REPUBLIC v. HIGH COURT (COMM. DIV) ACCRA
2013
SUPREME COURT
GHANA
CORAM
- MRS WOOD C.J. (PRESIDING)
- OWUSU (MS), JSC
- DOTSE, JSC
- YEBOAH, JSC
- AKAMBA, JSC
Areas of Law
- Civil Procedure
- Contract Law
2013
SUPREME COURT
GHANA
CORAM
AI Generated Summary
Anin Yeboah, JSC, writing for the Supreme Court of Ghana, exercised the Court’s supervisory jurisdiction to issue certiorari quashing a default judgment entered by the High Court (Commercial Division), Accra. The interested party sued the applicant for US$58,000 in unpaid fees; after BMC Legal Services entered appearance, the interested party challenged defects under the High Court (Civil Procedure) Rules, and the judge ordered amendment. Akwetey & Associates later filed a fresh entry of appearance, and the applicant’s defence had been filed on 9 April 2010 and served. Nevertheless, on 22 November 2010 the High Court entered final judgment in default of defence. Attempts to set aside the judgment in January and March 2011 were dismissed. Applying settled practice and authorities, including Ex Parte Ohene and Asamoah v Marfo, the Supreme Court held that a trial judge cannot disregard a defence on the docket when hearing a default judgment motion. By doing so, the High Court exceeded its jurisdiction, so certiorari was granted.
ANIN YEBOAH, JSC:
The applicant herein has invoked this courts’ supervisory jurisdiction for the prerogative writ of certiorari to quash the judgment of the High Court (Commercial Division) Accra, dated the 22/11/2010.
The judgment sought to be quashed was not a judgment on the merits and therefore the facts leading to this application are devoid of controversy. On or about the 22/02/2010, the interested party to this application issued a writ against the applicant at the High Court, Commercial Division, Accra. The writ was indorsed with a claim of Fifty – Eight Thousand United States Dollars (U$58,000.00) being unpaid fees for services rendered by the interested party to the applicant for a period. Upon service of the writ of summons and statement of claim, the applicant consulted a law firm known as BMC Legal Services to enter appearance on its behalf, which the firm did on 16/03/2010. After service of the Notice of Appearance, the interested party on 18/03/2010 filed a motion on notice to set aside the Notice of Appearance.
The grounds for the application was that the Notice of Appearance filed on behalf of the interested party (the applicant herein) did not comply with the High Court (Civil Procedure) Rules, 2004, (C 147) and that same was irregular under Order 9 rule 1(1) and 3(1) CI 47. As expected, the application was opposed but was eventually struck out as withdrawn. On 6/04/2010, the interested party filed another application praying for the same relief as in the earlier one. Before the motion could be heard, the applicant filed its statement of Defence, disputing most of the material averments in the statement of claim and obviously the reliefs sought on the writ of summons.
On the 14/06/2010, the motion to set aside the applicant’s Notice of Appearance was argued before the trial judge. The learned judge ruled that the Notice of Appearance was indeed bereft of necessary details which the rules of court has envisaged and ordered the applicant herein to comply with the rules within seven days by supplying the necessary details. It appears that the judge’s ruling was not appealed. However, on 28/5/2010, Messrs Akwetey & Associates filed a Notice of Change of Solicitor on behalf of the applicant herein. The interested party, however, on 1/06/2010 filed an application to set aside the Notice of Appearance and for judgment in Default of Appearance against that application. As per the affidavit annexed to the said application, the grounds for it w