Y. K. QUARTEY vs. JOHN HAMMOND [1999]DLCA6779

Date	1999-12-23
Suit No.	CIVIL APPEAL NO. 17/99
Citation No.	[1999]DLCA6779

ESSILFIE-BONDZIE JA (PRESIDENT)

TWUMASI JA.

ARYEETEY JA.

MR. J.D. CLOTTEY-SEFA FOR DEFENDANT/APPELLANT

MR. ASUMA NELSON FOR THE PLAINTIFF/RESPONDENT

[1999]DLCA6779
																																						<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" >Y. K.
QUARTEY<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>JOHN HAMMOND<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p><o:p>&nbsp;</o:p>[COURT
OF APPEAL, ACCRA]<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">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL
APPEAL NO. 17/99&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;DATE: 23RD DECEMBER, 1999.<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
justify;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">MR. ASUMA NELSON FOR THE
PLAINTIFF/RESPONDENT<o:p></o:p>

ESSILFIE-BONDZIE JA (PRESIDENT),
TWUMASI JA., ARYEETEY JA.<o:p></o:p>

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

</div>ESSILFIE-BONDZIE
JA.: <o:p></o:p>The
facts in this appeal are simple and straight forward. The plaintiff took out
writ for declaration of title, recovery of possession of the land in dispute,
damages for trespass and perpetual injunction. The suit was instituted on the
19th July 1991. Pleadings were closed before the Circuit Court with the taking
of summons for Directions on the 29th January 1992. <o:p></o:p>Subsequently
there was on application for amendment of the title of the suit on the 24.3.92.
It is on record that there were on further proceedings from the 24.3.93 until
25.1.94 when plaintiff filed a motion ex-parte for substituted service. <o:p></o:p>In
his judgment the learned trial judge also buttressed these facts. He commenced
his judgement thus:— <o:p></o:p>“The
suit was instituted some where in 1991 and for no apparent reason went into
abeyance until June 1995 when counsel for the plaintiff caused it to be
reviewed.” <o:p></o:p>On
the 12th July 1994 however, the Court granted on ex-parte application for
substituted service filed by the plaintiff. In making the order for substituted
service the learned trail judge said:— <o:p></o:p>“By
Court <o:p></o:p>The
application granted as prayed for service of process can be effected in the
following manner:— <o:p></o:p>(1)
A copy to be posted on the notice board, 28th February Road Court complex,
Accra. <o:p></o:p>(2)
A copy to be posted on the wall of the structure of the land in dispute. <o:p></o:p>(3)
A copy to be posted on the Notice Board High Court, Accra. <o:p></o:p>(4)
A copy to be sent by Registered post to Barsbury Chambers, Accra, the Last
known address of Counsel for the defendant. Hearing notices to be posted should
read 18/8/94” <o:p></o:p>The
Record of proceedings disclosed that on the 6th day of July 1995, when the
Court assembled to hear the case neither the defendant nor his counsel were
present. The learned trial judge however proceeded to hear the suit by taking
evidence from the plaintiff. The plaintiff gave his evidence and closed his
case on the same day. The record indicates that the case was thereafter
adjourned to the 10/7/95 for the defendant to open his case. There was no order
that the defendant should be served with a hearing notice. There is also no
proof that the defendant was served with a notice that the case had been
adjourned for him to open his defense on the 10/7/95. On the 10/7/95 as it
should be expected neither the defendant nor his counsel appeared. The Court
nevertheless adjourned the case to the 28/7/95 for judgment. On the 26/7/95 the
learned judge gave judgment to the plaintiff on all his reliefs. <o:p></o:p>On
the 20/12/95 the defendant filed motion on notice to set aside the said
judgment. On the 14th March 1996 the trial judge dismissed the application.
This provoked the appeal in this Court. The defendant/appellant (who will
hereafter be referred to as the defendant) had challenged the Order refusing to
set aside the default judgment on a number of grounds. The main grounds, which
I consider relevant to this appeal, are firstly, Ground 1 of the additional grounds of appeal which reads:— <o:p></o:p>