DATSOMOR vs. LANG [1982]DLCA2116

Date	1982-05-18
Suit No.
Citation No.	[1982]DLCA2116

JIAGGE JA

EDUSEI JA

EDWARD WIREDU J.A.

E. D. KOM FOR APPELLANT-DEFENDANT.

NO APPEARANCE FOR OR ON BEHALF OF THE RESPONDENT-PLAINTIFFS.

[1982]DLCA2116
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													<main id="main" class="content" style="min-height: 60rem" >DATSOMOR <o:p></o:p>vs. <o:p></o:p>LANG <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1982-83] GLR 206<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:
18 MAY 1982<o:p></o:p>

</div>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">

E. D. KOM FOR APPELLANT-DEFENDANT. <o:p></o:p>

NO APPEARANCE FOR OR ON BEHALF OF THE
RESPONDENT-PLAINTIFFS.<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 0in 0in">

JIAGGE, EDUSEI AND EDWARD WIREDU JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF WIREDU J.A.<o:p></o:p>Wiredu
J.A. delivered the ruling of the court. On 5 November 1975, the
plaintiff-respondents to this appeal (hereafter referred to simply as the
plaintiffs) took out a writ of summons in the High Court, Accra against the
defendant-appellant (also hereafter referred to simply as the defendant) with
the following indorsement:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
plaintiffs’ claim is for recovery of possession of that piece or parcel of land
comprising approximately decimal 28 acres at Kpehe, Accra, the boundary whereof
commencing at GCG EP 8/48/14 thence follows a straight line in a true westerly
direction for a distance of 100 feet more or less thence follows a straight
line along the fence formerly belonging to the Wireless Station for a distance
of 106 feet more or less to the point of commencement.”<o:p></o:p><o:p>&nbsp;</o:p>The
defendant after entering a belated appearance filed a defence on 16 January
1976. After pleadings had closed, the plaintiffs took out a summons for
directions. On 9 February 1976 additional issues for trial were filed on behalf
of the defendant including a request for the appointment of a surveyor to
survey the disputed area.<o:p></o:p><o:p>&nbsp;</o:p>When the
summons came before the court for hearing on 10 February 1976 an objection was
taken by learned counsel for the plaintiffs to the request for the appointment
of a surveyor. The matter was not resolved and the case was adjourned to 17
February 1976. Proceedings of 17 February 1976 show that counsel for the
defendant asked and was granted leave by the court to withdraw from the case.
The summons was therefore not taken but was adjourned sine die.<o:p></o:p>On 18
February 1976, learned counsel for the plaintiffs moved the court under Order
10, r. 1 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) for an order
to serve the defendant with a motion for judgment under Order 40, r. 1
returnable on 26 February 1976, by substitution. The application for
substituted service was granted.<o:p></o:p><o:p>&nbsp;</o:p>Even
though the motion for judgment was to be moved on 26 February 1976 there is no
recorded proceedings of that day but on 17 March 1976 learned counsel for the
plaintiffs moved the court and successfully obtained a final judgment.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant made two unsuccessful attempts to have the judgment obtained against
him set aside. The last attempt was before Amate-Kisseih J. dated 14 March
1979. It is from this ruling of Amate-Kisseih J. refusing to set aside the
judgment of 17 March 1976, that the present appeal has been brought on two main
grounds. The grounds of appeal read:<o:p></o:p>(i) The
learned judge erred in refusing to set aside the judgment of Lamptey J. dated
17 March 1976 in view of the rules of natural justice and the known rules of
procedure operative after the close of pleadings. (ii) The learned judge failed
to appreciate the scope of Order 40, r. 1 of the High Court (Civil Procedure)<o:p></o:p>Rules,
1954 (LN 140A); had he done so, his ruling would have been different. Other
grounds to be filed on receipt of the record of proceedings.”<o:p></o:p><o:p>&nbsp;</o:p>