KANE-EM INDUSTRIES LTD vs AFRICAN INVESTMENT & MANUFACTURING GHANA LTD. [AIMG]

This is an application filed in the Registry of this Court by the Defendant/Applicant (hereinafter referred to as the Applicant) on the 6th of December, 2022 to set aside the service of Entry of Judgment filed on 20th November, 2019 by the Plaintiff/Respondent (hereinafter known as the Respondent)

The gravamen of the Applicant’s claim in an Affidavit in Support deposed to by one Mubarak Yahaya can be found in paragraphs 10-19. That this Honourable Court on 23rd October, 2019 having delivered Judgment in Default of Appearance against the Applicant, the Respondent filed an Entry of Judgment on 20th of November, 2019 but same was served at the wrong postal address and not the registered postal address of the Applicant Company. Therefore, the Entry of Judgment was not received by the Applicant having been wrongly served on the Applicant. Again, the Entry of Judgment was not served at the premises of the Applicant Company. That the Entry of Judgment having been served to the wrong address makes the service a nullity and this renders the said service incurably bad and cannot be saved by Order 81 of C.I. 47 and same ought to be set aside by the Court.

The application was opposed by the Respondent. Paragraphs 7-12 of their Affidavit in Opposition filed on the 12th of December, 2022 and deposed to by one Kofi Ntseful contains the gravamen of their case.

According to the Respondent, this Honourable Court differently constituted made a finding of fact in a Judgment to the effect that all the post Judgment processes including the Entry of Judgment was properly served on the Applicant. The said Judgment having not been overturned by any Court is still binding on the parties and so the Applicant cannot re-litigate the same issue. That even prior to that Judgment, the Applicant filed an application to set aside the Judgment entered by this Court and in which application it deposed to the fact that, it had been served with the Entry of Judgment. Therefore, having admitted to being served with a copy of the Entry of Judgment, the Applicant is estopped from now denying same. In any case, the provisions of Section 291 (5) of the Companies Act 2019, Act 992 which was in force at the time renders such an error in service immaterial if there is evidence that the Entry of Judgment was indeed received by the Applicant as evidenced in Exhibit ‘KE2’ and ‘KE3’.

In a Supplementary Affidavit filed on behalf of the Applicant, they denied admitting to receiving the Entry of Judgment