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…