ADOLF ADARKWAH v. FIRST ALLIED SAVINGS AND LOANS LTD
2018
HIGH COURT
GHANA
CORAM
- DR. RICHMOND OSEI-HWERE
Areas of Law
- Civil Procedure
- Constitutional Law
2018
HIGH COURT
GHANA
CORAM
AI Generated Summary
The case involves the Plaintiff seeking recovery of 6.3 million Ghana Cedis and costs from the Defendant, who failed to enter an appearance, leading to a default judgment. The Defendant requested to set aside the default judgment, citing the desire to settle out of court as the reason for non-appearance. The Court examined its discretionary powers under Order 10 rule 8 of CI 47 and Article 296 of the 1992 Constitution. Despite finding the Defendant's explanation and defense unsatisfactory, the Court set aside the judgment to allow substantial justice. The Defendant was ordered to enter an appearance within seven days and pay GHC 20,000 in costs to the Plaintiff.
RULING
This is a Motion on Notice praying this Honorable Court for an order setting aside the default judgment entered against the Applicant herein and for leave to enter late appearance.
The Plaintiff/Respondent herein issued a Writ of Summons against the Defendant/Applicant on the 15th of August, 2018. The Plaintiff’s claim against the defendant are for:
a. An order for the recovery of the sum of SIX MILLION AND THREE HUNDRED THOUSAND GHANA CEDIS (GH¢6,300,000.00) being the principal sum invested in fixed deposit with the Defendant and two (2) months interest arrears standing unpaid by the Defendant on the money invested in the fixed deposits as of the time of the institution of this action.
b. Interest at the prevailing bank rate on the total sum of SIX MILLION AND THREE HUNDRED THOUSAND GHANA CEDIS (GH¢6,300,000.00) from July 2018 being the due demand date the Plaintiff lawyers finally demanded for the repayment of the said sum total to the Plaintiff up to the date of final payment.
c. Cost including solicitors legal fee and other expenses as agreed by the Defendant in its “letter of indemnity”.
d. And any other reliefs as to this Honorable Court may deem just.
The defendant/applicant was served with the writ of summons and statement of claim on the very day it was issued i.e. 15th August, 2018. Subsequently, this Honorable Court entered default judgment in favor of the Plaintiff/Respondent on the 5th of September,2018 after the Defendant/Applicant had failed to enter an appearance.
Naturally aggrieved by the said default judgment, the Applicant has filed the instant application and the grounds of the application are contained in the Affidavit in Support filed on the 29thof September, 2018.
In moving the motion, Counsel for the Applicant prayed the Court to exercise its discretion and set aside the default judgment. Counsel cited Order 10 rule 8 of the High Court (Civil Procedure) Rule 2004 (CI 47) and argued that per the provision the court is handed a discretionary power to set aside the default judgment. He also referred to article 296 of the 1992 Constitution which deals with the exercise of discretionary power and invited the court to exercise its discretion in favour of the applicant in the interest of fairness. Counsel also intimated that the defendant/applicant failed to enter an appearance as they wanted to settle the matter out of court. He prayed the court to set aside the judgment and grant the applicant leave to enter an appearanc