SC Quashes Default Judgement Against Prof Avoke

By Castro Zangina-Tong

By a unanimous decision, the Supreme Court yesterday quashed the Default Judgement of the Winneba High Court which was delivered by Mr Justice George Atto Mill-Graves in favour of Mr. Supi Kofi Kwayera on May 2, 2018, against Professor Mawutor Avoke, former Vice Chancellor of the University of Education, Winneba, in the Central Region.

This followed an application for certiorari filed by Professor Avoke at the Apex Court for the purpose of quashing the High Court's judgement of the afore-stated date as a result of two factors namely, 'Error of Law on the face of the record and Breach of the Rules of Natural Justice.'

The Supreme Court, therefore, granted the application and ordered that "the judgement of the Winneba High Court dated May 2, 2018, was hereby quashed".

No cost was awarded.

The five-member panel of judges comprising Mr. Justice Jones Dotse, Mrs. Justice Vida Akoto Bamfo, Mr. Justice Anthony A. Benin, Mr. Justice Yaw Appau and Mr. Justice Gabriel Pwamang held that the "trial court seriously erred for failing to take evidence and or legal arguments from the 1st Interested Party (Mr. Kwayera) in proof of his declaratory reliefs before entering judgement against the 2nd Interested Party (Prof. Avoke) and 3rd Interested Party (i.e. Minister of Education) in his (Mr. Kwayera's) favour on same in default of both appearance and defence for which reason its (High Court) decision must not be made to stand".

"This is a clear case where certiorari must lie," Mr. Justice Dotse said when he read the court's decision.

It would be recalled that Mr. Kofi Kwayera also referred to as the 1st Defendant filed a Writ of Summons at the Winneba High Court on February 20, 2018, seeking some declaratory reliefs against Professor Mawutor Avoke and the Minister of Education, otherwise referred to as the 2nd and 3rd Interested Parties respectively.

He (Mr. Kwayera) sought the following reliefs:

"A declaration that the extension of the mandate of the Governing Council of the University of Education, Winneba (1st Defendant) by the 2nd Defendant (Prof. Avoke) to stay in office to perform such functions as properly appointed Council was in breach of Section 8 of Act 672, that no authority or institution of state has any power to extend the tenure of a member of the Governing Council of the UEW unless such extension is in accordance with Act 672, and also a declaration that all appointments made by the defunct Governing Council which constituted themselves as Governing Council of the 1st Defendant (UEW) by virtue of the directives of the 2nd Defendant are null or void and of no legal effect, and that all decisions taken by the de facto body of persons who constituted themselves as Governing Council was null, void and of no effect."

Subsequent to the issuance of the writ, Mr. Kwayera conducted a search at the Registry of the High Court which revealed that the Writ of Summons and Statement of Claim had been served on Prof. Avoke but not the Minister of Education (3rd Interested Party).

Notwithstanding this clear evidence of non-service Mr. Kwayera proceeded to file a motion for judgement in default of defence against the 2nd and 3rd Interested Parties while relying on the same search results which indicated that the Minister of Education had not been served with the Writ of Summons and statement of claim.

The facts stated that when the motion was slated for hearing on May 2, 2018, counsel for Mr. Kwayera, moved the motion for judgement in default of Defence only in terms of the motion paper and its accompanying affidavit.

However, the High Court, without requiring Mr. Kwayera to prove his case and without hearing any evidence or legal argument from the 1st Interested Party (UEW), granted all the declaratory reliefs endorsed on his (Kwayera) Writ of Summons and reasons assigned by the trial judge in making the declaratory orders was that "the 2nd and 3rd Interested Parties had failed to file their Statement of Defence.

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