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June 20, 2023
HIGH COURT
GHANA
CORAM
The present Motion filed by the Defendants/Applicants (Defendants) seek judgement in default of appearance against the 3rd party in this suit. Defendants say the application is brought pursuant to Order 10 of the High Court Civil Procedure Rules, 2004 (C1 47).
It is important to note first and foremost that 3rd Party proceedings are a special kind of joinder under CI 47 which should be distinguished from regular joinder of parties provided for under Order 4 of CI 47.
In 3rd Party proceedings, the person joined to a suit as 3rd Party does not become a Defendant to the main action but a Defendant to the reliefs claimed in the 3rd Party notice.
The position of the law which is well-settled is that where a specific provision is applicable to a subject matter, the law will not permit a general provision to detract from that specific provision. This is the principle encapsulated in the Latin maxim generalia specialibus non derogant which translates as “the general does not detract from the specific.”
A careful reading of our High Court Civil Procedure Rules (CI 47) discloses that the specific provision that governs default of appearance in 3rd Party proceedings is Order 15 rule 5 and not Order 10 as stated in the heading of Defendant’s motion. This error is however not fatal and the Court in a bid to do substantial justice shall proceed to determine the merits of the application.
Order 15 rule 5 states;
“5. (1) If a 3rd Party does not file an appearance or having been ordered to serve a defence fails to do so,
(a) the third party shall be deemed to admit any claim stated in the third party notice and shall be bound by any judgment (including judgment by consent) or decision in the action so far as is relevant to any claim, question or issue stated in the third party notice;....”
The effect of the above-quoted provision is that a third party who defaults in making appearance to a 3rd Party notice suffers the same fate as a Defendant who fails to do so in a substantive suit. He stands as Defendant to the party serving the 3rd Party notice and upon failure to enter appearance is deemed to have admitted the claim of the Defendant who served the notice and who stands as Plaintiff to the 3rd Party.
It may therefore be reasonable to argue that 3rd Party proceedings are somewhat independent of the main action for which reason default judgment may be entered against a 3rd Party without reference to the rights or claims of the Plaintiff in the main suit.
That sa
AI Generated Summary
Her Ladyship Justice Akua Sarpomaa Amoah (Mrs.), sitting in the High Court, considered a motion by the Defendants/Applicants seeking judgment in default of appearance against a third party joined under the High Court Civil Procedure Rules, 2004 (C1 47). The judge emphasized that third‑party proceedings are a distinct form of joinder: a third party does not become a defendant to the main action but only to the reliefs pleaded in the third‑party notice. Applying the interpretive maxim generalia specialibus non derogant, the court identified Order 15 rule 5 as the specific rule governing default in third‑party proceedings, rather than Order 10 as cited in the motion. The mis‑citation was deemed non‑fatal, and the court proceeded to consider the merits. Because the plaintiff’s claims against the defendants remain undecided and third‑party relief must be connected to the subject matter of the main suit, the court found it judicially expedient to defer determination of the application and to incorporate its ruling in the forthcoming judgment on the main action. The application was declined and refused.