WILSON vs. SMITH [1979]DLCA1123

Date	1979-05-12
Suit No.
Citation No.	[1979]DLCA1123

APALOO C.J.

ANIN JA

KORANTENG-ADDOW J.A.

JOE REINDORF FOR THE APPELLANT.

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT.

[1979]DLCA1123
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >WILSON <o:p></o:p>vs. <o:p></o:p>SMITH<o:p></o:p>[COURT OF APPEAL, ACCRA] <o:p></o:p>[1978] GLR 152<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
12 APRIL 1979<o:p></o:p>

</div><o:p>&nbsp;</o:p>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

JOE REINDORF FOR THE APPELLANT.<o:p></o:p>

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

APALOO C.J., ANIN AND KORANTENG-ADDOW JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO C.J.<o:p></o:p>On 12 August
1974, the respondent issued against the appellant, a specially indorsed writ
claiming the sum of ¢3,100 being balance of the sum of ¢5,000 which the
“plaintiff paid to the defendant for the supply of frozen imported fish and
which said fish the defendant failed to supply.” The writ was taken out on the
respondent’s behalf by her solicitor but the latter did not “indorse upon the
writ of summons the address of the plaintiff” as required by Order 4, r. 1 of
the High Court (Civil Procedure) Rules, 1954 (L.N. 140A).<o:p></o:p><o:p>&nbsp;</o:p>The writ
was served on the appellant by substituted service and on 14 November 1974, the
appellant entered appearance by his solicitor. On 2 December 1974, the
appellant filed a defence to the action and also filed a counterclaim. In
addition to the copy intended for the court, a copy was indorsed with the
address of the respondent’s solicitor and was clearly intended to be served on
him. On 11 February 1975, the respondent took out a summons for judgment under
Order 14, r. 1 and in the supporting affidavit sworn to by one Timothy Adewale,
the respondent’s solicitor’s clerk, it was deposed in paragraph 1 as follows,
“That I have the authority of the plaintiff to swear to this affidavit and that
the matters deposed to herein are within my knowledge information and belief as
evidenced by receipts and other letters in my possession.”<o:p></o:p><o:p>&nbsp;</o:p>The
summons came before the court on 25 February 1975, and the record shows that
neither the appellant nor his counsel appeared. The respondent’s counsel,
however, appeared in court and moved for judgment. That application was acceded
to and final judgment was entered in favour of the respondent for the amount
claimed with costs. On 27 February 1975, the appellant moved to set aside that
judgment and prayed for leave to defend or in the alternative, sought leave to
appeal to this court against that judgment on a number of grounds which I shall
presently examine. The court declined to set aside the judgment but granted
leave to appeal.<o:p></o:p>On the
appeal coming before us, Mr. Reindorf, counsel for the appellant, submitted
that the judgment was bad and infringed the procedural rules and ought to be
set aside. For this submission, counsel made three complaints, namely: firstly,
that the jurisdiction under Order 14, r. 1 of L.N. 140A was wrongly invoked
because the affidavit in support of the summons for judgment was sworn to by a
person who had no personal knowledge of the facts; secondly, at the date that
judgment was given, a statement of defence had been filed which raised triable
issues and that summary judgment ought not to have been given, and thirdly,
inasmuch as the respondent failed to indorse the respondent’s address on the
summons the writ was “irregular and therefore null and void.”<o:p></o:p><o:p>&nbsp;</o:p>The first
two points were in fact raised before the circuit judge unsuccessfully. In my
opinion, they were perfectly valid points of law and ought not to have been
rejected. In an application under the old Order 14, r. 1 of L.N. 140A for
summary judgment on a specially indorsed writ, it is provided that “the
plaintiff may on affidavit made by himself or by any other person who can swear
positively to the facts, verifying the cause of action . . . “This provision
clearly requires that the plaintiff or someone with personal knowledge of the
facts deposes to them. A solicitor’s clerk who comes to this knowledge from the
solicitor’s instructions is not such a person since his statement in the
affidavit would be hearsay.<o:p></o:p><o:p>&nbsp;</o:p>The
matter is really concluded by authority. In Accra Furniture and Rubber Foam
Co., Ltd. v. Indart S.P./A. of Rome [1973] 2 G.L.R. 289, C.A., this court
refused to accept a solicitor’s affidavit in support of an application for
summary judgment. The court </main>