AMEYIBOR v. KOMLA

JUDGMENT OF APALOO C.J.

The suit which culminated in this appeal was an application by the respondent to set aside a judgment obtained against [p.822] him by default. His professed ground for seeking this relief was that neither the writ of summons nor the default judgment was served on him. The appellant disputed this and issue was joined on the facts.

The judgment sought to be vacated was delivered some time in 1967. Evidence was produced by both sides and the resolution of the issue raised a simple question of fact. The learned judge said he “had no hesitation whatsoever in disbelieving the applicant’s (meaning the respondent’s) assertion that he was not served with the writ of summons and with the 1967 default judgment.” In other words, the judge was satisfied with the appellant’s evidence that the respondent was served not only with the writ of summons but with the default judgment as well. By this finding, the pedestal on which the respondent sought to vacate the judgment was gone and ordinarily, his application would have failed. The learned judge said as much.

However, in the course of the argument, it was pointed out that the writ of summons by which the suit was commenced, was not indorsed in the manner required by Order 9, r. 17 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), and that therefore the judgment was a nullity and should be set aside. The learned judge acceded to this submission. He said he had himself examined the writ of summons and was in a position to agree that it was not indorsed in the manner required by the rule. He said he found it difficult to appreciate the rationale behind the rule but inasmuch as default was made in complying with it, the court had no power to grant leave for the signing of the default judgment and that it must be set aside notwithstanding the fact that the respondent delayed in bringing the application for three years. The judge accordingly proceeded to set the judgment aside. It is this order that the appellant seeks by this appeal to reverse.

Order 9, r. 17—the rule admittedly infringed, provides:

“17. The person serving a writ of summons shall, within three days at most after such service, indorse on the writ the day of the month and week of the service thereof, otherwise the plaintiff shall not be at liberty, in case of non-appearance, the proceed by default; and every affidavit of service of such writ shall mention the day on which such endorsement was made. This rule shall apply