GHANA SPECIALTY FATS IND LTD. vs. BOSOMPEM TRANSPORT SERVICES LTD. [2016]DLHC9057

Date	2016-11-14
Suit No.	SUIT NO. RPC/171/15
Citation No.	[2016]DLHC9057

JUSTICE JENNIFER ABENA DADZIE

NAA AMORKOR AMARTEI (H/B FOR ESIE OKUDZETO ESQ.) OF SAM OKUDZETO & ASSOCIATES COUNSEL FOR PLAINTIFF/RESPONDENT

NASHIRU YUSSIF ESQ. OF FOSU GYEABOUR & CO. COUNSEL FOR DEFENDANT/APPLICANT

[2016]DLHC9057
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													<main id="main" class="content" style="min-height: 60rem" >GHANA SPECIALTY FATS IND LTD.<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>BOSOMPEM TRANSPORT SERVICES LTD.<o:p></o:p>(DEFENDANT/APPLICANT)<o:p></o:p>[HIGH COURT,
ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
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NO. RPC/171/15&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 14TH NOVEMBER, 2016<o:p></o:p>

</div>COUNSEL:<o:p></o:p>NAA AMORKOR AMARTEI
(H/B FOR ESIE OKUDZETO, ESQ.) OF SAM OKUDZETO &amp; ASSOCIATES, COUNSEL FOR
PLAINTIFF/RESPONDENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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NASHIRU YUSSIF, ESQ., OF FOSU GYEABOUR
&amp; CO., COUNSEL FOR DEFENDANT/APPLICANT<o:p></o:p>

</div>CORAM: <o:p></o:p>JUSTICE JENNIFER ABENA DADZIE <o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
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</div><o:p>&nbsp;</o:p>The Plaintiff/Respondent (hereinafter, the
“Plaintiff”) is a limited liability company engaged in the business of
processing of shea butter, olein and other derivatives of oil and its allied
products.&nbsp; The Defendant is also a
limited company engaged in the business of general haulage services.&nbsp; The brief facts leading up to this
application on notice filed by the Defendant/Applicant (hereinafter, the
“Defendant”) for an order to set aside the default judgment entered against it
and for leave to&nbsp; file a defence out of
time are as follows.<o:p></o:p><o:p>&nbsp;</o:p>The Plaintiff on May 28, 2015 issued a writ
of summons claiming against the Defendant, as per the reliefs endorsed thereon,
the recovery of a stated sum of money being losses occasioned to the Plaintiff
during the transportation of Plaintiff’s shea butter, interest on the said sum
and other ancillary reliefs.&nbsp; This writ
of summons and the accompanying statement of claim were served on the Defendant
through its Chief Executive Officer on September 2, 2015.&nbsp; On September 8, 2015 the Defendant caused its
solicitors to enter appearance on its behalf and then went to sleep.&nbsp; It failed to file timeously, a defence to the
suit thereafter as required by the rules of court. On November 24, 2015 the
Plaintiff filed an application on notice for judgment in default of defence,
and this application was served on the Defendant’s solicitors on November 25,
2015.&nbsp; On the date the motion was to be
moved, neither Defendant nor its solicitors was in Court even though Defendant
was served with hearing notice of the date the motion was to be moved through
its solicitors.&nbsp; The Defendant also did
not file any process in response to the said motion.&nbsp; Final judgement was therefore entered in
favour of the Plaintiff against the Defendant for the reliefs endorsed on the
writ of summons on December 15, 2015, when the motion was moved.&nbsp; On May 10, 2016, the Plaintiff filed a Notice
of Entry of Judgment with the Registry of this Court.&nbsp; After the filing of the Notice of Entry of
Judgement, the Defendant has now come to Court seeking to set aside the default
judgment entered against it.<o:p></o:p><o:p>&nbsp;</o:p>In the affidavit accompanying the motion to
set aside the default judgment, the Defendant avers that after it caused its
solicitors to enter appearance on its behalf, its Chief Executive Officer
traveled to a village for herbal treatment of his asthmatic condition and was
therefore unable to brief his solicitors fully to enable the latter file a
defence on its behalf.<o:p></o:p><o:p>&nbsp;</o:p>The Plaintiff, as can be expected, is opposed
to a grant of the application.&nbsp; The
grounds of its opposition are set out in its affidavit in opposition. In
essence it is the Plaintiff’s case that the Defendant has no defence to the
suit.&nbsp; It contends further that the
application on notice for judgment in default of defence was duly served on the
solicitors of Defendant in compliance with the rules of court, but the latter
failed to show up in Court.&nbsp; Additionally,
the Plaintiff states that it has incurred huge cost in filing the entry of
judgment and has, thereafter, commenced the process of execution.&nbsp; Finally, the Plaintiff argues that the
Defendant has not provided the Court with any proof of his ill health and/or
the fact that he went for treatment.<o:p></o:p><o:p>&nbsp;</o:p>What are the issues to consider when setting
aside a judgement? The Court of Appeal stated in the civil appeal case of ALPHONESO O. ARYEETEY &amp; ANOR v. ROYAL
INVESTMENT CO. LTD &amp; 18 ORS (Civil Appeal No. HI/201/2005, November 29,
2005, unreported, CA) that different considerations should guide the trial
Court in cases where the default judgment has been regularly obtained as
opposed to where it was irregularly obtained.&nbsp;
In this case, the Court of Appeal stated thus:<o:p></o:p>“A judgment is said to have
been irregularly obtained where, as here, the process was not served and yet
judgment had been entered for the Plaintiff.&nbs</main>