ATTOH-QUARSHIE vs. OKPOTE [1973]DLHC2364

Date	1973-04-17
Suit No.
Citation No.	[1973]DLHC2364

HAYFRON-BENJAMIN J.

ASAFU ADJAYE FOR THE APPLICANT.

NARTEY FOR THE RESPONDENT.

[1973]DLHC2364
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													<main id="main" class="content" style="min-height: 60rem" >ATTOH-QUARSHIE <o:p></o:p>vs. <o:p></o:p>OKPOTE <o:p></o:p>[HIGH COURT,
ACCRA]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1973]
1 GLR 59<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
17 APRIL 1972.<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">

ASAFU ADJAYE FOR THE APPLICANT.<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">

HAYFRON-BENJAMIN J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF HAYFRON-BENJAMIN J.<o:p></o:p>This is
an application by motion on notice for an order reviewing the order of this
court made on 21 February 1972 dismissing the defendant-applicant’s (hereafter
described as the applicant) application to relist a motion filed on 17 January
1972. It also asks for an order setting aside the default judgment delivered by
this court on 1 April 1971. The motion of 17 January 1972 was one praying for
an order to set aside a default judgment delivered by this court on 1 April
1971.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff (hereafter referred to as the respondent) by her writ of summons
dated 27 August 1970 claimed damages for the negligence of the applicant. No
appearance was entered by the applicant and the respondent applied for and obtained
an interlocutory judgment on 10 November 1970. Abban J. entering judgment said:<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
defendant was served with the writ of summons together with the statement of
claim on 26 October 1970 and up to date he has not entered appearance and he is
out of time. In the circumstances, let interlocutory judgment be entered
against the defendant for damages for negligence. Damages to be assessed on a
date to be fixed by the registrar.”<o:p></o:p><o:p>&nbsp;</o:p>The
solicitor for the respondent then wrote a letter to the senior registrar on 19
November 1970 requesting that 30 November 1970 be fixed for the assessment of
damages. There is nothing on the record to show that a copy of this letter was
sent to the applicant. The case however was fixed for 30 November 1970 for the
assessment of the damages. The case was further adjourned to 15 December 1970
when the evidence as to damages was given and completed on 16 December 1970.
Judgment was given on 1 April 1971. Notice of judgment after trial was filed on
29 April 1971. There is an affidavit of personal service of this judgment on 8
May 1971 at Chorkor, Accra. On 21 May 1971, a writ of fieri facias was issued
from the High Court for the attachment of the property of the applicant. On 13
July 1971 the applicant filed a motion to set aside the default judgment on the
ground that he was never served with any writ of summons nor any statement of
claim by the respondent. He admitted however that he was served with notice of
the judgment after trial. The respondent filed an affidavit in opposition in
which she claimed that the applicant was duly served with the writ of summons
and that notice of it was even given to the applicant’s insurers who repudiated
liability on the ground of breach of the “named driver condition” in the
policy. They charged the applicant with abusing the legal process by rushing an
application to set aside a judgment a day before the sale of his properties
which had been attached under the writ of fieri facias. When the application
came on 27 July 1971, i.e. the last motion day before the long vacation, I
dismissed it and then stated that “it is clear that service of the writ of
summons and the statement of claim were served on the applicant. No order as to
costs.” I dismissed this motion because of the affidavit of service filed by
the court bailiff who was entrusted with the service of the writ and the
statement of claim; the answer to the search filed by the respondent’s
solicitor which stated “No appearance”; and the fact that counsel who held
brief for the applicant’s counsel apparently had no instructions to apply for
leave to lead oral evidence or to cross-examine the bailiff who claimed to have
served the applicant. I did not notice and my attention was not drawn to Order
9, r. 17 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A),
[set out in the headnote].<o:p></o:p><o:p>&nbsp;</o:p>On 17
January 1972 the applicant applied again for an order setting aside the default
judgment delivered on 1 April 1971. On the return date neither the applicant
nor his counsel was present when the motion was called and I dismissed it.
Before the court rose, however, counsel for the applicant appeared and asked
that the motion be relisted for hearing. At that time, however, the
respondent’s counsel had left the precincts of the court and I therefore told
counsel to file a fresh mot</main>