ACHEAMPONG AND ANOTHER vs. ASARE-MANU AND ANOTHER [1975]DLHC333

Date	1975-12-18
Suit No.
Citation No.	[1975]DLHC333

OSEI-HWERE J.

POBEE FOR THE APPLICANTS.

KOFI GYAMBRA FOR THE RESPONDENTS.

[1975]DLHC333
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													<main id="main" class="content" style="min-height: 60rem" >ACHEAMPONG AND ANOTHER<o:p></o:p>&nbsp;vs. <o:p></o:p>ASARE-MANU AND ANOTHER<o:p></o:p>&nbsp;[HIGH
COURT, SUNYANI]<o:p></o:p>[1976] 1 GLR 287<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:
18 DECEMBER 1975.<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">

POBEE FOR THE APPLICANTS.<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.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.<o:p></o:p>When this
motion to set aside the default judgment came before the court for hearing, the
plaintiffs’ counsel took the preliminary objection that the motion cannot be
entertained. Although counsel conceded that a judgment obtained by fraud, as
alleged in the defendants’ affidavit, can be set aside either by a motion or by
an action yet he contended that the party who seeks to do so by motion must act
timeously. According to counsel this is buttressed by Order 36, r. 18 of the
High Court (Civil Procedure) Rules, 1954 (L.N. 140A). By that rule:<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">“Any
verdict or judgment obtained where one party does not appear at the trial may
be set aside by the Court or a Judge upon such terms as may seem fit, upon an
application made within fourteen days after the trial.”<o:p></o:p><o:p>&nbsp;</o:p>It is
counsel’s contention that after fourteen days the party affected can only sue
to set aside the judgment. The plaintiff, he argued, obtained their default
judgment against the defendants on 27 January 1975 and the defendants filed
this motion on 12 August 1975 without first seeking the leave of the court
under Order 64, r. 6 of L.N. 140A to enlarge the time within which they could
do so. Counsel invited the court to apply the clear language of Order 36, r. 18
of L.N. 140A in dismissing the motion.<o:p></o:p><o:p>&nbsp;</o:p>In his
turn the defendants’ counsel argued that the defendants were applying to the
court under its inherent jurisdiction to set aside the judgment. Before the
court heard the plaintiffs and gave them judgment it had ordered that the
defendants’ solicitor be served with hearing notice. Neither the defendants nor
their solicitor, he contended, had been served with such notice when the
plaintiffs obtained their judgment. It was further contended that the court had
no jurisdiction in the circumstance to have proceeded with the hearing. The
judgment was, therefore, void and the party affected can apply to the court at
any time to set it aside irrespective of Order 36, r. 18 of L.N. 140A.
Alternatively, he argued that the court can extend the time on an oral
application as there are affidavits on the docket which explain why the
defendants are again before the court at this late stage. Under Order 18, r. 1
of L.N. 140A it is only the bailiff who is empowered to serve a hearing notice
and if the court had gone strictly with the rule it should have turned down the
representation of the plaintiffs that they directed service. This is the more
reason, counsel argued in effect, why the court should permit him to apply to
the court orally to extend the time. According to him the plaintiffs perpetrated
a fraud on the court when they represented that the defendants had been served
when in fact they had not.<o:p></o:p><o:p>&nbsp;</o:p>The three
areas where the court’s inherent jurisdiction can be invoked were well defined
by Hayfron-Benjamin J. (as he then was) in Attoh Quarshie v. Okpote [1973] 1
G.L.R. 59. One of such areas where the court’s inherent powers can be invoked
is where it is necessary to prevent wrong or injury being inflicted by its own
judgment. This will include the power of vacating judgments entered by mistake,
of relieving judgments procured by fraud and of undoing what it had no
authority to do originally.<o:p></o:p><o:p>&nbsp;</o:p>Upon
reading the affidavits filed and upon hearing the defendants’ counsel, I am
satisfied that a prima facie case has been established why I should invoke my
inherent powers to set aside the default judgment. In the first place the court
ought to have assured itself that its order that the defendants’ solicitor
should be served had been carried out. It was a mistake, therefore, to enter
judgment for the plaintiffs upon their bare words that there was service.
Secondly, if indeed there had been no service as alleged then the plaintiffs’
representation to the court that there was service amounted to fraud. The whole
judgment was accordingly a nullity as the court had n</main>