DAVID ANDREAS HESSE v. INVESTCOM CONSORTIUM HOLDING S.A. & SCANCOM LTD

DUOSE, JA

On the 2nd day of April, the Commercial Division of the High Court, Accra, entered interlocutory judgment against the 1st Defendant in default of defence.

Subsequently on the 26-04-07, the same court refused to set aside the interlocutory judgment stating "No new issue is raised in this application to set aside that Order."

The 1st Defendant/Appellant being dissatisfied with the ruling of the Commercial Court Accra dated 2nd April 2007, filed an appeal against it on 07-05-07 simultaneously with application for stay of proceedings pending appeal.

Mr. F. Ntrakwa submitted that this application had a great chance of success for the following reasons.

(1) That the Defendants were sued jointly and severally and therefore the proceedings cannot be severed Order 13 r 6 of CI 47.

(2) That the Defendants brought an application for stay of proceedings pending arbitration which was refused.

(3) The Judge suo moto ordered the 2nd Defendant to file his defence within a specified period. Before that period expired the Defendants appointed new Solicitors who promptly filed appropriate notice.

(4) The Court and the Plaintiff agree to allow the new Solicitors to study the brief thereby creating an estoppel by convention.

(5) Yet the Plaintiff proceeded to file for judgment in default of defence.

(6) The Defendants filed application for extension of time to appeal against the earlier ruling of the court refusing to stay proceedings pending arbitration to be heard on 10-04-07 same was served on the Plaintiff on 26-03-07.

(7) The Plaintiff filed application for judgment in default of defence on 27-03-07 fixed for hearing on 3rd April subsequently brought forward by the court to 2nd April. In effect the application for default judgment which was filed later in time was heard earlier and granted, whereas the application for extension of time to appeal against the ruling of the court dated 02-04-07 was refused.

(8) By hearing the application of the Plaintiff filed later before the one filed Earlier by the Defendant manifest injustice was caused to defendant.

(9) That the failure to file the statement of defence within time was in Pursuance of a legal right under S. 8 of the Arbitration Act 1961 Act 38 and Order 64 r 1 of CI. 47. The law required that a party who wished to rely on or to enforce an arbitration provision in a contract or agreement must first apply for stay of proceedings after entry of appearance.

That to file a defence in the circumstances