MAJOR ABDULAI ISSA vs COURAGE COMMERCIAL LTD
2017
HIGH COURT
GHANA
CORAM
- KWEKU T. ACKAAH-BOAFO JUSTICE OF THE HIGH COURT
Areas of Law
- Civil Procedure
2017
HIGH COURT
GHANA
CORAM
AI Generated Summary
The case involves an application by the Defendant to set aside a default judgment on the grounds that the Plaintiff's solicitor was unlicensed and procedural rules were breached. The court found the arguments unpersuasive, noting procedural failures were irregularities but not nullifying, and dismissed the application.
MOTION ON NOTICE TO SET ASIDE DEFAULT/INTERLOCUTORY JUDGMENT
Introduction:
[1] This is an application filed at the instance of the Defendant/Judgment Debtor/Applicant praying for an order setting aside the Default/Interlocutory judgment entered in favour of the Plaintiff on March 8, 2016. The application is supported with the affidavit of John Jayne, the Chief Executive Officer of the Defendant/Applicant sworn on April 26, 2017. I note that the application is premised on legal grounds hence the Defendant/Applicant did not attach to the affidavit any proposed defence to the claim to pray that the matter be determined on its merits.
The Plaintiff is opposing the application and there is an affidavit in opposition filed on May 15, 2017 by the by the Plaintiff/Respondent.
[2] It is the case of the Applicant that at the time the Plaintiff/Respondent’s Solicitor filed the Writ of Summons, he was not a licensed lawyer with a registered licence to practice law in Ghana.
It is also the case of the Applicant that six months had elapsed when the application for default/interlocutory judgment was filed but the Plaintiff did not file a “Notice of Intention to Proceed” as required by the law and therefore there was a breach of the rules which makes the judgment entered void.
To that extent, Counsel prays that the judgment should be set aside.
Arguments For and Against the Application
[3] Speaking to the motion, learned Counsel for the Defendant/Applicant, Mr. George Addo Yobo reiterated the depositions in the affidavit and submitted that the application is premised on non-compliance with statute, Section 8 (1) of the Legal Profession Act, 1960 Act 32 and Order 37 of the High Court Civil Procedure Rules, 2004 CI 47.
[4] Firstly, learned Counsel submitted that at the time the Writ of Summons was issued the Plaintiff’s Counsel did not have a valid practising license and therefore the writ filed was void.
Counsel relied on the unreported Supreme Court case of HENRY NUERTEY KORBOE v. FRANCIS AMOSA Civil Appeal No: JA/56/2014 delivered on April 21, 2016 and submitted forcefully that this Court has no discretion in the matter.
Counsel submitted that the writ of summons ought to be set aside because all the processes built thereon are a nullity.
[5] Secondly, learned Counsel submitted that by the rules of Court, the Applicant should have first filed a Notice of Intention to proceed before filing the application for Default/Interlocutory judgment because si