GBAGO v. OWUSU [1972] 2 GLR 252
HIGH COURT, ACCRA
Date: 25 JULY 1972
BEFORE: ABBAN J.
CASE REFERRED TO
Jacques v. Harrison (1883) 12 Q.B.D.136: 53 L.J.Q.B. 137; 50 L.T. 246; 32 W.R. 274.
NATURE OF PROCEEDINGS
RULING in an application by a stranger to set aside a judgment in default of appearance entered against the defendant in the substantive suit. The facts are set out in the ruling of the court.
COUNSEL
S. A. X. Tsegah for the applicant.
W.A. Bossman for the respondent.
JUDGMENT OF ABBAN J.
The applicant, according to him, sold the land in dispute to the defendant in this case. The plaintiff
claiming the land to be her property, first sued the applicant who entered appearance through his solicitors. Thereafter, the applicant left Ghana in pursuance of the Aliens Compliance Order.
On learning of the departure of the applicant from the country, and on becoming aware that before the applicant left, he sold whatever interest he had to the defendant, the plaintiff applied for an order to substitute the defendant for the applicant. The defendant [p.253] of [1972] 2 GLR 252
could not be personally served with the motion for substitution. Consequently, on an ex parte application, an order for substituted service of the said motion was granted. Eventually, the defendant was substituted for the applicant. Again, other processes of the court could not be effected on the defendant personally, and orders for substituted service were granted and copies of all the relevant documents were posted at the paces indicated. The defendant failed to enter appearance and judgment was entered against her on 15 November 1971 for a declaration of title, recovery of possession and damages for trespass. It is this judgment which the applicant is asking the court to set aside.
The applicant’s main ground is that it was he who sold the land in dispute to the defendant, and that as a vendor he was bound to defend the title of the defendant; and the judgment, if allowed to stand, would eventually affect him adversely. Counsel for the plaintiff has raised a preliminary objection to the application. The basis of his said objection is that the applicant was not a party to the judgment and cannot therefore apply to have it set aside.
I think the applicant cannot be said to be a party to the judgment in question. Admittedly, he was the
original defendant. But the defendant was regularly and properly substituted in his place, after it had
become clear that the applicant had sold his interest in the land and left the country for good. The
applicant admits that he completely disposed of whatever interest he (the applicant) had in the land to the defendant before leaving Ghana in pursuance of the said Aliens Compliance Order.
To my mind, at the time judgment was entered, the applicant had no interest whatsoever in the land in dispute, and I do not see how his interest is adversely affected. He is a stranger to the judgment and he has not and cannot acquire a locus standi in this matter.
It is well established that there are only two methods whereby a stranger to a judgment who is adversely or injuriously affected can set it aside. That is, he can obtain the defendant’s leave to use the defendant’s name and then apply in the defendant’s said name to have the judgment set aside. Or where he cannot use the name of the defendant, he can take out a summons in his own name to be served on both the plaintiff and the defendant, asking to have the judgment set aside and for him to intervene. See Jacques v. Harrison (1883) 12 Q.B.D. 136.
The applicant herein has not satisfied the court that he has obtained the defendant’s leave to use her name in this application. Indeed, he is not making the present application in the name of the defendant. The application is therefore misconceived. The cases cited by the learned counsel for the applicant are distinguishable from the case under consideration. Consequently, they are inapplicable to the facts herein.
In the result, the application will be dismissed. Costs to the plaintiff fixed at ¢25.00.
DECISION
Application dismissed.
S. O.
