitted to clothe this Court with any power to make an interlocutory or final judgment in respect of declaratory reliefs in the Plaintiff’s favour. Flowing from above, an Applicant as in this case who seeks a declaratory order in addition to the usual ancillary reliefs the Court lacks the authority to make an order for recovery of possession in the Applicant's favour without first making a declaration in favour of the Applicant as stated supra. I must add that Order 13 r 4 is however applicable in cases where there is no relief for declaration but only recovery as in landlord and tenancy suits. Order 10 rule 6 provides for actions not specifically provided for as follows: 5 | P age “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 filed appearance” The rule is simply that, in all actions not covered by the rules of this Order or otherwise specially provided for, where a party served with the writ does not enter appearance within the time limited for appearance, upon the filing by the Plaintiff of a proper affidavit of service, the action should proceed as if such party has appeared. That is another way of stating that the case should take its normal course. It is trite learning, the Plaintiff who seeks a declaratory order must establish same by clear and acceptable evidence whether or not the Defendant against whom he seeks the relief was present or absent in Court. That is why it is trite learning that in a suit for declaratory relief, the Plaintiff must succeed on the strength of his own case and not on the weakness of the Defendant's case. It is plain on the record exhibited in this case that, the Plaintiff led no evidence to establish that there was a contract and same has been breached to warrant either an interlocutory judgment or final judgment from this Court. 6 | P age In the unreported case of Adolph Tetteh Adjei v Anas Aremeyaw Anas and other Civil Appeal No. H1/107/2018 delivered on 29th November, 2018 the Court of Appeal expressed itself thus; “On several occasions the Supreme Court has held that whenever a Plaintiff seeks reliefs that are declaratory in nature, the proper procedure is to go the full hog of the trial and has accordingly struck down cases where even default judgments were granted.” In Republic v High Court; Ex parte Osafo (supra) it was held in holding (1) that: “A careful examination of the orders made by the trial High Court would reveal that whilst the first relief was substantive, the other reliefs were ancillary to it. Since the substantive order was a declaration, by 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” In the case of Rev. Rocher De-Graft Sefa and Others v Bank of Ghana (unreported: Suit No J4/51/2015 dated 19/11/2015) the Supreme Court, speaking through Gbadegbe, JSC said as follows: “A careful reading of Order 10 of the High Court (Civil Procedure) Rules, C.I. 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 7 | P age settled practice of the Court 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 import in all the authorities cited above is that, the Plaintiff herein cannot be granted an interlocutory or final judgment in default of appearance as per the reliefs endorsed on his Writ of Summons, there must be either a full trial or full legal argument. For the foregoing reasons, the application is hereby dismissed. Suit is to follow normal course. PETER OPPONG-BOAHEN, ESQ (CIRCUIT COURT JUDGE) 21/01/25 COUNSEL BERNARD BEDIAKO BAIDOO FOR THE PLAINTIFF/APPLICANT 8 | P age