IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION),
ACCRA- A.D 2019
DAULATTA DALIO - (Plaintiff)
GUARANTY TRUST BANK GH. LTD - (Defendant)
DATE: 7 TH MARCH, 2018
SUIT NO: OCC/04/14
JUDGES: GEORGE K. KOOMSON (JUSTICE OF THE HIGH COURT)
OBENG-MANU JNR FOR PLAINTIFF/RESPONDENT
YAW AGYEI-AFRAM FOR 1ST DEFENDANT/APPLICANT
In this application, the 1st Defendant/Applicant prays for an order setting aside the Entry of
Judgment filed by the Plaintiff/Respondent on the 6th September, 2017. The core contention of the 1st Defendant/Applicant is that it has been served with an Entry of Judgment when no judgment has been obtained against the 1st Defendant in the case. In the view of 1st Defendant, the said entry of Judgment filed on the 6th September, 2017 is irregular. The plaintiff is opposed to the application. The plaintiff contends that the 1st defendant has no locus to bring the present application and that the judgment was obtained regularly. I have read the application and the supporting affidavit. I have given consideration to the written submission of both counsel. Regard has also been given to the earlier proceedings that culminated in the judgment of the court on the 19th January, 2017.
It is however, useful for me to make reference to the proceedings that led to the said judgment. A brief summary of the facts are that the Plaintiff issued a writ of summons against the 1st Defendant, the auctioneer C.T. Squire and the Deputy Sheriff for an Order to set aside the auction sale conducted by C.T. Squire, Licensed Auctioneer of Goodwill Mar on 22nd June, 2012, under a Writ of Execution dated 13th May, 2008 in suit no. AB6/2008 on the grounds of fraud, among other reliefs.
The 1st Defendant entered an appearance. However the 2nd and 3rd defendants failed or neglected to enter an appearance. The plaintiff accordingly moved the court for judgment in default of appearance against the 2nd and 3rd defendants. The said application was granted by the court on the 19th January, 2017. Subsequent to this, the Plaintiff filed an Entry of Judgment on the 6th September, 2017. It is this entry of judgment that the 1st Defendant is seeking to set aside. Order 41 rule 7 of C.I 47 requires a party who seeks to have a judgment entered to drawn up the judgment and present same to the Registry of the Court that delivered the judgment for entry. Any party affected by the judgment may also draw up the entry of judgment where the party in whose favour the order was given fails to draw it up.
It is noted that the 19th January, 2017 judgment was entered against the 2nd and 3rd defendants. The Plaintiff’s case against the 1st Defendant is however pending. It is further noted that where there are more than one defendant in a pending suit, all processes filed must be copied to all the parties in the suit, though the process may be affecting one or all the parties in the suit. There is nothing wrong with the service of the entry of judgment on the 1st defendant. It should however be noted that, where a party obtains an order or judgment against one or any of the parties in the suit, any process that may be filed to be entered or served on the parties must show the actual parties who the order or judgment was made against. It would be wrong for the process to be drawn in such a way that it will appear on the face of the process that the order was made against all the parties.
For example, where there are 5 defendants in a suit and an order is made against one of the parties, the said order may be filed and served on all the parties but the body of the order must reflect that the said order was made against that particular party. It must not be drawn as if the order was made against all the defendants in the suit although the effect of the said may be felt by the other parties in the suit. In the case before me, the Entry of Judgment filed by the Plaintiff on the 6th September, 2017 states, at the introductory or preamble section as follows:
‘‘This action having been determined by this honourable court presided over by His Lordship George K.
Koomson J, who delivered judgment on 19th January, 2017, in favour of the plaintiff for all the reliefs indorsed on his writ of summons.’’
It is clear from the introductory or preamble section of the Entry of Judgment that the Plaintiff failed to disclose the parties against whom the said 19th January, 2017 judgment was made. In my view, the Plaintiff omitted the parties against whom the judgment was obtained. It appears to me therefore, that there is a drafting error on the face of the Entry of Judgment filed by the Plaintiff. The phrase “against the 2nd and 3rd defendants” ought to have been inserted after the words “in favour of the plaintiff” before the words “for all the reliefs indorsed on the writ of summons” followed.
The failure of the Plaintiff to draft the Entry of Judgment in the manner as described above creates the impression that judgment has been entered in the case against all the defendants in the case including the 1st defendant. This is very wrong and ought to be corrected.
For the foregoing reasons, the Entry of Judgment filed by the Plaintiff on the 6th September, 2017 ought to be corrected. The Plaintiff is hereby ordered to file an amended Entry of Judgment, which must clearly indicate the parties, that is, 2nd and 3rd defendants, as the parties against whom the 19th January, 2017 judgment was obtained within 7 days. I do not think the error calls for the setting aside of the Entry of Judgment.
I award to the 1st defendant, costs against the plaintiff assessed at GH¢800.00.