DAULATTA DALIO (PLAINTIFF) vs. GUARANTY TRUST BANK GH LTD (DEFENDANT) [2018]DLHC7196

Date	2018-03-07
Suit No.	SUIT NO. OCC/04/14
Citation No.	[2018]DLHC7196

HIS LORDSHIP GEORGE K. KOOMSON (J).

OBENG-MANU JNR FOR PLAINTIFF/RESPONDENT

YAW AGYEI-AFRAM FOR 1ST DEFENDANT/APPLICANT

[2018]DLHC7196
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													<main id="main" class="content" style="min-height: 60rem" >DAULATTA DALIO<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>GUARANTY TRUST BANK GH LTD<o:p></o:p>(DEFENDANT)<o:p></o:p><o:p>&nbsp;</o:p>[HIGH COURT (COMMERCIAL DIVISION),
ACCRA]<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">

SUIT NO. OCC/04/14&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: 7TH
MARCH, 2018<o:p></o:p>

</div>COUNSEL: <o:p></o:p>OBENG-MANU JNR FOR
PLAINTIFF/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">

YAW
AGYEI-AFRAM FOR 1ST DEFENDANT/APPLICANT<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP GEORGE K.
KOOMSON (J).<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:0in;margin-bottom:.0001pt;
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">RULING<o:p></o:p>

</div>In this
application, the 1st Defendant/Applicant prays for an order setting
aside the Entry of Judgment filed by the Plaintiff/Respondent on the 6th
September, 2017.&nbsp; The core contention of
the 1st Defendant/Applicant is that it has been served with an Entry
of Judgment when no judgment has been obtained against the 1st
Defendant in the case.&nbsp; In the view of 1st
Defendant, the said entry of Judgment filed on the 6th September,
2017 is irregular. The plaintiff is opposed to the application. The plaintiff
contends that the 1st defendant has no locus to bring the present
application and that the judgment was obtained regularly.<o:p></o:p>I have read the
application and the supporting affidavit.&nbsp;
I have given consideration to the written submission of both counsel.&nbsp; Regard has also been given to the earlier
proceedings that culminated in the judgment of the court on the 19th
January, 2017.&nbsp; It is however, useful for
me to make reference to the proceedings that led to the said judgment.<o:p></o:p>A brief summary
of the facts are that the Plaintiff issued a writ of summons against the 1st
Defendant, the auctioneer C.T. Squire and the Deputy Sheriff for an Order to
set aside the auction sale conducted by C.T. Squire, Licensed Auctioneer of
Goodwill Mar on 22nd June, 2012, under a Writ of Execution dated 13th
May, 2008 in suit no. AB6/2008 on the grounds of fraud, among other reliefs.<o:p></o:p>The 1st
Defendant entered an appearance.&nbsp; However
the 2nd and 3rd defendants failed or neglected to enter
an appearance.&nbsp; The plaintiff accordingly
moved the court for judgment in default of appearance against the 2nd
and 3rd defendants.&nbsp; The said
application was granted by the court on the 19th January, 2017.&nbsp; Subsequent to this, the Plaintiff filed an
Entry of Judgment on the 6th September, 2017.&nbsp; It is this entry of judgment that the 1st
Defendant is seeking to set aside.<o:p></o:p>Order 41 rule 7
of C.I 47 requires a party who seeks to have a judgment entered to drawn up the
judgment and present same to the Registry of the Court that delivered the
judgment for entry. Any party affected by the judgment may also draw up the
entry of judgment where the party in whose favour the order was given fails to
draw it up.<o:p></o:p>It is noted
that the 19th January, 2017 judgment was entered against the 2nd
and 3rd defendants.&nbsp; The
Plaintiff’s case against the 1st Defendant is however pending.&nbsp; It is further noted that where there are more
than one defendant in a pending suit, all processes filed must be copied to all
the parties in the suit, though the process may be affecting one or all the
parties in the suit. There is nothing wrong with the service of the entry of
judgment on the 1st defendant.<o:p></o:p>It should
however be noted that, where a party obtains an order or judgment against one
or any of the parties in the suit, any process that may be filed to be entered
or served on the parties must show the actual parties who the order or judgment
was made against.&nbsp; It would be wrong for
the process to be drawn in such a way that it will appear on the face of the
process that the order was made against all the parties.&nbsp; For example, where there are 5 defendants in
a suit and an order is made against one of the parties, the said order may be
filed and served on all the parties but the body of the order must reflect that
the said order was made against that particular party.&nbsp; It must not be drawn as if the order was made
against all the defendants in the suit although the effect of the said may be
felt by the other parties in the suit.<o:p></o:p>In the case
before me, the Entry of Judgment filed by the Plaintiff on the 6th
September, 2017 states, at the introductory or preamble section as follows: <o:p></o:p>