Why entry of Conditional Appearance (without more) will not do!

The High Court (Civil Procedure) Rules 2004 (C.I 47) require a person against whom a writ of summons has been issued to file a notice of appearance in person or through a lawyer within 8 days. The appearance may be conditional or unconditional.

Some lawyers are however in the habit of entering conditional appearance anytime they receive a writ and then go to sleep. Their expectation is that by filing a conditional appearance, they will buy themselves more time to file a defence to the action. This write up will show that the reckoning of time within which to file a defence after filing a conditional or unconditional appearance do not differ.

Purpose of a conditional appearance

Order 9 Rule 7(2) states that:

A conditional appearance, except by a person sued as a partner of a firm in the name of that firm and served as a partner, is to be treated for all purposes as unconditional appearance UNLESS the defendant applies to the Court within the time limited for the purpose, for an order under Rule 8 and the Court makes an order under that rule (Emphasis mine).

Order 9 Rule 8 (referred to in Order 9 Rule 7(2)) deals with an application to set aside a writ on grounds that:

1. the writ or the service of the writ is defective;
2. the writ or the notice of the writ has not been served on the defendant; or
3. discharge any order that gives leave to serve the notice on the defendant outside the country.

According to Rule 8, these acts specified above ought to be carried out any time before filing an appearance or where a conditional appearance is filed, within 14 days after filing the conditional appearance. The purpose of the Order 9 Rule 8 was explained in the Supreme Court case of Republic v High Court, Accra; Ex parte Aryeetey (Ankrah Interested Party)[1]. The Court held that a conditional appearance is filed by a defendant who intends to object to the service of a writ or notice of a writ on him, or object to the jurisdiction of the court, or apply to the court to set aside the writ, or notice or the service thereof on the said defendant.

Erroneous view of the effect of Order 9 Rules 7 & 8

The effect of Order 9 Rule 8 has been misinterpreted vis-à-vis the time required for a defendant to file a defence to an action.  Order 11 Rule 2 provides that a defendant shall file a defence not later than 14 days after filing an appearance. Some lawyers interpret the combined effect of Order 11 Rule 2 and Order 9 Rules 7(2) & 8 to mean that, when a defendant is served with a writ of summons, by filing a conditional appearance the defendant has 14 days in addition to the 14 days within which a defendant is supposed to do the act contemplated under Order 9 Rule 8. So by this erroneous extrapolation, many lawyers think that a defendant has 28 days from the date they enter a conditional appearance to file a defence. This position is wrong.

Order 9 Rule 7(2) states that when a defendant files a conditional appearance, the defendant is mandated to make an application to set aside the writ or the service thereof or any of the other acts specified under Rule 8, otherwise the conditional appearance retroactively crystallizes into an unconditional appearance from the time it was filed. Time for filing a defence began running from the day the conditional appearance was filed. This therefore requires that the defendant to file a defence immediately before the expiration of the 14 days limited for filing a defence after filing an unconditional appearance. The duration limited for filing a defence after filing a conditional appearance is in effect, the same as the 14 days limited for a defendant to file a defence in a case where the defendant filed an unconditional appearance. Thus the effect in both types of appearance is the same.

The Court of Appeal in La Palm Beach & Anor. vrs. Nii Adjei Boahene II & Ors[2] held that where a party files a conditional appearance and fails to make an application under Rule 8, judgment in default of defence can be taken against that defendant upon the expiration of the 14 days specified under Rule 8.

In conclusion, a conditional appearance should only be used when a defendant intends to make an application to set aside a writ, a notice of writ or their service thereof or to discharge any order that gives leave to serve the notice on the defendant outside the country. A defendant may therefore be saddled with a judgment in default of defence if that defendant does not file a defence within 14 days after merely filing a conditional appearance without more. There is no strategic advantage for resorting to Order 9 Rule 8 if a defendant does not intend to bring the necessary application under the said order.

The author is an associate with AB Lexmall & Associates

[1] (2003-2004) SCGLR 398

[2] (Unreported judgment of the Court of Appeal dated 1^st June 2007 in Civil Appeal Suit No. H1/122/06)