DO YOU HAVE A DEFENCE?
A defence to an action taken against you is necessary to prove or disprove the claims against you.
If you are served with a Writ of Summons and Statement of Claim, the laws stipulate a frame in which you must file a defence. If you fail to do so within the stipulated time, you are deemed to have accepted the claims of the Plaintiff and thereafter have no defence to the suit, matter or claim.
The Plaintiff in such an instance is entitled to bring an application or motion to court for judgement in lieu or in default of defence which application is filed with notice to you, the Defendant.
Upon receiving such notice, the Defendant, wishing to defend the action, must apply to the court for leave to defend the action, and attach a copy of your proposed defence. At the hearing of the Plaintiff’s application for judgement in Default of Defence, the proposed defence is perused and if it discloses a good defence or certain triable issues, the Defendant is granted leave to defend the action.
In AMALO VRS MARFO [1984-86] 2 GLR, 619, it was held that “ …as a rule, leave would be granted if the Applicant showed that he had a bona fide or probable defence or reasonable or fair grounds for setting up a defence or raised triable issues at
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- Bonafide or probable defence
- Reasonable or fair grounds for setting up defence
- Raised triable issues
A bare or mere assertion like “I have a good defence or set off or both against the Plaintiff’s action with a very high chance of success” is not enough to ground an application for leave to defend the action.
A Defence or triable issue must be disclosed on the face of the affidavit. The Applicant, seeking to set aside a judgement, must support his application with an “affidavit of merits”, ie an affidavit stating facts showing a defence on the merits.
See DJORBUA VRS POKU [1971] 1 G.L.R.
The Defendant must not only show by the affidavit in support of his application or by some other acceptable means that he had reasonable defence to the action but also that it would be unjust not to have the case decided on its merits.
Therefore the Defendant must show three (3) things;
- That he has a reasonable defence
- That it would be unjust not to have the case decided on the merits
- A reasonable explanation for his default which must demonstrate that he intended to obey the express command of the Writ , namely to enter an appearance within eight (8) days or file a defence within fourteen (14) days after service of the Writ on him but was prevented by unavoidable circumstances from so doing.
See BOTCHWAY AND ANOTHER VRS DANIESL AND OTHERS [1991] 2 GLR 262
The settled practice at the trial courts is that when a Statement of Defence is filed before a motion for judgement in default of defence is heard or moved, the trial judge has no jurisdiction to disregard a statement of defence on record when entertaining an application for judgement on default of defence.
See EX PARTE PORT HANDLING CO. LTD. Civil /J.S/23/2013, 30th October, 2013.