EASY INVESTMENT SERVICE LIMITED vs. KWABENA OWUSU ABABIO & ANOR [2018]DLHC3334

Date	2018-01-15
Suit No.	CIVIL APPEAL NO.RPC/17/2016
Citation No.	[2018]DLHC3334

ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT

ATTA POKU FOR PLAINTIFF/JUDGMENT CREDITOR/RESPONDENT.

STEPHEN ALEWABAH FOR DEFENDANTS/JUDGMENT CREDITORS /APPLICANT

[2018]DLHC3334
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													<main id="main" class="content" style="min-height: 60rem" >EASY INVESTMENT SERVICE
LIMITED<o:p></o:p>vs.<o:p></o:p>KWABENA OWUSU ABABIO
&amp; ANOR<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL
DIVISION), KUMASI]<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 NO.RPC/17/2016&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:
15TH JANUARY, 2018 <o:p></o:p>

</div>COUNSEL:<o:p></o:p>ATTA POKU FOR PLAINTIFF/JUDGMENT
CREDITOR/RESPONDENT.<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">

STEPHEN
ALEWABAH FOR DEFENDANTS/JUDGMENT CREDITORS /APPLICANT
<o:p></o:p>

ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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RULING<o:p></o:p>

</div><o:p>&nbsp;</o:p>This
ruling is in respect of an application filed by counsel for the Defendant/Applicants
for an order sitting aside the default judgment entered against his clients on
12/07/2017.<o:p></o:p>The
basis of the application is that the motion on notice to enter judgment in
default of defence was not served on counsel for the Defendants. And, further,
the entry of judgment was also not served on the Defendants. Counsel submitted
that the Defendants filed a defence without notice of the default judgment and
that the Defendants have a good defence to the suit. Concluding, counsel
submitted that there is no time limit within which to bring an application to
set aside a default judgment.<o:p></o:p>Counsel
for the Plaintiff in responding to the application duly exposed the falsity in
the depositions that the motion for default judgment was never brought to the
attention of counsel for Defendants and that entry of judgment was not served.
He argued that application to set aside a default judgment must be brought
timeously and the court has a discretion to grant or refuse the same. He
concluded that the Defendants have not demonstrated any ground to merit the
exercise of the court’s discretion in their favour. He urged the court to
dismiss the application.<o:p></o:p>Order
13 rule 8 of C.I. 47 provides that “an application by a party affected, and on
such terms as it thinks fit”, a court may “set aside or vary any judgment
entered in pursuance of this order.<o:p></o:p>Upon
a perusal of the affidavits filed and submissions made by both counsel, the
court is of the opinion that the instant application has been brought in bad
faith and that the Defendants/Judgment Respondents have no viable Defence.<o:p></o:p>The
motion on notice for judgment in default of defence filed on 30/06/2016 was
duly served on counsel for Defendant on 05/07/2016 through his clerk by name
Douglas and that was good service. The entry of judgment was subsequently
served on the Defendants personally on 01/08/2016. It was after service of the
entry of judgment that the Defendants/Judgment Debtors purported to file their
defence. Why should the Defendants attempt to blur the court’s vision?<o:p></o:p>To
the Defendants, I say that, yes, they have a right to apply to set aside the
default judgment, they have exercised that right albeit late, but they are to
not that the rules of court are not merit to be used to frustrate a Judgment
Creditor.<o:p></o:p>The
Defendants have not been candid with regards to the present application and do
not merit the exercise of the court’s discretion in their favour.<o:p></o:p>The
application is refused. Costs of GHC 5,000.00 is awarded against the
Defendants/Judgment Debtors/Applicants.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>

<o:p>&nbsp;</o:p></main>