MR. & MRS. JONAS ARYAN PAINTSIL vs. SULEMANA & ORS [2003]DLCA6529

Date	2003-12-18
Suit No.	CIVIL APPEAL NO. 109/2002
Citation No.	[2003]DLCA6529

OMARI-SASU J.A. [PRESIDING]

TWENEBOAH KODUAH J.A.

QUAYE J.A.

[2003]DLCA6529
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													<main id="main" class="content" style="min-height: 60rem" >MR. &amp;
MRS. JONAS ARYAN PAINTSIL<o:p></o:p>(PLAINTIFFS/
RESPONDENTS)<o:p></o:p>vs.<o:p></o:p>SULEMANA
&amp; ORS<o:p></o:p>(ONLY
1ST DEFENDANT IS APPEALING)<o:p></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;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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APPEAL NO. 109/2002&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
DECEMBER, 2003<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">OMARI-SASU, J.A.
[PRESIDING] TWENEBOAH KODUAH, J.A. AND QUAYE, J.A.<o:p></o:p>

</div>QUAYE,
J.A. <o:p></o:p>This
is an appeal from the ruling of the Circuit Court Accra, made on 18th July,
2001 by which the said court refused to set aside a default judgment in this
matter against the 1st defendant [appellant herein] on 2nd November, 1999. <o:p></o:p>In
order to make for a better understanding of this appeal, I consider it
necessary to recount the facts in brief. By their writ of summons filed on 1st
April 1999 the plaintiffs [who are presumably man and wife] sued the
defendants, numbering seven, with the appellant herein listed as the first
defendant. An endorsement of service of the writ together with the statement of
claim was made on the back page of the writ on 6th April, 1999 to show that of
the seven defendants only two, that is to say, the 3rd defendant Kofi Siaw and
the 6th defendant Kpakpo Somuah were served on 1st April 1999, the very date on
which the writ and the statement of claim were filed. The action was for the
recovery of possession of Land, perpetual unjunction and general damages for
trespass. On 14th April 1999 the Plaintiff filed a motion for an order for
substituted service to be effected on the 1st and 7th defendants. The
plaintiffs averred in the supporting affidavit, inter alia, that all the
Defendants had been served with the writ of summons and the statement of claim
except the 1st and 7th defendant. The trial Circuit Court granted the
application on 20th April, 1999. The order which was subsequently drawn up was
erroneously dated 21st March, 1999. It was to remain in force for twenty-one
days. By the success of the said application an order for substituted service,
it was understood and indeed expected that the 1st defendant was to be deemed
to have been served by [a] the delivery of the said processes to one Mr. Yartey
was alleged to be living nearest to the land in dispute and [b] by posting
copies of the said processes on the wall of the structure the 1st defendant was
erecting on the land in dispute for at least twenty one days. A subsequent
search which the plaintiff conducted in the Registry of the Circuit Court,
Accra filed on 21st May 1999 but responded to on 9th June, 1999 disclosed,
inter alia, that the 1st defendant was served with the writ of summons and
statement of claim on 21st April, 1999. Even though I have decided to limit
this judgment as much as possible to the 1st defendant/appellant, I find need
to digress briefly to mention that the search under consideration further
indicated that the 3rd defendant had entered an appearance, since 14th April,
1999. Neither the memorandum and notice of appearance, nor the statement of
defence allegedly filed by 3rd defendant, as borne out by the proceedings on
21st May, 2000 was included in the record before us. There is however a reply
to the 3rd Defendant's statement of defence and counter claim. <o:p></o:p>The
Reply was filed on 3rd April, 2000, the very date on which a summons for
directions was filed. <o:p></o:p>The
plaintiff, apparently fortified by the result of the search they conducted on
21st May, 1999 filed a motion ex-parte for default judgment under Order 13 rule
8 of the High Court [Civil Procedure] Rules [1954] [LN 140A] against the
defaulting defendants. On 2nd Novemeber, 1999 the 1st plaintiff Mr Jonas
Paintsil gave sworn evidence in open court after which judgment was entered in
favour of the plaintiffs granting all the reliefs indorsed on the writ of
summons and costs of ¢800,000.00 was awarded against each of the defendants but
excluding the 3rd, in favour of the plaintiffs. It appears that counsel for the
plaintiff's problems with service of court processes on the defendants was
revisited yet again when attempts were made to serve the defendants with notice
of entry of judgment. Accordingly he filed another motion for an order for
substituted service on 29th June 2000. It was granted by the court, as prayed,
on 6th July, 2000 and was made valid for fourteen days. A search conducted on
behalf of the 1st defendant/appellant on 7th August, 2000 showed that the writ
of summons, the statement of claim and the notice of entry of judgment were
served on the 1st defendant/appellant, and a second search by the 1st
defendant/appellant on 9th August 2000 indicated the mode of the alleged
service to be by "posting on the wall structure of 1st defendant".
There was yet another search, this time, at the instance of the plaintiff, on
10th August, 2000, and this search gave the date of service to be 15th July,
2000. Upon the strength of this information, the plaintiffs sought leave of the
trial court for a writ of possession. Leave was accordingly granted on 11th September,
2000 and the plaintiffs acted swiftly by, inter alia, demolishing the 1st
defendant’s building supposedly on the disputed land. When the 1st
defendant/appellant woke up to what had befallen his building, he entered an
appearance to the action on 3rd January, 2001 and on the same day applied to
set aside the entry of the default judgment. The 1st defendant/appellant’s
motion was based upon his alleged absolute ignorance about the action filed by
the plaintiffs’ and all the processes and proceedings taken therein leading to
the demolition of his house. After the plaintiffs had duly filed their
affidavit in opposition, a date was fixed to hear the motion. Upon the record,
counsel for the appellant made his submissions viva voce to the Court on 16th
March, 2001. At the end thereof, the matter was adjourned until 6th April, 2001
for counsel for the plaintiffs to reply. On 4th April, 2001 counsel for the
plaintiffs filed what they titled, supplementary affidavit of the plaintiffs in
reply. This step by the plaintiffs was contrary to the procedure then being
f</main>