Cephas J. Donkor Vrs P2w Ghana Limited [2022] GHACC 235 (27 October 2022)

IN THE CIRCUIT COU RT OF GHANA HELD IN ACCRA ON 27TH DAY OF OCTOBER, 2022 BEFORE HER HONOUR KIZITA NAA KOOWA QUARSHIE, CIRCUIT COURT JUDGE CASE NO. C2/121/2022 CEPHAS J. DONKOR VS P2W GHANA LIMITED ========================================================= RULING ========================================================= Before the Honourable Court is a Motion on Notice to set aside judgement entered in Default of Appearance, a supplementary motion to the same effect and an affidavit in opposition to the Motion-on-Notice to set aside judgement entered in default of appearance. The motions were moved by learned lawyers for Plaintiff/Judgement/Creditor/Respondent and Defendant/Judgement/Debtor/Applicant respectively. the the For the purpose of this ruling the court will refer to the above as Plaintiff/Respondent and Defendant/Applicant. The Defendant/Applicant’s prayer is for the Judgement entered in Default of Appearance by the court to be set aside on the ground that the Plaintiff/Respondent’s purported service of the Writ of Summons, Statement of Claim and Entry of Judgement on them runs contrary to the Companies Act 2019 (Act 992) and the rules of this Honourable Court (Per paragraph 8 of Defendant/Applicant’s supplementary affidavit in support of application) Paragraph 9 that as a result there was non-service of the above mentioned documents by Plaintiff/Respondent on Defendant/Applicant which is not a mere irregularity but renders the proceedings void. That Barbara Reindorf who received the documents is not an officer of the Respondent/Applicant and lacks, the requisite authority and capacity to be served with the Plaintiff’s Writ of Summons, Statement of Claim and Entry of Judgement and as a result proper service had not been done per the Companies Act 2019 and as such the Judgement in Default of Appearance granted to Plaintiff/Respondent should be set aside, since such non-service is not a mere irregularity but renders the proceedings void. Learned Counsel for Plaintiff/Respondent in response pointed the court to the Defendant/Applicant’s affidavit in support and the supplementary affidavit that indicate that they have not been served. He said there is an admission they have been served, the contention however is that service was not done per the Company’s Act, 2019 (Act 992). Again learned counsel pointed the court to the fact that Respondent/Applicant after service of the Entry of Judgment on them made two payments and have fully paid their debt and by their action they have not been able to demonstrate any reasonable defence for the court to set aside the judgement. In determining whether or not the court should set aside Judgement in Default of Appearance granted to the Plaintiff/Respondent, the court will consider whether proper service had been effected per the Company’s Act 2019, Act 922 on Defendant/Applicant’s or not and also whether the Defendant/Applicant have been able to establish a reasonable defence which merits their prayer to set aside the Judgement. Paragraph 4 of the supplementary affidavit in support of application to set aside judgement in Default of Appearance states “That search reports from the Registry of this Honourable Court show that the Plaintiff’s Writ of Summons, Statement of Claim and Entry of Judgment were served on one Barbara Reindorf. I attach as exhibits “CD1 and CD2” a copy of the search reports”. Paragraph 6 - “That the Applicant’s Secretary is Bobby Banson Esq. I attach exhibit CD3, copy of the applicant’s Form 3”. Paragraph 7 – Went further to state that Barbara Reindorf is not an officer of the Applicant and lacks the requisite authority and capacity to be served with Plaintiff’s Writ of Summons, Statement of Claim and Entry of Judgement. The affidavit in opposition to Motion on Notice to set aside Judgement entered in Default of Appearance by Plaintiff/Respondent states. “The said Writ of Summons and its accompanying Statement of Claim have been served on the Defendant/Applicant through Barabara Reindorf who identified herself to the court’s bailiff as a Secretary on the 31st day of March, 2022 per the result of a search conducted at the Registry of this Honourable Court on the 27th day of April, 2022. A copy of the search is attached hereto and marked as Exhibit “AA” proper service on a company see section 291 (5) of the Company’s Act 2019 Act 992 under the heading service of documents on company states that “A document may be served on a company by leaving it at, or sending it by post to the registered office of the company or the latest office registered by the Registrar as the registered address of the company. In the case of Dahar Ltd v Industrial Chemical & Pharmaceutical Co. Ltd 1981 GLR 453 @ 461. It was held that: The object of all service is to give notice on the party whom it is made and resist that which is sought against him (see also Barclays Bank Ltd v Ghana Cables Co Ltd & Ors (1998-1999} SC GLR 1. In the opinion of this court the service of the Writ of Summons and Statement of Claim and Entry of Judgement with the said Barbara Reindorf constituted proper service since the documents were served on the Respondent/Applicant at its registered office per the Company’s Act 2019, Act 992. Secondly, the court will consider whether the Defendant/Applicant has demonstrated reasonable evidence in their affidavit that warrant the Judgement in Defeault of Appearance to be set aside. In the case of Botchwey & Anor. v Daniel 1991 2GLR Ruling 2: It was held that for Judgement in Default of Appearance to be set aside there should be reasonable evidence in the affidavit. Again in Haruna v Arts Council of Ghana 1992 2GLR pg 1 ruling 3 it was held that the applicant must show on the merits of the affidavit that there is a reasonable defence to the claim. Per paragraph 11 of the Plaintiff/Respondent’s affidavit in opposition the Defendant/Applicant upon being served with the Entry of Judgement after trial the latter made part payment of their indebtedness on the 13-06-2022 and further payment on 27-06-2022. The court notes that exhibit AD & AD1 represent those payments made by Ecobank cheques to the Plaintiff/Respondent which settled their indebtedness to the Plaintiff/Respondent fully. In the opinion of the court Defendant/Applicant have not shown reasonable defence to set aside the Judgement in Default of Appearance. The court dismisses Defendant/Applicant’s application to set aside the Judgement in Default of Appearance and awards costs of GH¢2,000.00 to the Plaintiff/Respondents. (SGD) H/H KIZITA NAA KOOWA QUARSHIE CIRCUIT COURT JUDGE 4