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November 18, 1986
HIGH COURT
GHANA
CORAM
JUDGMENT OF BROBBEY J.
In this application, the defendant-applicant, hereafter referred to as the defendant, has applied for stay of execution of a [p.620] default judgment delivered by this court; an order setting aside that judgment and leave to file a defence to the plaintiff’s claim.
On the face of the defendant’s supporting affidavit, the sole ground of the application was put this way. “That I have a good defence or set-off or both against the plaintiff’s action with very high chance of success.” The plaintiff in his affidavit in opposition averred that the affidavit did not disclose any triable issue. When the application came up for hearing for the first time I pointed out to counsel for the applicant that his affidavit had to state facts disclosing some triable issue or some grounds of defence and so he had to advise his client to file a supplementary affidavit or file whatever defence he will eventually send to court if leave were granted. The latter advice was given in the alternative because it is now well established that even when leave is required, and the leave has not yet been given, once a defence is filed, it cannot be ignored: see Heward-Mills v. Barclays Bank (D.C.O.) [1966] G.L.R. 618 at 620.
In spite of the advice from the bench, counsel came back to court on the next return date without any supplementary affidavit or defence.
Counsel has rather been preoccupied with explaining to the court that he filed his appearance on 12 August 1986 instead of 21 August 1986. The plaintiff’s writ and statement of claim were filed on 15 July 1986 and served on the defendant on 21 July 1986. Even if the arguments of counsel and the applicant are accepted, the position would be that only appearance was filed on 12 August 1986. That did not answer the point at issue because the plaintiff had by 12 August 1986 applied for judgment in default of appearance and defence. Since no defence had been filed by 12 August the default judgment was regularly entered against the defendant.
No explanation has been offered by the defendant as to why he failed to file appearance within the period of eight days. As stated already, he filed appearance on 12 August 1986 under dubious circumstances but those circumstances are not relevant and the case will proceed on the assumption that appearance has been filed.
Further, no explanation has also been given as to why the defence has not been filed. That apart, an applicant seeking to set aside a judgment must su
AI Generated Summary
Brobbey J addressed an application by the defendant-applicant seeking three forms of procedural relief: a stay of execution of a default judgment earlier entered by this court, an order setting aside that default judgment, and leave to file a defence. The plaintiff’s claim had been commenced and served in July 1986, yet no defence was filed, and default judgment was regularly entered. Despite judicial advice to file a supplementary affidavit or the proposed defence to disclose triable issues, the applicant submitted only a bare assertion of having a "good defence" without facts. Applying the White Book requirement for an affidavit of merits and case law including Heward-Mills v. Barclays Bank, Farden v. Richter, and Djorbua v. Poku, the court held the showing was insufficient. With no defence or triable issue, the requests for leave, setting aside, and stay were dismissed, and costs of ¢2,000 were awarded to the plaintiff.