FOFIE vs. POMAA AND OTHERS [1974]DLHC2277

Date	1974-03-15
Suit No.
Citation No.	[1974]DLHC2277

OSEI-HWERE J.v

OPPONG FOR THE APPLICANT.

KUMI FOR THE RESPONDENTS.

[1974]DLHC2277
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">FOFIE <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">POMAA AND OTHERS <o:p></o:p>[HIGH COURT,
SUNYANI]<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;[1974] 2 GLR 6<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:
15 MARCH 1974.<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">

OPPONG 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">

OSEI-HWERE J.v<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.<o:p></o:p>The
plaintiffs issued an ordinary writ, accompanied by a statement of claim,
wherein the claim against the defendant was for:<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">“(a) An
order of the court upon the defendant to pay ¢20.00 each month to the first
plaintiff for the maintenance of the second and third plaintiffs who are infant
daughters of the defendant until they finish school or reach the age of sixteen
years; (b) An order of the court upon the defendant to pay to the first
plaintiff the sum of ¢5,000.00 representing expenses incurred by her over the
past six and half years in respect of the second and third plaintiffs towards
their living maintenance and subsistence; and (c) Mesne profit.”<o:p></o:p><o:p>&nbsp;</o:p>The writ
and the accompanying statement of claim were served on the defendant on 28
November 1973 according to the affidavit sworn to by the serving bailiff. The
defendant failed to enter an appearance and on 11 December 1973 the plaintiff
filed a motion ex parte, and as stated in the motion, “for orders to enter both
final and interlocutory judgments against the defendant.” The plaintiffs
managed to get the motion listed for hearing the very day it was filed and it
was indeed placed before the court and argued that same day by their counsel.
Counsel asked for final judgment and whereupon the court proceeded and entered
judgment for the plaintiffs in the sum of ¢5,000.00 being expenses incurred by
the first plaintiff in respect of the second and third plaintiffs towards their
living maintenance and subsistence; and it was further ordered that the
defendant do pay to the first plaintiff ¢20.00 a month for the maintenance of
the second and third plaintiffs until they attained the age of sixteen years.
Costs of ¢100.00 were awarded in addition inclusive of outlays.<o:p></o:p>No sooner
had they obtained their judgment than they caused fi. fa. to issue the very
next day against the contents of the goods in the defendant’s store as well as
his personal effects and his motor-cycle. On sensing the awe and potency of the
law the defendant now, apparently too late, entered his appearance on 18
December and his solicitor gave notice to the same effect. His solicitor, on
that same date, ex abundanti cautela undoubtedly, also filed a motion on notice
for leave to enter appearance on behalf of the defendant. The notice which was
opposed by the plaintiffs, finally came to be heard on 22 January 1974 and the
application for leave to enter an appearance was allowed. Thereafter the
defendant moved the court to set aside the judgment entered in favour of the
plaintiffs and the instant ruling pertains to that motion.<o:p></o:p><o:p>&nbsp;</o:p>In this
motion to set aside the judgment counsel for the defendant-applicant has relied
on two legal grounds, apart from the other grounds disclosed in the supporting
affidavit. In the first place counsel contended that before the plaintiffs took
their default judgment against the defendant there was no indication that the
writ had been endorsed with service thereof in accordance with Order 9, r. 17
of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A).
Secondly, it was argued that it was wrong for the plaintiffs to have proceeded
to sign final judgment without first asking for an interlocutory judgment since
the ¢5,000.00 claimed could not represent a liquidated demand. Counsel for the
plaintiffs, on the other hand held the contrary view that the failure to
endorse the writ was the bailiff ‘s default which should not be visited on the
plaintiffs. He considered that the default was, at any rate, not of such
significance as could avoid the default judgment. He was of the settled opinion
that the judgment was regular as the ¢5,000.00 awarded was a liquidated demand
as the amount claimed has been named on the writ and he supported himself with
the authorities of Wreh v. Wreh, High Court, Accra, 11 November 1965,
unreported; digested in (1966) C.C. 16 and Ghana Cargo Handling Co. v.
Dolphyne, High Court, Sekondi, 6 July 1970, unreported; digested in (1970) C.C.
84. Counsel also strongly felt that the previous order granting the defendant
leave to enter appearance was not justified in law since under the English
Supreme Court Rules of 1962 (which counsel thought are the rules now in force)
there is no provision that leave should be sought before the defendant could
enter an appearance after judgment.<o:p></o:p></spa</main>