SONIAG COMPANY LTD vs EMMANUEL NII KANTREH & ANOR

On the 6th day of January 2023, the 2nd Defendant/Applicant filed the instant Application praying the Court for an order setting aside the Default Judgment dated the 30th day of November 2022, entered against the 2nd Defendant/Applicant.

The brief facts of the case are that the Plaintiffs/Respondents commenced the instant action on the 22nd day of September 2022, claiming the endorsement on the Writ of Summons and the Statement of Claim thereon.

On the 8th day of November 2022, the Plaintiffs/Respondents filed a Motion on Notice for Judgment in Default of Defence to be moved on the 16th day of November 2022.

The Motion for Default Judgment was moved and granted on the 16th day of November, 2022.

According to Counsel for the Applicant, a Search conducted at the Registry of the Court shows that the Applicant was not served with the Motion for Default Judgment. See Exhibit ‘5’ attached to the Supplementary Affidavit in support filed on the 25th day of January, 2023.

And that the failure of the Plaintiffs/Respondents to cause the Motion for Judgment in Default of Defence to be served on the 2nd Defendant/Applicant before same was moved was in breach of the audi alteram partem rule of natural justice. Hence, any subsequent proceedings based on the Motion for Default Judgment including the Default Judgment and the Final Judgment, are all void ab initio since the Court could not assume jurisdiction to determine same.

Counsel continued that proceedings from the Court on the 29th day of November 2022, indicate that, after the Default Judgment, the case was heard and adjourned to the 30th day of November, 2022 for judgment. See Exhibits 6 and 6(a) attached to the Supplementary Affidavit of Application filed on the 25th day of January, 2023.

However, when the matter was adjourned on the 29th day of November, 2022 to the 30th day of November, 2022, no Hearing Notice was served on the Defendants to appear in Court for the delivery of the judgment.

Again, the failure of the Applicant to be served with the date of the judgment renders the Final Judgment in the case a nullity even if the Applicant had been served with the Motion on Notice for Default Judgment.

Counsel submits that the Default Judgment and the Final Judgment obtained by the Respondents in this case are a nullity for want of hearing and jurisdiction and ought to be set aside as a matter of cost.

And that assuming without admitting that the Judgment in this case was regularly obtained, the case hav