LAWRENCE BRUCE KYEI vs . FIRST ALLIED SAVINGS AND LOANS LTD [2019]DLHC6839

Date	2019-04-02
Suit No.	SUIT NO. RPC 54/2018
Citation No.	[2019]DLHC6839

DR. RICHMOND OSEI-HWERE J

KWAMINA MENSAH FOR PLAINTIFF/JUDGMENT CREDITOR/RESPONDENT

YAW ACHEAMPONG BOAFO WITH ADWOA BENASO ASUMADU-SEKYI FOR

DEFENDANT/JUDGMENT DEBTOR/APPLICANT

[2019]DLHC6839
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													<main id="main" class="content" style="min-height: 60rem" >LAWRENCE BRUCE KYEI<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs .<o:p></o:p>FIRST ALLIED SAVINGS AND LOANS LTD<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH
COURT, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT NO. RPC 54/2018&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 2ND APRIL, 2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>KWAMINA MENSAH FOR PLAINTIFF/JUDGMENT
CREDITOR/RESPONDENT<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" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
justify;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">YAW ACHEAMPONG BOAFO WITH
ADWOA BENASO ASUMADU-SEKYI FOR DEFENDANT/JUDGMENT DEBTOR/APPLICANT<o:p></o:p>

</div>CORAM:<o:p></o:p>DR. RICHMOND OSEI-HWERE, 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="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>&nbsp;This is a motion on notice praying this
Honourable Court for an order setting aside the default judgment entered
against the Defendant/Applicant and for leave to file a statement of defence.
The applicant is also seeking an order to set aside the Entry of Judgment and
all execution processes taken pursuant to the default judgment.<o:p></o:p>The
grounds of the application are contained in the Affidavit in Support filed on
the 5th of March, 2019.<o:p></o:p>The
background to this application is that the Plaintiff/Applicant/Respondent
(hereinafter referred to as the Respondent) issued a Writ of Summons against
the Defendant/Respondent/Applicant (hereinafter referred to as the Applicant)
on the 13th of July, 2018. The Respondent’s claim against the
Applicant are for:<o:p></o:p>a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An
order for the recovery of cash, the sum of FIVE HUNDRED THOUSAND GHANA CEDIS
(GHC500,000.00), being the amount of money invested as a fixed deposit in the
Defendant’s Institution, the said investment being made on 2nd June, 2018.<o:p></o:p>b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Interest
on the of FIVE HUNDRED THOUSAND GHANA CEDIS (GHC500,000.00) as agreed per the
fixed deposit agreement entered into between the Plaintiff and the Defendant
till date of final payment.<o:p></o:p>c.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An
order for the recovery of cash, the sum of FIVE HUNDRED THOUSAND GHANA CEDIS
(GHC500,000.00), being the amount of money invested as a fixed deposit in the
Defendant’s Institution, the said investment being made on 11th April, 2018.<o:p></o:p>d.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Interest
on the of FIVE HUNDRED THOUSAND GHANA CEDIS (GHC500,000.00) as agreed per the
fixed deposit agreement entered into between the Plaintiff and the Defendant
till date of final payment.<o:p></o:p>e.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; General damages for breach of contract.<o:p></o:p>f.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Cost of litigation.<o:p></o:p>g.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; SUCH
FURTHER ORDER(S) as this Honourable Court may deem fit.<o:p></o:p>The
applicant was served with the writ of summons and statement of claim on the
very day it was issued i.e. 13th July, 2018. On 19th
July, 2018 the applicant herein caused its lawyers to enter appearance on its
behalf. Subsequently, this Honorable Court entered default judgment in favor of
the Respondent on the 2nd November, 2018. This was after the
respondent herein had filed a motion on notice for an order for final judgment
in default of defence against the applicant herein. On 26th October,
2018, the said motion on notice together with the affidavit in support was
served on the applicant through its lawyer but it failed or refused to file an
affidavit in response to the motion. When the application came up for hearing
on 2nd November, 2018,both the applicant herein and its lawyer were
absent in court without any excuse. On 9th November, 2018 Entry of
Judgment in respect of the default judgment was filed and the same was
subsequently served on the applicant herein.<o:p></o:p>After
the entry of judgment, the applicant herein and lawyers of the respondent
herein entered into an agreement in relation to the judgment debt. This
agreement was attached to the respondent’s affidavit in opposition to the
instant application and marked Exhibit 1. It is dated 27th November,
2018. About the legal effect of this agreement, more anon!<o:p></o:p>In
moving the motion, Counsel for the Applicant prayed the Court to set aside the
default judgment. He relied on the depositions contained in the affidavit in
support of the motion. Counsel took aim at Exhibit 1. He argued that Exhibit 1
is invalid as the Respondent herein is not a party to the said agreement. He
submitted that the agreement is between Darls Legal Consult and the Applicant
herein and since the former is not a party to the suit, the agreement cannot
bind the applicant when it comes to the rights of the respondent in this
action. He submitted that the court should, therefore, disregard the
respondent’s invitation to the court to treat the terms of the agreement as an
admission of the applicant’s indebtedness to the respondent. He submitted that
access to justice is a constitutional right. Thus, the right of a party to come
to court to seek relief cannot be whittled away by a private arrangement. He
submitted further that Exhibit 1 cannot prevent the applicant from applying to
the court to set aside the default judgmen</main>