AZINOGO vs. W. E. AUGUSTT AND CO. LTD. [1985]DLCA545

Date	1985-12-12
Suit No.
Citation No.	[1985]DLCA545

AMPIAH J.A

LAMPTEY J.A

ESSIEM J.A.

SENEYAH FOR THE DEFENDANT-APPELLANT.

AUGUSTT FOR KOM FOR THE PLAINTIFF-RESPONDENT.

[1985]DLCA545
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													<main id="main" class="content" style="min-height: 60rem" >AZINOGO <o:p></o:p>vs. <o:p></o:p>W. E. AUGUSTT AND CO. LTD. <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1989-90] 2 GLR 278<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 DECEMBER
1989<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">

SENEYAH FOR THE DEFENDANT-APPELLANT.<o:p></o:p>

AUGUSTT FOR KOM FOR THE PLAINTIFF-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 0in 0in">

AMPIAH, LAMPTEY AND ESSIEM JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMPIAH J.A.<o:p></o:p>This is
an appeal against the decision of the High Court, Ho dated 4 December 1987. On
30 September 1987 the plaintiff-company took out a writ of summons against the
defendant for,<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">“(1). . .
the immediate payment of the sum of ¢652,000 being balance of the purchase
price of 297 bags of granulated white sugar purchased by the defendant.
Interest on the said sum at the rate of 26 per cent from 24 April 1987 up to
the date of judgment.”<o:p></o:p><o:p>&nbsp;</o:p>This writ
which was accompanied with a statement of claim was served on the defendant on
1 October 1987. A search made on 27 November 1987 at the court’s registry
revealed that no defence had been filed as at that date. On the same date the
plaintiff-company applied by motion on notice for summary judgment. The return
date was fixed at 4 December 1987. On that date the plaintiff-company moved the
court for judgment. The bailiff’s certificate of services showed that the
defendant was served with the motion for judgment on 1 December 1987. No
affidavit in opposition was filed and, up to that date no statement of defence
had been filed. The court accordingly gave judgment for the plaintiff-company
for the sum of ¢434,300 with costs of ¢30,000. It also ordered that the
defendant pay interest at the bank rate on the judgment debt from 24 April 1987
to the date of judgment. The defendant has appealed against that judgment.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>It should
be stated that up to the time of hearing the appeal, the defendant herein had
not filed any defence to the plaintiff’s claim. The defendant has filed many
grounds of appeal but, I think, the gravamen of his complaint is that, “the
court erred in granting an application which was improperly before the court.”
The other matters raised in the other grounds of appeal, I think, are matters
which the defendant should have raised in the court below if she had filed a
statement of defence or an affidavit in opposition to the application for
summary judgment.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant relied on rule 2 (3) of Order 14 of the High Court (Civil Procedure)
Rules, 1954 (L.N. 140A) as amended by the High Court (Civil Procedure)
(Amendment) (No. 2) Rules, 1977 (L.I. 1129).<o:p></o:p><o:p>&nbsp;</o:p>It is the
contention of counsel for the defendant that since the plaintiff chose to come
under Order 14 of L.N. 140A, she was under a duty to comply with the provision
of that Order strictly. He said further that under rule 2 of Order 14 as
amended, the defendant was entitled to four clear days, notice of the
application for judgment. In the instant case, however, she was given only two
clear days notice. The motion was served on her on 1 December 1987 for hearing
on 4 December 1987. He contended therefore that the application was not
properly before the judge who should have satisfied himself that the requisite
notice had been given before pronouncing on the judgment; the judge failed to
do so. That failure rendered the proceedings null and void and the defendant
was entitled ex debito justitiae to have the judgment vacated.<o:p></o:p>Order 14,
r. 2 (3) as amended by L.I. 1129 provides that on an application for summary
judgment:<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">“(3) The
summons, a copy of the affidavit in support and of any exhibit referred to
therein must be served on the defendant not less than 4 clear days before the
return day.”<o:p></o:p></main>