BALLAST NEDAM GHANA B.V v. HORIZON MARINE CONSTRUCTION LTD

GBADEGBE, JSC:-

This is an appeal from the decision of the Court of Appeal that reversed the judgment of the High Court, Accra, which had allowed in favour of the appellant an application for summary judgment. It appears from the judgment of the Court of Appeal that it was of the opinion that there were triable issues disclosed by the respondent’s affidavit to the application under Order 14 of the High Court (Civil Procedure) Rules, 2004, CI 47.Delivering the judgment of the court, Kusi Appiah JA after referring to the case of SADHUWANI v AL- HASSAN [1999-2000] 1 G.L.R 19 observed as follows at pages 162-163 of the record of appeal:

“In the instant appeal, it is one of the appellant’s contentions that the mode of payment to the respondent was subject to the general terms and conditions of the contract, clause 4, where the defendant/appellant has to satisfy itself that the works had been properly done according to the specifications before invoices are accepted and payments made (see Exhibit “KET 4”). If the appellant claims that they did not accept the last invoices for payment because the respondent had not done the works in accordance with their specifications, it certainly is an issue for the court to determine and apportion responsibility.”

In our view, the above pronouncement by the learned justices of the Court of Appeal whose judgment is under attack before us satisfies the requirements of Order 14 rule 3(1) of the High Court Rules, CI 47 that is expressed thus:

“A defendant may show cause against the application by affidavit or otherwise to the satisfaction of the court.”

Although the procedure for summary judgment under order 14 enables the appellant to obtain speedy and summary judgment without a trial even in cases where the defendant to the action expresses an intention to defend the action, the court may only grant the application in cases where the defendant is unable to set up a good defence or raise an issue which ought to be tried. See: (1) ANGLO-ITALIAN BANK v WELLS, ANGLO-ITALIAN BANK v DAVIES (1878) 38 LT 197; (2) ROBERTS v PLANT [1895] 1 QB 597.

We are of the opinion that the allegation by the respondent that the payment was subject to the appellant satisfying the requirement contained in clause 4 of the agreement was a good defence to the action and also raised an issue that under rule 5 (1) of Order 14 raised an issue that comes under the description ‘there ought for some other reason to be a trial of that claim or part of