IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION),
KUMASI - A.D 2019
ADOLF ADARKWAH - (Plaintiff)
FIRST ALLIED SAVINGS AND LOANS LTD - (Defendant)
DATE: 12 TH OCTOBER, 2018
SUIT NO: BFS 04/2019
JUDGES: DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT
This is a Motion on Notice praying this Honorable Court for an order setting aside the default judgment entered against the Applicant herein and for leave to enter late appearance.
The Plaintiff/Respondent herein issued a Writ of Summons against the Defendant/Applicant on the 15th of August, 2018. The Plaintiff’s claim against the defendant are for:
a. An order for the recovery of the sum of SIX MILLION AND THREE HUNDRED THOUSAND GHANA CEDIS (GH¢6,300,000.00) being the principal sum invested in fixed deposit with the Defendant and two (2) months interest arrears standing unpaid by the Defendant on the money invested in the fixed deposits as of the time of the institution of this action.
b. Interest at the prevailing bank rate on the total sum of SIX MILLION AND THREE HUNDRED THOUSAND GHANA CEDIS (GH¢6,300,000.00) from July 2018 being the due demand date the Plaintiff lawyers finally demanded for the repayment of the said sum total to the Plaintiff up to the date of final payment.
c. Cost including solicitors legal fee and other expenses as agreed by the Defendant in its “letter of indemnity”.
d. And any other reliefs as to this Honorable Court may deem just.
The defendant/applicant was served with the writ of summons and statement of claim on the very day it was issued i.e. 15th August, 2018. Subsequently, this Honorable Court entered default judgment in favor of the Plaintiff/Respondent on the 5th of September,2018 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 29thof September, 2018.
In moving the motion, Counsel for the Applicant prayed the Court to exercise its discretion and set aside the default judgment. Counsel cited Order 10 rule 8 of the High Court (Civil Procedure) Rule 2004 (CI 47) and argued that per the provision the court is handed a discretionary power to set aside the default judgment. He also referred to article 296 of the 1992 Constitution which deals with the exercise of discretionary power and invited the court to exercise its discretion in favour of the applicant in the interest of fairness. Counsel also intimated that the defendant/applicant failed to enter an appearance as they wanted to settle the matter out of court. He prayed the court to set aside the judgment and grant the applicant leave to enter an appearance as they are desirous of contesting the matter.
In his response to the submissions of learned Counsel for the Applicant, Counsel for the Respondent reiterated the latter’s opposition to the motion. Counsel cited the case of Botchway and Anor v Daniel and Others (1991) 2 GLR 262 at Holding 2 and submitted that the applicant has not given any reasonable explanation for the default in entering an appearance. He also argued that the applicant per the affidavit evidence has not demonstrated that he has a reasonable defence to the action. It was counsel for the applicant’s submission that in view of the fact that the applicant has not satisfied the conditions for grant of the application the same must be dismissed.
Order 10 rule 8 of CI 47 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 which has been regularly obtained, 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 its failure to enter an appearance is untenable. For, a mere desire to settle a matter is no excuse for failure to comply with the rules of court. In view of this, it is my respectful opinion that the applicant has not given a satisfactory explanation to the default in entering appearance.
Also, beside the bare assertion by counsel that the applicant is desirous of contesting the matter, he (applicant) failed to demonstrate that he has an arguable defence to the claim.
In spite of the applicant’s failure to meet the aforesaid conditions set out by case law, I am prepared to give the application a sympathetic consideration. This is because the aforestated guidelines for determining an application to set aside judgment in default of appearance are, in my humble opinion, not exhaustive and that the overriding principle set out by statute hold sway over case law. From Order 10 rule 8 of CI 47, the court is seised with a discretionary power to set aside the default judgment and as dictated by Article 296 of the 1992 Constitution and rightly pointed out by counsel for the applicant, exercise of such powers must be guided by the ethos of fairness and justice. Article 296 provides:
“Where in this Constitution or in any other law discretionary power is vested in any person or authority -
(a) that discretionary power shall be deemed to imply a duty to be fair and candid;
(b) the exercise of the discretionary power shall not be arbitrary, capricious or biased wither by resentment, prejudice or personaldislike and shall be in accordance with due process of law; and
(c) where the person or authority is not a judge or other judicial officer, there shall be published by constitutional instrument or statutory instrument, regulations that are not inconsistent with the provisions of this Constitution or that other law to govern the exercise of the discretionary power.”
I have taken cognizance of the fact that the subject matter of the default judgment is a huge sum of money (GHC 6,300,000.00) and that the applicant has acted within a reasonable time in a bid to set it aside so it can defend the action. I am therefore exercising my discretion in favour of the applicant to enable substantial justice to be done.
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 renunciarejuri 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 5th day of September, 2018 which was entered for the Plaintiff/Respondent herein is hereby set aside. Consequently, the execution process must also cease. Leave is hereby granted to the Defendant/Applicant is to enter appearance within seven (7) days from the date hereof.
It appears the plaintiff has incurred considerable expenditure in the ongoing execution of the judgment. In view of this, costs of GHC 20,000 is awarded against the Applicant in favour of the Respondent.