HEWARD-MILLS vs. BARCLAYS BANK (D.C.O.) [1966]DLHC1700

Date	1966-06-27
Suit No.
Citation No.	[1966]DLHC1700

DJABANOR J.

VICTOR OWUSU FOR THE APPLICANT.

F. OBENG FOR THE RESPONDENTS.

[1966]DLHC1700
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													<main id="main" class="content" style="min-height: 60rem" >HEWARD-MILLS<o:p></o:p>&nbsp;vs. <o:p></o:p>BARCLAYS BANK (D.C.O.) <o:p></o:p>[HIGH COURT, SEKONDI]<o:p></o:p>[1966] GLR 618<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
27 JUNE 1966.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

VICTOR OWUSU FOR THE APPLICANT.<o:p></o:p>

F. OBENG FOR THE RESPONDENTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DJABANOR J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF DJABANOR J.<o:p></o:p>This is
an application by the third defendant hereinafter called the applicant for an
interlocutory judgment against the plaintiffs hereinafter referred to as the
respondents on his counterclaim to which no defence has been filed. The
respondents were served with the applicant’s defence and counterclaim, and with
this application for judgment.<o:p></o:p><o:p>&nbsp;</o:p>The
respondents are now resisting this application for judgment on two grounds,
first that there is no suit pending before this court in which such a statement
of defence and counterclaim could be admitted, and secondly that since the
applicant defaulted in entering both appearance and filing defence (out of
time) he could not properly file the defence and counterclaim now without leave
having first been sought and obtained.<o:p></o:p>Paragraphs
(3), (4) and (5) of the respondents’ representative’s affidavit read as
follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(3) That
having regard to the fact that suit No. 63/60 was not pending before the
Sekondi Court because it was disposed of by the final judgment delivered on 25
July 1960 the cause of action and the writ having merged into the judgment thus
obtained. (4) That the said judgment having been set aside by a Kumasi court
and confirmed by the Supreme Court left nothing in the Sekondi Court in respect
of which an interlocutory application for judgment can be entertained. <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(5) That
in the alternative if the writ was pending at all no appearance having been
entered by the third defendant to that writ no further step could be taken by
the third defendant to that writ which in effect is ‘dead’ in law.”<o:p></o:p>My own
view of the law is this: when a judgment is set aside, it is that judgment
which is set aside. That fraud vitiates everything is a correct statement of
the law. But I do not think that everything here means that everything that has
the remotest connection with the “thing.” The applicant charged the respondents
with having obtained judgment in this case by fraud. The respondents were not
charged with having filed the writ by fraud or anything like that. In my view,
the result of the setting aside of the judgment in this case has the same
effect as if the judgment was set aside on any other legal ground. The parties
cannot be placed in the same position in which they were before the issue of
the writ, because the proceedings have not been set aside. If a party obtained
a judgment by default of appearance or pleading and that judgment was set
aside, my view of the law is that the parties are placed in the same position
as they were before the application for judgment was made. In my view when the
Supreme Court in Barclays Bank D.C.O. v. Heward-Mills1 stated that:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
appellants will thus be enabled, should they think fit, to re-agitate their
claim against the respondent and any of his partners and the latter would be
entitled to meet such claim with such defences as are available to him,”<o:p></o:p>they were
not making any special order. They were stating the correct legal position -
for at that stage the respondents were at liberty either to withdraw the whole
claim, i.e. discontinue-or to make a fresh application for judgment, and leave
the defendant to apply for leave to defend. The case of MacFoy v. United Africa
Co., Ltd.2 referred to by counsel in my view states quite a different
proposition from what we are concerned with here.<o:p></o:p><o:p>&nbsp;</o:p>It was
the respondents’ second point that having defaulted the applicant cannot file a
statement of defence and counterclaim without leave of the court. I agree with
that statement of the law. But it is also the law that even after default, if a
defendant filed a statement of defence, it nevertheless cannot be ignored. In
the circumstances, therefore, I am bound to give consideration to the statement
of defence and counterclaim filed.<o:p></o:p><</main>