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February 11, 1976
HIGH COURT
GHANA
CORAM
By his writ issued on 25 February 1975, the plaintiff claimed: "A declaration that the decision by the Omanhene of Twifu Mampong and his elders on Friday 14 February 1975, that the plaintiff should share the proceeds of his cocoa farm with the defendant in the ratio of two-thirds to the defendant and one-third to the plaintiff, is not binding on the plaintiff."
A copy of the writ was served on the defendant on 28 February 1975, and on 24 March 1975, an appearance was entered on his behalf by his solicitor, Mr. G. K. Acquah. On 27 May 1975, a statement of claim was [p.277] filed on behalf of the plaintiff. A copy of the statement of claim was served on Mr. G. K. Acquah on 30 May 1975. No statement of defence was filed on behalf of the defendant and on 27 November 1975, Mr. E. F. Short, the plaintiff's solicitor, filed a motion on notice for leave to enter judgment against the defendant for the relief endorsed on the writ. A copy of the motion paper with its accompanying affidavit was served on Mr. G. K. Acquah on 2 December 1975. No affidavit in opposition to the application was filed and when the motion came up for hearing on 15 December 1975, neither the defendant nor Mr. Acquah appeared to oppose it. Mr. Short moved the court for judgment and the application was granted.
By his motion filed on 21 January 1976, the defendant seeks an order setting aside the judgment given against him on 15 December 1975. The affidavit supporting the application was sworn to by Mr. G. K. Acquah. Paragraphs (2)-(11) of the said affidavit read:
"(2) That I am the solicitor for the defendant and I have his authority to swear to this affidavit.
(3) That it has come to my notice that the plaintiff has on 15 December 1975, obtained an ex parte judgment against the defendant.
(4) That the basis of our submission is this that, the alleged statement of claim of the plaintiff was filed far out of the time prescribed by the rules of court; and that unless he has either obtained the consent of the defendant or the leave of the court, his alleged statement of claim is not properly before the court and he cannot therefore ask for judgment on it.
(5) That a search conducted at this registry gives the following dates on the case:
Writ of summons filed .. .. .. 25 February 1975
Writ of summons served .. .. 28 February 1975
Appearance filed .. .. .. 24 March 1975
Appearance served .. .. .. 1 April 1975
Statement of claim filed .. .. .. 27 May 1975.
(6) That Order 20, r. 1 (b)
AI Generated Summary
ABOAGYE J considered a motion by the defendant to set aside a default judgment entered after the plaintiff sued to declare that the Omanhene of Twifu Mampong and his elders’ decision, allocating two-thirds of the proceeds of the plaintiff’s cocoa farm to the defendant and one-third to the plaintiff, was not binding. The defendant’s solicitor, Mr. G. K. Acquah, entered appearance but treated the plaintiff’s late-filed statement of claim as void, declined to oppose the plaintiff’s judgment motion, and later filed a defence. Applying Order 20, r.1(b) and Order 70, rr.1–2 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), the court held that late filing did not void the pleading and that, after taking a fresh step with knowledge of any irregularity, the defendant could not obtain relief. The court dismissed the application and ordered .00 costs personally against Mr. Acquah.