BOATENG V YAWUZA & ORS (C1/12/24) [2025] GHACC 36 (21 January 2025)

IN THE CIRCUIT COURT, OFFINSO, ASHANTI HELD ON TUESDAY, THE 21ST DAY OF JANUARY 2025 BEFORE HIS HONOUR PAUL ODURO ESQ. SUIT NO.:C1/12/24 KWABENA AKOTO BOATENG PLAINTIFF/RESPONDENT SURVEY QUARTERS BLOCK NORTH SUNTRESO - KUMASI VRS 1. ABDUL YAWUZA DEFENDANTS/RESPONDENTS OFFINSO 2. VIDA CUDJOE OFFINSO 3. KWADWO BAFFOUR AGYEI OFFINSO 4. PERCY KWAME 4TH DEFENDANT/APPLICANT OFFINSO RULING ----------------------------------------------------------------------------------------------------------- This is an application by the 4th Defendant/Applicant (hereinafter referred to as the Applicant) praying the Honourable Court for an Order to set aside the Interlocutory Judgment entered against the Applicant herein in Default of Appearance and for leave to file a Statement of Defence. 1 Background to the Application. The background to the application is that on 28th March 2024, the Applicant herein issued a Writ of Summons against the Defendants/Respondents seeking the following reliefs: 1) A declaration of title to all that parcel of land described as the “site for residential purpose in the Anou Layout” in the Offinso South Municipality in the Ashanti Region. 2) An Order ejecting the Defendants from the portions they occupy. 3) Recovery of possession of the said plot of land. 4) Perpetual injunction restraining the Defendants, their agents, workmen, servants, relatives and assigns from entering upon, dealing with or in any way interfering with the Plaintiff’s enjoyment of land. On 15th January 2025, the Applicant filed the instant application to set aside the Default Judgment. Affidavit Evidence. In his Motion on Notice, backed by a 12-paragraph affidavit in support, the Applicant has invited the Court to set aside the Default Judgment entered against him by the Honourable Court. The relevant parts of the affidavit in support read as follows: 6. That Judgment in Default of Appearance was entered against me by the Honourable Court upon failing to enter an Appearance on time because I barely appreciated Court processes at the time until I 2 proceeded to obtain the services of a Counsel to assist me with this instant case. 7. That leave was sought by my Counsel to enable me enter Appearance in respect of this matter and same was granted me by the Honourable Court. 8. That I have a reasonable and valid defence to Plaintiff’s claim and wants the matter to be determined on its merit. Attached herewith and marked “Exhibit 1” is a copy of the “Proposed Statement of Defence” for the perusal of the Honourable Court. 9. That I am informed by Counsel and verily believe same to be true that I am entitled to file a Statement of Defence unless the Default Judgment is set aside by the Honourable Court. 10. That I am again informed by Counsel and verily believe the same to be true that the Honourable Court in the exercise of its discretion may set aside the Default Judgment and further grant leave to enable me file my Statement of Defence. 11. That I have a reasonable and valid defence to the Plaintiff’s claim and will suffer injustice if the instant matter is not adjudicated on its merit. 12. That in the circumstances, I humbly pray the Honourable Court for an Order setting aside the Judgment in Default of Appearance and granting leave to enable me file my Statement of Defence. The Plaintiff/Respondent herein did not file any Affidavit in Opposition to the Applicant’s motion. 3 The Court’s discretion to set aside a Default Judgment must be legally and regularly exercised. In Evans v. Bartlam (1937) A.C 473, the defendant, having had judgment entered against him in default of appearance, obtained from the plaintiff time in which to pay. He afterwards sought to have the judgment set aside on the ground that he had a defence to the claim. It was held that the judge had a discretion to set the judgment aside. This is what Lord Atkin said at 480: “The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure”. A default judgment can be set aside only if there is a viable defence. See: Djorbua v. Poku and Another (1971) 1 GLR 93 at 97; Ampim II V. Bediako (1984-86) 2 GLR 628 at 633. In the instant case, the Applicant has stated that he has a viable defence to the action as contained in paragraph 11 of his affidavit in support of the motion. In addition, he has also attached a Proposed Statement of Defence to his application as exhibit 1. However, in view of the unreasonable delay in bringing this application, and having regard to the extent to which the Respondent has gone in dealing with this matter, I am of the considered opinion that the Respondent is entitled to cost. The application is granted as prayed. The Judgment in Default of Appearance entered on 11th July 2024is hereby set aside. The 4th Defendant is given 4 seven (7) days within which to file his Statement of Defence. Costs of GHc 1, 500 is awarded in favour of the Respondent against the Applicant. SGD PAUL ODURO (CIRCUIT COURT JUDGE) COUNSEL: SOLOMON PANFORD WITH KWASI AFRANE BANING AND MANELLE SALLY BREMPONG FOR DR. CHRIS ADOMAKO KWAKYE FOR THE PLAINTIFF/RESPONDENT. SAMUEL OSEI ADJABENG FOR THE 4TH DEFENDANT/APPLICANT 5