Asanwinso Rural Bank Ltd Vrs Boateng (CA 60-2002) [2004] GHACA 18 (16 January 2004);

Flynote: 

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL

ACCRA – GHANA, A.D. 2004

                                                                                                        

 

CA 60-2002

DATED 16TH JAN., 2004   

 

 

CORAM –     ESSILFIE BONDZIE  JA [PRESIDING]

OWUSU-ANSAH  JA

OSEI    JA

 

 

BETWEEN

 

ASANWINSO RURAL BANK   LTD.                   …   PLT/APPELLANT                                                                             

 

                -   A  N  D  -

 

OHENE BOATENG                                                  …   DEF/RESPONDENT                                                                         

 

 

J  U  D  G  M  E  N  T

 

 

 

This appeal is against a Ruling  of the High Court, Sefwi Wiawso over by Boateng J. which Ruling sets aside a final judgement entered under Order 14 r (1) of the High Court (CIVIL PRO) Rules on 29\402.  The relevant Court Notes for the day read:

                        “Plaintiff present.

                        Defendant absent but represented by one Richmond Duah.

                        Blay for the Plaintiff\Applicant.

                        This is summary for leave to Enter Final Judgement.

 

FINAL JUDGEMENT

Mr. Blay:  I have in terms of the motion paper and the Supporting Affidavit.

 

            The defendant entered an Appearance but has failed to file defence to our summons.

            We are saying that the defendant has no defence to our suit.  We pray that final judgement be entered for us.

 

BY COURT –

The Application is granted.

Final Judgement is hereby entered for the Plaintiff as prayed for in his claim, plus  hereby entered for the Plaintiff as prayed for in his claim, plus ¢600,000.00 costs.

                                                                  

                                                                     (Sgd.)  E.M. BOATENG

                                                                                 HIGH COURT JUDGE

                                                                                  29\4\2002.”

 

(EMPHASIS IS MINE)

That was the state of the records, as at 29\4\2002.  On 24\5\2002 Defendant’s Solicitor filed what he described as “A MOTION ON NOTICE TO SET ASIDE JUDGEMENT IN DEFAULT OF DEFENCE”   Attached thereto was an “AFFIDAVIT IN SUPPORT”

OF THAT MOTION.

           

It is rather surprising to note that both the defendant’s Motion Paper and the affidavit in support thereof talk about “judgement in default of defence” and not final judgement under Order 14(1).  That application was moved on 19\6\2002, and Ruling

Thereon given on 9\7\2002.  The concluding part thereof reads as follows:-

            “According to the defendant, it is the District Assembly which could sue him.  He also says that the amount being claimed by the

            Plaintiff is far in excess of what he took as the loan.

           

These 2 reasons are good grounds for a defence.  The judgement which was entered against the defendant is still an interlocutory judgement which  could be set aside with good reasons.

I am of the view that this present application should be allowed.

Consequently, the judgement which was entered for the plaintiff  is set aside for the case to be contested on the merit is set aside for the case to be contested on the merit.  ¢500,000.00 costs awarded for the plaintiff.   The suit to follow its normal course.”

 

            Dissatisfied, the Plaintiff\Appellant (hereafter referred to simply as Appellant) filed Notice of Appeal on 15\7\2002 on the following grounds:

 

                        “(a)  the Decision\Ruling of the Court is wrong in law.

                          (b)  the Learned trial Judge erred in law by describing the final judgement

                                 of 29\4\2002 as interlocutory and setting aside same. 

  1. The learned trial Judge failed to appreciate the ambit of Order 14 of

LN 140 a, as substituted by l1. 1129.

  1. The learned trial Judge erred in law in his Ruling that the Appellant

Bank could not initiate the action to recover the unpaid loan amount.

  1. The learned trial Judge was wrong in his Ruling that the Appellant

Bank had sued in excess of the amount owed by the Defendant\Respondent.

  1. The learned trial Judge erred in his Ruling that the Plaintiff\

Appellant Bank was charging interest twice.”

 

The Appellants are seeking as a relief, that the ruling of the court below dated 9\7\2002 be set aside and the judgement on heard in favour of the plaintiff on 29\4\2002 be maintained.

 

On the facts, the crucial question for determination, in my view is whether or not the defendants’ application brought before the court below on 24\5\2002 to set aside the final judgement entered on 29\4\2002 for plaintiff was competent.  Was that application competent to set aside the final judgement under Order 14 r(1) .

On that issue, plaintiff contends” that the whole application is preposterous and

misconceived as the judgement granted in favour of the plaintiff was not in default of defence.  On the contrary it was a final judgement signed under Order 14 of LN 140 as substituted by LI 1129 and as such cannot be set aside on the grounds that no defence

was filed to the claim.”  The summons for final judgement under Order 14 r 1 was taken on the 29\4\2003.  Let me once more recall the events of that day:

 “Plaintiff present.

Defendant absent but represented by one Richmond Duah.

Blay for the Plaintiff\Appellant.

This is summons for leave to enter final judgement.

Mr. Blay:  I move in terms of the motion paper and the supporting affidavit.  The Defendant entered on appearance but has failed to file a defence to our summons. We  are saying that the defendant has no defence to our suit.  We pray that final judgement be entered for us.

 

By Court  -

The Application is granted.  Final Judgement is hereby entered for the plaintiff as prayed for in his claim.  Plus ¢600,000.00 costs.”

It is noticeable that Counsel for plaintiff knew what he was praying the court for:  a final judgement for the plaintiff because the defendant “has no defence to the suit”

And not because the defendant has not filed his defence.  And surely when the learned trial Judge was granting Counsel’s application he knew that he was granting and entering final judgement for the plaintiff and that judgement in default of defence had nothing to do with the day’s proceedings.  And there can be no doubt that the learned trial Judge knew the fundamental difference between a final judgement under Order 14 r1 and judgement in default of defence.  I am accordingly certain that if the learned trial Judge had sufficiently warned himself of the fundamental difference between the two, he would not have entertained the application on the grounds of incompetence.  I hold that application dated 24\5\02 brought by the defendant to set aside the final judgement dated 29\4\02 was incompetent, and misconceived.  The order setting aside the said final judgement is hereby set aside.

 

            The Appeal is therefore allowed.

 

 

 

                                                                                                                                                                                                                                                       J.A. OSEI                                                                                                                       JUSTICE OF APPEAL COURT

 

 

 

I agree.                                                                                    A. ESSILFIE-BONDZI

                                                                                              JUSTICE OF APPEAL                          

 

           

I also agree.                                                                              P.K. OWUSU-ANSAH

                                                                                                 JUSTICE OF APPEAL

 

 

 COUNSEL  -  KWESI BLAY FOR APPELLANT.