IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION),
KUMASI - A.D 2019
CHARLES OSEI MENSAH -(Plaintiff)
GHANA BROADCASTING CORPORATION - (Defendant)
DATE: 5 TH JUNE, 2018
SUIT NO: OCC. 39/2018
JUDGES: DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT
ASIEDU BASOAH WITH ANDREW ACQUAYE FOR THE PLAINTIFF/RESPONDENT
LISA ACQUAH FOR JOHN KWAME WAJAH FOR THE DEFENDANT/ APPLICANT
This is a motion on notice praying this Honourable Court for an order setting aside the judgment in default of appearance entered against the Applicant herein and for leave to enter late appearance.
The Plaintiff/Respondent herein commenced this action on the 12thDecember, 2017 by way of Writ of Summons accompanied by Statement of Claim against the Defendant/Applicant herein.
The Plaintiff claimed against the Defendant as follows:
1. Recovery of a sum of Thirty-Five Thousand Six Hundred and twenty-five Ghana Cedis seventy six pesewas (GHC35,625.76) being the retirement award\benefit owed to the Plaintiff by the Defendant.
2.Recovery of a sum of Twelve Thousand Four Hundred and Sixty Nine Ghana Cedis twenty-four pesewas (GHC12,469.24) being interest of thirty five percent (35%) on the principal sum of Thirty-Five Thousand Six Hundred and twenty-five Ghana cedis seventy pesewas (GHC35,625.76) from 26th day of October 2015 to the date of the issue of the Writ.
3. Recovery of interest of thirty five percent (35%) on the principal sum of Thirty-Five Thousand Six Hundred and twenty-five Ghana cedis seventy pesewas (GHC35,625.76) from the date of issuance of the Writ to the date of final payment.
4. Recovery of fifteen percent (15%) on the principal sum of Thirty-Five Thousand Six Hundred and twenty-five Ghana cedis seventy pesewas (GHC35,625.76) as legal fees.
5. Recovery of ten percent (10%) on the principal sum of Thirty-five Thousand Six Hundred and twenty-five Ghana cedis seventy pesewas (GHC35,625.76)as cost.
6. Any further Order(s) as the Honourable Court may deem fit to make.
The processes were duly served on the applicant herein, who by the court’s record failed to enter appearance as required by Order 9 r 1 of the High Court (Civil Procedure) Rules, 2004 (CI 47).
Consequently, the Plaintiff moved for final judgment against the Defendant/ Applicant herein and on the 6th February, 2018 the court entered judgment in “default of appearance” in favour of the plaintiff for all the reliefs sought. It is this judgment in default of appearance which has necessitated the application currently before me. The application was filed on the 7th of May, 2018. In support of the application is an affidavit sworn on behalf of the Applicant. The gravamen of the applicant’s motion per the Affidavit is that it could not enter an appearance timeously as an attempt to do so was rejected by the registry. According to the applicant, the registry intimated to them that a new form for entry of appearance had been developed by the Judicial Service and the same was inconsistent with their process.
The Respondent was opposed to the application and demonstrated the grounds in an Affidavit in Opposition filed on 18th May, 2018.The import of the Respondent’s opposition was that the “defendant/applicant has not shown good and sufficient reason why the application should be granted”.
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 per Order 19 rule 1 and Order 10 of CI 47 it was wrong for the plaintiff/respondent herein to file the motion for judgment in default of appearance without notice to the defendant/applicant herein. She cited the case of Botchwey v Daniels (1991) 2GLR 262 Holding 2 and invited the court to declare the default judgment a nullity. Counsel also admitted to the court that they owe the plaintiff. However, they want to file an appearance and subsequently go into negotiation with the plaintiff for a possible consent judgment. In his response to the submissions of learned Counsel for the Applicant, Counsel for the Respondent reiterated the latter’s opposition to the motion. He argued that since the defendant has admitted the claim there is no need to set aside the default judgment and grant the applicant leave to enter an appearance since that will amount to multiplicity of dispute.
Counsel submitted that the reason given for the default in entering appearance is untenable. On the need to bring the application for judgment in default of appearance on notice, Counsel for the respondent 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.”
Counsel submitted that the Form 1 backs the claim that default judgment could be granted ex-parte. He invited the court to dismiss the application.
I shall first and foremost examine the regularity of the judgment in default of appearance.
Should the motion for judgment in default of appearance 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 without previous notice to the parties.”
The above rule should, however, be read together with order 19 rule 3(1) 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  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 in evincing 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 its failure to enter an appearance cannot be entertained. This is because besides the bare assertion relating to the form of the entry of appearance, it failed to back its excuse with the relevant evidence in the said ‘entry of appearance form’ which was allegedly rejected by the registry. In the absence of cogent evidence on the issue the explanation can be described as untenable. 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 defendant has an arguable defence to the claim. Having perused all the documents filed herein and having considered the arguments advanced by Counsel for the parties, I am in no doubt that beside the unreasonable explanation for the delay in entering appearance; there is no defence to the claim. The applicant did not depose to the fact that it had a defence to the claim.
It never attached a proposed statement of defence to its affidavit in support of the motion to demonstrate the substance of any defence. Rather, counsel admitted in her oral submission that the defendant/applicant owe the plaintiff/respondent. This fact was not deposed to in the affidavit as part of the facts Applicant intended to rely upon in seeking the orders contained in the motion paper. Submission of this fact was obviously not objected to by Counsel for the respondent and as such this admitted fact forms part of the evidence to be considered in the determination of this motion. The court relies on the case of Edward Nasser & Co. Ltd v McVroom & Another [1996-1997] SCGLR 468 which held that an unpleaded evidence if not objected in evidence forms part of the record. It can, therefore, be concluded that by its own showing the defendant/applicant has no defence to the claim.
In the light of the above, it is my considered opinion that the application is not worthy of a positive consideration. In spite of applicant’s failure to evince good reasons for the default, the conclusion would have been different if the applicant had demonstrated a reasonable defence. In that regard, the court would have exercised its discretion in favour of the applicant based on the ethos of substantial justice. As it stands now, allowing the applicant to enter an appearance is a needless exercise since issues cannot be joined in the face of the admission.
Accordingly, the application is dismissed, as same is unmeritorious. There will be no order as to costs.