KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE. This is an appeal against a Judgment dated the 4th May, 1942, given by Fuad, J. in the Divisional Court at Cape Coast in favour of the plaintiff-respondent. The facts leading up to this judgment are thus narrated by the learned Judge:- “A suit was instituted by Nana Prah Agyinsiam IV. against George “Grant and Company of Sekondi and the Sirikyi of Bremen. The “claim was as follows:- “The plaintiff’s claim is for damages for trespass by the second “defendant as ‘Timber Headman’ and other workmen and “servants acting under the instructions of the first defendant, “said first defendant, together with other workmen and “servants acting under the instructions of the first defendant, “entered upon the plaintiff’s land known as ‘Bremen Lands’ “Situate in the Central Province of the Gold Coast Colony “and cut down thirty-two (32) timber trees without authority “From the plaintiff, The workmen and servants of the first “defendant are still on the land preparing and hauling “ timber manufactured from the said thirty -two (32) trees.
“2. The plaintiff further claims an Injunction restraining the “defendants, their servants and workmen from continuing “or otherwise repeating the wrongful acts complained of. “3. The plaintiff claims one hundred and fifty pounds (£150) “Special Damages and fifty pounds (£50) General Damages”. “The writ was issued on the 10th of February, 1942. It was served “on the 1st defendant on the 23rd of February and on the 2nd defendant “on the 25th of February. As the defendants came from Sekondi the “return date was fixed as late as the 30th of March. It was adjourned “on account of the Assizes to the 13th of April. Notice that the case “was to be adjourned to that date was given to the defendants prior “to the 30th of March and notice that it was adjourned to the 13th of “April was served personally on the 1st defendant on the 31st of March “and on the 2nd defendant on the 30th of March. On the 13th of April “the case was called. Mr. Korsah appeared for the plaintiff and Mr. “Brew, holding Mr. Awoonor Williams’s brief, appeared for the “defendants and applied for an adjournment as he was not ready to “proceed. The Court very reluctantly adjourned the case to the 4th “of May for hearing.
“The case was called on the 4th of May. Mr. Korsah appeared for “the plaintiff. There was no appearance for the defendants. Mr. “Korsah opened his case and the Court, after hearing the plaintiff and “his witnesses, gave judgment for the plaintiff for £48 damages and an “injunction.
On the 6th May, 1942, i.e., two days after the date of the judgment, the defendants filed an affidavit in the Divisional Court for an order to set aside the judgment. That application was made under Order 34. rule 5 of the third schedule to the Courts Ordinance (Cap. 4.) which reads: “Any judgment obtained against any party in the absence of such “party may on sufficient cause shown be set aside by the Court upon “such terms as may seem fit.”
The learned Judge in the Divisional Court, being of opinion that no sufficient cause had been shown, dismissed the application. It is principally against this dismissal that the present appeal is aimed, although in form, it is an appeal against the judgment of the 4th May.
The question of granting or dismissing the application was clearly one for the discretion of the Judge to whom it was made, and unless it can be shewn that he failed to exercise that discretion judicially, this Court will not interfere. Learned counsel for the appellants has argued that the discretion was not exercised judicially, but he has not carried us with him; on the contrary we are fully satisfied that there was ample justification for the learned Judge’s decision. Counsel attempted to take all the blame for non-appearance on the 4th May on to his own shoulders attributing it to an oversight of his in failing to enter the adjournment in his diary. But apart from this, the whole case bristles with indications that the defendant and his advisers were simply “playing for time” and doing all they could to delay the hearing of the action without disclosing any good defence on the merits. The ground of appeal based on the contention that the learned Judge in the Court below did not exercise his discretion Judicially in refusing the application fails, We find no substance in the other grounds of appeal filed, and need only add that we agree with the learned Trial Judge that the claim on the face of it was within the jurisdiction of the Court.
The appeal is dismissed with costs assessed at £22 198 0d.