YARO vs. DUHO AND ANOTHER [1983]DLHC2171

Date	1983-02-25
Suit No.
Citation No.	[1983]DLHC2171

APATU PLANGE J.

KWAME TETTEH FOR THE DEFENDANTS-APPLICANTS.

DOTSE FOR ARMSTRONG ACKUAKU FOR THE PLAINTIFF-RESPONDENT

[1983]DLHC2171
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													<main id="main" class="content" style="min-height: 60rem" >YARO <o:p></o:p>vs. <o:p></o:p>DUHO AND ANOTHER <o:p></o:p>[HIGH COURT, HO]<o:p></o:p>[1982-83] GLR 1064<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:
25 FEBRUARY 1983<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">

KWAME TETTEH FOR THE DEFENDANTS-APPLICANTS. <o:p></o:p>

DOTSE FOR ARMSTRONG ACKUAKU FOR THE
PLAINTIFF-RESPONDENT<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">

APATU PLANGE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGEMENT OF PLANGE J.K<o:p></o:p>This is
an application by the defendants for an order that the above case be reported
to the Chief Justice for this case to be transferred to Accra to be heard by
the High Court in the Greater Accra Region. The application was supported by an
affidavit giving reasons for so demanding. The plaintiff also filed an
affidavit opposing the application for the said transfer. Before proceeding to
deal with the merits of this application, it would be necessary to outline in
brief the history of this case and the circumstances that led to this
application.<o:p></o:p><o:p>&nbsp;</o:p>On 4
August 1981, the plaintiff herein filed a writ of summons and a statement of
claim in this court claiming special and general damages against the defendants
for the loss suffered as a result of the negligent driving of the first
defendant, the servant of the second defendant. The only address provided by
the defendants to the police during the investigation in connection with the
accident was Post Office Box 6542, Accra, and since according to the plaintiff,
their address was insufficient to enable personal service to be effected on the
defendants, the plaintiff applied for and was granted leave to serve the
defendants by substitution.<o:p></o:p><o:p>&nbsp;</o:p>This was
effected by way of prepaid registered letter to Post Office Box 6542, Accra.
Despite this service, the defendants failed to enter an appearance.
Consequently, on 12 November 1981, the plaintiff applied for and obtained an
interlocutory judgment against the defendants in default of appearance. The
case was then adjourned to 17 December 1981 with an order that notice of the
interlocutory judgment and date for the assessment of damages be served on the
defendants. This order was also served on the defendants by substitution. The
defendants still failed to take any steps to indicate that they were interested
in defending this suit.<o:p></o:p><o:p>&nbsp;</o:p>On 14
January 1982, the plaintiff gave evidence in proof of his claim for damages,
and judgment was entered for the plaintiff against the defendants jointly and
severally on 20 January 1982. Judgment after trial was also again served on the
defendants by substitution. Thereafter the plaintiff proceeded to attach the
second defendant’s Passat car No. ER 3969 in execution of the judgment debt.<o:p></o:p><o:p>&nbsp;</o:p>Soon
thereafter the second defendant applied to this court for an order to set aside
the judgment and for leave to enter appearance. There was also an application
for the release of the Passat car No. ER 3969. The main ground relied on by the
defendants in this application was that the substituted service was improper
and also that they have a good defence to the action. The said application was
vehemently opposed by the plaintiff, and this court after hearing counsel for
both parties held that the substituted service was proper and therefore the
judgment was regularly obtained. The court, however, in the exercise of its
equitable jurisdiction held that since the defendants have put forward a
defence of contributory negligence and the fact that the judgment debt was
quite colossal, ¢428,000, the justice of the case would be met if the court
exercised its discretion in their favour by giving them the opportunity to be
heard, the default judgment was therefore set aside and an order was made for
the release from attachment of the Passat car. The court further granted the defendants
leave to enter appearance to the writ and ordered them to do so on or before 31
January 1983 and to file their defence on or before 10 February 1983, after
which pleadings should take their normal course. The plaintiff was accordingly
awarded costs of ¢3,000.<o:p></o:p><o:p>&nbsp;</o:p>On 21
January 1983, however, the defendants entered an appearance, but under protest,
and in support of this protest filed a motion under the new Order 5, r. 1 (8)
and (9) of the High Court (Civil Procedure) Rules, 1954 (LN 140A), as substituted
by the High Court (Civil Procedure) (Amendment) Rules, 1977 (LI 1107),</main>