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R U L I N G
DR. DATE-BAH, J.S.C.: A bank, the second respondent, brought action against the applicant in this case and two others to recover a debt owed it. After the defendants had been served with the writ and they had entered appearance, the bank filed a motion for summary judgment against them on 6th December. 2007. The motion was fixed for hearing on 18th December, 2007 and the applicant was served with it on Wednesday 12th December, 2007. On 18th December, 2007, the bank moved its motion, in the absence of the applicant. The trial High Court, the first respondent in this case, granted the application on 28th February, 2008 and entered judgment in favour of the bank,
The applicant’s complaint is that the bank did not comply with the mandatory rule of procedure that there should be four clear days between the date of service of the motion for summary judgment and the return date. It contended that since the applicant was served on a Wednesday 12th December, the fourth clear day was 18th December, 2007 and thus the application should not have been moved on that date. It was his case that the consequence of the application having been moved on 18th December, 2007 was that it rendered the proceedings based on it null and void. He therefore argues that the judgment of 28th February 2008 is null and void and should be set aside.
Though the second respondent bank admitted that the return date of its motion was 18th December, 2007, it contended that on that date the case had been adjourned to enable the applicant to be given more time before the hearing of the application. The second respondent, however, admitted that it moved its application on 18th December, before the trial judge adjourned the case sine die and directed that hearing notice be served on the applicant. On these facts, there had been short-service. What this Court has to consider are the legal consequences of such short-service.
There is authority in this jurisdiction for the proposition that where proceedings are taken by a plaintiff in the absence of the defendant, there should be strict compliance with the rules of procedure. It has been held that if there is non-compliance with a mandatory rule in the default procedure, such non-compliance cannot be waived. A judgment taken after such non-compliance is void. The relevant case law includes: Attoh-Quarshie v Okpote [1973] 1 GLR 59 (per Hayfron-Benjamin J. as he then was) and Azinogo v W E Augustt and Co. Ltd [1989-90] 2 GLR 278. In