ARMEEN KASSARDJIAN & 3 ORS. vs. JAMES SIAN NARTEH & 2 ORS. [2014]DLCA4785

Date	2014-04-10
Suit No.	CIVIL APPEAL SUIT NO: H1/146/2013
Citation No.	[2014]DLCA4785

KUSI-APPIAH J.A. (PRESIDING)

DORDZIE J.A.

DZAMEFE J.A.

[2014]DLCA4785
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													<main id="main" class="content" style="min-height: 60rem" >ARMEEN KASSARDJIAN &amp;
3 ORS.<o:p></o:p>(DEFENDANTS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>JAMES SIAN NARTEH &amp;
2 ORS.<o:p></o:p>(PLAINTIFFS/RESPONDENTS)<o:p></o:p>[COURT
OF APPEAL, A<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">

CIVIL APPEAL SUIT NO: H1/146/2013&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: 10TH APRIL,
2014.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;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">JUDGMENT<o:p></o:p>

</div>KUSI-APPIAH, J.A. :<o:p></o:p>This
is an appeal from the ruling of the High Court (Land Division), Accra dated 8th
day of November, 2013 in favour of the plaintiffs, now the respondents against
the four defendants now the appellants herein.&nbsp;
In this judgment, we shall refer to the parties by their positions in
the court below.&nbsp; The facts which gave
rise to this appeal can be nutshelled as follows:<o:p></o:p>On
or about the 7th of February, 2008, the plaintiffs took out a writ of summons
accompanied by a statement of claim against the defendants at the High Court
(Land Division), Accra claiming the following reliefs:-<o:p></o:p>“(1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Declaration
of title to all that piece or parcel of land situate lying and being at New
Ningo-Dangme West District in the Greater Accra Region of the Republic of Ghana
covering a total area of 6.69 acres.<o:p></o:p>(2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Deletion
of the names of the defendants from the records of the Lands Commission.<o:p></o:p>(3)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Perpetual
Injunction restraining the defendants, their agents, assigns, etc from
interfering with plaintiffs interest.<o:p></o:p>(4)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Costs.”<o:p></o:p>The
record indicates that the addresses of the three defendants were not indicated
on the writ.&nbsp; However, on 25th February,
2008, the plaintiffs by their solicitor, applied to the trial court by an
exparte motion praying for substituted service of the writ of summons and
statement of claim on the defendants.&nbsp;
The trial court granted the application on 5th March, 2008 and ordered
the said documents to be served on the three defendants by substitution.<o:p></o:p>On
25th April, 2008, plaintiffs moved for judgment in default of appearance
against the defendants.&nbsp; The matter came
before E. K. Mensah, J. who gave judgment in default of appearance for all the
reliefs sought.<o:p></o:p>Subsequently,
the plaintiffs decided to go into execution by serving the defendants with the
entry of judgment and hearing notice by substitution granted on 30th May, 2008
by the trial court.&nbsp; On 29th May, 2009,
final judgment was entered against the defendants herein.<o:p></o:p>Pursuant
to the judgment dated 29th May, 2009 against the defendants herein, they filed
a motion on 30th October, 2012 to set aside the default judgment.&nbsp; But the trial court after hearing arguments
from the parties dismissed the defendants’ application.&nbsp; It is this judgment that the defendants
disputes in this appeal on their amended grounds of appeal as follows: <o:p></o:p>“(a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
learned trial Judge erred in holding that the judgment of the Honourable Court,
having been described as final was not a default judgment.<o:p></o:p>(b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
learned trial Judge erred in law in failing/refusing to set aside the judgment
notwithstanding defendant’s evidence of the fact that the suit was never
brought to their attention.<o:p></o:p>(c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
ruling was against the weight of evidence.<o:p></o:p>(d)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
learned trial Judge, by focusing on an erroneous and merely technical label of
the judgment, erred in failing to consider at all the merits of the
application.<o:p></o:p>(e)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
learned trial Judge erred in failing to strike out the judgment notwithstanding
the fact that the motion pursuant to which the said order was granted was filed
in contravention of the rules of the Honourable Court.”<o:p></o:p>In
this appeal, five grounds of appeal were filed by the defendants but to us, the
issue in this appeal is a narrow one of: whether the default judgment has been
regularly or irregularly obtained. If so, whether the trial High Court was
right in refusing to set aside the default judgment in favour of the plaintiff
on 29th May, 2009.<o:p></o:p>The
law as we understand it is that, different considerations should guide the
trial court in cases where the default judgment has been: (i)&nbsp; regularly obtained and (2)&nbsp; irregularly obtained.<o:p></o:p>A
judgment is said to have been irregularly obtained where the process was not
served and yet judgment had been entered for the plaintiff.&nbsp; So also, it is irregular where the process
had been served on a wrong person or at a wrong address.&nbsp; It shall also be deemed to have been irregula</main>