RULING DELIVERED BY THE HONORABLE JUSTICE LORNARD TAYLOR
ON THE 16th NOVEMBER 2022
F. GARBER -COUNSEL FOR THE DEFENDANTS/ APPLICANT
A. K. KOROMA -COUNSEL FOR THE PLAINTIFF /RESPONDENT
The defendants have approached this court by Notice of Motion dated 18th
July 2022 praying inter alia for the following orders;
1. That this court sets aside its judgment of 12* May 2022 as same was
irregularly obtained on the following grounds;
a. without the defendant being heard,
b. this action was instituted in the wrong division of the High Court
c. the 24 defendant was improperly made a party
That this court sets aside the said judgment on terms
3. That this court grants the defendants leave to file their defence and
counter-claim out of time.
S
The Plaintiff had commenced these proceedings by writ of summons dated
28th March 2022. The said writ of summons was served on the defendants to
this action as required by the rules and the defendants have not denied this.
On the 21st April 2022 Brewah& Co. Solicitors entered and appearance for
the defendants. On the 21st April 2022, the Plaintiff approached this court
on a application for summary judgment. The application was heard and
determined in the absence of the defendants and their solicitors who were
notified of the hearing of the application. Judgment was entered for the
Plaintiff on the 12t* May 2022. It is this judgment that the defendants now
seek to have set aside by the present application.
As cited above, the Defendant’s first complaint is that the Judgment of 12%
May 2022 was obtained irregularly and therefore ought to be set aside ex
debitojusticia. The defendants laid out this prayer on the face of this
application on the basis that they were not heard when the application for
judgment was made, the action is in the wrong division of the high court
and that the 24 defendant was improperly made a party to the action.
It is trite law and practice that an irregularly obtained judgment is one that
was obtained by a party who in the process of proceeding to judgment
breached the rules of procedure and obtained the judgment in spite of such
breach. However, where the rules of procedure were complied with, the
judgment obtained in that circumstance cannot in all intent and purposes
by labelled an irregular judgment.
This begs the question, is the judgment irregular because the defendants
were not heard? It is a principle of law and practice that both sides must be
heard before a tribunal can deliver a judgment in a matter. This principle of
audi alteram patem forms the basis and foundation of fair hearing in our
jurisdiction. It is indeed a sacred one. However, this principle as stated
above is only the general rule. Where a defendant who enjoys this right,
neglects, fails and or refused to exercise same, he cannot in fairness
complain that he has been refused the right to be heard. He was not refused
the right. He rejected it.
In the present matter, the Plaintiff approached this court for summary
judgment pursuant to Order 16 rule 1 of the High Court Rules 2007. It
reads;
“Where in _an_action to which this rule applies a defendant has been
served _with_a_statement of claim_and_ has entered appearance, the
plaintiff may, on notice apply to the Court for judgment against the
defendant on the ground that the defendant has no defence to a claim
included in the writ, or to a particular part of the claim except as to the
amount of any damages claimed”
Notice of the hearing of the application was served on solicitors for the
defendants. The defendants failed to appear for the hearing and make their
case. The Plaintiff as it were moved the application and made the case from
its perspective in the absence of the defendants and judgment was given in
its favour. This judgment is accordingly a regular judgment.
The defendants also apply that this court setsaside the judgment in this
matter on the basis that the action was instituted in the wrong division of
the High Court. Their argument is that the present action is an industrial
matter between employer and employee and should therefore have been filed
in the Industrial Division of the High Court and not the Commercial and
Admiralty Division as is presently the case. For this reliance is placed on
Section 3 of The High Court (Divisions) Order 2019, Constitutional
Instrument No. 4 of 2019. This section lists the type of matters to be
assigned to the Industrial Division of the High Court among which are
matters relating to the relationship between employers and employees as
well as industrial disputes.
Sound as this argument may seem, it does not fit the facts of the present
matter. The Plaintiffs claim is for damages for breach of contract. It
maintains that the defendants are in breach of their contract with it by
doing what was prohibited by the contract after the employment had been
terminated. The 24 paragraph in the Plaintiff's particulars of claim is clear
on this issue. The Plaintiffs are suing the defendants as former employees.
Granted that terms sought to be enforced are contained in a contract of
employment, this court however have not lost sight of the fact that the
defendants are not brought before this court in their capacity as employees
of the Plaintiff considering that the contract of employment between the
Plaintiff and the defendants had come to an end and the defendants were no
longer working for the Plaintiff. It is also not a case of enforcement of
matters arising during the course of the employment or at its end such as
end of service benefits. The claim of the Plaintiff relates wholly to acts of the
defendants that occur after the contract of employment had ceased to
between the parties. The claim of the plaintiff is not in the nature of
enforcement of terms related to the employment itself, but rather it is based
on issues emanating subsequent to the employer/employee relationship
between the parties. This is therefore not and industrial matter as the case
before this court is not between an employer and employee but rather
considering that the contract of employment had lapsed, it is for the
enforcement of those terms relating to issues that arose outside the scope of
the employer/ employee relationship between the parties. I therefore would
hold that this matter is not one for the industrial division of the High Court
but rather one that falls squarely within the ambit of the commercial and
admiralty division.
The defendants also maintain that the judgment in this matter ought to be
set aside as of right considering that the 24 defendant was improperly made
a party to the proceedings. When a defendant is improperly made a party to
an action, the proceedings are governed by Order 18 rule 6 of the High
Court Rules 2007. By the said provision, where a person is improperly or
unnecessarily made a party, the remedy is an order for such a party to cease
to be a party in the action. In the present matter, judgment has already
been given against the defendants. The fact of whether or not they are
improper parties before this court in this matter is not an issue this court
can consider as a ground for setting aside this judgment unless same is
contained in the proposed defence exhibited to the application. For this, I
took the liberty to examine Exhibit MR6 attached to the affidavit in support
of the application herein which is the proposed defence and counter-claim of
the defendants. I must say that upon proper examination of same, this is
not a defence the defendant have shown an intention to raise. This court
cannot in the circumstances consider this as a ground based on which a
judgment can be set aside ex debitojusticia. Must the judgment be set aside,
the court can then by procedure entertain an application in which the issue
is raised but definitely not at this stage of the proceedings. The remedy for
being wrongly added as a party to an action is a dismissal of the case
against the wrongly added party and not the setting aside of a judgment.
The Defendants have also approached praying that the Judgment be set
aside on terms. I understand this to mean that they are asking that this
court sets aside the judgment on the grounds that they have a good defence
to the action and that they be given leave to file their defence and counterclaim
out of time.
In addressing this issue, I must first highlight that the judgment in this
matter is not a judgment in default of defence. It is a judgment of the court
on an application for summary judgment pursuant to Order 16 of the High
Court Rules 2007. As such the only consideration in setting same aside is
as is contained in Order 16 rule 11 of same. Its states;
“Any judqment given against a party who does not appear at the
hearing of an_application under rule 1 or rule 5 may be set aside or
varied by the Court on such terms as it thinks just”.
Based on the above, a party who is did not appear at the hearing of the
application for summary judgment could ask that the judgment be set aside
for him/her to be given an opportunity to be heard on same. This must be
distinguished from the situation where the judgment is set aside and leave
granted for the defence to be filed out of time. Must this court acquiesce to
the latter scenario which is what the defendants have applied for, i.e. that
the judgment be set aside and that the defendants be granted leave to file
their defence out of time, the Plaintiff would have been disadvantaged by the
fact that its application for summary judgment would in effect have been
determined against him by this singular application when in fact this should
not be the case. At this stage, this court should only consider the issue of
whether there is cause for the defendants to be granted leave to defend the
application for summary judgment. That is the procedure.
However, in making this decision, this court took the liberty to examine the
proposed defence exhibited to the present application by the defendants.
Having gone examined the said document and the case of the Defendants as
raised therein, it is my considered view that it would be a waste of time and
resources for this court to in determining this application limit itself to the
issue of whether or not to set aside the judgment herein and the defendants
granted leave to defend the application for summary judgment. In my view
the defence proposed defence exhibited by the defendants do raise triable
issues which would warrant a detailed inquiry into the matter.
In the circumstances, I would therefore make the following orders;
1. The judgment of this court dated 12th May 2022 is accordingly set
aside.
2. The defendants are at liberty to file their defence to this action within
7 days from the date of this order.
3. Cost of this application is assessed at Le 15,000 to be paid by both
defendants jointly and severally to solicitors for the Plaintiff.