ZENITH BANK v. AYUM FOREST PRODUCTS LTD & 7 OTHERS

RULING

This is a motion on notice praying this Honourable Court for an order setting aside the judgment in default of appearance entered against the Applicants herein and for leave to enter late appearance.

The Plaintiff/ Respondent herein commenced this action on the 25th February, 2016 by way of Writ of Summons accompanied by Statement of Claim against the Applicants/Defendants (1st, 3rd and 4th Defendants) herein and five (5) other Defendants.

The Plaintiff claimed against the Defendants as follows:

Recovery of the sum of GHC 482, 164.90 as at 22nd January 2016.

Interest at the agreed rate on the said sum from 23rd January, 2016 up to the date of full and final payment.

Cost including Lawyer’s fee.

The processes were duly served on the applicants herein, who by the court’s record failed to enter appearance as required by Order 9 r 1 of the High Court (Civil Procedure) Rules, 2004 (CI 47).

Consequently, the Plaintiff moved for final judgment against the 1st, 3rd and 4th Defendants/Applicants herein and on the 22nd April 2016 the court gave Plaintiff judgment in “default of appearance” for all the reliefs sought.

It must be noted that the other Defendants were not served with the process and so the default judgment was not entered against them. Subsequently, entry of judgment was filed on the 22nd of June, 2016 and the same was successfully served on the Applicants.

It is this judgment in default of appearance which has necessitated the application currently before me. Same was filed on the 22nd of August, 2016. In support of the application is an affidavit sworn on behalf of the Applicants.

The Applicants asserted in their affidavit that they have duly discharged their payment obligations under the loan agreement and that they are greatly damnified by the Plaintiff’s action. It was further deposed that if given the chance to enter an appearance Defendants will successfully challenge the Plaintiff’s assertion that they have not repaid the loan with interest. Applicants attached a proposed statement of defence, marked Exhibit A to the affidavits in support of the motion.

Indeed, the gravamen of the Applicants’ case is that they have a reasonable defence to the suit and thus prayed the court to set aside the judgment in default of appearance against them and grant them leave to enter late appearance.

In moving the motion, Counsel for the Applicant added another ground to the affidavit evidence in support in support of the motion. In justifying