APPEARANCE Flashcards
ORDER 9 CI 47
A Defendant served with a writ of summons is required to enter appearance by filing a Notice of Appearance(Form5) in the action to defend it. D may enter appearance in person or through a Lawyer and include details of residential and occupational address.
Where not provided, P may apply to the ct on notice and to compel D to furnish this information. Where not complied with D will be deemed to have not entered appearance.
Time for filing appearance
Notice of Appearance – 8 days from date of service - including the day of service
(8 days may be extended by the court)
Where notice of writ is served outside the jurisdiction, Appearance shall be filed within the time set by the court.
Order 9 r 6
No appearance shall be filed after judgement except with leave of the court – def cannot just file appearance after judgement is entered, the def will need to find a motion to set aside the default judgement and seek leave to file a late Appearance.
Order 9 r 6(2)
Where a Def files Appearance after 8 days but before judgement is entered such a defendant may not file a defence unless the ct orders so.
Conditional Appearance:Order 9 Rules 7, 8
Defendant can file conditional appearance in protest of the writ of summons. Once filed, Defendant must apply to the Court within 14 days to set aside writ (or other orders.)
Note: Where Defendant fails to apply to the Court within 14 days the conditional appearance shall be treated as unconditional. See Amisah-Abadoo v. Abadoo [1973]
Note: Where the writ discloses no cause of action Def has no right to enter conditional appearance, def must rather file a motion to dismiss the action under O11 r 18. Ghana Muslim Representative Council v. Salifu [1975]
Unconditional Appearance
This is filed when the defendant has no objection to the validity of the writ of Summons
Order 10 - Default in Filing Appearance
Plaintiff may, after conducting a search in the registry of the Court confirming non-filing of appearance, apply to the Court on motion ex-parte for default judgment against Defendant who fails to file or enter Appearance within 8 days limited for Appearance
Note: Defendant may apply to set aside a writ of summons within 8 days/at any time before filling appearance.
Setting Aside Judgement in default of Appearance
Court has discretionary power to set aside or vary judgement entered in default of Appearance.
Def must show a reasonable defence and state reasons for failure to appear.
No time limit - must be a reasonable time
VENUE AND TRANSFER OF SUIT
Venue for initiating an action- Order 3
In the region where immovable property, where cause of action arose, where contract ought to have been performed.
Cases not specifically provided under O3 the action may be commenced in the region where the defendant resides or carries on business.
Effect of Action initiated in a wrong venue
Effect of initiating action in wrong venue- where action in wrong venue, ct may continue to hear the case unless Def raises objection to the jurisdiction of the ct as to venue before or at the time Def is required to file a Def in the proceedings.
When objection is raised, ct will stay proceedings and refer or report the pendency of the action to the CJ, who may transfer the suit to the appropriate venue.
Commencement in a wrong venue does not render action a nullify, and Def cannot use this as basis to set aside Writ of Summons rather raise an objection as prescribed.
What is the effect of a judgment before appearance is entered
.A judgment before appearance is entered means that the defendant has work to do. Oder 9 r 6 bars a defendant from entering appearance after judgment bas been made. The effect is that the D will have to apply on notice to set aside the default judgment and THEN seek leave to enter later appearance.
Can a defendant enter appearance at any time? And what happens to the Statement of Defence filing then?
Yes and No. Yes, with leave of the court a D can enter appearance at any time. Though Order 9 r 6, after the 8 days has expired, a D may proceed to file an appearance out of the time provided no judgment has been entered against him/her.
The limitation is that after filing appearance out of time, the D shall NOT file a defence unless the court orders so. Order 9 r 6(2)
WHEN CAN A DEFENDANT FILE TO SET ASIDE A WRIT OF SUMMONS?
A defendant may file to set aside a writ of summons at any time before entering appearance (within the 8 days by Order 9(1) or any period prescribed by the court).
However if Defendant enters conditional appearance BEFORE filing to set aside the writ, the defendant has 14 days within with to seek leave to set aside the write. During this 14 days, if the D does not apply, the conditional metamorphoses to unconditional appearance.
Amissah Abadoo v. Abadoo
What case is used for conditional appearance metamorphosing into unconditional appearance?
Amissah Abadoo v. Abadoo
WHAT MAY A DEFENDANT DO WHERE A WRIT DISCLOSES NO CAUSE OF ACTION
A Def may file to strike out the writ if it contains no cause of action. A defendant may not enter conditional appearance because a writ discloses no COA; instead the right remedy is to file a motion to dismiss the action per Order 11 R 18.
Ghana Muslim Representative Council (GMRC) v. Salifu (1975)
