MRS MARY FOSU vs. FIRST TRUST SAVINGS AND LOANS AND OTHERS [2018]DLCA9934

Date	2018-12-06
Suit No.	SUIT NO RPC 32/2019
Citation No.	[2018]DLCA9934

HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE

AMA ASENSO FOR THE PLAINTIFF/RESPONDENT

ARCHIE DANSO FOR THE 1ST DEFENDANT/APPLICANT

[2018]DLCA9934
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													<main id="main" class="content" style="min-height: 60rem" >MRS
MARY FOSU<o:p></o:p>(PLAINTIF)<o:p></o:p>vs.<o:p></o:p>FIRST
TRUST SAVINGS AND LOANS AND OTHERS<o:p></o:p>(DEFENDANTS)<o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">SUIT NO RPC 32/2019 &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;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;DATE: 6TH DECEMBER, 2018<o:p></o:p>

</div>COUNSEL:<o:p></o:p>AMA ASENSO
FOR THE PLAINTIFF/RESPONDENT<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

ARCHIE DANSO FOR THE 1ST DEFENDANT/APPLICANT<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;line-height:normal;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div><o:p>&nbsp;</o:p>Before
me is an application to set aside judgment in default of appearance filed
through a motion on notice pursuant to Order 10 of the High Court (Civil
Procedure Rules), 2004, CI 47.<o:p></o:p>The
grounds of the application are contained in the affidavit in support and supplementary
affidavit in support filed by the 1st defendant/applicant
(hereinafter referred to as the applicant) on 19/11/2018 and 30/11/2018
respectively.<o:p></o:p>The
Plaintiff/Respondent (hereinafter referred to as the respondent) is opposed to
the application and has demonstrated the grounds in an affidavit in opposition.<o:p></o:p>At
the hearing, counsel for the applicant relied on the affidavits in support as
well as the annexures and prayed the court to set aside the judgment in default
of appearance, as the same is a nullity. Counsel submitted that per the
statement of claim the plaintiff has no cause of action and in that regard, it
was wrong for default judgment to be entered in her favour. Counsel also
submitted that it is clear from the statement of claim that plaintiff’s action
is premature since her investment has not matured and that she has also not
made any demand for her to be paid.<o:p></o:p>Counsel
also took aim at the service of the writ of summons on the respondent. He
observed that the writ of summons and statement of claim were served on one
Vida Oforiwaa at the Amakom Branch of the respondent company. This, counsel
stated was irregular, as service ought to have been effected at the registered
office of the company and not the Amakom Branch. He cited the case of Barclays
Bank Ghana Ltd vrs Ghana Cable (1998/99) SCGLR1which stated clearly how service
should be effected on a body corporate and urged on the court to declare the
service improper and the default judgment null and void since the rules
relating to service were not complied with. <o:p></o:p>Counsel
for the applicant also attacked the execution of the judgment. He submitted
that the entry of judgment was defective, as it did not state when the judgment
was entered and how much the respondent was supposed to pay. He also submitted
that the mode of execution of the writ of fifa
violated Order 45 rule 4 of CI 47. In sum, he invited the court to set aside
the judgment in default of appearance as well as the execution process, as the
same are void.<o:p></o:p>In
a rebuttal, counsel for the respondent reiterated the latter’s opposition to
the application. She submitted that an applicant seeking to set aside judgment
in default of appearance ought to give reasons for the failure to enter
appearance within the time prescribed by the rules and that such an applicant
must also show that he has a valid defence to the action. She submitted further
that the Applicant has not given any reasons why appearance was not entered
within the time prescribed by the rules and has not demonstrated in its
affidavit that it has a valid defence to his action.<o:p></o:p>On
the service of the writ, counsel submitted that it was properly done. She
pointed out that in paragraph 1 of the statement of claim, the Plaintiff stated
clearly that she invested with the Amakom Branch of the respondent company. She
submitted that since the applicant does not deny that it was served with the
process but is only alleging that the service was wrongful, the purported wrong
has been cured by the applicant’s acceptance of the service. She cited the case
of Republic v National Investment Bank, Ex-Parte Continental (1984<a name="_Hlk531814905">-</a>86) 1GLR 237and urged on the court to conclude that
even though service was not effected at the registered office of the Respondent
same has been cured by the acceptance of the process. Counsel also argued that
there was nothing irregular about the execution. <o:p></o:p>She
submitted that judgment was regularly and properly entered in favour of the
respondent and in the absence of any demonstration by the applicant that it has
any valid defence to the action, the judgment ought not be disturbed and the
application ought to be dismissed.<o:p></o:p>The
grounds upon which the applicant alleges that the default judgment against it as
well as the execution process should be set aside are, principally, first that
the statement of claim does not disclose any cause of action, second the
summons was not properly served on them, and thirdly, that the execution
process is defective.<o:p></o:p>Judgment
in default of appearance is regulated by Order 10 of CI 47. Order 10 r 1
specifically gives the court the power to enter judgment in default of
appearance in various claims.<o:p></o:p>