EASY INVESTMENT SERVICE LIMITED v. KWABENA OWUSU ABABIO & ANOR
2018
HIGH COURT
GHANA
CORAM
- ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
Areas of Law
- Civil Procedure
2018
HIGH COURT
GHANA
CORAM
AI Generated Summary
This case involves an application by the Defendants to set aside a default judgment entered against them. The Defendants claimed that they were not served with the motion for default judgment or the entry of judgment. However, the Plaintiff's counsel provided evidence that proper service was made. The court found that the Defendants' application was made in bad faith and that they had no viable defense. The court emphasized that while parties have the right to apply to set aside default judgments, the rules of court should not be used to frustrate a Judgment Creditor. The court refused the application and awarded costs against the Defendants, stating that they had not been candid and did not merit the exercise of the court's discretion in their favor. The ruling underscores the importance of timely and honest engagement with legal proceedings and the court's discretion in matters of setting aside default judgments.
RULING
This ruling is in respect of an application filed by counsel for the Defendant/Applicants for an order sitting aside the default judgment entered against his clients on 12/07/2017.
The basis of the application is that the motion on notice to enter judgment in default of defence was not served on counsel for the Defendants. And, further, the entry of judgment was also not served on the Defendants. Counsel submitted that the Defendants filed a defence without notice of the default judgment and that the Defendants have a good defence to the suit. Concluding, counsel submitted that there is no time limit within which to bring an application to set aside a default judgment.
Counsel for the Plaintiff in responding to the application duly exposed the falsity in the depositions that the motion for default judgment was never brought to the attention of counsel for Defendants and that entry of judgment was not served. He argued that application to set aside a default judgment must be brought timeously and the court has a discretion to grant or refuse the same. He concluded that the Defendants have not demonstrated any ground to merit the exercise of the court’s discretion in their favour. He urged the court to dismiss the application.
Order 13 rule 8 of C.I. 47 provides that “an application by a party affected, and on such terms as it thinks fit”, a court may “set aside or vary any judgment entered in pursuance of this order.
Upon a perusal of the affidavits filed and submissions made by both counsel, the court is of the opinion that the instant application has been brought in bad faith and that the Defendants/Judgment Respondents have no viable Defence. The motion on notice for judgment in default of defence filed on 30/06/2016 was duly served on counsel for Defendant on 05/07/2016 through his clerk by name Douglas and that was good service. The entry of judgment was subsequently served on the Defendants personally on 01/08/2016. It was after service of the entry of judgment that the Defendants/Judgment Debtors purported to file their defence. Why should the Defendants attempt to blur the court’s vision?
To the Defendants, I say that, yes, they have a right to apply to set aside the default judgment, they have exercised that right albeit late, but they are to not that the rules of court are not merit to be used to frustrate a Judgment Creditor. The Defendants have not been candid with regards to the present application and do not merit the exercise of