QUARMYNE vs. AFEYESI AND OTHERS [1986]DLCA963

Date	1986-06-12
Suit No.
Citation No.	[1986]DLCA963

ABBAN JA

OSEI-HWERE JA

AMUA-SEKYI J.A.

B. J. DA ROCHA FOR THE APPELLANT.

NARH FOR THE RESPONDENTS

[1986]DLCA963
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QUARMYNE <o:p></o:p>

{COURT OF APPEAL, ACCRA} <o:p></o:p>

[1984-86] 2 GLR 430<o:p></o:p>

DATE:
12 JUNE 1986<o:p></o:p>

</div><o:p>&nbsp;</o:p>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">

B.
J. DA ROCHA 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;
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ABBAN, OSEI-HWERE AND AMUA-SEKYI JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ABBAN J.A.<o:p></o:p>The respondents,
hereinafter referred to as the plaintiffs, issued out a writ of summons in the
High Court, Accra against the appellant, hereinafter referred to as the
defendant. In the writ the plaintiffs asked for a declaration of title to land,
damages for trespass and an order for perpetual injunction.<o:p></o:p><o:p>&nbsp;</o:p>The writ
was served on the defendant on 20 June 1984 and on 28 June 1984 the plaintiffs
filed an ex parte motion asking for an order to enter judgment against the
defendant default of appearance.<o:p></o:p><o:p>&nbsp;</o:p>The High
Court on 3 July 1984 granted the application. Default judgment was accordingly
entered against the defendant and the assessment of damages was adjourned to 17
July 1984. But on 9 July 1984, the defendant filed motion on notice praying for
an order for leave to enter appearance and an order to set aside the default
judgment recovered by the plaintiffs on 3 July 1984. On 30 August 1984, the
learned High Court judge after arguments ruled that the application was
unmeritorious and accordingly dismissed same. It was against this ruling that
the present appeal was brought.<o:p></o:p><o:p>&nbsp;</o:p>Learned
counsel for the defendant argued the two grounds of appeal together, namely it
was wrong for the learned trial judge to refuse to set aside the judgment on
the ground that the defendant had not made prior application to enter late
appearance and, secondly, the learned trial judge erred in not acceding to the
defendant’s request in view of the affidavit in support of the application
which affidavit disclosed a genuine defence. Learned counsel submitted that the
learned High Court judge was under the impression that once judgment had been
regularly obtained it could not be set aside or that leave must necessarily be
obtained to enter late appearance before the defendant could apply to have the
default judgment set aside. Counsel contended that the two views held by the
learned High Court judge which were the basis of his refusal were wrong.<o:p></o:p><o:p>&nbsp;</o:p>Learned
counsel further contended that in such a case what the learned judge had to do
was to find out whether the affidavit filed disclosed a defence to the action
and, if it did, then the trial judge could not deny the defendant the
opportunity of having the case heard on the merits . Counsel submitted that the
defendant’s affidavit showed that he had a defence and the learned judge
therefore erred in refusing to set aside the judgment.<o:p></o:p><o:p>&nbsp;</o:p>I think
it will be of some help to refer to the specific reasons on which the learned
High Court judge grounded his refusal. In the course of his ruling he stated
his said reasons in the following manner:<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">“I am
satisfied that the judgment was obtained regularly and in accordance with the
well established rules of this court ... He [the applicant] has not even moved
the court for leave to enter appearance out of time and he has not on the face
of his affidavit in support of the application... shown any good cause why the
judgment regularly obtained against him should be set aside.<o:p></o:p>