GIANT METRO CO LTD VS MSF ENGENHARIA S.A.
2018
HIGH COURT
GHANA
CORAM
- HER LADYSHIP JUSTICE JANAPARE A. BARTELS-KODWO (MRS.)
Areas of Law
- Civil Procedure
- Contract Law
- Alternative dispute resolution
2018
HIGH COURT
GHANA
CORAM
AI Generated Summary
The Defendant/Applicant filed a motion to set aside a default judgment entered against it and for leave to enter an appearance. The Defendant's main arguments were that its officers were out of jurisdiction and the arbitration agreement between the parties precluded the court action. The Plaintiff countered with evidence of services rendered and partial payments received. The court examined the Defendant's motion and the circumstances of service and found no persuasive reason to set aside the judgment. The court emphasized the requirement for demonstrating a reasonable defense, which the Defendant failed to do, and upheld the default judgment, dismissing the Defendant's application.
The Defendant/Applicant by a motion on notice seeks an order to set aside Judgement in default of appearance entered against it on the 30th of January, 2018 and for leave to enter appearance.
The applicant relies on Order 10 r 8 of C. I 47 of the High Court Civil Procedure Rules.
Learned counsel for the Applicant submitted that its failure to enter appearance was not out of disrespect for this court neither was it that it had admitted the Plaintiff’s claims against it.
Rather when service of the Writ was effected on its offices all its key management officers were outside the jurisdiction in Portugal and the process was received by the receptionist who failed to appreciate the significance of the process.
The process finally came to their attention and it is their contention that the Plaintiff has not performed any services for the Defendant for which it remains outstanding payments being claimed by the Plaintiff.
He argued that no ‘specified services’ were performed for the Defendant as claimed by the Plaintiff for the amount of $520. 916. 00 and €98, 876. 00 as per the Writ of Summons.
Defence counsel argues at length that the documents Plaintiff relies on to make the claims do not substantiate the claim.
More especially, he submitted that parties are bound by their own bargain and in this instant matter it has been agreed that parties resort to arbitration in case of any disputes between them before contemplating a court action.
He submitted that Plaintiff’s own letter herein attached as Exhibit TAA 1 by them is evidence of that.
Counsel submitted further that they are entitled to defend themselves in court and any loss that may occasion the Plaintiff can be rectified by cost hence the court should grant their application.
Learned Counsel for the Respondent is opposed to the application and states that the Applicant has not shown that it has a defence.
Hence there exists no overriding circumstance to allow the application.
Again the Applicant’s officials in both Ghana and Portugal were made aware of the suit since mid-December but have failed to demonstrate any unavoidable circumstances why they failed to respond to same.
He relied on KWAME TETTEH’S CIVIL PROCEDURE RULES BOOK, at page 346 where on the exercise of the discretionary power given to the courts in applications such as the present one it is stated that where the application does not disclose a prima facie defence to the claim, as where the defence goes only to quantum of damages