AMLALO vs. MARFO [1986]DLHC833

Date	1986-11-18
Suit No.
Citation No.	[1986]DLHC833

BROBBEY J.

LAMPTEY FOR THE DEFENDANT-APPLICANT.

THE PLAINTIFF-RESPONDENT IN PERSON.

[1986]DLHC833
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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AMLALO <o:p></o:p>

{HIGH COURT, ACCRA} <o:p></o:p>

[1984-86] 2 GLR 619<o:p></o:p>

DATE:
18 NOVEMBER 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;
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LAMPTEY FOR THE DEFENDANT-APPLICANT. <o:p></o:p>

THE PLAINTIFF-RESPONDENT IN PERSON.<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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BROBBEY J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF BROBBEY J.<o:p></o:p>In this
application, the defendant-applicant, hereafter referred to as the defendant,
has applied for stay of execution of a default judgment delivered by this
court; an order setting aside that judgment and leave to file a defence to the
plaintiff’s claim.<o:p></o:p><o:p>&nbsp;</o:p>On the
face of the defendant’s supporting affidavit, the sole ground of the
application was put this way. “That I have a good defence or set-off or both
against the plaintiff’s action with very high chance of success.” The plaintiff
in his affidavit in opposition averred that the affidavit did not disclose any
triable issue. When the application came up for hearing for the first time I
pointed out to counsel for the applicant that his affidavit had to state facts
disclosing some triable issue or some grounds of defence and so he had to
advise his client to file a supplementary affidavit or file whatever defence he
will eventually send to court if leave were granted. The latter advice was
given in the alternative because it is now well established that even when
leave is required, and the leave has not yet been given, once a defence is
filed, it cannot be ignored: see Heward-Mills v. Barclays Bank (D.C.O.) [1966]
G.L.R. 618 at 620.<o:p></o:p><o:p>&nbsp;</o:p>In spite
of the advice from the bench, counsel came back to court on the next return
date without any supplementary affidavit or defence.<o:p></o:p>Counsel
has rather been preoccupied with explaining to the court that he filed his
appearance on 12 August 1986 instead of 21 August 1986. The plaintiff’s writ
and statement of claim were filed on 15 July 1986 and served on the defendant
on 21 July 1986. Even if the arguments of counsel and the applicant are
accepted, the position would be that only appearance was filed on 12 August
1986. That did not answer the point at issue because the plaintiff had by 12
August 1986 applied for judgment in default of appearance and defence. Since no
defence had been filed by 12 August the default judgment was regularly entered
against the defendant.<o:p></o:p><o:p>&nbsp;</o:p>No
explanation has been offered by the defendant as to why he failed to file
appearance within the period of eight days. As stated already, he filed
appearance on 12 August 1986 under dubious circumstances but those
circumstances are not relevant and the case will proceed on the assumption that
appearance has been filed.<o:p></o:p><o:p>&nbsp;</o:p>Further,
no explanation has also been given as to why the defence has not been filed.
That apart, an applicant seeking to set aside a judgment must support his
application with “an affidavit of merits, i.e. an affidavit stating facts
showing a defence on the merits”: see the White Book (1970 ed.), Vol. 1, p 117,
para 13/9/4. See also Farden v. Richter (1889) 23 Q.B.D. 124 cited on the same
page of the White Book in which it was held that in the absence of an affidavit
showing that the defendant had a defence or raised a triable issue he would not
be entitled to have a regular judgment set aside.<o:p></o:p><o:p>&nbsp;</o:p>In the
alternative the defendant has applied for leave to defend the plaintiff’s
action. As a rule, leave to defend will be granted if the applicant shows that
he has a bona fide defence or probable defence or re</main>