IN THE CIRCUIT COURT ‘10’ OF GHANA, ACCRA, HELD THIS FRIDAY

10TH DAY OF MARCH, 2023 BEFORE HER HONOUR EVELYN E. ASAMOAH

(MRS).

SUIT NO. C1/16/2022

HECTOR HAMMOND

V.

FELIX KOJO FOLI

MR. EDEM NUHOHO & MRS. NAA KOSHIE MILLS HOLDING MR. ASSAD
GBADEGBE’S BRIEF FOR PLAINTIFF
MR. EDMUND OPPONG NANA EFFAH FOR THE DEFENDANT
================================================================

RULING

●The defendant/applicant on 14th February, 2023, filed an application to set aside

the interlocutory judgment in default of appearance and final judgment and for

leave to enter appearance and file defence.

The applicant admitted in paragraph 4 of his affidavit in support of the motion

that he was served with the writ of summons and statement of claim but he

could not enter appearance because the lawyer he instructed to represent him

failed to do so.

The applicant contended that in a declaration for title, both parties must be head

and that he was neither served with the witness statement nor a hearing notice to

notify him about the status of the case. According to him, the jurisdiction of the

court was not properly invoked. That the non-service of the hearing notice before

the plaintiff was allowed to prove his case constitutes a violation and breach of

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the rules of the natural justice. He added that he has a reasonable defence to the

suit.

●The writ of summons and statement of claim were filed on 11th November, 2021

and personally served on the defence on 22nd November, 2021 at 8.30 am. The

defendant did not enter appearance, neither did he appear in this court. The

court, in accordance with order 10 of the High Court Civil Procedure Rules C147-

2004, granted an application for interlocutory judgment in default of appearance.

The plaintiff filed his witness statement on 11th May, 2022 and on 15th January,

2023, the court entered judgment for the plaintiff, after the plaintiff had adduced

evidence to prove his case.

●The plaintiff/respondent in his affidavit in opposition to the defendant’s

application, stated that an application for judgment in default of appearance is

filed ex-parte and it’s therefore untenable for the defendant to claim that he was

not served with the motion ex-parte for judgment in default of appearance. That

having obtained final judgment in this matter, there is no interlocutory judgment

to be set aside by this court. That the defendant having failed to appear before

this court in total disregard and disrespect to the court, there is no requirement

under the rules that he should continuously be served with processes. The

tardiness and negligence of the defendant in prosecuting his case cannot be a

reason to set aside the final judgment in this matter.

●The question then is: whether the defendant, having failed to enter appearance

must be served with Witness Statements and other processes.

- Order 10 rule 2 of C147 states:

Where the plaintiff’s claim against a defendant is for an

unliquidated demand only, and the defendant fails to file

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 appearance, the court may, after the time limited for appearance,

apply to enter interlocutory judgment against that defendant’s for

damages and proceed with the action against the other defendant’s,

if any.

Order 10(4) (1):

Where the plaintiff’s claim against a defendant is for possession of

immovable property only and the defendant fails to file

appearance, the plaintiff may, after the time limited for

appearance, apply for judgment for possession of the immovable

property and costs as against the defendant; provided that the

plaintiff may proceed with the action against other defendants, if

any, who have filed appearance.

● Mr. S. Kwame Tetteh in his book: Civil Procedure – A Practical Approach Page

326 – stated the essence of timelines and default judgments:

“… The rational for a default judgment is that the process of

adjudication would not be efficient unless the time table set out in

the Rules for the conduct of litigation is followed strictly by

litigants. A defendant who defaults in entering appearance is thus

deemed to admit the claim endorsed in the writ and the court

would enter judgment for the plaintiff where the Rules so permit

…”

Page 339, the Author stated:

“ In an application for judgment in default of appearance, the

plaintiff must, satisfy the court, not only that the defendant has

defaulted in entering appearance to the action but also that the

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 defendant had been duly served with the Writ of Summons. The

requirement of service is essential for fulfilment of the audi alteram

partem rule.”

● In this case, the affidavit of service and the official search show that the

defendant was duly served with the writ. Counsel for the defendant/applicant

argued that failure to serve the witness statement and Hearing Notice on the

defendant render the judgment void. Counsel referred to the case of Attoh-

Quarshie V Okpote (1973) IGLR 59. The court in that case held – where

proceedings are taken by a plaintiff in the absence of the defendant, it is

important that there should be at every stage a strict compliance with the rules

and therefore it is reasonable and proper thing in the case of proceedings by

default to treat non-compliance with such a rule as … not as a mere irregularity

which can be waived …”

● Counsel for the Respondent explained that there was no requirement under the

rules that the plaintiff should continue serving the defendant who failed to enter

appearance with processes. He referred to the case of Nii Odai Ajiku IV V. The

A-G and Wor-Nii Borketey Laweh XIV Supreme Court – JELR 68505 (2010) –

where Justice Owusu JSC (as she then was) stated:

“With all due respect to counsel, it is not procedurally impossible, indeed

ridiculous for the plaintiff to proceed as if such a party had appeared. The

plaintiff cannot file a reply when no appearance has been entered and for

that matter, a defence filed. Neither can summons for direction be taken

when no issues are joined. All that “proceed as if such a party had

appeared” means is that the case is set down for hearing. The plaintiff

must lead evidence in proof of his claim. Where a plaintiff claims a

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 declaration of title, he still has to lead evidence in proof of his title

notwithstanding failure on the part of the defendant to enter appearance.”

●Reference was made to Justice S. A. Brobbey book: Practice and Procedure in

the Trial Court and Tribunals of Ghana, 2nd Edition page 280 paragraph 638.

“A party who fails to appear in court after due service on him is taken to

have deliberately failed to take advantage of the opportunity to be heard.

The audi alteram partem rule cannot be said to have been breached in such

a situation.”

●In this case, the court complied with all the rules of the court. The defendant

failed to take advantage of the opportunity to be heard; did not enter

appearance. There is no legal requirement that having failed to enter appearance,

he should be served with Witness Statements and other process.

In the case of Haruna V Arts Council of Ghana (1992) 2GLR1.

The court held:

“A default judgment would be set aside if an affidavit filed on the merit

disclosed a reasonable defence to the claim and explained satisfactorily the

cause of the delay…”

The only reason given by the applicant is that his lawyer failed to enter

appearance on his behalf, without more. Counsel for the respondent, rightly

pointed out that defendant failed to establish that he was diligent or “tried to

find out the progress of the case”. The defendant did not provide any proof to

show that he has reasonable defence to the claim/that the land belongs to him.

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Application dismissed. Cost of GH¢2,000.00.

(SGD)
H/H EVELYN E. ASAMOAH (MRS.)
CIRCUIT COURT JUDGE