BRAKOWAAH vs. AWUAKYEWAH AND GYASI [1961]DLSC869

Date	1961-03-17
Suit No.
Citation No.	[1961]DLSC869

KORSAH C.J. JSC

VAN LARE JSC

SARKODEE-ADOO JSC

DR. J.B. DANQUAH FOR THE APPELLANT

J.B. SHORT FOR THE RESPONDENT

[1961]DLSC869
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&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;BRAKOWAAH

&nbsp;[SUPREME COURT]

[1961] GLR 164

DATE: 17TH MARCH, 1961.

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COUNSEL:&nbsp;&nbsp;

DR.
J.B. DANQUAH FOR THE APPELLANT.

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KORSAH C.J., VAN LARE AND
SARKODEE-ADOO, JJ.S.C.

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&nbsp;

JUDGMENT OF VAN LARE J.S.C.

The plaintiff (the respondent herein) was a defendant in a suit
instituted by the first defendant in the present case before the North Birim
Court “A” in the year 1953, against her and another by the name of Kwame Noah
for a debt due and owing. Judgment was purported to have been entered by the
court against both defendants in that suit and following a fi. fa. the
plaintiff’s cocoa farm was attached and sold in execution of the purported
decree against her. The said property was bought by the second defendant in the
present case. By this action before the said native court instituted in July,
1954, the plaintiff challenges the judgment recovered against her on the ground
that she had not been served with any writ of summons concerning the matter and
was not present at the hearing and that therefore the judgment entered against
her was in the circumstances null and void of effect, and could not warrant the
sale of her cocoa farm, the subject-matter in dispute, concerning which she
seeks a declaration of title. It is common ground that the only issue for
determination in this matter was whether the plaintiff was served with the writ
of summons which was numbered as 642/53 and exhibited as exhibit A in these
proceedings.

This is the second time that this matter has reached this court,
an earlier appeal having been allowed by special leave by the predecessor of
this court, i.e., the West African Court of Appeal, which set aside a judgment
in favour of the defendants and the case was remitted to the native court for a
re-hearing in whole on the grounds that “evidence as to service of the writ of
summons in the case against the plaintiff [was] unsatisfactory, and that the
native court misdirected itself as to proof of service”.

It was observed that in the abortive proceedings the bailiff or
person entrusted with service of the writ of summons did not give evidence but
the court appeared to have taken notice of some scribbled notes, not quite
conclusive of service on the plaintiff in the instant case, appearing on the summons
directed for service on the other party as evidence of service on the
plaintiff. Following an indication in the judgment of this court remitting the
case as to the best evidence required with respect to proof of service, the
native court in the present proceedings heard the bailiff. He deposed that he
effected service on the plaintiff, who in no uncertain terms denied the same,
alleging that she had been absent from the place where service was supposed to
have been effected. Not only in this, but also as to non-service of the writ of
summons in the case, she was supported by the president of the panel that tried
the case, and also by the other party Noah who deposed that it was made known
at the trial that as the plaintiff had not been served, judgment was to be
given against him alone. The trial native court, however, found that the
plaintiff had been served.

On appeal to the Land Court, Adumua-Bossman J., in his
characteristic manner went through the whole of the evidence which he sifted
and analysed with great and meticulous care; he reviewed the bailiff’s evidence
in the light of the other evidence such as that of the president of the panel
which tried the original case between the parties, the absence of an issue of a
writ of summons directed to the plaintiff, the scribbled notes of the purported
proof of service which leaves one with a grave air of suspicion of foul play,
the evidence of Noah concerning the whereabouts of the plaintiff at all times
material to the alleged service on her. It must also be pointed out that a
scrutiny of the original notes of proceedings in the record book exhibited in
the present proceedings clearly bears out the testimony of the president of the
panel, Yiadom Bekoe, the Omanhene’s Asafohene, when he deposed as follows:

“I told the plaintiff that is to say defendant in this present
case, that as Afua Brakowaah has not been served with the civil summons each
time we sit on the case it will worry [her] Afua Awuakyewah, so if she so
wishes judgment can be delivered against Kwame Noah alone. Defendant [i.e.,]
Afua Awuakyewah agreed and judgment was delivered against Kwame Noah alone.”