On 16 January 1989, I dismissed the defendant's application to set aside the summary judgment entered against the defendant on 30 June 1987. And this is my ruling.
On 30 June 1987, a summary judgment was entered against the defendant under the new Order 14, r. 1 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) as amended by the High Court (Civil Procedure (Amendment) (No 2) Rules, 1977 (L.I. 1129). The summons for summary judgment was filed on 12 May 1987. On 30 June 1987, the application came up for hearing. Counsel on either side was present, and counsel for the defendant orally submitted to judgment. Judgment was therefore accordingly entered for the plaintiff against the defendant by Lamptey J. (as he then was). It was [p.96] against that summary judgment that the instant application was brought, seeking to set it aside upon a number of grounds.
Four main grounds were discernible: That the defendant has a good defence to the action; that it is necessary to set aside the judgment to enable the defendant prosecute his counterclaim raised in this application; that the judgment was in the nature of a "consent judgment" but that it did not comply with the rules governing "consent judgment"; and that the defendant's counsel had no instructions to submit to the said judgment.
On the counterclaim raised only in this application after the said summary judgment, the authorities are clear that a counterclaim is not an independent action: see Kamara v. Traore [1968] G.L.R. 1009 per Annan J. (as he then was).
That case originated from the district court. The plaintiff-respondent took action against the defendant-appellant for the sum of N¢1,000, on the undefended list and the defendant filed an affidavit admitting the claim. In the same affidavit, the defendant put in a counterclaim for N¢2,000 damages which was beyond the jurisdiction of the trial court, and he again in the same affidavit asked for stay of execution pending the hearing and determination of his said counterclaim.
The trial court entered judgment for the plaintiff for the N¢1,000 he claimed against the defendant, and struck out the counterclaim for N¢2,000 which was beyond the trial court's jurisdiction. The application for stay of execution was also struck out. On appeal to the High Court, Annan J. (as he then was) said at 1011 as follows:
"A counterclaim is a cross-action and is therefore a separate action and it is filed to commence proceedings in the court in which the plain
