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Practice and procedure –
Execution – Stay pending appeal
– Judgment in default of defence
– Defendant’s application to set
aside judgment struck out –
Defendant’s application to
relist application dismissed and
defendant appealing against
dismissal – Defendant applying
for stay of execution of the
default judgment – Stay refused.
Execution – Stay pending appeal
– Principles for grant – Whether
stay to be granted where
execution substantially
completed.
On 18 March 1992, the respondent
obtained judgment in default of
defence against the applicant.
The applicant applied to set
aside the default judgment but
the application was struck out.
On 31 July 1992, he applied to
relist the motion to set aside
the default judgment but the
trial judge dismissed this
application also. The applicant
appealed against the order dated
31 July 1992 and applied for
stay of execution pending his
appeal. In his affidavit in
support, the applicant deposed
that he was never served with
any statement of claim and that
the judgment was a nullity.
Besides since more than one year
had elapsed since the last
proceeding was taken in the
matter, the respondent ought to
have served him with a notice
his of intention to proceed in
the matter as required by Order
64 rule 12 of the High Court
rules. He contended that in any
case, he had a valid defence to
the plaintiff’s motion for
judgment in default of defence.
It was argued on his behalf that
the ruling of 31 July 1992 had a
bearing on the judgment of 18
March 1992 and therefore that
the court ought to grant the
application. The defendant
resisted the application and
demonstrated that the applicant
did not appeal against the
judgment dated 18 March 1992.
Held:
(1) Since the applicant did not
appeal against the judgment
dated 18 March 1992 and the
respondent had gone into
execution and recovered the
land, leaving only the damages
awarded and the costs to be
recovered, there was no good
reason to stay execution of the
judgment. The application would
be dismissed. Ojikutu v Odeh
(1954) 14 WACA 640
distinguished.
Case referred to:
Ojikutu v Odeh
(1954) 14 WACA 640.
APPLICATION to the Court of
Appeal for stay of execution
pending appeal.
Frimpong Buadu
for the applicant.
Joe Reindorf
for the respondent.
ESSIEM JA.
The applicant brought this
application “for an order to
stay the execution of the
judgment of the High Court given
on March 18, 1992 against [him]
pending the hearing of an appeal
filed against the ruling of
Sampson J on 31 July 1992, which
refused to re-list the
applicant’s motion to set aside
the judgment dated 18 March
1992.” In an accompanying
affidavit, the applicant deposed
that:
“3. On 31 July 1992, the
defendant-applicant’s
application to re-list a motion
to set aside the judgment of the
High Court given on 18 March
1992 against him was dismissed
and costs of 50,000 cedis was
awarded in favour of the
plaintiff-respondent.
4. The defendant-applicant is
advised and believes the same to
be true that the trial judge
failed to exercise his
discretion judicially in
dismissing the application.
5. I have filed a notice of
appeal against the ruling and
that my main ground of appeal is
that the learned trial judge
failed to exercise his
discretion judicially.
8. I have a prima facie defence
to the motion and that I should
not be deprived of the chance to
have the case determined on its
merits.”
In subsequent paragraphs, the
applicant deposed that he
purchased the land in dispute
from one James Tetteh Aryee
Laryea about January 1976, which
transaction is covered by a
conveyance registered as LR No
2225/76 and that he has since
erected a building on the land
in dispute. Paragraph 11 of his
affidavit states:
“11 That to the best of my
knowledge (sic) I was not served
with any notice of intention to
continue with the proceedings in
the above case after the lapse
of more than one year from the
last step taken in the matter as
required by Order 64 r 12 of
High Court (Civil Procedure)
Rules 1954 LN 140A.”
He also contended in the next
paragraph that he was not served
with any statement of claim to
warrant the filing of a defence.
The dispute between the parties
has been pending before the
court for sometime. The first
default judgment entered against
the applicant was on 31 May
1978. That judgment was set
aside on 11 January 1983. The
evidence before the court shows
that the applicant has on at
least two previous occasions
failed to act in the case and
default judgments were entered
against him. The respondent’s
affidavit filed on 22/1/93 gives
a full account of the
chequered history of this case.
I do not consider it essential
to recount all the events that
led to the present default
judgment against the appellant.
It is sufficient in my view to
refer to some paragraphs of the
respondent’s affidavit in
opposition. The relevant
paragraphs are paragraphs 10-15
which are as follows:
“10 On 17 February 1992
plaintiff’s counsel completed
his address in the absence of
defendant and his lawyers, and
the matter was then adjourned to
18 March 1992 when a reasoned
ruling of some nine pages was
given, of which defendant now
complains and apparently does
not wish this court to see since
he has not supplied copies for
the court.
11. Counsel for defendant has
not appealed against that
judgment and his reason, if I
understand his address in this
court correctly, is that he
cannot, as he had not filed a
defence.
12. At the same time, however,
it seems to me that counsel is
saying in this court that the
judgment in default of defence
is void since (a) defendant had
never been served with a
statement of claim, and (b) the
application for judgment was
incompetent since it was brought
more than twelve months after
the last proceeding had been
taken in the suit.
13. I am advised by my lawyers
that the said complaint by the
defendant’s counsel are
completely groundless and
misconceived, but that if they
are correct, then they afford
very good grounds on which
defendant could have appealed
against the ruling of 18 March
1992, which defendant has not
done.
14. I am further advised by
counsel that, if in fact there
is any substance in the
complaint now made by
defendant’s solicitors against
the ruling of 18 March 1992,
then the proper time for them to
have pressed those complaints
was before 18 March 1992, when
notice of the motion for
judgment in default was served
on them three times, between
December 1991 and February 1992
as above said and, like a
certain biblical character, for
three times they denied
knowledge of the court.
15 After obtaining judgment on
18 March 1992, the plaintiff
filed an entry of judgment on 18
May 1992, and served the
defendant through his solicitors
a well as through his tenants
and licensees on the land in
dispute, a copy whereof is
hereto attached marked CA 2
together with a copy of the
forwarding letter to defendant’s
tenants and licensees, marked CA
3.”
The inescapable position now is
that the applicant has not
appealed against the judgment.
From the affidavit evidence
before us the respondent has
already gone into execution and
recovered the land. If the
applicant considers the judgment
a nullity, he can take steps to
have it set aside or even ignore
it. From paragraph 25 of
respondent’s affidavit filed on
22/1/93, the only part of the
judgment that has not yet been
executed is the award of damages
and costs. Paragraph 27 of the
respondent’s affidavit makes it
clear that the applicant has not
appealed against the ruling of
18 March 1992. Yet, it is that
judgment which the applicant is
seeking to stay for the main
reason that it will have some
effect on any application to set
aside the default judgment.
I do not consider this a good
reason for staying execution of
the judgment of the court below.
I have considered the decision
in Ojikutu v Odeh (1954)
14 WACA 640. My humble opinion
is that on the facts in the
case, that case cannot help the
applicant. Therefore, I will
dismiss the application.
ADJABENG JA.
I agree.
LUTTERODT JA.
I also agree.
Application for stay of
execution dismissed.
Kizito Beyuo, Legal Practitioner |
