Ashia v Osei (C1/44/2023) [2025] GHAHC 100 (16 April 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE HELD AT NSAWAM ON 16TH DAY OF APRIL, 2025 BEFORE HER LADYSHIPRUBY NAA ADJELEYQUAISON (MRS), HIGH COURT JUDGE SUITNO: C1/44/2023 W.O.1RETIREDSAMUELASHIA : PLAINTIFF VRS. VICTORIA OSEI : DEFENDANT =========================================================== Plaintiff: Plaintiff present. Defendant represented by Asamoah Philip Antwi. Counsel: PatrickGbagonah holding brief forGeoffrey Ahiable forPlaintiff present. Priscilla Akaibe-AndersonforFrancis OseiBonsufor Defendant absent. =========================================================== Motion on Notice to set aside default judgment and court proceedings dated 30/4/2024 andforleave tofile astatementofdefence outoftime × × × × × × × ApplicationOpposed bycounsel for Plaintiff/ Respondent × × × × × × × =========================================================== RULING 1 =========================================================== Counsel for Defendant/ Applicant- We have before you a motion on notice to set aside Defendant judgement and court proceedings dated 30th April, 2024 and for leave to file statement of defence. I move in terms of the motion paper and supporting affidavit and the attached exhibit. I rely entirely on all the deposition contained in ouraffidavit in support. After filing appearance, we lost touch with the Defendant and on the verge of withdrawing our services when she contacted us again. A copy of our proposed statementofdefence has beenattachedto ourmotion. SeeExhibit - FOB1. Counsel for Plaintiff/ Respondent – The motion for judgment in default of defence was served on Defendant’s Lawyer on 20th November, 2023. The motion was taken 12th January, 2024. The motion paper has a return date so there was no need to serve Hearing Notice. Exhibit ‘1A’ which is the Court Notes on 12th January, 2024 the presiding judge noted there was evidence of service through their Lawyer, and they not being in court, the court proceeded to grant our Application. Adate was set fortrial. At the trial thatis whenthe current judgecame into the case. The Defendant was served notice to appear for trial. Several Hearing Notice was served on counsel or Defendant and Defendant personally to come to cross-examine. It is not true that they were not aware of the case. We are not opposed to the Application. We areentitled tocost. We prayforcost ofGH¢10,000.00. Counsel for Defendant – We know they are entitled to cost. We will offer them GH¢2,000.00. BYCOURT: From the record of proceedings the defendant at all material times had constructive and actual notice of the proceedings but opted/and or neglected to defend the suit. Defendant after entry of appearance filed on 4/5/2023 opted and/ or neglected to act 2 albeit timeously by failing tofile necessary processes asdirected by the court. Indeed, on 4/5/2023 and 26/6/2023 the defendant was represented in court per the court proceedings. The counsel for defendant on 4/5/2023 prayed the court differently constituted for adjournment to allowhim file necessary processes in opposition toan application for injunction but failed to do so and attend court on the next adjourned date upon which the court went ahead and gave its ruling on the injunction application. It is the view of this court that counsel for defendant has not been candid with the court. There is evidence on record that the motion on notice for judgment in default of defence was served on counsel for defendant by name Francis Osei Bonsu (Esq.) on the 17th May 2023. The Defendant again failed to file an affidavit in opposition to the said application. On 12th January 2024 this court differently constituted granted interlocutory judgment in favour of Plaintiff and against defendant. The order of interlocutoryjudgmentwas servedonDefendant personallyon22nd January2024. Subsequently, several hearing notices together with court notes have been served on the Defendant personally as well as his lawyer especially on the 28th June 2024, 13th May 2024, 14th May 2024, 1st July 2024 but they failed/and or neglected to attend court. The court has since gone ahead to take the evidence of the Plaintiff and witnesses and has adjourned the case for judgment. The Defendant/Applicant has now surfaced in court praying for an order setting aside the proceedings and be granted leave to file her statement of defence. The Defendant counsel reason being that after filing appearance, they lost touch with the Defendant and on the verge of withdrawing their services when defendant contacted themagain. It is trite that the Rules of court are devised for the expeditious dispatch of cases. Ordinarily a party should not be denied an adjudication of his case on its merits on account of any procedural default unless the default would cause or have caused a real risk of prejudice to the other party. Again, where a party voluntarily and 3 deliberately failed and/or refused to attend court of competent jurisdiction or appears in court in person but opts not to defend or prosecute a claim against him; he cannot complain that he was not given a fair hearing or there was a breach of natural justice. Furthermore, even in the event of non-compliance of any of the rules of court being in force, it does not automatically render the proceedings void unless the court so direct. Such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms asthe courtconsiders fit. See:BOAKYE VRS TUTU HENE 2007-2008 SCGLR970. SeeAlso: ALABIVRS. B5 PLUS COMPANY LTD(2018-2019) 1GLR197SC After considering the affidavits filed and exhibits as well as the oral arguments submitted, the court in the interest of justice would grant the Defendant the opportunity to file her defence for the suit to be determined on its merits as the court hasnot givenitsjudgment. The application to set aside the default judgment is granted. The Defendant to file and serveher statementofdefence withinseven(7) daysfromtoday. CostofGH¢20,000.00granted in favourofPlaintiff and against the Defendant. H/L RUBY NAAADJELEY QUAISON(MRS) (J.) (JUSTICEOF THEHIGH COURT) 4 5