IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA, A.D. 2011
CORAM: S. MARFUL-SAtJ, J.A (PRESIDING)
SENYO DZAMEFE, J.A
DENNIS D. ADJEI, J.A
SUIT NO. 111/155/10 27TH OCTOBER, 2011

	

Civil Practice and Procedure - Application to set aside default judgment - Whether defendant's affidavit in support and supplementary affidavit disclose triable defence - No automatic right to set aside judgment but must demonstrate to court credible defence against claim.
JUDGMENT DENNIS D.ADIEI (IA)
On 911, June2009 the High Court,Sekondi gave final judgment in default of defence in favour of the Plaintiffs/Respondents to recover the sum of GI-Je 15,500.00 with interest at the current bank rate from July 2003 to the date of final payment. On 2711, July 2009, the Defendant/Appellant applied to the High Court to set aside the default judgment entered in favour of the Plaintiffs and a further order adopting the statement of defence filed out of time. The Defendant's
 
application to set aside the judgment in default of defence was dismissed by the trial High Court for failing to disclose any triable
issue.
On 29th October, 2009, the Defendant/Appellant being dissatisfied with the ruling of the trial High Court which refused to set aside the default judgment, appealed against it to this Court.
The brief facts of this appeal are that the Plaintiffs/Respondents instituted this action against the Defendant at the I Ugh Court, Setwitch
for the following reliefs:
"1. Recovery of the sum of GIR15,500.00 being monies advance to the Defendant by the 1st Plaintiff for the purchase of a house which
the Defendant sold to another person and has refused to refund
the money despite repeated demands for same.
2. Interest at the prevailing hank rate from June 2007 to the date
of final judgment".
The writ of summons was accompanied by seven (7) paragraph
statement of claim.
The efforts by the Plaintiffs to serve the Writ of Summons and the Statement of Claim on the Defendant personally failed as the Defendant could not be located. On 21st April, 2009, the Court granted
an application Ex-parte for substituted service of the Writ of Summons and the Statement of Claim on the Defendant. The notices were posted
 
as ordered by the trial Court. On 5tII May, 2009, (he Defendant entered appearance but failed to file his Statement of Defence. On 2811, May, 2009, the Plaintiffs flied notice for judguieiit in default of defence and was duly served on the tlieii lawyers for the 1)ekmdant on that vety date. The Defendant fiuled to file his Statement of Defence and fhiled to appear in Court on the return (late. The trial I 11gb Court therefore entered judgment for the Plaint 11Th for the reliefs endorsed on [heir writ of summons. On 1 GIII June, 2009, the entry ofjiulgment was served on the Defendant personally. The Defendant's house was subsequently attached by the Sheriff of the trial I ugh Court upon (he writ of lien faeias filed by the Plaintiffs. The Defendant in his el fbrt to abate the execution process, filed the motion to set aside the judgment ill (lefault of defence and for a Ilirther order adopting the statement of defence flied by him on 271' July, 2009.
The three (3) grounds of appeal filed by (lie Defendant are as follows: - "a) That the ruling is against the weight of the affidavit evidence.
H That the affidavit of the Defendant raised triable issues and the trial Court erred in not granting the Defendant leave to defend the action.
e) That it was the Defendant's ease that time was the essence of the contract and that by failing to complete within the stipulated time, the Plaintiff's caused loss and damages to the De!bndant a ground which the trial Court fniec1 to appreciate-,
The Defendant indicated Ins intention to file additional grounds of- appeal but did not file any.
 
The import of Defendant's grounds 1, 2 and 3 of the appeal is that the ruling is against the weight of the affidavit evidence as there are triable issues. By this the defendant is saying that the affidavit in support of his application filed on 1401 August, 2009 and the Supplement my Affidavit filed on 25th August, 2009 disclose triable issues and the judgment should be set aside on such terms as the Court thinks just. Order 13 Rule 8 of the High Court (Civil Procedure) Rules C.I. /17 provides for the circumstances under which judgment obtained in default of defence tinder Order 13 of C.I. 47 could be set aside or varied.
Order 13(8) of C.I. 47 provides as follows: -The Court may, on
application by a party affected and on such terms as it thinks just set
aside or vary any judgment entered in pursuance of this order."
The it-latter for consideration is whether or not the Defendant's Affidavit
in Support and the Supplementary Affidavit disclose a triable defence. If they do not, then, it will not be just to set it aside but if there are triable issues(s), it would be just to set it aside subject to the award of costs to compensate the Plaintiff. The application to set aside default judgment should be refused except in cases where there are no triable issues. Due to the high rate of illiteracy in the country particularly as to knowledge in law, it would not be fair to refuse to set aside default judgment on the ground that he failed to take advantage of the rules and equity will not avail the indolent. In the case of Conea Engineering (Ghana) Ltd. vs. Moses [1984 - 86] 2GLR 31 ) at 328, this Court
 
speaking through Apaloo CJ (as lie then was) had this to say when a Judge is confroiited with an application to set aside a (lel2IlIlt judgment.
"I think the modern approach to judgnient, by default which the New Brunswick and Kok l-h)ong eases typify is a more suitable weapon of achieving the ends of justice and should be lollowed in this country. If a judgment by clelatult does not necessarily preclude (lie parties ill a highly literate and sophiscated society 111cc England because the defendant may have been ignorant. or negligent or iridi ffernt in the former action it must be a !ortiori in this coimntiy where the level of literacy and sopiiiscation is much less than in England."
Lord Atkin ill	I louse of Lords case of Evans vs. l3artlam [ 1937J AC
473 ill down the principle upon winch default judgment could be set aside held thus: "The Courts, however, have laid down for themselves rules to guide them in the nornial exercise of their discretion. One is that where the judgment was o])Uunedl regularly, there must he an affidavit of merits, meaning that the applicant must produce to (lie Court evidence that he has a pi-iiiia facie defence." This Conrt in the case of Quarnryne vs. Afeyesi and Others [1981 - 861 2 GLR 430 quoted the above case with approval.
I have carefully examined the deposition contained in paragraphs l- 17 of the deFendant's Affidavit ill support of his application as well as the supplementary Affidavit filed on 25th August, 2009 and I arn satisfied that they do not raise triable issue to make it just for the Court to set aside the judgment.
 
I am not satisfied that the defendant has been able to prove by his affidavit that the GI-K=10,000.00 was a deposit anti there was """"a condition in the agreement that if there is a breach on the part of the Plaintiffs they could forfeit it. Furthermore, he could not satisfy me that time was of essence and it was the defendant who breached the contract. The defendant by his paragraph 16 of his affidavit in support deposed that if he had forfeited the deposit for breach of contract. To rue, the Defendant has taken the law into his hand. The Contract Act, Act 25 does not say that security money or inoncy placed with a person as earnest money or security for the performances of a contract is forfeited by the depositor. Counsel for the defendant relied on the English case (House of Lords) of Mayson vs. Clouset and Another [1924] JC 980 and urged the Court to hold that the GIRI0,000.00 paid to him by the plaintiffs was a deposit and should be forfeited as it was the plaintiffs who breached the contract. If Counsel for the defendant had adverted his mind to the decision of Cotton L.J. and f3ornen L.J. at page 986, he would not have impressed upon this Court to accept his position. Whether or not the deposit or the part payment would be forfeited if there is a breach on the part of the contract must be a condition in the agreement or the contract. Their Lordships held thus: "the question as to the right of the purchaser to the return of the deposit money must, in each case, be a question of the conditions of the contract".
The defendant did not say that it was a condition in the oral agreement
that if there was a breach of the contract emanating from the plaintiff,
he was going to forfeit the sum of GH010,000.00. The defendant's case is
 
that the plaintiffs have breached the contract and that he has forfeited the part payment or the deposit. It is not the position of the law and if the judgment is set aside and he is coining to rely oil this wrong proposition of the law, it would be unjust to the plaintiffs.
A default jiidgrnenti should always he set aside where the defendant demonstrates that he has a good defence through his Affidavit. Where the defendant is relying or wrong proposition of the law to set aside a judgment as in the instance ease, it will not sei-v(, any tisehil purpose to set it aside. In the instant appeal, the defendant has fiuled to demonstrate loth and/on either the facts or law that he has a defence and the appeal should be dismissed.
I am not oblivious of the ratio in the ease of Evans vs. l3arlanx (Sripra) which is to the effect that unless and until the Court has proiioiincecl a judgment. upon the merits by content, the Courts 5110111(1 not use rules of procedure to shut the door of justice. Iii this case, the appeal is being dismissed not by technical or procedure errors committed by (lie defendant before the trial Court but simply he has not got any defence to the plairitifi's action.
It would not serve any useful purpose to set aside tI ic jil(lglnent as the defendant has huled to disclose that lie has any triable issue for the Court to consider.
The appeal is dismissed as unmeritorious and (lie judgment of the 1-ugh Court dated 22-1 October, 2009 is affirmed.
 
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DENNIS D. ADJEI JUSTICE OF APPEAL
MARFUL-SAU, JA: This is an interlocutory appeal from the ruling of the High Court Selcondi, dated the 22ml October, 2009. In that. ruling the trial I ugh Court refused to set aside a judgment in default of defence entered for the plaintiffs/respondents to recover an amount of GIIC 15,500.00, from the defendant/appellant. The respondents on the 20,1, of March2009 issued a writ against the appellant for the recovery of the above sum and interest thereon from June 2007 to date of final
payment. According to the respondents the money was advanced by the first respondent to the appellant Epr the purchase of a house, which the appellant sold to another person. The appellant refused to refund the amount paid hence this action.
From the record of appeal the writ was served on the appellant through substitution, to which an appearance was entered on 5th May, 2009. The respondents then filed a motion for judgment after the appellant failed to file a defence within the time prescribed by the rules. This motion was served on counsel for the appellant, but at the hearing there was no affidavit in opposition and appellant and his counsel were absent. The court thus rightly entered judgment in default of defence against the appellant for the reliefs endorsed on respondents' writ of summons.
On the 27th ,July 2009, the appellant filed a motion on notice to set
aside the judgment entered against him. The motion was opposed by
the respondents and same was dismissed by the trial court on the 22"
 
October, 2009. Through this appeal the appellant is urging this court to reverse the ruling of the trial court, the reason being that he has a defence to the respondents.claim. Appellant bled three main grounds of appeal and argued all the grounds together in his statement of case. The law is trite that a party, against whom default judgment has been entered, has no automatic right to set aside the judgment, even though such applications have no time limit. Such a party has to demonstrate to the court that hc- has a credible defence in law against the claim. See Quarmyne v. Afeyesi (1984-86) 2GLR 430,CA.
The courts at common law have always reserved the discretion to revoke default judgments upon the showing, that a reasonable defence do exist against the plaintiff's claim In EVANS v. 13ARTLAM (1937) AC 473, HL, Lord Atkin delivered at 480 thus:-
"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."
It was therefore the duty of the appellant to demonstrate at the hearing of the motion that indeed he had a reasonable defence in law to the respondents claim. This the appellant could have done in the affidavit that supported his application. I have read the affidavit filed by the appellant in support of his motion and what the appellant seemed to rely on as a defence is an allegation that the respondents delayed with the payment of the agreed purchase price and for that matter breached
 

 
the contract of sale. The question is can this be a credible defence to
the respondent's action to recover the amount paid which the appellant never denied? Clearly, I think the appellant could not hide under the
alleged breach of contract of sale as a ground to forfeit the amount paid to him. Indeed, if the respondent failed to pay the purchase price within the alleged agreed period the cause of action opened to the appellant was not to forfeit the respondents' money; but to sue for damages for breach of contract.
Paragraph 16 of the appellant's affidavit in support of the motion to set aside the default judgment gave the appellant away. It reads as
follows:-
"16. That I pointed out that they had seriously injured me in my business and that I was going to forfeit the deposit for breach of contract because if they had paid as promised I
would be free of debt."
From the above averment appellant's refusal to refund the amount paid him by the respondents was not that it was agreed that the payment of GEC 10,000.00 was to be a deposit guarantying the performance of the contract, as argued by his counsel, and thus not refundable. Rather it was an arbitrary decision which must be deprecated since such unilateral acts leads to anarchy and lawlessness; and no court mindful of doing justice would countenance such acts of self help. The English case of MAYSON v. CLOUET and Another (1924) AC 980 cited by counsel for appellant is distinguishable from the instant case in the sense that in that case the parties expressly agreed that deposits were to be forfeited.
 
I have carefully read the affidavit in support of the motion to set aside the judgment and I do not see any credible defence in law raised therein in contest to respondents' clairn to recover the amount paid for the house, which was sold to another person by the appellant. 11 the claim that the payments were delayed is even found to be credible appellant's remedy will be in damages for breach of contract but not the arbitrary act to forfeit the amount paid.
For the reasons expressed above I also agree that this appeal should fail, to hold otherwise will amount to unjust enrichment by the appellant.
MARII.JL-SAU -
JUSTICE OF APPEAL
SENYO DZAMEFE, J.A	I agree	SEN'PO DAMEFE JUSTICE OF APPEAL
 
COUNSEL
MR. !SIIMAI3L C. CARSON FOR THE DEFENDANT/APPELLANT MR. EMMANUEL AVI'H UR FOR TI-JE PLAlNTIFFS/RESlQNDF9NT
