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Practice and Procedure –
Judgment – Setting aside – Judge
entering default judgment
retired from Judicial Service –
Whether court differently
constituted may set aside
judgment.
Upon transfer of his action from
Cape Coast to Accra the
plaintiff failed to take out
summons for directions and the
defendant applied to Dove J to
dismiss the action under Order
30 r 7 and enter judgment for
his counterclaim. After the
defendant testified on the
counterclaim the judge entered
judgment thereon and dismissed
the plaintiff’s action. The
plaintiff then applied to set
aside the judgment. As Dove J
had on retired, Sampson J heard
and granted the application. The
defendant appealed against
Sampson J’s ruling on the ground
that as a judge of co-ordinate
jurisdiction he had no
jurisdiction to set aside Dove
J’s judgment. If the plaintiff
was dissatisfied with the ruling
of Dove J, he ought to have
appealed.
Held:
The jurisdiction to set aside a
judgment was vested in the court
and not a judge; another judge
of the court could exercise the
power. Omaboe v Kwame
[1978] 1 GLR 122 referred to.
Case referred to:
Omaboe v Kwame
[1978] 1 GLR 122.
APPEAL against ruling setting
aside default judgment.
Ekow Awoonor
for the appellant.
Peter Adjetey
(with him William Addo)
for the respondent.
ESSIEM JA.
This is an appeal from the
ruling of Sampson J sitting at
the High Court Accra by which he
set aside the judgment of Dove J
in this case. I should mention
at the very beginning that at
the time the application to set
aside the judgment was brought
before the court, Dove J had
retired from the judiciary.
It was argued by the appellant
that Sampson J had no
jurisdiction to set aside the
judgment of Dove J because they
had co-ordinate jurisdiction and
that the way open to the
respondent was to have appealed.
In sum this was the main point
canvassed by the appellant in
this case while the respondent
by his counsel contended that
Sampson J had jurisdiction to
deal with the application since
Dove J had retired from the
service at the time the
application was made to the
court.
Before dealing with the points
raised in support of the appeal
as well as the points raised
against it, I want to give the
brief facts of the case. The
writ in the case was issued in
the Cape Coast High Court and
was sealed by the registrar of
that court on 15 July 1969.
Summons for directions were
taken before Wuaku J on 14
October 1982 and about ten
issues were agreed upon for
determination by the court. It
will serve no useful purpose to
detail the many applications
made to the Cape Coast High
Court. Suffice to say that
eventually the case was called
before Dove J in the Cape Coast
High Court. It was not completed
when Dove J was transferred to
Accra. Upon application to the
then Acting Chief Justice the
suit was transferred to Accra to
be dealt with by Justice Dove.
Thereafter certain steps were
taken in the case culminating in
an order for substituted service
of the entry of appearance. The
court notes before Dove J on 7
March 1991 read:
“By Court - Time is extended to
5 March 1991 when appearance was
entered. Adjourned to 13, 14 and
15 March 1991 for hearing.
Hearing notice to be served on
the plaintiff”.
It is significant to observe
that the appearance by the
defendant was served on the
plaintiff by substituted service
upon an order of the High Court,
Accra made on 13 March 1991.
That order was made because it
was not possible to effect
personal service on the
plaintiff. The result was that
the defendant on 25 March 1991
at 1.10 pm filed a motion on
notice “for an order of the
court to dismiss plaintiff's
action or close the plaintiff’s
case for the defendant to prove
his counterclaim.” The
application was brought under
Order 30 r 7, which reads:
“Where an order has been made
for the transfer of proceedings
from any Court to the Supreme
Court, the following provisions
shall apply:
(8) If the plaintiff fails to
take out a summons for
directions or to apply for
summary judgment within the time
limited by paragraph (6) of this
Rule, the defendant shall be at
liberty to apply for an order to
dismiss the action and upon such
application the Court or a Judge
may either dismiss the action
upon such terms as may be just
or may deal with such
application in all respects as
if it were a summons for
directions under this Rule.”
After submission by counsel, the
judge ruled as follows:
“By Court: The plaintiff's
conduct shows that he is no
longer interested in prosecuting
his case and I hereby declare it
closed. The defendant is at
liberty to prove his
counterclaim.”
Thereafter the defendant gave
evidence and in due course, the
judge gave judgment upholding
his counterclaim. It was after
this judgment that the defendant
successfully applied to the High
Court to set aside the said
judgment. Hence this appeal.
Several issues were raised in
support of the appeal and
equally a number of reasons were
advanced against the appeal.
Reading through the various
submissions the central issue to
me is whether or not Sampson J
had jurisdiction to set aside
the decision of Dove J in this
case. There is no denial of the
fact that at the time the
judgment of Dove J was set aside
the said judge was no more in
the service; he had retired. In
such a situation it is my view
that since the jurisdiction to
set aside a judgment is given to
the court, another judge of the
court can, if there is need for
it, set aside the judgment
concerned.
Since the jurisdiction to set
aside a judgment is not limited
to the judge who pronounced it
but vested in the court as well,
the High Court, differently
constituted, had jurisdiction to
set aside the judgment of Dove
J. Order 36 rule 18 of the High
Court rules is in my view quite
clear on this.
Learned counsel for the
appellant had argued before us
that the proper course open to
the respondent was to appeal to
the Court of Appeal and not to
go to the court below to set
aside the judgment. He relies on
Omaboe v Kwame [1978] 1
GLR 122. My reading of that
judgment does not lead me to
that conclusion or to the
conclusion that in the absence
of the judge who pronounced the
judgment another judge of the
same court cannot set aside the
judgment concerned if there is
reason to do so. In any case in
the case of Omaboe v
Kwame the appellant was in
court but declined to take part
in the proceedings in the
absence of his counsel. It is
distinguishable from this case
in which the respondent was
absent.
It is relevant to repeat that
the court below exercised its
discretion. It has not been
demonstrated to this court that
the court below did not exercise
its discretion judicially. It is
only then that this court can
justifiably interfere with the
exercise of such discretion.
It was further argued in support
of the appeal that the trial
court did not make any primary
findings of fact to justify the
decision to set aside the
judgment of Dove J. It was
therefore urged upon us to hold
the judgment unsatisfactory and
set it aside. The result in the
view of counsel will be that the
decision of Dove J stands.
While there may be some
justification in the criticism,
it is clear from the detailed
facts given by the judge in the
court below that it had in mind
the facts in the case.
An appeal is a rehearing and the
facts as detailed by the trial
judge in his ruling can support
the ruling of the court below.
I have come to the conclusion
that the court below,
constituted by Sampson J had
sufficient facts before it to
justify the exercise of his
discretion the way it did.
In the end therefore I have come
to the conclusion that the
appeal should fail. It is
however my hope that counsel on
both sides but especially
counsel for the respondent in
this case will take prompt steps
to ensure that the case is
disposed of promptly.
ADJABENG JA.
I agree.
LUTTERODT JA.
I also agree.
Appeal dismissed
Kizito Beyuo, Legal Practitioner
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