GH - ENEGE KAKUM SL VS GHANA TRADE FAIR COMPANY LTD

The application filed on 15th March 2019, prays for an order of the Court to set aside the default judgment entered against the Defendant/Applicant by the Court herein.

The judgment sought to be set aside was in default of defence.

The judgment was entered on 15th August, 2012, almost 7 years as at date.

Default judgments may be irregular or regular and the courts have given grounds in relation to these different kinds of judgments.

An applicant seeking to set aside a judgment in default of defence must proceed under Order 13 Rule 8 of the High Court (Civil Procedure) Rules, 2004 (C. I. 47). Such Applicant urging irregularity in the application must address the demands of Order 81 of C. I. 47 for setting aside irregular proceedings.

Such application must therefore be made within reasonable time.

The grounds for setting aside judgment in default of defence as stated in the case of BOTCHWAY VRS. DANIELS [1991] 2 GLR 262 are; i. That the Applicant has a reasonable explanation as to why he did not defend the suit at the time of the action.

That the Applicant has a reasonable defence to the action for which reason it would be in the interest of justice to determine the matter on its merits.

Although Order 13 Rule 8 of C. I. 47 does not give a time limit for an application of this nature, an Applicant is in the interest of justice enjoined to act timeously as stated by the Court of Appeal in the case of AMEYIBOR v. KOMLA [1980] GLR 820. In a situation where the judgment is regular, the application must be prompt and the affidavit in support must disclose the defence to the claim.

The affidavit must also disclose an explanation for the default in filing the defence and further circumstances that establish a likelihood of grave injustice if the matter were not determined on the merits.

Establishing injustice would entail disclosure of a valid defence to the action as it will be futile for the Court to set aside the judgment for a claim for which there is no defence.

In pages 344 to 345 of S. Kwami Tetteh‟s Book, Civil Procedure, A Practical Approach, reference is also made by the learned author to the case of AGYEMAN VRS. GHANA RAILWAY AND PORTS AUTHORITY(1969) CC 60 to demonstrate the role of a good defence for the court to exercise its discretion in favour of the Defendant/Applicant.

Their Lordships held that, “the statement of defence filed by the Respondents disclosed a substantial defence and it will be unjust to allow the default judgment to