ADEL DAKMARK (PLAINTIFF) vs. DANIEL OFORI ATTAH (DEFENDANT) [2001]DLHC7079

Date	2001-10-18
Suit No.	SUIT NO. L19/99
Citation No.	[2001]DLHC7079

HIS LORDSHIP VICTOR OFOE J.

[2001]DLHC7079
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													<main id="main" class="content" style="min-height: 60rem" >ADEL DAKMARK<o:p></o:p>(PLAINTIFF)<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
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color:#00B0F0"><o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
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color:#00B0F0">vs.<o:p></o:p>DANIEL OFORI ATTAH<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">SUIT
NO. L19/99&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 18TH OCTOBER, 2001<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;
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HIS LORDSHIP VICTOR OFOE J.<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;
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</div>The
applicant is seeking to set a side the attachment of Concrete House/Citizens
Court Tudu in execution of a consent judgment of the Court dated 14th June
2000. In an earlier ruling of this court, I took the position that a primary
issue that needed to be determined for the grant or refuse of this application
was whether the Court order of substituted service was adhered to before the
execution process was mounted on the defendant. Did the bailiff effect service
as directed by the Court? Mr. Lamptey, the bailiff was called to testify. Lets
first look at the processes filed. The Court's order was that the motion for
leave to levy execution of the consent judgment should be served by
substitution by posting on House No. 180 Borstal Avenue Ridge. When the
defendant filed a search at the Court registry on the 8th of March 2001 asking
whether there has been proof of service by substitution of the motion for leave
by posting on House No. 180 Borstal Avenue Roman Ridge the response was no. By
their response the registry was saying that as at the 8th of March 2001 the
service has not been affected. But when the plaintiff also filed a search on
the 5th of June 2001 the information he had was that service was affected on
the 13th of November 2000. It was when the defendant got this information on
the 8th of March 2001 that the service had not been effected as directed by the
Court that he filed his motion to set aside the execution on the 5th of April,
2001 and this was served on counsel for the plaintiff on the 5th of April 2001
his client was able to respond to the motion on the 5th of June, 2001, the same
date that they filed their search. It would appear that they had not received
the search report when they filed their affidavit in opposition to the motion
on the 5th of June that is why they could not allude to the result of their
search in the affidavit of the 5th of June but did that on the 6th of June in a
supplementary affidavit. The case docket shows there are two affidavit of
posting one indicating that the bailiff was entrusted with the order for
substituted service on the 9th of November 2000 and that he effected the
service by substitution on the 13th day of November 2000. But when did he swear
this affidavit of posting? He did this on the 21st of May 2001 that is almost 6
months after the alleged service and after the defendant had filed his motion
to set aside the execution. If as disclosed in the affidavit of service the
service was sworn to on the 21st of May 2001 it would appear that at the time
the plaintiff got the order to possess the property there had not been prove of
service as directed by the Court. If there had not been prove of service then
why did the plaintiff proceed to go into execution? The second affidavit of
service filed by the same bailiff shows that he was entrusted with the order
for substituted service and the motion to levy execution of the 13th November
2000 and he affected the service the same day. This affidavit shows that he
proved service on the 29th of November 2000. Apart from this date of service,
that is, 13th November 2000 the two affidavits contain different particulars.
Why does the same person swear to two affidavits sworn on two different days,
one as far as 21st May 2001 when the service was allegedly made 13th November
2000? Was there some form of panic created when the defendant filed his motion
and it was served on the plaintiff? Was it that there was no service at all but
a resemblance of service had to be created, hence the confusion? That there was
service by substitution as ordered by the court, the court bailiff was called
to testify. This is what he said: <o:p></o:p>"I am Samuel Sackey Lamptey, I am
a bailiff attached to the High Court. I know the plaintiff. I saw the defendant
only today. I know why I am in Court. I am to explain the difference in the
proof of service. I was given an order for substituted service and consent
judgment for posting at the High Court and the office. I went and made the
posting at the High Court. I went and served the other copy in his house on
somebody also there. I came back and proved my service. Later I got to know the
docket was missing and there was no proof on the temporary docket. When the
docket got lost they were asked to bring their proceedings for a temporal
docket to be opened. Until last week I was informed by the Chief Registrar that
there has been different proof of service and the dates are different. I told
him if there is any change of date then it might have arisen when I was
preparing a temporal docket. In the original docket the posting was done on
13th November 2000. On the temporal jacket I stated, I posted it 13th November
2000". <o:p></o:p>Lamptey
did not testify that he did the posting of the process on the abode, House No.
180 Borstal Avenue of the defendant. He said "I went and made the posting
at the High Court. I went and served the other copy in his house on somebody
else there ..." Is this the order of the Court? Certainly not. In his
cross examination by counsel for the plaintiff he was led into answering that
he posted on House No. 180 Borstal Avenue, the relevant part of the cross
examination was like this: <o:p></o:p>"Q. And by the order of the court
you went to serve a copy of that motion one on the notice board of the High
Court. <o:p></o:p>A. Yes. <o:p></o:p>Q. And a copy of the same process at
House No. 180 Borstal Avenue. <o:p></o:p>A. That is true. <o:p></o:p>Q. When did you effect the service at
House No. 180? <o:p></o:p><</main>