CIVIL PROCEDURE- PLEADINGS- JUDGMENT IN DEFEAULT OF DEFENCE ( 4) скачать в хорошем качестве

CIVIL PROCEDURE- PLEADINGS- JUDGMENT IN DEFEAULT OF DEFENCE ( 4)

10. DEFAULT OF DEFENCE AND DECLARATORY RELIEFS A critically important limitation: final judgment cannot be entered in default of defence for declaratory reliefs. The Supreme Court held in Republic v High Court, Accra; Ex parte Asiedu Osafo (Aboagye – Interested Party) and reaffirmed in Sefa v Bank of Ghana [2015–2016] 1 SCGLR 742 that: “Final judgment in default of defence cannot be entered in actions seeking declaratory reliefs.” The rationale is doctrinally sound: declarations require proof on the merits, not procedural admissions. 11. DEFAULT OF DEFENCE AND JOINT DEFENDANTS A default judgment against one defendant does not bind co-defendants who have filed defences. “A judgment in default of defence entered against a defendant alleged to be liable jointly and severally with another defendant who has filed a statement of defence would not constitute estoppel against that defendant.” Example In a running-down action: • default judgment against the driver does not relieve the plaintiff from proving negligence against the vehicle owner who has defended. 12. PROCEDURE FOR APPLYING FOR DEFAULT JUDGMENT 12.1 Service Is Foundational Under Order 7 rule 12(4) of C.I. 47, judgment in default shall only be granted where there is evidence that: • the writ of summons, and • the statement of claim were duly served. A defendant not served cannot be in default. 13. SETTING ASIDE JUDGMENT IN DEFAULT OF DEFENCE 13.1 Statutory Power Order 13 rule 8 of C.I. 47 provides: “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 phrase “party affected” has been interpreted broadly to include even strangers adversely affected, such as insurers. 14. REGULAR VS IRREGULAR DEFAULT JUDGMENTS 14.1 Irregular Default Judgment Where judgment is procedurally defective (e.g. lack of service, premature application), it must be set aside as of right. In Botchway v Daniels [1991] 2 GLR 262, the court stated: “Where the judgment is premature and irregular, the defendant is entitled to have it set aside ex debito justitiae and without terms.” No discretion arises. 14.2 Regular Default Judgment Where judgment is regular, the court exercises discretion. The applicant must: 1. explain the default, and 2. disclose a reasonable defence on the merits. In Agyeman v Ghana Railway and Ports Authority, the Court of Appeal held: “The party praying for the exercise of the court’s discretion must disclose… that he has a reasonable defence to the claim, and that it would be unjust to have his case unadjudicated upon.”