JUDGMENT OF BENIN J.
I consider it relevant to give a brief background history of this case to enable the present application, the arguments thereon, and the court's ruling to be appreciated in full. The plaintiff-respondents (hereinafter called the plaintiffs) sued out a writ of summons on 17 May 1989 claiming damages against the defendant-applicants (hereinafter called the defendants) in a running down matter. The defendants, having been served with the writ, failed to enter an appearance. A judgment in default of appearance was applied for and obtained against the defendants who were subsequently served with a notice of entry of judgment after trial. The plaintiffs made an attempt to go into execution after which the defendants applied for, and obtained leave to enter an appearance out of time from this court then presided over by my brother Okyere J.
The court, besides dealing with the application for leave to enter appearance out of time, on its own motion set aside the default judgment and also ordered the defendants to file their statement of defence on or before 4 October 1989. The plaintiffs then applied to the court to set aside its own order made suo motu vacating the default judgment and this was allowed on the ground that being a judgment regularly obtained, the court could not on its own motion vacate it without an application by the party affected. In the meantime the defendants did not file their statement of defence within the time allowed by the court and only did so on 13 October 1989.
With the court's order vacating the default judgment itself vacated, and thereby restoring the default judgment, the defendants moved on notice to set aside the default judgment and also for an order to defend the action on the basis of their statement of defence filed on 13 October 1989. The first part of the application was allowed without much difficulty and the judgment in default of appearance was set aside with costs to be assessed, and which I now assess at ¢10,000 and which I hereby order the defendants to pay the plaintiffs on or before 30 November 1989.
[p.211]
The second limb of the application was seriously opposed by the plaintiffs’ counsel on the ground that since the defence was filed in disobedience to the court’s order it was void and he relied on the case of United Africa Co. Ltd. v. Krekchi (1951) 13 W.A.C.A. 219. Earlier, counsel for the defendants had argued that the application before the court was implicitly asking for an enla
