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February 9, 1976
HIGH COURT
GHANA
CORAM
The plaintiff-respondent in this matter has taken a preliminary objection to an application by the defendant to set aside a summary judgment obtained against him under Order 14, r. 1 of the High Court (Civil Procedure) Rules, 1954 (L.N.140A). The basis of the objection is that a judgment obtained under Order 14, r. 1 of L.N.140A is not a default judgment and cannot be set aside under the rules. He buttressed his argument with Spira v. Spira [1939] 3 All E.R. 924, C.A.
Counsel for the defendant-applicant submitted that the application to set aside the judgment is brought under Order 13, r. 11 of L.N. 140A, and sought the court to exercise its powers under its inherent jurisdiction to set aside the judgment. He argued that the defendant-applicant has pleaded new facts which should justify the court in setting aside the judgment.
A judgment obtained under Order 14, r. 1 of L.N. 140A generally is not a default judgment. It is not a judgment given because of some default on the part of the defendant; it is a judgment based on the established facts as contained in the writ and affidavit in support of the motion for summary judgment. It is a final judgment and on the principle of Spira v. Spira (supra) it cannot be set aside: see also Manash v. Kaawoh [1961] G.L.R. (Pt. II) 777. Our rules do not make any provision for setting aside a judgment obtained under Order 14, r. 1 of L.N. 140A. The only remedy which the defendant has is to appeal, because the judgment is final. But Spira v. Spira (supra) has been set aside by an amendment of rule 11 of [p.261] Order 14 of the English Rules. Under the new rule 11, any judgment given against a party who does not appear at the hearing of an application under Order 14, r. 1 may now be set aside. Even though rule 11 of the English Rules may be stretched by Order 74 of the High Court (Civil Procedure) Rules, 1954, to cover the appropriate cases and situations in Ghana, it is my view that it will not apply in this case, because the defendant was well represented by counsel at the hearing of the summons and he was heard. His contention was that he had filed certain papers that morning which were not yet before the court, and that the defence of the defendant was truly set out in those papers. In a nutshell, he said his defence was on consideration totally failed and that was why the cheques were stopped. It cannot therefore be said that the judgment was given against a party who did not appear at the hearing.
There
AI Generated Summary
In the High Court, Cecilia Koranteng-Addow J. addressed a preliminary objection arising from an application by the defendant to set aside a summary judgment entered under Order 14, r. 1 of the High Court (Civil Procedure) Rules, 1954 (L.N.140A). The plaintiff-respondent argued that an Order 14 summary judgment is not a default judgment and cannot be set aside under the rules, invoking Spira v. Spira. The defendant’s counsel, Dr. Ephson, maintained the application under Order 13, r.11 and urged the court’s inherent jurisdiction to set aside, citing new facts and a defence of failure of consideration leading to stopped cheques. The court held that Order 14 judgments are final and that Ghana’s rules provide no mechanism to set them aside; the proper remedy is appeal. English Order 14 rule 11, as amended, applies only in cases of non-appearance, which did not occur here because the defendant was represented and heard. The application was dismissed.