THE REPUBLIC v. HIGH COURT, ACCRA (COMMERCIAL DIVISION) COURT C, EX PARTE: DAVID ANDREAS HESSE & NYANIBA ESTATES

J U D G M E N T

GEORGINA WOOD (MRS), C.J.:

By this motion brought under rule 61 (1) of the Supreme Court Rules,1996, rule 16, the applicant prays for an order of certiorari to quash the ruling of Justice Cecilia Hanzzy Sowah dated 9th April 2008, and a further order of prohibition to restrain the learned judge from the further hearing of the substantive action related thereto.

The facts leading to this instant application are not altogether complex; neither are the procedural nor the substantive legal issues arising from them. On the 29th of November 2006, the applicant instituted an action against the 2nd respondent and the interested party and on the 2nd April, 2007, successfully moved the court to obtain judgment in default of defence against the 2nd respondents for the reliefs claimed.

On the 26th of April, 2007, the court dismissed an application filed on the 13th of April 2007, by the 2nd respondent, to set aside the default judgment. As the learned trial judge explained in her ruling, the motion to set aside the default judgment was not for the purposes of “having the case heard on the merits, but so that the arbitration it has commenced will not be prejudiced” Aggrieved further by this latest order of the court, on the 7th May, 2007, the 2nd respondent proceeded to lodge an appeal against the interlocutory default judgment of 2nd April 2007. While the appeal was pending before the Court of Appeal, and at a time the appellate court was fully seized with the appeal, with the parties having been served with the form 6 and both sides having concluded their respective written submissions, the 2nd respondent proceeded yet to file a fresh motion to set aside the interlocutory default judgment of 2nd April, 2007. The court struck out the application on 27th February, 2008, on the partially correct legal ground that:

“The law is that so long as an appeal has not been lodged, the trial court can entertain an application to set aside either a final or an interlocutory judgment or order, but no such application will be entertained after an appeal has been lodged.”

Following the court’s ruling that the only procedure by which a way could be paved for 2nd respondent to file an application to set aside the interlocutory judgment and for leave to file a defence was, if he withdrew the pending appeal, the applicant proceeded to file a notice of withdrawal on the 27th February, 2008, and then proceeded on the same day as advised by the court, to file a motion