JOSS ENGINEERING LIMITED VRS EUGO TERRANO LIMITED (C11/199/23) [2024] GHACC 6 (22 February 2024)

CORAM: IN THE CIRCUIT ‘A’ SITTING AT TEMA ON FRIDAY, THE 22ND DAY OF FEBRUARY, 2024 BEFORE HER HONOUR AGNES OPOKU– BARNIEH, CIRCUIT COURT JUDGE SUIT NO: C11/199/23 JOSS ENGINEERING LIMITED PLAINTIFF/RESPONDENT VRS. EUGO TERRANO LIMITED DEFENDANT/APPLICANT PLAINTIFF/RESPONDENT ABSENT DEFENDANT/APPLICANT ABSENT EMMANUEL OWUSU-BANAH, ESQ. FOR THE PLAINTIFF/RESPONDENT PRESENT PATIENCE ABLAH AMANSIE-BOATENG, ESQ. HOLDING THE BRIEF OF ANDREW VORTIA FOR THE DEFENDANT/APPLICANT PRESENT ________________________________________________________________________________________________ BENCH RULING This is a ruling on a Motion on Notice to set aside Final Judgment in Default of Defence and for Leave to adopt the Statement of Defence filed by the defendant/applicant herein (hereinafter called “the applicant) against the plaintiff/respondent herein (hereinafter called ‘the respondent”) on 19th January 2024. I have determined the application based on the Motion paper, the supporting affidavit, the oral submissions made by counsel for the plaintiff and counsel for the defendant and the authorities urged on this court. Under Order 13 rule 8 of C. I 47, the court may on an application by a party affected and on such terms as the court thinks just, set aside or vary any judgment entered in pursuance of this order. 1 The provision cited above requires a judge in determining an application to set aside default judgment, to exercise discretion. Like all discretionary powers and under Article 296 of the 1992 Constitution, a judge is enjoined to do so judiciously according to sound principles of law and not capriciously. In the case of Botchway and Anor v Daniels and Ors [1991] GLR 2 HC page 262, the court held it its holding 2 that, in such applications the applicant must demonstrate by the affidavit in support of his application or by some other acceptable means not only that he had a reasonable defence to the action but also that it would be unjust not to have his case decided on the merits. Such a defendant would further be required to offer a reasonable explanation for his default which must demonstrate that he intended to obey the express command of the Writ but was prevented from doing so by circumstances beyond his control. Thus in the case of Haruna v Arts Council [1992] 2 G.L.R 1, at holding 3, the court held that, “A default judgment would be set aside if an affidavit filed on the merits disclosed a reasonable defence to the claim and explained satisfactorily the reason for the delay. Long lapse of time per se was no good ground for opposing the application.” From the affidavit in support, counsel for the applicant has satisfactorily explained the circumstances leading to the delay. Although an attempt at settlement is not in itself enough basis for not filing a defence when required to do so, counsel explains that the defendant’s principal who was to give instructions was out of the jurisdiction without much challenge. Also, from the statement of defence filed, the applicant has raised triable issues regarding the quality of work done and therefore must be given the opportunity to present its entire case before the court. The application is therefore granted. The court 2 adopts the defence filed on 18th December 2023 as the defence of the defendant in the case. Thereafter the suit shall take its normal course. Costs of GH¢3,000.00 is awarded in favour of the respondent against the applicant. SGD. H/H AGNES OPOKU-BARNIEH (CIRCUIT COURT JUDGE) 3