AGNES BOATENG vs. ANGEL ESTATE CONSTRUCTION LTD
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (COMMERCIAL DIVISION)
    KUMASI - A.D 2016
AGNES BOATENG - (Plaintiff)
ANGEL ESTATE CONSTRUCTION LTD - (Defendant)

DATE:  28TH NOVEMBER, 2016
SUIT NO:  OCC 08/207
JUDGES:  DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT
LAWYERS:  BOAKYE DANQUAH FOR DEFENDANT/ APPLICANT
AMA ASSENSO FOR PLAINTIFF/ RESPONDENT
RULING

 

This is a Motion on Notice praying this Honourable Court for an order setting aside the default judgment entered against the Applicantherein on the 23rd of September, 2016 and for leave to enter late appearance.

 

The Plaintiff/Respondent herein issued a Writ of Summons against the Defendant/Applicant on the 25th of August, 2016 and effected service on the Defendant on the same day. Subsequently, this Honourable Court entered default judgment in favour of the Plaintiff/Respondent on the 23rd of September,2016 after the Defendant/Applicant had failed to enter an appearance.

 

Naturally aggrieved by the said default judgment, the Applicant has filed the instant application and the grounds of the application are contained in the Affidavit in Support filed on the 28th of October, 2016. The gravamen of the applicant’s motion per the Affidavit is that it was not open for her to file an appearance as the Writ of Summons was filed during the vacation. And that the default judgment obtained during the vacation was in clear breach of the rules of court and procedure and therefore void.

 

The Respondent was opposed to the application and demonstrated the grounds in an Affidavit in Opposition filed on 2nd November, 2016. The import of the Respondent’s opposition was that the application is misconceived as the default judgment was entered “in accordance with the rules of practice and procedure and settled legal authorities”.

 

In moving the motion, Counsel for the Applicant prayed the Court to set aside the default judgment as the same offended the rules of court. Counsel argued that since the writ was filed during the vacation and the default judgment also obtained during the vacation, the default judgment is void as time does not run during the vacation so it was premature for the judgment in default of appearance to be entered against the Defendant.

 

Counsel referred to Order 79 rule 4(b) of the High Court Civil Procedure Rules, 2004, CI 47 which defined pleadings. He argued forcefully that the Writ of Summons and Entry of Appearance qualify as pleadings and as such the Entry of Appearance in particular ought not be filed during the vacation since time does not run during the vacation period. Counsel submitted that the default judgment obtained is void as Defendant was not in default of appearance.

 

Counsel also submitted that Plaintiff/Respondent ought to have put the Defendant/Applicant on notice when he moved the court for judgment in default of appearance. In the estimation of Counsel since the interest of the Defendant was at stake, the Ex-parte Motion was inappropriate.

 

Counsel also prayed the court to set aside the default judgment since the Applicant has a strong defence to the action. On this point, Counsel referred the court to the following cases:

 

Haruna v Art Council (1992) 2GLR 1

 

Kevin v Afayesi (1984-86) 2 GLR 430

 

He finally prayed that the default judgment be set aside to enable Defendant defend herself. He also invited the court to declare all the processes filed by the plaintiff/respondent void.

 

In her response to the submissions of learned Counsel for the Applicant, Counsel for the Respondent reiterated the latter’s opposition to the motion.

 

Counsel contended that an Entry of Appearance or Notice of Appearance is not a pleading within the meaning of Order 82 rule 3 of CI47. Counsel cited in support of this point the case of Tindana(No. 2) v Chief of Defence Staff and Attorney General (No. 2)[2011-2012]SCGLR 732, Holdings 1 and 2. She emphasized that per the holding, a Writ of Summons is not a pleading and as suchit is not covered by

 

Order 80 rule 2 of CI 47. Reference was made to E.D.Kom’s Civil Procedure 2nd edition page 115 which suggests that Notice of Appeal and Appearance could be filed during vacation because they are not pleadings.

 

On the need to bring the application for judgment in default of appearance on notice, Counsel made reference to Order 10 and submitted that the application is always made ex-parte. Counsel also referred to the Writ of Summons (Form 1) which reads in parts:

 

“YOU ARE HEREBY COMMANDED that within EIGHT DAYS after service of this Writ on you inclusive of the day of service you do cause an appearance to be entered for you AND TAKE NOTICE that in default of your so doing judgment may be given in your absence without further notice to you.”

 

This, counsel submitted that it backs their claim that default judgment could be granted ex-parte.

 

She prayed the court that the judgment obtained in default of appearance should not be set aside as the same was procured in accordance with the rules of court.

 

Two issues could be resolved in this application:

1. Whether the default judgment was procured in accordance with the rules of court; and

2. Whether the default judgment should be set aside.

 

In addressing the first issue, attention shall be focused on the meaning of pleadings; whether entry of appearance can be classified as pleadings; whether the time for filling entry of appearance runs during the court vacation period; and whether the motion for judgment in default of appearance ought to have been filed on notice.

 

Order 79 rule 4(b) makes provision for the vacation period of the High Court as follows:

 

“Subject to rule 1 (1) the following periods shall be observed in the High Court as vacations

(a) the period commencing on the Tuesday immediately following Easter Monday in each year and ending on the  Friday immediately following;

(b) the period commencing on 1st August in each year and ending on 30th September in the year; and

(c) the period commencing on 23rd December in each year and ending on 6th January in the next year.”

 

Order 80 rule 3 also stipulates:

“Unless the Court otherwise directs, the times of the vacations in any year shall be excluded in reckoning any period prescribed by any enactment, these Rules or by any order or direction for serving, filing or amending a pleading.”

 

The combined effect of Order 79 rule 4(b) and Order 80 rule 3 shows that time does not run during the vacation period when it comes to the filing of pleadings.

 

Order 82 rule 3 defines pleading as “the formal allegations by the parties to a law suit of their respective claims and defences with the intended purpose of providing notice of what is expected at the trial”.

 

The above definition of “pleadings” is in sync with the definition adopted in many jurisdictions and by many legal authorities. For instance, the Black’s Law Dictionary, 9th Edition at page 1270 defines the term as follows:

 

“Pleading is a formal document in which a party to a legal proceeding (especially in a civil lawsuit) sets forth or responds to allegations, claims, denials, or defences.”

 

Counsel for the applicant has invited the court to classify Entry of Appearance as a pleading and hold that there was no default in appearance, since the applicant was not required under the rules of court to enter an appearance during the vacation. Attractive as counsel’s argument might appear, it is clear that an entry of appearance does not require the defendant to make a claim or rebut an allegation against her. Thus, by no stretch of imagination can one broaden the scope of pleadings to include entry of appearance. Consequently, in spite of the vacation period, the applicant was required to comply with the 8 days statutory period within which to file her Entry of Appearance after the writ was served on her.

 

The Supreme Court dealt with a similar situation in the case of Tindana (No. 2) v Chief of Defence Staff and Attorney General (No. 2) [2011-2012] SCGLR 732. In that case the court was urged upon to classify a notice of appeal as a pleading and hold that time does not run for the filing of a notice of appeal during legal vacation. The Supreme Court speaking through Anin Yeboah JSC held at page 742 that:

 

“A careful reading of the High Court Rules, specifically Order 80 rule 2 of CI 47 excludes vacations in computation of time only in respect of filing or amending pleadings. Under the old rules, High Court [Civil Procedure] Rules LN 140A of 1954 the position was the same. It therefore follows, that, as Notice of Appeal for all purposes has never been a pleading in any civil litigation in this country or elsewhere, time continues to run for filing appeals during the legal vacation. The appeal lodged outside the three months was therefore outside the statutory period provided for under Rule 9 of CI 19. It is settled on a long line of authorities that an appeal filed outside the statutory period provided under the rules without any valid extension of time is void. See ATTA KWADWO V. BADU [1977] 1 GLR 1 CA, DARKE IX V. DARKE IV [1984 – 86] 1 GLR 481 SC and ZAKARI V NDUN [1968] 1 GLR 1032.”

 

Should the motion be heard Ex parte?

 

Ex-parte motions are said to be inconsistent with the common law principles of fair hearing. This explains why order 19 r 1(3) of Civil Procedures Rules 2004 (CI 47) provides that:

 

“except where the rules otherwise provide, no motion shall be made with previous notice to the parties”

 

The above rule should, however, be read together with order 19 rule 1(3) which states that:

“subject to rule 1 sub rule 3, an application by motion may be made ex parte where any of these rules provides or where having regard to the circumstances, the court considers it proper to permit the application to be made.”

 

The court in its discretion may refuse to hear an application ex-parte and may direct that notice shall be given to all parties affected by the application. Thus, the court may make orders on ex parte application where:

1. The rules expressly provide that the application should not be made ex-parte; and

2. Having regard to the circumstances of the case, the court considers just and proper. [See Bates v Lord Hailsham of St. Marylebone [1972] 1 WLR 1373.]

 

Judgment in default of appearance is regulated by Order 10 of CI 47. The subject matter of the action that led to the instant application was a claim for liquidated demand and Order 10 rule 1 of CI 47 regulates judgment in default of appearance relating to such claims. Unlike actions not specifically provided for under Order 10 (particularly Order 10 rule 6), application for leave to enter judgment in respect of claim for liquidated demand does not require service of notice on the defendant against whom judgment is sought to be entered. Under Order 10 rule 1, no provision was made as to whether the application be made ex-parte or on notice. Such an order was therefore open to the discretion of the court. The court was enjoined to consider whether having regard to the circumstances of the case; it was just and proper to hear the ex-parte application. It is my considered opinion that the court exercised its discretion correctly when it allowed the motion to be heard without notice to the defendant/applicant. After all, the writ of summons gave notice to the defendant that judgment may be given in her absence without notice to her if she fails to enter an appearance within 8 days upon service of the writ. In the instant application, the applicant has not succeeded inevincing facts to show that a miscarriage of justice was occasioned as a result of the ex-parte motion.

 

In the result, I hold that the judgment in default of appearance was properly obtained and the same could not be described as void for it to be set aside.

 

This brings me to the next issue which in my opinion is at the heart of this application i.e. whether the default judgment properly obtained could be set aside?

 

Order 10 rule 8 specifically gives the court the discretionary power to set aside judgment in default of appearance. It states:

 

“The court may, on such terms as it thinks fit, set aside or vary any judgment entered in pursuance of this Order.”

 

When dealing with an application to set aside judgment in default of appearance, the court considers two main guiding principles:

a. That the applicant has given a satisfactory explanation for his failure in entering appearance; and

b. That he has an arguable defence to the claim.

[See Alphoneso O. Aryeetey and Anor v Royal Investment Co. Ltd. And 18 Others, Civil Appeal

No. H1/201/2005 (29th November, 2005) CA. See also Ghana Commercial Bank v Tabury(1977) 1GLR 329]

 

In the instant application, the applicant’s explanation for his failure to enter an appearance cannot be entertained. For, it is trite leaning that mistake of law is no excuse. In view of this, it is my respectful opinion that the lack of a proper understanding of the law cannot constitute a satisfactory explanation to the default in entering appearance. I therefore hold that the applicant has no satisfactory excuse for not entering appearance.

 

This brings us to an assessment of the next guiding principle i.e. whether the default judgment should be set aside.

 

Having perused all the documents filed herein and having considered the arguments advanced by Counsel for the parties, I am in no doubt that in spite of the unreasonable explanation for the delay in entering appearance; there is a substantial defence to the claim.

 

Applicant has attached a proposed statement of defence to his affidavit in support of the motion and the same was marked Exhibit AN2. After reading the proposed statement of defence, it is my considered opinion that defendant’s assertion that the plaintiff “not only frustrated the contract but breached it”, constitutes a reasonable defence to the claim.

 

In the light of the above, I cannot conclude that the applicant’s defence is manifestly insupportable to warrant a dismissal of the application. The application is therefore worthy of a sympathetic consideration. I have come to this conclusion in spite of applicant’s failure to evince good reasons for the default. I am exercising my discretion in favour of the applicant to enable substantial justice to be done, as she has a reasonable defence.

 

In relying on the ethos of substantial justice, I am emboldened by the Supreme Court’s decision in the case of Major Mac Dorbi and W. O. Saviour v Richard Adom Frimpong and 2 Others Civil Appeal No.

 

J4/45 2011 (30th January, 2013). In that case, the appellant, W. O. Saviour who had not filed an appearance participated in the trial and emerged victorious. The Supreme Court saved the judgment in favour of the said W. O. Saviour after the Court of Appeal had set it aside. The Supreme Court speaking through Atuguba JSC stated:

“From the record of appeal and the Court of Appeal held it to be fundamental, W.O. Saviour did not enter appearance let alone file a defence. He however participated to the hilt in the proceedings and emerged from them as a victorious counter claimant. As to this we wish to point out that the battle for substantial, as opposed to technical and fastidious justice, has been irreversibly won. At the time of the institution of the consolidated suits herein, as noted by Kanyoke J.A. in the Court of Appeal, the new High Court (Civil Procedure) Rules 2004, C.I. 47 had come into force. The comprehensive terms of Order 81 rule 1(1) and 2(2) have indubitably given statutory stamp to the ancient maxim cuilibet licet renunciare juri pro se introducto, i.e. a person can waive what the law has ordained for his own advantage. In Obeng v. Boateng (1966) GLR 689 Amissah J.A. (as J) did not invalidate the participation in the proceedings of certain third parties who had filed no appearance thereto.”

Accordingly, the Judgment in default of appearance dated the 23rd day of September, 2016 which was entered for the Plaintiff/Respondent herein is hereby set aside. The Defendant is to enter appearance and file her defence within fourteen (14) days from the date hereof.

 

Cost of GHC 1,000 is awarded against Applicants in favour of the Respondent.