BONSU v. DOE

JUDGMENT OF JIAGGE J.A.

Jiagge J.A. delivered the judgment of the court. This appeal is from the ruling of the circuit court dismissing an application to set aside its judgment for a liquidated demand in default of appearance.

The plaintiff indorsed his writ of summons for the sum of ¢290 being arrears of land rent due to him. He also applied for forfeiture of the land lease for non-payment of rent. The lease was neither exhibited nor tendered in court.

In his statement of claim, the plaintiff acknowledged that the amount due had been reduced to ¢170. Nevertheless, in the last paragraph of his statement of claim, he affirmed his demand for ¢290 as the amount due to him. The court entered judgment in his favour in default of appearance by the defendant for ¢290 as the amount due. The judgment was silent on the application for an order of forfeiture of the lease. Following a separate ex parte motion after signing for judgment, the court made an order of forfeiture of the lease.

The defendant moved the court to have the judgment set aside on the grounds, inter alia, that the actual amount due at the time of judgment was ¢50 and not ¢290. That the lease was for a term of 60 years, twenty of which was yet to run, that the lease covered vacant land and that the defendant had constructed a building valued at ¢100,000 on the vacant land. The motion to set aside the judgment was dismissed [p.780] by the court below and this appeal is against that ruling and the order for the forfeiture of the lease.

In his appeal before this court, counsel for the appellant argued that the judge erred in dismissing the motion to set aside his ex parte judgment in view of the facts deposed to in support of the motion. That if the judge had considered carefully the fact that he had signed judgment for an amount larger than the sum actually due at the time of judgment he would have granted the motion to set aside the ex parte judgment.

Counsel further argued that failure on the part of the respondent to disclose to the court at the time the order for forfeiture was made, that the amount due was ¢50 and not ¢290 amounted to lack of good faith and for these reasons his appeal should be allowed and judgment of the court below and the order for forfeiture set aside.

Counsel for the respondent admitted that the judge was not aware at the time of signing judgment that the amount due was ¢50 and not ¢290. He admitted further that it was not disclosed to the court at the time the ord