KUMA vs. BART-PLANGE [1987]DLHC624

Date	1987-07-14
Suit No.
Citation No.	[1987]DLHC624

KPEGAH J.

DE GRAFT AIDOO FOR THE PLAINTIFF-APPLICANT.

NO APPEARANCE FOR OR ON BEHALF OF THE DEFENDANT-RESPONDENT.

[1987]DLHC624
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													<main id="main" class="content" style="min-height: 60rem" >KUMA <o:p></o:p>vs. <o:p></o:p>BART-PLANGE<o:p></o:p>HIGH COURT, CAPE COAST <o:p></o:p>[1989-90] 1 GLR 119<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
JULY 1987<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">

DE GRAFT AIDOO FOR THE PLAINTIFF-APPLICANT.<o:p></o:p>

NO APPEARANCE FOR OR ON BEHALF OF THE
DEFENDANT-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">

KPEGAH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF KPEGAH J.<o:p></o:p>By a
specially indorsed writ, the plaintiff claims from the defendant the sum of
¢218,000 being a debt due and owing to the plaintiff by the defendant. The
plaintiff is also claiming a compound interest at the current bank rate. And in
his affidavit in support of this application, the plaintiff computes the total
indebtedness of the defendant, as at the end of June 1987, to be ¢377,472. The
writ was accompanied with a statement of claim which details how the
indebtedness to the plaintiff came about. The writ together with the statement
of claim were served on the defendant on 15 May 1987. The defendant failed to
enter appearance to the writ and the plaintiff, on 17 June 1987, brought a
motion ex parte for “final judgment against the defendant in terms of the
averments deposed to in the supporting affidavit.”<o:p></o:p><o:p>&nbsp;</o:p>The
motion itself is thus silent on the grounds on which the application is being
brought; and also it fails to indicate the rule of court under which the motion
has been brought. The application is brought ex parte although the ground for
it, as stated in the affidavit in support, is that “the defendant has no answer
to this action and has therefore not filed any defence to the
plaintiff-applicant’s action.” In the eight-paragraph affidavit in support of
the motion, this is the only reference to the possible ground for seeking final
judgment. The motion was simply headed: “Motion ex parte” without even the
rules being cited.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>The
citing of rules of court under which a particular application is being brought,
it has been held, is not a sine qua non to its admissibility: provided always
that it is permissible under any of the rules of court or can be said to be a
recourse to the inherent jurisdiction of the court. If, therefore, an
application is not permitted by the rules of court or covered by it, and it
cannot also be said to be a recourse to the inherent jurisdiction of the court
to grant such an application, it has to be dismissed: see Shardey v. Adamtey;
Shardey v. Martey (Consolidated) [1972] 2 G.L.R. 380, C.A. The instant
application cannot be said to be a prayer addressed to the inherent
jurisdiction of the court. The situations in which a party can obtain judgment,
interlocutory or final and without a trial, as the case may be, are adequately
provided for by the rules of court. Also catered for under the rules are not
only the circumstances in which such applications can be brought but also the
procedure to be followed in each case.<o:p></o:p><o:p>&nbsp;</o:p>Although
I am not called upon to decide the point, I venture to say that where the rules
of court or procedure, or any law, adequately govern an application, a court
cannot have recourse to its inherent jurisdiction in aid of a party to such an
application. Under the rules of court, a plaintiff can obtain a judgment either
final or interlocutory, depending on the circumstance, without going through a
full trial in any of the following circumstances:<o:p></o:p>(a) Where
the defendant has been served with the writ of summons and he fails to enter
appearance within the time specified;<o:p></o:p>(b) Where
he enters appearance but fails to file his defence to the claim of the
plaintiff as required by the rules of court;<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">(c) under
Order 14 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), where the
plaintiff is permitted to obtain summary judgment if his claim is clear and the
defendant is unable to set up any bona fide defence.<o:p></o:p><o:p>&nbsp;</o:p>Judgments
obtained under (a) and (b) are judgments in default and can be set aside.<o:p></o:p>