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R U L I N G
On 30th November,
2011 this court gave judgment in
default of defence for the
Plaintiffs for the recovery of
the sum of US$104,463 or its
cedis equivalent and interest
thereon as well as cost of
GH¢5,000.00. On 7th
February, 2012 the defendant
brought an application to set
aside the said judgment. This
ruling is in respect of the
defendant’s application.
The instant application is
grounded on Order 13, Rule 8 of
the High Court (Civil Procedure)
Rules, 2004 (C.I. 47). This
rule states as follows:-
“The Court may, on application
by a party affected and on such
terms as It thinks just set
aside or vary any judgment
entered in pursuance of this
Order”.
This court therefore has a
discretion pursuant to Order 13,
rule 8 of C.I. 47 to set aside
the judgment it entered on 30th
November, 2011 in favour of the
Plaintiff if it finds same just
to do so. In other words it is
based on the duty to do
justice. What is meant by the
duty to do justice is ably
stated by the distinguished
Taylor J (as he then was) in
BONSU & ANOTHER VS. BONSU
(1971) 1 GLR 242 when he
held that the true legal notions
of justice have been
circumscribed by the demands of
the law in that the court’s
administer justice according to
three and only three yardsticks:
statute, case law and well
defined rules of practice.
This rule is similar to the
English procedure rules namely
Order 13, rule 9 of the Supreme
Court Practice which states
thus:
“Without prejudice to rule 7(3)
and (4) the court may, on such
terms as it thinks just, set
aside or vary any judgment
entered in pursuance of this
Order.”
Lord Atkin in Evans V.
Bartlan (1937) A.C. 473 and
Jenkins L.J. in Gramshan V.
Dunbar (1953) 1 Q.B. 408
gave the rationale for this rule
thus:
“The
principle obviously is that
unless and until the court has
pronounced a judgment upon the
merits or by consent, it is to
have the power to revoke the
expression of its coercive power
where that has only been
obtained by a failure to follow
any of the rules of procedure.”
Different approaches are given
by the court in exercising its
discretionary power to set aside
a judgment depending on whether
the judgment was regularly or
irregularly obtained. If the
judgment is regular the
defendant must show by his
affidavit that he has a defence
on the merits of the case. Thus
Huddleston B stated in Farden
V. Richter (1889) 23Q, B.D. 124
at 129 thus: “At any rate
where such an application is not
thus supported, it ought not to
be granted except for some very
sufficient reason.”
What amounts to a meritorious
defence is stated by the English
Court of Appeal in the case of
Alpine Bulk Transport Co.
Inc. V. Saudi Eagle shipping Co.
Inc., The Saudi Eagle (1986)
2 Lloyd’s Rep. 221 C.A. thus:
(a)
It is not sufficient to show
merely “arguable” defence that
would justify leave to defend;
it must both have “a real
prospect of success” and “carry
some degree of convinction”.
Thus the court must form a
provisional view of the probable
outcome of the action.
(b)
If proceedings are deliberately
ignored this conduct, although
not amounting to an estoppel at
law, must be considered “in
justice” before exercising the
court’s discretion to set aside.
In the case of a judgment which
is irregularly obtained the
defendant does not need to
disclose the nature of his
defence in his affidavit
although it is prudent to do so
for such a judgment, the
defendant is entitled ex debito
justitiae to have it set side or
vary it so as to correct the
irregularity. But to correct an
irregularity the defendant has
to act timeously and must not
have taken a fresh step upon
discovering the irregularity.
(See Anlaby V. Praetorious
(1888) 20 Q.B. D. 764; Ban Hin
Lee Bank Berhad V. Sonali Bank,
The Independent, November 28,
1988, C.A; Armitage V. Parsons
(1908) 2 K.B. 410, C.A; Singh V.
Atombrook Ltd. (19899) 1
WLRD 8W; (1989) 1 ALL E.R. 385,
C.A.”). In Zingh V. Atombrook
Ltd. supra a defendant who
applied to set aside a judgment
for irregularity three months
after becoming aware on its
terms was held to be too late to
have the judgment set aside as
of right.
In the instant application I
would first consider whether the
default judgment was regularly
or irregularly obtained so as to
put in context the applicable
law for setting it aside or
otherwise.
The plaintiff issued the writ on
21st April, 2011.
The defendant company was served
and on 12th May, 2011
it entered unconditional
appearance without filing any
defence. The defendant instead
brought an application on 17th
May, 2011 for stay of
proceedings pending arbitration
but this application was
dismissed on 26th
May, 2011. The plaintiff’s also
brought an application for
judgment on admission on 31st
May, 2011 which was also
dismissed on 17th
June, 2011. The plaintiff’s
again brought an application for
summary judgment on 6th
July, 2011 and this application
was again dismissed on 11th
October, 2011. After the
dismissal of this application
the plaintiff’s yet again
brought an application on 21st
November, 2011 for judgment in
default of defence. The
defendant was served on 22nd
November, 2011. The application
came on for hearing on 30th
November, 2011 and same was
heard in the absence of the
defendant who had also not filed
any affidavit in opposition and
it was granted. The court
entered judgment for the
plaintiffs in default of
defence.
From the facts stated above the
plaintiff’s duly followed the
procedures provided in Order 13
of C.I. 47 to apply for judgment
in default of defence. Order
13, rule 1 of C.I. 47 provides
as follows:-
“1. (1) where the plaintiff’s
claim against a defendant is for
a liquidated demand only, and
the defendant fails to file a
defence to the claim, the
plaintiff may, after the
expiration of the period fixed
by these Rules for filing the
defence, apply, to enter final
judgment against that defendant
for a sum not exceeding that
claimed by the writ in respect
of the demand and for costs, and
proceed with the action against
other defendants, if any.
2. A claim shall not be
prevented from being treated for
the purposes of this rule as a
claim for a liquidated demand by
reason only that part of the
claim is for interest accruing
after the date of the writ at an
unspecified rate, but any such
rate shall be computed from the
date of the writ to the date of
entering judgment or final
payment at the prevailing
commercial bank rate.”
By order 11, rule 2(1) of C.I.
47 the defendant had up to
fourteen days after the time
limited for appearance to file
his defence. The defendant
since entering appearance on 12th
May, 2011 failed to file any
defence till the plaintiff
applied for and obtained default
judgment on 30th
November, 2011. The plaintiff
was thus entitled to apply for
final judgment in default of
defence pursuant to Order 13,
rule 1 of C.I. 47 for the claims
of the plaintiffs are liquidated
claims.
The default judgment obtained by
the plaintiffs on 30th
November, 2011 from the facts
and the procedure was thus
regularly obtained.
The next issue therefore is
whether the defendant merits the
exercise of this court
discretion in his favour to have
the said regularly obtained
default judgment set aside
pursuant to Order 13, rule 8 of
C.I. 47.
I would first deal with whether
the defendant by his affidavit
in opposition has shown that it
has a probable defence to the
plaintiffs claims. By the said
affidavit the defence the
defendant puts up is that by the
consortium Agreement between the
parties any dispute between them
should be referred to
arbitration first before any
suit like the instant. Thus the
failure to refer the dispute to
arbitration is fatal to
plaintiffs’ action. Defendant
states further that this court
had given earlier rulings to
this effect as such the
plaintiffs are estopped from
seeking any judgment against the
defendant until the
pre-arbitration conditions had
been met.
The defendant deposed further
that correspondences between the
parties show that it denies
owing the plaintiff the sum
claimed and that the sum the
plaintiffs are entitled to is
US$36,120.14 which was not yet
due.
The defendant thus prays that in
the interest of justice the
default judgment be set aside to
enable the defendant file a
statement of defence. From the
earlier rulings of this court
albeit differently constituted,
this court is of the view that
the defendant has a defence to
the action. There is no appeal
against any of these rulings.
The plaintiffs are therefore
estopped per res judicata from
denying that the defendant has a
defence.
The next issue to deal with is
whether the defendant has
deliberately ignored the
proceedings and if so its effect
in the exercise of this court
discretion in setting aside or
otherwise of the default
judgment.
The defendant brought an
application for stay of
proceedings pending arbitration
on 17th May, 2011
which was dismissed on 26th
May, 2011. After the ruling the
defendant still failed to file a
defence Subsequently the
plaintiff brought two motions,
namely, one for judgment on
admissions and the other for
summary judgment, which were
both dismissed. In dismissing
the application for summary
judgment on 11th
October, 2011 this court among
others ruled as follows:
“In accordance with the
provisions of Order 14, rule
5(1)(b) the defendant/respondent
is hereby granted leave to
defend the action
unconditionally”
Order 14, rule 5(1) (b) of C.I.
47 states as follows:
“On the hearing of the
application the court may…..give
the defendant leave to defend
the action with respect to the
relevant claim or part of it
either unconditionally or on
terms such as giving security or
otherwise;”
After the court graciously gave
leave to the defendant to defend
the action it for no reason
given to the court, ignored the
grace bestowed on it. In other
words since 11th
October, 2011 that leave was
granted the defendant to defend
the action it ignored the
order. Then on 21st
November, 2011 the plaintiff
brought an application for
default judgment.
Notice of the application was
given to the defendant on 22nd
November, 2011 and as if in
accordance with a determined
conduct the defendant failed or
refused to file a defence before
judgment was entered for the
plaintiffs on 30th
November, 2011. The defendant
then woke up from his slumber on
7th February, 2012
and brought the instant
application seeking the court’s
discretion to file a defence.
From the facts stated above the
defendant has shown gross
disrespect for the processes and
orders of this court. The
defendant deliberately
disregarded or ignored the
proceedings in the instant case
and acts as and when it
pleases. On the authority of
the Saudi Eagle supra I
am unable to exercise my
discretion in its favour.
The defendant’s application is
hereby dismissed.
The plaintiffs are awarded cost
of GH¢1,000.00.
COUNSEL
1. Mr. George Aborgah
for Plaintiffs/Respondents
2. Mr. George Bekai for
Defendant/Applicant.
(SGD.) UUTER PAUL DERY
JUSTICE OF THE HIGH COURT
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