This is an application by the Plaintiff/Applicant, hereinafter referred to as “the Applicant", praying for an order setting aside/vacating the order of the court dated 16^th October, 2017 as the same was made under a mistake of facts and law.

Background to the Application

The background to the application is that on 31^st August, 2012 the Applicant herein issued a writ of summons against the Defendant/Respondent, hereinafter referred to as “the Respondent” seeking the following reliefs:

1. The recovery of an amount of Seventy-Four Thousand Six Hundred and Eighty Ghana Cedis (GHC74,680.00) being various amount of money collected from Plaintiff by Defendant to supply him wood for which he has failed to supply inspite of repeated demands for same.

2. Interest on the said amount of Seventy-Four Thousand Six Hundred and Eighty Ghana Cedis (GHC74,680.00) from February, 2012 to date of final payment.

On 22^nd January, 2013 the said writ was served on the Respondent by substituted service. The Respondent herein did not file an appearance within eight (8) days as stipulated by the rules and upon an application by the applicant herein, judgment in default of appearance was entered in favour of the applicant on 5^th March, 2013. Notice of entry of judgment was subsequently served on the respondent herein by substituted service and on 27^th of June, 2013, the court granted leave to the applicant to go into execution to recover the judgment debt.

On the 2^nd of September, 2013, the respondent filed a motion to set aside the default judgment.

However, on the 3^rd of September, 2013 the motion was struck out for want of prosecution.

The applicant herein then caused House Number Plot 25, Sokoban, Kumasi to be attached in execution of the judgment and on the 11^th November, 2013 the court granted an application for the said house to be sold at a Reserved Price of Fifty Thousand Two Hundred and Fifty Ghana Cedis (GHC 50,250.00). Thereafter, one Akwasi Bonsu filed an interpleader suit claiming to be the owner of the said House Number Plot 25, Sokoban, Kumasi. The High Court determined the interpleader suit in favour of the claimant but the Court of Appeal reversed the decision of the High Court.

On the 16^th October, 2017 this court granted an application to set aside the judgment in default of appearance entered on 5^th of March, 2013. It is this order of the court that has triggered the instant application.

Affidavit Evidence

In this motion on notice which is backed by a 29-paragraph affidavit in support, the applicant has invited the court to set aside or vacate its order. The relevant parts of the affidavit in support read as follows:

19. That four (4) years after judgment was entered in favour of the Plaintiff, he engaged another Lawyer to repeat the same Application which was dismissed earlier on t set – aside the Judgment of the Court.

20. That without service of the said motion on the Plaintiff/Judgment Creditor this Court granted the Application and made subsequent Orders for the Defendant to file his Statement of Defence.

21. That I am advised and verily believe same to be true that this Honorable Court did not have jurisdiction to consider the Application and grant same as it did.

22. That the judgment that the Court has ordered to be set aside has already been executed and therefore cannot be set aside without setting aside the execution process.

23. That the service of the motion on Lawyer William Kusi was not proper service since he had been suspended by the Genera Legal Council at that time and this had been published and all the Courts notified.

24. That once the Court of Appeal made a decision on the Interpleader Application this Court could not have had power to set aside the said Judgment since same implied the setting – aside of the decision of the Court of Appeal.

25. That I attach a copy of the proceeding in the substantive case and mark same as Exhibit ‘F’.

26. That my Lawyer shall seek leave of the Court to refer t the proceedings (Exhibit ‘F’) and all other processes filed so far.

28. That I further attach a Search Report indicates that the motion was served on Lawyer William Kusi and mark same as Exhibit ‘G’.

The Respondent herein is opposed to the instant application and has demonstrated that in an affidavit in opposition and supplementary affidavit in opposition to the motion filed on 5^th February, 2019 and 22^nd February, 2019 respectively. It is the Respondent’s case that the default judgment was properly set aside and that there was nothing wrong with the service of the motion on notice to set aside the default judgment so long as the said service procured the appearance of the representative of the applicant herein.

Submissions of Counsel

In his written address, counsel for the applicant anchored his submissions with the following arguments to amplify the depositions in the affidavit in support of the motion.

Learned counsel argued that the motion to set aside the default judgment was served on lawyer for the applicant and that at the time the service was effected the said lawyer had been suspended from practice. Thus, service on the lawyer could not be proper service. Counsel cited Order 7 rule 2 of CI 47 and submitted that the process ought to have been served on the party personally since after the judgment it is presumed that the counsel is no longer in the case. Counsel also cited the case of Barclays Bank vrs Ghana Cable Company Ltd. [1997-98] 2GLR 61 in support of the view that where a party has not been served with a process the court has no jurisdiction to proceed against the party. He submitted that the court had no jurisdiction to hear the application to set aside the default judgment. Consequently, the setting aside of the default judgment was wrong in law.

It is also the contention of learned counsel for the applicant that, the procedure adopted by the respondent in repeating the application to set aside the default judgment was wrong in law. He submitted that the respondent did not have the right to repeat the application four years after it was struck out and that the only remedy available to him was to apply to relist the motion.

Counsel also argued that the court granted the application to set aside the default judgment without giving any reason and that the court erred for failing to allude to the factors that must be considered in setting aside a default judgment in its ruling.

On his part, learned counsel for the respondent rested his arguments on the following:

1. That, the applicant’s assertion that the respondent should have relisted his Application which was struck out for want of prosecution is misconceived. Counsel submitted that relisting the said application would have been procedurally inappropriate at the time the applicant had gone into execution. He argued that there was the need for a fresh application that could cure the default judgment as well as the execution process at the time and that was exactly what the respondent’s application filed on 02/10/17 which procured the Order setting aside the Default Judgment sought to achieve.

2. Learned counsel also argued that the applicant’s assertion of improper service of the process prior to the order of the court is a misconception and has no bases in law. He submitted that, even though the said application was served on the applicant’s lawyer who had then been suspended by the General Legal Council, it is evident from the Record of Proceedings of 16/10/2017 that on the day Counsel for the respondent moved the application, the applicant herein was represented in Court. He contended that service on the applicant’s lawyer procured the said representative in Court and whether the applicant’s lawyer was under suspension or not was immaterial to the object of the service which was to give notice to the applicant so as to provide him with the opportunity of defending his rights. In this regard, learned counsel relied on the case of State V Asantehene’s Divisional Court BI, Ex-parte Kusada (1963) 2GLR 238, SC.

3. Learned counsel also debunked the applicant’s argument that the ruling of the Court of Appeal in the Interpleader Application as exhibited to the applicant’s affidavit in support ousted the power of the Honorable court to set aside the Default Judgment as same implied setting aside the ruling of the Court of Appeal. He submitted that this line of argument has no bases in law, as the Court of Appeal decision in the interpleader process was an interlocutory matter and same should not be confused with the substantive matter before the Honorable Court whose discretionary jurisdiction to set aside Default Judgments is legally well anchored. On this point counsel referred to Order 10 r 8, Order 13 r 8 and Order 11 r 9 respectively of the High Court (Civil Procedure) Rules, 2004(CI 47).

The law relating to variation of court orders

The court is vested with the inherent jurisdiction to vary an order made in ongoing proceedings. Variation orders may be triggered by an application of a party or the court may on its own motion vary its void orders or orders rendered by mistake.

In THE REPUBLICVRSHIGH COURT (COMMERCIAL DIV. A) TAMALEEXPARTEDAKPEM ZOBOGUNAA HENRY KALEEM(SUBSTITUTED BY ALHAJI ALHASSAN I. DAKPEMA); DAKPEMA NAA ALHASSAN MOHAMMED DAWUNI (INTERESTED PARTY) Civil Motion No. J5/6/2015 (4TH JUNE 2015), the Supreme Court commented on the discretionary power of the court to vary its own orders as follows:

“The inherent jurisdiction to vary its interim or interlocutory orders is vested in every court during the pendency of the substantive case. It can do so in order to make the meaning and intention clear; it may also do so if the circumstances that led to the order being made have since changed and is having a negative effect; or if it is working unexpected or unintended hardship or injustice. The only limitation is that the order must not be the subject of a pending appeal.”

In the English case of MULLINS v. HOWELL (1879) 11 Ch. D. 763, the court held that even in a case where an interlocutory order was made by the consent of the two parties, it was still possible to vary the order so long as the substantive case was still pending. At page 766 of the report, Jessel MR stated:

“I have no doubt that the Court has jurisdiction to discharge an order made on motion by consent…the court having a sort of general control over orders made on interlocutory applications…the court has jurisdiction over its own orders, and there is a larger discretion as to orders made on interlocutory applications than as to those which are final judgments.”

From the authorities above, it is clear that the court can vary its own orders if: i. there is a change in the circumstances that led to the order; ii. the order has led to an unexpected hardship on a party; iii. the order is void; or iv. made by mistake. The list is certainly not exhaustive but the need for substantial justice is the cornerstone that informs this time honoured jurisdiction of the court.

In the instant case, the applicant is alleging that the order of the court setting aside the default judgment was made by mistake and the same is void. He is effectively praying the court to vary the order by vacating the same.

Striking out a motion

When an order of court is made in respect of an application not heard on its merit it amounts to striking out. The law is that where an application is struck out, applicant has the option to either file a fresh application or apply to relist the motion that was struck out. See AKPAN VS EKPO (2001) 5 NWLR Pt. 707 Pg. 502 at 512 PARAGRAPH H and PANALPINA WORLD TRANSPORT NIG. LTD VS J.B. OLANDEEN INL & ORS (Unreported) delivered by the Supreme Court of Nigeria on Friday, 10th December 2010 in SUIT NO: SC. 30/2003. This rule of law is applicable to our jurisdiction. The right to file a fresh application or apply to relist a motion that was struck out are also exercised through the inherent jurisdiction of the court. Filling of a fresh application becomes more important if a party wants to change the colour of his application by seeking further order(s) or by introducing other relevant material facts which are helpful to the application. Restricting a party to an application to relist will as it were, restrict his options and stifle his right to access to justice. On this score, the application to set aside the default judgment filed on 2^nd October, 2017 was thus competent.

Is there any time limit to set aside default judgment?

It is clear from the authorities that there is no time limit within which a default judgment can be set aside, especially where the judgment does not decide the merits of the case. Such an interlocutory judgment does not operate as estoppel: see Basare v Sakyi [1987-88] 1 GLR 313, SC. Consequently, an execution process is not a fetter on an application to set aside a default judgment such as the one in contention.

In his written address learned counsel for the applicant relied on the depositions contained in the supporting affidavit as well as all its annexures. What it means is that counsel relied on the deposition which states “that once the Court of Appeal made a decision on the Interpleader Application this Court could not have had power to set aside the said Judgment since same implied the setting – aside of the decision of the Court of Appeal”. With all due respect to learned counsel, this is a strange proposition of the law, as an interpleader action borne out of an execution process has got nothing to do with the court’s discretionary power to set aside a default judgment. Learned counsel’s stance is a classic case of the idiomatic expression, comparing apples and oranges. It seems to me that the applicant is laboring under the impression that once a default judgment is executed the same cannot be set aside. This view is palpably at odds with the law, as espoused early on. The result is that the court was competent to set aside the default judgment in the face of the Court of Appeal judgment that set aside the High Court decision in respect of the interpleader suit.

Reasons for setting aside the default judgment

The applicant is also making capital out of what he sees as the court’s failure to give reasons for its decision to set aside the default judgment. In the estimation of counsel, the alleged failure renders the decision void.

The right of a litigant to know the grounds on which his case was decided remains vital in the administration of justice. However, in instances (such as the instant case) where cases are uncontested, failure to give reasoned judgment or ruling may not be fatal to the decision. Most especially where there is no conflicting evidence on record and the affidavit evidence supports the factors that must be considered in the determination of the application.

In the instant case, the only evidence on record during the pendency of the application to set aside the default judgment was the affidavit evidence of the respondent herein (applicant therein). The court, therefore, relied on the prayer of counsel for the applicant therein and invariably the evidence on record when it held that:

“The application is granted as prayed. The judgment in default of appearance entered on 5^th March, 2013 is hereby set aside. The Defendant is given 7 days within which to enter an appearance. Costs of GHC 2,000 awarded against the Defendant.”

It is my considered opinion that there is no miscarriage of justice relative to the above ruling, so long as the affidavit evidence supports it. The court never granted the prayer in a vacuum. It did so in consonance with the affidavit evidence and submissions of counsel. In the affidavit in support of the motion, the respondent herein canvassed all the grounds necessary for the determination of the motion and since the applicant failed to contradict same the court had no option than to rely on them.

In the circumstance, failure to give reasoned ruling does not make the decision void.

Service of the application to set aside the default judgment

Order 7 rule 2 of CI 47 deals with service of a document on a party. Indeed, service shall be effected personally on a person who is required to be served with a court process. However, processes to be served on a party may in some instances be delivered to the lawyer. That is why the law requires that any writ of summons issued by a lawyer on behalf of a client must be endorsed with the lawyer’s business address which serves as the plaintiff address for service. See Order 4 rule 5(2)(a) of CI 47. Similarly, a lawyer representing a client must disclose the address of the law office where processes to be served on the defendant may be delivered. See Order 9 rule 3(3)(b) of CI 47. All in all, the business address must be endorsed on any court document prepared by the lawyer to facilitate the delivery of court processes meant for his client. Thus, the law office of a lawyer is the address at which processes not for personal service may be delivered.

In his book, Civil Procedure – A Practical Approach, the learned author, S. Kwami Tetteh identified the processes that must be served personally as follows:

      i.        Writ of Summons;

     ii.        Originating notice of motion;

    iii.        Petition;

The following processes for service out of the jurisdiction: notice of motion where the laws of the country in which service is effected require personal service;

      i.        Counterclaim against a person not a party to the action;

     ii.        Application to strike out an action for want of prosecution after the death of plaintiff;

    iii.        Application in a representative proceeding for leave to enforce a judgment or order against a person not a part the proceeding;

   iv.        Third party notice;

    v.        Writ of habeas corpus ad subjiciendum;

   vi.        judgment or order requiring a person to do or abstain from doing an act;

  vii.        application for leave to issue a writ of sequestration;

 viii.        order for the examination of a judgment debtor;

   ix.        garnishee order to show cause; committal order;

    x.        notice of appeal to the High Court;

   xi.        a notice of land title appeal;

  xii.        notice of application for judicial review;

 xiii.        notice to prove will or renounce probate;

 xiv.        writ of subpoena;

  xv.        application for leave to execute a judgment or order against a partner;

 xvi.        entry of judgment.

In Tengey v Doe [1962] 1GLR 361, the court explained the role of lawyers in the service of court processes as follows:

“A solicitor having filed a writ of summons on behalf of the plaintiff or having entered appearance on behalf of the defendant unless and until notice of change of solicitor has been filed and copies thereof served in the manner as prescribed by the rules of Court, or unless leave to withdraw from the case is granted, or unless the said solicitor has, in the meantime, been struck off the roll or suspended by the General Legal Council, the court will continue to consider that solicitor as acting for the defendant or the plaintiff, as the case may be, until after the hearing and the final determination of that particular suit. The said solicitor becomes functus officio only after the final judgment in the suit has been delivered. See Order 7 r 2 of the Supreme (High) Court (Civil Procedure) Rules, 1954 (L.N 140A), which comprehensively deals with the different circumstances in which a change in representation of a party by a solicitor can be made. I am therefore of the view that so long as a solicitor of a party in an action remains on record, service on that solicitor of the hearing notice in the suit is good service.”

In the instant case, William Kusi Esq. continued to represent the applicant herein after the default judgment was entered. So far as the record is concern there had been no change of representation as at the time the motion to set aside the default judgment was heard and determined on 16^th October, 2017. In fact, William Kusi had represented the applicant in the post judgment proceedings and that might have informed the decision to serve the processes relating to the application in contention on him. It is, however, an incontrovertible fact that William Kusi had been suspended by the General Legal Council at the time the said processes were delivered to his law office. The effect of his suspension was that he was no longer acting for the applicant at the time and thus the service on him was wrong service. What has complicated the matter is the fact that one Omono Asamoah represented the applicant herein during the hearing of the application. What was the basis of this representation? In the absence of any contrary reason, the only inference to be drawn is that the applicant had notice of the then pending application and authorised the said Omono Asamoah to represent him. The presence of the applicant’s representative featured prominently in the respondent’s affidavit in opposition to the instant motion as well as his counsel’s written submissions. The applicant, however, failed or refused to respond to it. That appeared to be the elephant in the room.

Whether it is personal service or non-personal service; the essence of service of a court process is to bring a pending action to the attention of a party. It is, therefore, my considered opinion that it does not really matter whether the service is irregular, so long as the process is brought to the attention of the party prior to the proceedings and the said party takes steps relating to the service, the irregularity is cured by the notice. In STATE v. ASANTEHENE’S DIVISIONAL COURT B1; EX PARTE KUSADA [1963] 2 GLR 238, the Supreme Court held that the object of service of a writ is to give notice to the defendant so as to give him the opportunity of defending his rights.

In the instant case, it would have been a different conclusion if the applicant had not been represented by the said Omono Asamoah during the hearing. It would have been different if the applicant had given a reasonable explanation that dissociates himself from the said Omono Asamoah. In so far as he participated in the hearing through his representative, the condition precedent of prior notice has been complied with. Thus, he cannot be heard to attack the service of the motion.

In FRED ROBERT COLEMAN vs. JOE TRIPOLLEN [2019] 130 GMJ 1 SC page 20, the Supreme Court dealt with a similar situation as follows:

“We have apprized ourselves with the facts and decisions of this court in the Barclays Bank v Ghana Cable case supra and are of the view that the facts therein are distinguishable from the facts of the present case.

In the first place, whilst only one of the Defendants in the Barclays Bank case was served, and counsel proceeded to enter appearance on behalf of all of them upon the erroneous impression that they (including corporate entities) had been validly served through one Madam Alice, in the instant case, there is ample proof that, even though only 2 of the Defendants had been served, all the other Defendants effectively participated in the case, by either attending court personally or mounting the witness box and testifying on behalf of the other defendants, i.e. the 1st Defendant.

Indeed, having considered all the facts in the Barclays Bank v Ghana Cable case supra and the decision of the court, which states as follows:-

“Since on the facts, the defendants had not been served with the writ of summons issued by the Plaintiff bank, the High Court had no jurisdiction to enter final judgment against them.” Emphasis

Applying this principle to the instant case, it can correctly be stated that, on the facts, all the Defendants must be deemed to have been served with the writ of summons. This can be deduced from all the surrounding circumstances i.e. entry of appearance, filing of Defence, amendment of the Defence, attendance in court personally on most occasions and testifying in Defence of the case in respect of the 1st Defendant. With all of the above, we are of the considered view that, since our primary role is to ensure that justice is done, we will not accede to the invitation made to us by learned counsel for the Defendants. We reject it as untenable and it is accordingly dismissed.”

Applying the principle espoused by the Supreme Court to the instant case, it is concluded that the applicant must be deemed to have been served with the processes relating to the contentious application due to the participation of the applicant in the hearing through his representative. Consequently, the order of the court setting aside the default judgment cannot be said to be void. The applicant herein has failed to demonstrate that the court’s discretionary power was exercised without due regard to acceptable legal principles and procedure.

Conclusion

For the foregoing reasons, the application to vacate the order of the court fails and the same is dismissed.

There will no order as to costs.