2015
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The appeal is against the High Court's refusal to set aside a default judgment. The Court of Appeal found that the lower court's decision lacked basis since the defendant was not indolent in her defense, and there were issues that required a full trial. The trial judge's discretionary powers were not judiciously exercised, failing to consider all relevant aspects. Consequently, the Court of Appeal set aside both the default judgment and the ruling refusing to set it aside, allowing the appeal.
J U D G M E N T
A. M. DOMAKYAAREH (MRS), J.A.
This is a double-pronged appeal, firstly, against the Ruling of the High Court, Kumasi, dated 13th November 2013 refusing to set aside a default judgment dated 19th June 2013 and secondly against the said default judgment against the defendant/appellant dated 19th June 2013.
The genesis of this appeal is as follows:-
1. By a Writ of Summons sealed on 4th April 2013 the plaintiff/respondent (hereinafter called the Plaintiff), claimed the under-listed reliefs against the defendant/appellant (herein after called the Defendant) to wit:
a) A declaration that the plaintiff is the lawful allotee/tenant of store No. G.F. 9 Guggisberg Road, now Prempeh II Road, Kumasi and that the continued occupation of the defendant of the said store No. G. F. 9 Guggisberg Road is wrongful and trespassory.
b) Recovery of possession
c) Damages for trespass
d) Perpetual Injunction restraining the defendant, her servants, agents and assigns from interfering with the said store.
The Writ was served on the defendant on 11th April, 2013 and she entered Appearance to the action through her Counsel on 22nd April 2013.
2. After an application for a search by the Counsel for the plaintiff dated 4th June 2013 revealed that as at the said date the defendant had not filed any Statement of Defence, Counsel for the plaintiff filed a Motion on Notice on 5th June 2013 praying the trial Court for an Order of Final Judgment against the defendant in default of Statement of Defence.
3. On the return date of 13th June 2013, the Motion was adjourned 19th June, 2013. The reason was that there was no Proof of Service on the defendant. On the adjourned date, that is 19th June 2013, both the defendant and her Counsel were absent. The Motion was moved on that date and the application was granted as prayed for all the reliefs endorsed on the Writ of Summons. The Court stated that in lieu of damages, it would enhance the costs for the Plaintiff/Applicant. The Court then awarded costs of GHC500.00 against the defendant. The Record of Appeal is silent on whether the Motion on Notice was served on the defendant or her Counsel as at that date.
4. On Friday 28th June 2013, the plaintiff filed Entry of Judgment for the reliefs granted her on 19th June 2013.
5. The defendant, dissatisfied with the said Final Judgment entered against her, filed a Motion on Notice to set aside the default judgment and also for leave to file a late defence on Tuesday 9th J