JENNIFER SELASE AGBEMAFO v. ROBERT AGBADZA.
June 29, 2022
COURT OF APPEAL
GHANA
CORAM
- CECILIA SOWAH, JA (PRESIDING)
- ANTHONY OPPONG, JA
- ANGELINA MENSAH-HOMIAH, JA
Areas of Law
- Civil Procedure
June 29, 2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Justice Anthony Oppong, JA, writing for the Court of Appeal, dismissed the defendant/appellant’s appeal from a High Court ruling refusing to set aside a judgment entered after he failed to attend trial. The plaintiff/respondent had sued in June 2018 for declaration of title to a 0.23 acre parcel at Okorase in Akuapem, recovery of possession, damages for trespass, and injunction. The appellant entered conditional appearance and filed a defence and counterclaim only after an interlocutory default application, then ignored multiple hearing notices served via his counsel’s address. The trial proceeded under Order 36, and judgment was delivered for the respondent on 18 February 2021. Nearly two months later, the appellant applied to set aside the judgment, citing counsel’s illness but offering no proof and no adjournment request. Emphasizing valid service on counsel, the fourteen-day limit under Order 36 Rule 2, and Supreme Court guidance that one must appeal both the refusal and the default judgment, the court affirmed the trial judge’s discretion and dismissed the appeal.
ANTHONY OPPONG, JA:
On or about 27th June 2018, plaintiff/respondent (to be called hereafter as respondent) sued the defendant/appellant (to be referred to hereafter as appellant) and sought against the appellant declaration of title to a parcel of land size of 0.23 acre situate at Okorase in Akuapem in the Eastern Region of Ghana; recovery of possession of the said land; general damages for trespass and perpetual injunction.
Attempts were made to serve the appellant with the writ of summons and the statement of claim on 27th June 2018, 29th June, 2018 and 10th July 2018 but all to no avail. The appellant was subsequently served with the processes by substituted service upon an application by the respondent.
Upon service of the processes on appellant, he entered conditional appearance on 17th December, 2018. The appellant did not file any process within time to justify the filing of the conditional appearance. Neither did he file statement of defence within the time frame permissible under the High Court Rules. It took an application for interlocutory judgment in default of defence filed by the respondent to prompt the appellant to file his statement of defence and counterclaim on 26th March, 2019 to avoid default judgment being taken against him.
That lackadaisical conduct of the appellant that occasioned the filing of the application for judgment in default of defence was a clear shadow of the manifest nonchalant attitude of the appellant that blossomed into full “I do not care attitude” towards the progress of the case as subsequent events clearly unfolded.
I must say that the appellant, as a party in the suit, contumaciously disregarded the underlying policy objective of ensuring speedy and effective justice, devoid of delays and unnecessary expenses as stated in Order 1(2) of the High Court (Civil Procedure) Rules, 2004 (C.I.47).
It turned out that after filing his defence and cross action, appellant went to sleep and never woke up, notwithstanding the service of several hearing notices on him through his counsel. It was not until the entry of judgment had been served on him that he woke up to bring an application to set aside the judgment that had been given against him. That application was filed on 18th February, 2021.
Whilst the appellant was sleeping, a lot happened. The respondent proceeded with the conduct of the case. Application for direction was filed and served on appellant on 29th May 2019 as shown at page 34 of the Record of Appeal