HARUNA vs. ARTS COUNCIL OF GHANA [1989]DLHC2024

Date	1989-11-14
Suit No.
Citation No.	[1989]DLHC2024

BENIN J.

IBRAHIM MAHAMA (WITH HIM DOMALAE ) FOR THE PLAINTIFFS.

E. F. AGBOLOSU (SENIOR STATE ATTORNEY) FOR THE DEFENDANTS.

[1989]DLHC2024
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">HARUNA<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">ARTS COUNCIL OF GHANA<o:p></o:p>[HIGH COURT, TAMALE]<o:p></o:p>[1992] 2 GLR 1<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: 14
NOVEMBER 1989<o:p></o:p>

</div>COUNSEL:<o:p></o:p>IBRAHIM MAHAMA (WITH HIM DOMALAE ) FOR THE PLAINTIFFS.<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">

E. F. AGBOLOSU (SENIOR STATE ATTORNEY) FOR THE DEFENDANTS. <o:p></o:p>

</div>JUDGMENT OF BENIN J.<o:p></o:p>I believe this application has once again brought into sharp focus
the argument whether or not there should not be a time limit after which a
party will not be permitted to have a default judgment vacated. We know that
under Order 13, r. 11 and Order 27, r. 16 of the High Court (Civil Procedure)
Rules, 1954 (L.N. 140A) a party in default can always apply to vacate a
judgment obtained in default of appearance and defence respectively against
him, and there is no time limit as to when he can do this. Even though Apaloo
J.A. (as he then was) in Akrong v. Ashiefie, Court of Appeal, 20 October 1967,
unreported; digested in (1968) C.C. 14 has said that the requirement of justice
is the limiting consideration in such an application, yet the overwhelming
authority on the subject is in favour of setting aside if the party reasonably
wants to be heard on the merits. I shall return to some of these authorities
subsequently, as it appears the requirement of justice has no definitive
status.<o:p></o:p>The history of this case is the following and I reiterate what I
said in the judgment of this court dated 12 July 1988: The writ was issued on
14 June 1977 and served on the defendants on 31 August 1977. The defendants
entered no appearance to the writ. A subsequent change of solicitors was served
on the defendants on 8 December 1981. A copy of a notice of amendment filed on
3 June 1982 was also served on the defendants on 28 June 1982. A judgment in
default of appearance was therefore entered against the defendants in 1982. The
matter was fixed for assessment of damages and again the defendants were
notified but they still did not appear.<o:p></o:p>After taking evidence from the relevant persons but before he
could deliver his final judgment, Jones Mensah J., presiding over this court,
left the bench. Since I took over the conduct of the case I have caused two
hearing notices to be served on the defendants but still they did not show up.
It seemed clear therefore that the defendants were not interested in the case,
so I took evidence and assessed the damages. The plaintiffs then took steps to
go into execution. The fiat of the Attorney-General was sought but it was not
forthcoming. So on the expiry of the statutory time for the Attorney-General’s
fiat to issue, the plaintiffs applied for a garnishee order. At the hearing of
the garnishee, the Attorney-General’s representative sought for and obtained
three months’ adjournment to enable them take steps to settle the judgment debt
and so the garnishee proceeding was suspended. However, after the three months,
instead of an announcement as to when the judgment debt would be settled, the
Attorney-General had filed an application to set aside the judgment, an entry
of appearance and a statement of defence.<o:p></o:p>At the hearing counsel for the plaintiffs argued that the
appearance filed on 26 October 1989 is a nullity because the rules of court do
not provide for automatic entry of appearance after judgment. The defendants
could only enter appearance with leave of court after judgment had been
obtained against them. Counsel for the defendants submitted that it was not
necessary for them to seek leave to enter appearance before applying to set
aside the default judgment.<o:p></o:p>I think these arguments cover two different situations altogether,
namely:<o:p></o:p><p class="MsoNormalCxSpMiddle" style="margin-left:.5in;mso-add-space:auto;
text-align:justify;text-indent:-.25in;mso-pagination:none;mso-list:l0 level1 lfo1;
border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(i).&nbsp;&nbsp;
Should the defendants have
applied for leave to enter a late appearance before applying to vacate the
default judgment?<o:p></o:p><p class="MsoNormalCxSpMiddle" style="margin-top:0in;margin-right:0in;margin-bottom:
5.0pt;margin-left:.5in;mso-add-space:auto;text-align:justify;text-indent:-.25in;
mso-pagination:none;mso-list:l0 level1 lfo1;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;
mso-border-shadow:yes">(ii).Was the entry
of appearance after judgment valid without prior leave of the court?<o:p></o:p>The first point was sufficiently answered by the Court of Appeal
in the case of Quarmyne v. Afeyesi [1984-86] 2 G.L.R. 430, C.A. cited by
defence counsel, that it is wrong to hold that before applying to set aside a
default judgment, the affected party should first ask for leave to enter a late
appearance. I hold therefore that the application to set aside the judgment is
competent before the court. On the second point, it is true</main>