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PARTIES ABSENT
MR. EUGENE AKOTO BAMFO FOR
THE PLAINTIFF/RESPONDENT
MR. PROSPER NYAHE FOR
DEFENDANT/APPLICANT
R U L I N G
This ruling is in respect of an
application by the defendants
herein for an order of this
court to set aside the judgment
obtained against them by the
plaintiff on 13th
May, 2008.
I would here narrate the history
of the case leading to the
judgment in issue to put the
application in context.
On 17th January,
2007, the plaintiff herein
issued a writ against the
defendants for recovery of the
sum of GH¢72,363.96 and interest
thereon. The defendants could
not be served personally with
the writ. Thus on 11th
June, 2007 the plaintiff
obtained an order to serve the
defendants by substitution in
the following manner.
a.
Posting copies thereof and of
this order on:
i.
The High Court Notice Board,
Accra;
ii.
The premises of the 1st
Defendant Company H/No. 1.
Graphic Road, Accra where it
shall remain for fourteen (14)
days.
b.
By one publication in the Daily
Graphic (See Exhibit A2 attached
to plaintiff’s affidavit).
By the practice of court when an
order for substituted service is
granted, it has to be formally
drawn up for service in the
manner ordered by the court.
The bailiff has to deposit in
the registry an affidavit of
posting or in the manner ordered
by the Court. (See IN RE KUMI
(DECD);
Kumi v. NARTEY [2007 – 2008] [SCGLR
623].
In the instant case there is no
evidence on record that the
order for substituted service
was drawn up. There is also no
evidence of the bailiff’s
affidavit of service in the mode
ordered by the Court. The only
evidence is the Daily Graphic
publication of the suit which is
just one out of the three modes
of service that was ordered. It
follows therefore that the writ
of summons and statement of
claim were not served in
accordance with the terms of the
order granted on 11th
June, 2007 by this Court. It
also follows that any further
actions based on the service of
the writ of summons and
statement of claim would be null
and void.
Thus the Plaintiff’s ex parte
application for judgment in
default of appearance filed on 7th
May, 2008 is misconceived and
without any legal basis as the
defendants were not served with
the writ of summons and
statement of claim in the manner
ordered by the court on 11th
June, 2007.
Furthermore, assuming that the
defendants were served with the
writ of summons and statement of
claim, the plaintiff could not
apply ex-parte for judgment in
default of appearance by the
rules of court. Order 19, rule
1(3) of the High Court (Civil
procedure) Rules, 2004 (C.I. 47)
makes it mandatory that all
applications, with the exception
of a few, are to be on notice.
The rule states thus:
“Except where these Rules
otherwise provide, no motion
shall be made without previous
notice to the parties affected.”
The plaintiff no doubt brought
its application for judgment in
default of appearance pursuant
to Order 10 rule 1(1) of C.I.
47. This rule does not give
the plaintiff power to proceed
ex-parte. Rule 1(1) of Order 10
states thus:
“Where the plaintiff’s claim
against the defendant is for a
liquidated demand only, and the
defendant fails to file
appearance, the plaintiff may,
after the time limited for
appearance, apply to enter final
judgment against the defendant
for a sum not exceeding that
claimed by the writ and for
costs, and proceed with the
action against other defendants,
if any.”
It was thus wrong for the
plaintiff to apply ex parte for
judgment in default of
appearance so the judgment the
plaintiff obtained on 13th
May, 2008 was a nullity. On the
authority of Mosi vs.
Bagyina [1963] 1 GLR 337, SC,
this court is entitled to set it
aside as it is a nullity. It
follows that any further
proceedings in respect of the
said judgment are also null and
void.
Accordingly the defendant would
be entitled to an order to set
aside the judgment of 13th
May, 2008. I hereby set aside
the said judgment.
(SGD.) UUTER PAUL DERY
JUSTICE OF THE HIGH COURT
*aq*
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