IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION),
KUMASI - A.D 2019
EASY INVESTMENT SERVICE LIMITED - (Plaintiff)
KWABENA OWUSU ABABIO & ANOR - (Defendant)
DATE: 15 TH JANUARY, 2018
CIVIL APPEAL NO: RPC/17/2016
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
ATTA POKU FOR PLAINTIFF/JUDGMENT CREDITOR/RESPONDENT
STEPHEN ALEWABAH FOR DEFENDANTS/JUDGMENT CREDITORS /APPLICANT
This ruling is in respect of an application filed by counsel for the Defendant/Applicants for an order sitting aside the default judgment entered against his clients on 12/07/2017.
The basis of the application is that the motion on notice to enter judgment in default of defence was not served on counsel for the Defendants. And, further, the entry of judgment was also not served on the Defendants. Counsel submitted that the Defendants filed a defence without notice of the default judgment and that the Defendants have a good defence to the suit. Concluding, counsel submitted that there is no time limit within which to bring an application to set aside a default judgment.
Counsel for the Plaintiff in responding to the application duly exposed the falsity in the depositions that the motion for default judgment was never brought to the attention of counsel for Defendants and that entry of judgment was not served. He argued that application to set aside a default judgment must be brought timeously and the court has a discretion to grant or refuse the same. He concluded that the Defendants have not demonstrated any ground to merit the exercise of the court’s discretion in their favour. He urged the court to dismiss the application.
Order 13 rule 8 of C.I. 47 provides that “an application by a party affected, and on such terms as it thinks fit”, a court may “set aside or vary any judgment entered in pursuance of this order.
Upon a perusal of the affidavits filed and submissions made by both counsel, the court is of the opinion that the instant application has been brought in bad faith and that the Defendants/Judgment Respondents have no viable Defence. The motion on notice for judgment in default of defence filed on 30/06/2016 was duly served on counsel for Defendant on 05/07/2016 through his clerk by name Douglas and that was good service. The entry of judgment was subsequently served on the Defendants personally on 01/08/2016. It was after service of the entry of judgment that the Defendants/Judgment Debtors purported to file their defence. Why should the Defendants attempt to blur the court’s vision?
To the Defendants, I say that, yes, they have a right to apply to set aside the default judgment, they have exercised that right albeit late, but they are to not that the rules of court are not merit to be used to frustrate a Judgment Creditor. The Defendants have not been candid with regards to the present application and do not merit the exercise of the court’s discretion in their favour.
The application is refused. Costs of GHC 5,000.00 is awarded against the Defendants/Judgment Debtors/Applicants.