JUDGMENT

AKOTO-BAMFOR, J.A.

In this appeal, the appellant who was the defendant in the court below, shall be referred to as the defendant whereas the respondent who was plaintiff therein shall simply be referred to as the plaintiff.

On the 13th of December 2002, the High Court entered judgment in favour of the plaintiff against the defendant upon an application for summary judgment under Order 14 of the High Court Civil Rules as amended by L.I. 1129.

The Court granted all the reliefs endorsed on the writ of summons and statement of claim. It is against this decision that the defendant lodged this appeal in this Court.

In order to appreciate the issues raised, I deem it necessary to set out in brief the events culminating in this appeal.

On the 17th of July 2002, the plaintiff took out a writ of summons claiming against the defendant the sum of $5400 being money the defendant collected from the plaintiffs on the grounds of securing them a United States visa but which he failed to do.

Interest on the said amount from 1st December, 2001 to date of judgment. In the accompanying statement of claim the plaintiff averred that the defendant collected a total amount of $5400 from him in order to secure for him a visa; that when the defendant gave him the passport and he attempted to travel with same, it was detected that the visa was fake. He therefore asked for a refund of the monies paid.

On the 23rd of September, 2002 the defendant filed a defence; the gist of which was that there was an agreement between him and the plaintiffs under which he was to procure a passport, an American visa, a ticket and other charges at a total cost of $6000; the breakdown being $3000 for the visa, $100 for the passport, $1500 for the ticket, hotel and service charges amounting to $1400. In all he received $3414 and ¢500,000. According to him he had refunded an amount of $1,300 to the plaintiff and was therefore not entitled to the sum stated on the face of the writ.

On the 13th of November, 2002 the plaintiff filed an application for summary judgment under order 14 of the High Court Rules as amended by L.I. 1129 for the sum of $5400 together with interest; an affidavit in opposition was filed virtually restating the averments in the decision filed.

On the 13th of December 2002, the learned Judge gave his decision in these terms “Upon hearing learned Counsel and reading the affidavit in support of the motion and reading through the affidavit in opposition the application is granted as prayed. Costs of 2 Million Cedis awarded against the defendant."

The defendant grounded his attack against the decision on these 2 grounds: [a] that the judgment cannot be supported by the plaintiff’s claim with regard to the defence filed by the defendants. [b] The defendant was not heard by the Court before judgment was given.

Learned Counsel for the defendant submitted that the learned judge fell into an error when he entered judgment for the full amount even though it was clear from the defence filed that the defendant had refunded an amount of $800 dollars before the said judgment.

He further argued that since the defendant averred in both his defence and affidavit in opposition that he did incur some legitimate expenses which he was entitled to deduct and of which averment there was no denial, triable issues were raised and the defendant ought to have been given leave to defend.

In the indorsement to the writ, the plaintiff claimed the sum of $5,400 together with interest and asserted in the accompanying writ of summons and statement of claim that they represented monies paid to the defendant for the purposes of securing him a visa to the United States of America.

According to the plaintiff the visa which the defendant subsequently handed over to him was fake and hence the refund.

In the defence, the defendant did not essentially deny having received the sum stated in the indorsement but claimed it represented part payment for various services, which he was to render for the plaintiff. According to him he charged the sum of $6000 for the services to be provided which included a ticket, a passport, a visa and a hotel accommodation and that since he performed all the services with the exception of the visa which the plaintiff alleged was fake, he was entitled to deduct his legitimate expenses from the sum claimed. It was his case that he had refunded an amount of $800 at the relevant time and therefore amount appearing on the face of the writ was not accurate.

The statement of defence was filed on the 23rd of September, 2002. In the said defence 2 issues were raised: [1] that the defendant had refunded part of the money [2] that he had pleaded the defence of a set off.

In paragraph 6 of the defence the defendant averred that he had refunded $800 out the amount, significantly this averment was not denied. It is trite learning that any allegation of fact, which is not traversed, is deemed admitted. If indeed the defendant had refunded part of the amount, it is clear that judgment could not properly have been entered for the amount stated on the face of the writ, for it is settled that where judgment is entered for an amount greater than what is actually due; it must be set aside ex debito justiciae; Halsbury’ Laws of England 4th edition Vol. 26 paragraph 559. This position was restated in Morkor vrs. Kuma 1998-99 SC. GLR page 620 where it was held inter alia that this was apart from any consideration of whether or not the defendant has a good defence on the merits. More importantly the issue which confronts me in this appeal, is whether the learned Judge rightly exercised his discretion in entering judgment for all the reliefs and thereby refusing the defendant leave to defend.

Order 14 of the High Court Civil Procedure Rules as amended provides the procedure for obtaining summary judgment without proceeding to a full trial. It is a means of expeditiously disposing of cases, which are virtually uncontested, and thereby avoiding a full trail with its attendant delays.

Among the conditions precedent for a plaintiff employing the summary process are [1 the defendant must have entered appearance [2. The statement of claim must have been served on the defendant [3 and relevant for our purposes, the affidavit in support must contain a statement of the deponent’s belief that there is no defence to the claim or part thereof in respect of which the application is made.

The plaintiff must therefore proceed under Order 14 only on grounds that the defendant has no defence to the claim since evidently the purpose is to enable a plaintiff obtain summary judgment where he can prove his claim clearly and if the defendant is unable to set up a bonafide defence or raise on issue against the claim which ought to be heard.

In the case under consideration, the defendant did essentially admit part of the claim; made a refund but however asserted that he was entitled to deduct his legitimate expenses. That he could not be said to have clearly admitted owing the whole amount stated in the endorsement and therefore a full trial was unnecessary is evident; nonetheless the learned Judge entered judgment in favour of the plaintiff for the full amount. I am of the view that the learned Judge fell into an error for it is trite learning that where part of a claim is clearly due by admission or otherwise, while a defence is shown as to the residue, the Court should enter judgment for the sum due and give leave to defend as to the residue. Lazarus vrs. Smith 1908 2KB 266.

Since the defendant admitted and proceeded to make a refund with respect to part of the claim and pleaded the defence of a set-off, triable issues were raised and he ought to have been given leave to defend with regard to the reside. Indeed both the defence and the affidavit in opposition clearly articulated what the defence was. The appeal accordingly succeeds on this ground. With regard to the 22nd ground-namely that the defendant was not heard, learned Council submitted that judgment was given in the absence of both the defendant and his counsel without hearing notices being served on them.

A look at record of proceedings shows that the summons for summary judgment was filed on 13/11/2002 and fixed for hearing at 9.0’clock on 2nd December, 2002. It is evident from the record that both the defendant and his counsel were absent on the 2nd of December, 2002. The Court, it appears did not make any order for hearing notices to be served on them after having adjourned the hearing of the application to the 9th of December 2002.

Somehow the defendant must have gotten wind of the date, for he did surface in court on the adjourned date. The entries made by the learned Judge on the 9th of December 2002 attested to this fact. There was nothing on record to show that the defendant’s counsel was in court. The matter was again adjourned to the 13th of December 2002. Both the defendant and his counsel were however absent.

Even though the Court failed to make an order for hearing notices to be served on the defendant and his counsel on the 2nd of December, the fact that the defendant was in court on the 9th albeit without his counsel was indicative of the fact that he had notice of the proceedings slated for the 9th. It could be argued that since the Court failed to make an order that they be notified of the hearing date the proceedings heard in their absence were a nullity. As noted the defendant was in court and was therefore aware of the adjourned date i.e. the 13th, it was therefore incumbent upon him not only to be in court but also to have duly informed his counsel of the hearing date. When therefore the defendant chose to absent himself from court despite the fact that he was aware of the date, can be heard to complain that he was not given a hearing? I think not.

If he had not been in court on the 9th of December when the matter was adjourned to the 13th, in the absence of an order for service of notices on them they could have successfully argued that they were not notified of the proceedings and therefore not given a hearing. A party who has had notice of impending proceedings but nonetheless chooses to be elsewhere cannot be heard to complain that he was not given a hearing. Since he absented himself from court without any reason, the learned Judge’s decision to proceed in his absence cannot be faulted and I so find. The attack mounted against the judgment on this score cannot therefore be sustained.

In the result would allow the appeal in part.

The Judgment of the High Court and the consequential orders are set aside. In its place, the defendant is given leave to defend. Suit to take its normal course in the court below.

(SGD)

V. AKOTO-BAMFO [MRS.]

JUSTICE OF APPEAL

I agree.

ARYEETEY, J.A.

B.T. ARYEETEY

JUSTICE OF APPEAL

I also agree.

ASARE KORANG, J.A.

A. ASARE KORANG