SGT. OFOSU ADDO vs. THE EDITOR, DAILY GUIDE & ANOR [2006]DLCA6966

Date	2006-11-17
Suit No.	CIVIL APPEAL NO. H1/267/2004
Citation No.	[2006]DLCA6966

GBADEGBE. J.A. [PRESIDING]

ADDO J.A.

HENRIETTA ABBAN.J.A.

AFRIFA FOR PLAINTIFF/APPELLANT

AYIKOE OTOO FOR DEFENDANTS/RESPONDENTS

[2006]DLCA6966
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >SGT. OFOSU ADDO<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>THE EDITOR, DAILY GUIDE &amp; ANOR.<o:p></o:p>(DEFENDANTS/RESPONDENTS)<o:p></o:p>[COURT
OF APPEAL, ACCRA.]<o:p></o:p>CIVIL
APPEAL NO. H1/267/2004&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 17TH NOVEMBER, 2006<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">COUNSEL: <o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">AFRIFA
FOR PLAINTIFF/APPELLANT <o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">AYIKOE
OTOO FOR DEFENDANTS/RESPONDENTS<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 1.0pt 0in">

GBADEGBE. J.A. [PRESIDING], ADDO J.A.,
HENRIETTA ABBAN.J.A.<o:p></o:p>

</div>ADDO
.J.A:<o:p></o:p>&nbsp;The plaintiff/appellant brought an action in
the lower court against the defendants/respondents jointly and severally for
general and special damages for publishing in the October 23, 2001 edition of
the Daily Guide that the plaintiff had been arrested in connection with armed
robbery at Asante Mampong Agency of the Otuasekan Rural Bank, and for such
further orders as the court might deem fit. The Plaintiff’s writ was
accompanied by a statement of claim setting out the basis of the action by the
Plaintiff/Appellant. The writ having been served on the Defendants/Respondents,
they failed to enter an appearance. So the Plaintiff/Appellant obtained
Judgment in default of appearance. The Defendants/Respondents brought an
application under order 13 rule 11 to set the default judgment aside but this
was dismissed on the 30th July 2002 and the court then adjourned the case to
22nd October 2002 for assessment of damages. Defendants/Appellants meanwhile
lodged an appeal against the ruling of the 30th July 2002. On the 13th January
2003 the court assessed damages after the Plaintiff/Appellant had led evidence.
The court held that Plaintiff/Appellant was entitled to one hundred and fifty
million cedis (150,000,000 cedis) in damages from the Defendants/Respondents.
The defendants/respondents were absent when the assessment of damages were
made. Meanwhile the Defendants/Respondents had a change of Solicitors. <o:p></o:p>The
new Solicitors moved to discontinue the Appeal the Defendants/Respondents had
lodged and filed an application for extension of time within which to set aside
the Judgment. The application for extension of time within which to set aside
the judgment was moved by the Defendant/Appellant and was granted by the court.
The Defendants/Appellants were given ten days to file an application to set
aside the judgment. The application to set aside the Default Judgment was filed
but could not be moved and was struck out for want of prosecution due to the
lateness to court of the counsel for Defendants/Appellants. Application To
Relist was granted without objection by counsel for Plaintiff/Appellant on 30th
September 2003. On 11th November 2003 the application for Stay of Execution and
to Set Aside the Default Judgment was argued by both sides exhaustively. On the
3rd day of March 2004 the learned trial judge handed down a ruling which
granted the application for Stay of execution and to set aside the Default
Judgment and admitted the Statement of Defence filed out of time for the case
to take its natural course. Dissatisfied with this turn of events the
Plaintiff/Appellant lodged an appeal to this Honourable Court on the 9th March
2004. The Appellant filed nine grounds of appeal namely that <o:p></o:p>1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
The Honourable Court erred in setting aside
the judgment regularly obtained. 2) The Honourable Court erred in not
delivering a reasoned judgment. 3) Having regard to the facts and the law there
was no basis whatsoever for the Honourable Court to have set aside the
judgment. 4) The application to set aside the judgment was itself not cognizable
by any rule of practice or procedure known to the Court and was in any event
unmeritorious and fell short of the requisite legal standard for same to have
been favourably entertained. 5) The cost awarded against the
Defendants/Respondents was too small and not commensurate with costs incurred
by the Plaintiff/Appellant due to the persistent default of the
Defendants/Respondents. 6) The Honourable Court did not sufficiently consider
the case of the Plaintiff/Appellant or at all and thus occasioned a miscarriage
of justice to the Plaintiff/Appellant. The Plaintiff/Appellant's counsel when
he came to argue the appeal stuck to two grounds only namely the first and the
second grounds delineated above. I shall examine them one after the other. The
first ground says the Honourable Court erred in setting aside the Judgment
regularly obtained. The Defendants/Respondents based their application on Order
36 rule 18 which says "Any verdict or judgment obtained where one party
does not appear at the trial may be set aside by the court or a judge upon such
terms as may seem fit, upon an application made within fourteen days after the
trial" This is exactly what the Defendants/Respondents did. They first
obtained extension of time within which to apply under Order 64 rule 6. Having
obtained this they moved to set aside the Default Judgment and the learned
trial judge in her discretion granted the application and admitted the defence
filed. Did the learned trial judge err in this? I think not. In practice an
application to set aside Default Judgment is almost always granted. The
inherent jurisdiction of the court to set aside its void judgment or judgment
obtained by fraud is in addition to those conferred by the Rules to set aside
its judgments obtained by default of entry of appearance Order 13 rule 11,
default of defence Order 27 rule 16, default of attendance in court Order 36
rule 18 or any other enactment. The jurisdiction to set aside a default
judgment conferred by the rules indicated above is discretionary. The party seeking
the court to exercise its discretion in his favour must show that he has
reasonable defence to the claim, and that it would be, in the circumstances
unjust to leave his case unadjudicated upon. The principle upon which the
courts have proceeded to set aside a default judgment has been laid down in
several cases. In the case of Ojikutu vrs Odeh (1954) 14 WACA 640, Sir Forster
Sutton who delivered the judgment of the West Africa Court of Appeal referred
to a passage in the case of Collins v Vestry of Paddington [1878-80] 5 Q.B.
379. In that case the defence was filed too late, and in allowing the appeal
against the default judgment he relied on the following passage:—<o:p></o:p>