HEWARD-MILLS v. BARCLAYS BANK (D.C.O.) [1966] GLR 618
27 June 1966 · DJABANOR J · ≈ 4 min read
[1966] SLR (HC) 26Other citation styles and permanent link
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Division: HIGH COURT, SEKONDI
Date: 27 JUNE 1966
Before: DJABANOR J.
CASES REFERRED TO
(1) Barclays Bank D.C.O. v. Heward-Mills [1964] G.L.R. 332, S.C.
(2) MacFoy v. United Africa Co., Ltd. [1962] A.C. 152; [1961] 3 W.L.R. 1045; 105 S.J. 1067; [1961] 3 All E.R. 1169, P.C.
NATURE OF PROCEEDINGS
APPLICATION to enter an interlocutory judgment against the respondents on the applicant’s counterclaim to which no defence had been filed. COUNSEL Victor Owusu for the applicant.
F. Obeng for the respondents.
JUDGMENT OF DJABANOR J.
This is an application by the third defendant hereinafter called the applicant for an interlocutory judgment against the plaintiffs hereinafter referred to as the respondents on his counterclaim to which no defence has been filed. The respondents were served with the applicant’s defence and counterclaim, and with this application for judgment.
The respondents are now resisting this application for judgment on two grounds, first that there is no suit pending before this court in which such a statement of defence and counterclaim could be admitted, and secondly that since the applicant defaulted in entering both appearance and filing defence (out of time) he could not properly file the defence and counterclaim now without leave having first been sought and obtained.
Paragraphs (3), (4) and (5) of the respondents’ representative’s affidavit read as follows: “(3) That having regard to the fact that suit No. 63/60 was not pending before the Sekondi Court because it was disposed of by the final judgment delivered on 25 July 1960 the cause of action and the writ having merged into the judgment thus obtained.
(4) That the said judgment having been set aside by a Kumasi court and confirmed by the Supreme Court left nothing in the Sekondi Court in respect of which an interlocutory application for judgment can be entertained.
(5) That in the alternative if the writ was pending at all no appearance having been entered by the third defendant to that writ no further step could be taken by the third defendant to that writ which in effect is ‘dead’ in law.”
[p.620] of [1966] GLR 618
My own view of the law is this: when a judgment is set aside, it is that judgment which is set aside. That fraud vitiates everything is a correct statement of the law. But I do not think that everything here means that everything that has the remotest connection with the “thing.” The applicant charged the respondents with having obtained judgment in this case by fraud. The respondents were not charged with having filed the writ by fraud or anything like that. In my view, the result of the setting aside of the judgment in this case has the same effect as if the judgment was set aside on any other legal ground. The parties cannot be placed in the same position in which they were before the issue of the writ, because the proceedings have not been set aside. If a party obtained a judgment by default of appearance or pleading and that judgment was set aside, my view of the law is that the parties are placed in the same position as they were before the application for judgment was made. In my view when the Supreme Court in Barclays Bank D.C.O. v. Heward-Mills1 stated that:
“The appellants will thus be enabled, should they think fit, to re-agitate their claim against the respondent and any of his partners and the latter would be entitled to meet such claim with such defences as are available to him,” they were not making any special order. They were stating the correct legal position ⎯ for at that stage the respondents were at liberty either to withdraw the whole claim, i.e. discontinue⎯or to make a fresh application for judgment, and leave the defendant to apply for leave to defend. The case of MacFoy v. United Africa Co., Ltd.2 referred to by counsel in my view states quite a different proposition from what we are concerned with here.
It was the respondents’ second point that having defaulted the applicant cannot file a statement of defence and counterclaim without leave of the court. I agree with that statement of the law. But it is also the law that even after default, if a defendant filed a statement of defence, it nevertheless cannot be ignored. In the circumstances, therefore, I am bound to give consideration to the statement of defence and counterclaim filed.
Clearly, the respondents have filed no defence to the counterclaim and the applicant, therefore, is entitled to judgment. The respondents have in the alternative (in the submission of counsel) asked that they be given leave to file a defence. But the rule is that some defence must be disclosed before I can do that. None has
[p.621] of [1966] GLR 618 been shown apart from the bare statement that the Bank denies liability to the counterclaim. In the circumstances, I must accede to the applicant’s prayer and give interlocutory judgment to the applicant against the respondents as prayed. With regard to the third claim for damages, I shall have to hear evidence.
DECISION
Application for interlocutory judgment granted.
J. D.
