MR. _ MRS. JONAS ARYAN PAINTSIL v. SULEMANA _ ORS

JUDGMENT

QUAYE, J.A.

This is an appeal from the ruling of the Circuit Court Accra, made on 18th July, 2001 by which the said court refused to set aside a default judgment in this matter against the 1st defendant [appellant herein] on 2nd November, 1999.

In order to make for a better understanding of this appeal, I consider it necessary to recount the facts in brief. By their writ of summons filed on 1st April 1999 the plaintiffs [who are presumably man and wife] sued the defendants, numbering seven, with the appellant herein listed as the first defendant. An endorsement of service of the writ together with the statement of claim was made on the back page of the writ on 6th April, 1999 to show that of the seven defendants only two, that is to say, the 3rd defendant Kofi Siaw and the 6th defendant Kpakpo Somuah were served on 1st April 1999, the very date on which the writ and the statement of claim were filed. The action was for the recovery of possession of Land, perpetual unjunction and general damages for trespass. On 14th April 1999 the Plaintiff filed a motion for an order for substituted service to be effected on the 1st and 7th defendants. The plaintiffs averred in the supporting affidavit, inter alia, that all the Defendants had been served with the writ of summons and the statement of claim except the 1st and 7th defendant. The trial Circuit Court granted the application on 20th April, 1999. The order which was subsequently drawn up was erroneously dated 21st March, 1999. It was to remain in force for twenty-one days. By the success of the said application an order for substituted service, it was understood and indeed expected that the 1st defendant was to be deemed to have been served by [a] the delivery of the said processes to one Mr. Yartey was alleged to be living nearest to the land in dispute and [b] by posting copies of the said processes on the wall of the structure the 1st defendant was erecting on the land in dispute for at least twenty one days. A subsequent search which the plaintiff conducted in the Registry of the Circuit Court, Accra filed on 21st May 1999 but responded to on 9th June, 1999 disclosed, inter alia, that the 1st defendant was served with the writ of summons and statement of claim on 21st April, 1999. Even though I have decided to limit this judgment as much as possible to the 1st defendant/appellant, I find need to digress briefly to mention that the search under consideration further indicated that the 3rd