BONSU vs. DOE [1982]DLCA2104

Date	1982-12-14
Suit No.
Citation No.	[1982]DLCA2104

JIAGGE JA

MENSA BOISON JA

ABBAN J.A.

ANYANDY FOR THE APPELLANT.

ARYEE FOR THE RESPONDENT.

[1982]DLCA2104
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													<main id="main" class="content" style="min-height: 60rem" >BONSU <o:p></o:p>vs. <o:p></o:p>DOE <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1982-83] GLR 778<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:
14 DECEMBER
1982<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">

ANYANDY FOR THE APPELLANT. <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">

JIAGGE, MENSA BOISON AND ABBAN JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF JIAGGE J.A.<o:p></o:p>Jiagge
J.A. delivered the judgment of the court. This appeal is from the ruling of the
circuit court dismissing an application to set aside its judgment for a
liquidated demand in default of appearance.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff indorsed his writ of summons for the sum of ¢290 being arrears of
land rent due to him. He also applied for forfeiture of the land lease for
non-payment of rent. The lease was neither exhibited nor tendered in court.<o:p></o:p><o:p>&nbsp;</o:p>In his
statement of claim, the plaintiff acknowledged that the amount due had been
reduced to ¢170. Nevertheless, in the last paragraph of his statement of claim,
he affirmed his demand for ¢290 as the amount due to him. The court entered
judgment in his favour in default of appearance by the defendant for ¢290 as
the amount due. The judgment was silent on the application for an order of
forfeiture of the lease. Following a separate ex parte motion after signing for
judgment, the court made an order of forfeiture of the lease.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant moved the court to have the judgment set aside on the grounds, inter
alia, that the actual amount due at the time of judgment was ¢50 and not ¢290.
That the lease was for a term of 60 years, twenty of which was yet to run, that
the lease covered vacant land and that the defendant had constructed a building
valued at ¢100,000 on the vacant land. The motion to set aside the judgment was
dismissed by the court below and this appeal is against that ruling and the
order for the forfeiture of the lease.<o:p></o:p><o:p>&nbsp;</o:p>In his
appeal before this court, counsel for the appellant argued that the judge erred
in dismissing the motion to set aside his ex parte judgment in view of the
facts deposed to in support of the motion. That if the judge had considered
carefully the fact that he had signed judgment for an amount larger than the
sum actually due at the time of judgment he would have granted the motion to
set aside the ex parte judgment.<o:p></o:p><o:p>&nbsp;</o:p>Counsel
further argued that failure on the part of the respondent to disclose to the
court at the time the order for forfeiture was made, that the amount due was
¢50 and not ¢290 amounted to lack of good faith and for these reasons his
appeal should be allowed and judgment of the court below and the order for
forfeiture set aside.<o:p></o:p><o:p>&nbsp;</o:p>Counsel
for the respondent admitted that the judge was not aware at the time of signing
judgment that the amount due was ¢50 and not ¢290. He admitted further that it
was not disclosed to the court at the time the order for forfeiture was made
that the amount of ¢290 indorsed on the writ had been reduced to ¢50. He
argued, however, that whether the amount due was ¢50 or ¢290 the order for
forfeiture was justified and that so long as the total debt was not satisfied
the judge was right to make the order for forfeiture. Counsel for the
respondent admitted that the lease in question covered vacant land and that the
mother of the appellant had built a house on it.<o:p></o:p><o:p>&nbsp;</o:p>