JUDGMENT OF HAYFRON-BENJAMIN J.
This is an application on notice for an order setting aside a judgment entered against the defendants by the High Court, Accra, on 27 February 1970.
The plaintiff had on his writ of summons issued on 28 October 1967 claimed an order for the specific performance of a contract with the defendants to execute a deed by way of confirmation, further assurance and perpetuating evidence of a customary sale of land to him, the plaintiff. He further claimed damages for the breach of the contract. The plaintiff's writ was accompanied by a statement of claim setting out fully the basis of his claim.
[p.95]
The defendants entered appearance separately; the first defendant by himself, and the second defendant through a solicitor. On 8 March 1968, when no defence was forthcoming from either defendant, the plaintiff filed notice of motion for judgment in default of defence under Order 27, rr. 7 and 11 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), together with the necessary certificate that the suit was not one to which rule 18 of Order 27 applied. On 22 March 1968, this motion came up for hearing before Charles Crabbe J. (as he then was) where the defendants were represented by different counsel. Judgment was entered against the first defendant in terms of the motion paper, and the motion as far as it concerned the second defendant was adjourned for hearing on 6 April 1968. On the adjourned date the motion against the second defendant was withdrawn and struck out as a defence had that morning been filed on his behalf. On 7 June 1968, the plaintiff filed a reply to the statement of defence. A few days later, i.e. on 19 June 1968, the plaintiff filed a notice to admit facts under Order 32, r. 4, and had this served on the second defendant through his solicitor on 21 June 1968. The defendant did not reply to this notice at all.
On 28 November 1968, that is exactly one year and one month after the commencement of the action the plaintiff filed notice to strike out the second defendant's statement of defence under paragraph 85 (2) of the Courts Decree, 1966 (N.L.C.D. 84), and Order 32, r. 6 of the rules of court. The reasons for filing this application are set out in the affidavit supporting the motion. It states that the second defendant by not filing an answer to the notice to admit facts "appears thereby to be determined to delay the expeditious hearing and conclusion of this suit by evasions, to say nothing
