BOTCHWAY AND ANOTHER vs. DANIELS AND OTHERS [1987]DLHC2222

Date	1987-08-24
Suit No.
Citation No.	[1987]DLHC2222

KPEGAH J.

ODRO FOR THE DEFENDANT-APPLICANTS.

MENSAH-BROWN FOR THE PLAINTIFF-RESPONDENTS.

[1987]DLHC2222
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													<main id="main" class="content" style="min-height: 60rem" >BOTCHWAY
AND ANOTHER<o:p></o:p>vs.<o:p></o:p>DANIELS
AND OTHERS<o:p></o:p>[HIGH
COURT, CAPE COAST]<o:p></o:p>[1991] 2
GLR 262<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 24 AUGUST 1987<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ODRO FOR
THE DEFENDANT-APPLICANTS.<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">

MENSAH-BROWN
FOR THE PLAINTIFF-RESPONDENTS. <o:p></o:p>

</div>JUDGMENT
OF KPEGAH J.<o:p></o:p>This is a
case of some difficulty in which there are numerous applications and affidavits
before me either by the plaintiff respondents (hereinafter referred to as the
plaintiffs) or the defendant applicants (hereinafter referred to as the
defendants). The plaintiffs sued the defendants asking for three reliefs
against them jointly and severally, namely ¢250,000, being arrears of
maintenance in respect of Papa Mensah Abandoh, the son of the second defendant;
an order for the future maintenance of the said child; and thirdly, an order
appointing the second plaintiff as the guardian of the child.<o:p></o:p>The third
plaintiff and the second defendant were young students when their amorous
escapades saddled them with a pregnancy. The girl’s parents customarily
approached the parents of the second defendant. They accepted responsibility
and undertook to maintain the mother and child. When the third plaintiff was
delivered of the child, the defendants went to name the child. The child is
about six years old and attending school. It is the case of the plaintiffs that
the defendants have not been maintaining the child who is now with the second
plaintiff attending school at Takoradi. The refusal of the defendants to be
alive to their responsibilities prompted the plaintiffs to report the matter to
the Department of Social Welfare which purported to have gone into the case and
made certain maintenance orders. According to the plaintiffs, they never
accepted any such verdict by the officials of the Department of Social Welfare
and that the defendants, in fact, never accepted the jurisdiction of the
department to handle the case. The third plaintiff has decided to go back to
school and wants the second plaintiff, with whom the child is now staying at
Takoradi attending school, appointed the guardian.<o:p></o:p>The writ
was accompanied with a statement of claim. Both processes were served on the
defendants the very day they were filed in the registry of this court, that is
on 15 June 1987. The defendants failed to enter appearance and file their
defence as stipulated by the rules of court, so the plaintiffs took out a
motion for judgment in default of appearance. Interlocutory judgment was
entered for the plaintiffs who later took out summons for assessment. Meanwhile
the defendants entered appearance but only after judgment had been pronounced
against them. They followed this up with a motion on notice to set aside the
default judgment. The plaintiffs’ response was to bring their own motion to set
aside the entry of appearance by the defendants as irregular. In the same
application, the plaintiffs were also seeking to set aside the motion of the
defendants praying this court to set aside the default judgment.<o:p></o:p>The
plaintiffs are perfectly entitled under Order 70, r 1 of the High Court (Civil
Procedure) Rules, 1954 (LN 140A) to bring an application to set aside the entry
of appearance on grounds of irregularity. But I am not sure if any rule of
procedure permits the plaintiffs to bring a motion to set aside the defendants’
application to set aside the judgment in default, especially when the ground
for such application is only that it is unmeritorious. I would have thought
that a simple but direct affidavit in opposition to the application, which
could be described as meritorious, would perfectly have served the purpose.<o:p></o:p>Realising
that the plaintiffs may have a legitimate point against the belated entry of
appearance filed by them, the defendants reacted by bringing an application for
extension of time within which to enter appearance and file a statement of
defence. This was after filing an affidavit in opposition to the plaintiffs’
motion to set aside the entry of appearance earlier filed by them and the
motion to set aside the default judgment. To give a complete twist to the
course of events, the very day the defendants filed a motion for extension of
time within which to enter appearance and file a statement of defence, they
proceeded, without actually obtaining the leave they were seeking, to enter the
appearance and file the statement of defence. They were therefore presenting
the court with a fait accompli in effect. The defendants have two motions to
their credit on the docket while the plaintiffs have one.<o:p></o:p>Learned
counsel for the defendants, Mr Odro, elected to argue the motion for extension
of time within which to enter appearance and file a defence. The implication of
this is that the default judgment be set aside. The arguments advanced in
support of this motion embrace all the motions filed in the case. So also the
arguments in opposition. I have therefore decided in the interest of justice
and expeditious handling of the business of this court to consider all the
points raised by both sides. For, in their manoeuvres, the defendants are
seeking ultimately to have the default judgment set aside while the plaintiffs
in their counter-moves are seeking to protect the sanctity of this
interlocutory judgment. Two very important legal points were raised in the
arguments of both counsel. The first relates to the application to enter late
appearance after judgment; and the second relates to the setting aside of the
default judgment. In respect of the latter issue, a number of legal points were
raised as to the legal status of the decision</main>