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MANSAH v. KAAWUOH


  • New
  • 1961-12-16
  • HIGH COURT
  • GLR 777-778
  • Print

Practice—Summary judgment under Order 14, rule 1—Whether judgment can be set aside.


Summary

Practice?-Summary judgment under Order 14, rule 1?-Whether judgment can be set aside.

Headnotes

The defendant applied to set aside a summary judgment entered against him under Order 14, rule 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954

Judgement

APPLICATION to set aside judgment obtained under Order 14, rule 1.

This is an application to set aside a judgment obtained on the 27th November, 1961, under Order 14, rule 1.1 Normally a judgment obtained under Order 14, rule 1 cannot be set aside?-Spira v. Spira.2 Printed boldly on the front of the writ are the words: "Specially Endorsed Writ, Order 3, rule 6" in capitals, and the endorsement reads:

"Plaintiff 's claim against the defendant is for the sum of G617 6s. 8d. being balance of an amount of G1,000 due and owing to the plaintiff as per the defendant's promissory note dated 22nd day of January, 1957."

The defendant entered appearance by counsel on the 28th October 1961, eight days after service of the writ upon the defendant. On the 21st November, 1961, the plaintiff filed a motion on notice under Order 14, rule 1 for leave to sign final judgment for the amount endorsed on the writ. This motion was served on the defendant's solicitor on the 25th November, 1961. When the motion came on to be heard on the 27th November, 1961, there was no appearance for the defendant, consequently no application was made for leave to defend, and leave was granted to the plaintiff to sign judgment for the amount claimed.

On the 27th November, 1961, however, when the application was made for leave to sign judgment under Order 14, rule 1, the defendant's statement of defence had been filed. In the case of an ordinary writ of summons when default is made in respect of filing a defence and a motion for judgment is filed in accordance with Order 27, if the statement of defence was filed before the date of the hearing of the motion the court cannot ignore it. Is it the same in the case of an application under Order 14, rule 1? Upon reviewing the authorities I find that it is imperative that [p.778] leave to defend be applied for and obtained in order to prevent judgment being obtained. To do this the defendant must formally ask for the leave. The procedure laid down for this specially endorsed writ has to be adhered to strictly in order to get the real benefit of the rule. After comparing the endorsement herein with that in the Appendix to the White Book.?-Appendix C, section 4, No. 3 at pp. 2287, I am satisfied that the writ is specially endorsed.

Following the authority of Spira v. Spira therefore I hold that the judgment cannot be set aside under Order 27, rule 16. The application is dismissed with 5 guineas costs.

Decision

<P>Application dismissed.</P>

Plaintiff / Appellant

I. R. Aboagye

Defendant / Respondent

J. Prempeh

Referals

Spira v. Spira [1939] 3 All E.R. 924

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