ROYAL ANKOBRA GOLDFIELDS LTD. vs. JAMES ANDERSON & OR. [2003]DLCA6939

Date	2003-07-03
Suit No.	CIVIL APPEAL NO.: 28/2002
Citation No.	[2003]DLCA6939

FARKYE JA (PRESIDING)

ANSAH JA

ASARE-KORANG JA

[2003]DLCA6939
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													<main id="main" class="content" style="min-height: 60rem" >ROYAL ANKOBRA GOLDFIELDS LTD.<o:p></o:p>vs.<o:p></o:p>JAMES ANDERSON &amp; OR.<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO.:&nbsp; 28/2002&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; &nbsp; &nbsp; DATE: 3RD JULY, 2003<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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CORAM: &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;&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;FARKYE
JA (PRESIDING), ANSAH JA, ASARE-KORANG JA<o:p></o:p>

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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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mso-padding-between:1.0pt">JUDGMENT<o:p></o:p>

</div>ANSAH,
JA:<o:p></o:p>&nbsp;The plaintiff in the court below sued for the
specific performance of an agreement for the sale of goods sold and delivered
which transaction the defendants failed to honor. He also sought an order
authorizing the 3rd , 4th, and 5th defendants to release or pay the plaintiff
any checks or monies standing in the name or credit of the first defendant with
the Social Security Bank Limited, Ring Road Central Branch, Accra, in
satisfaction of the balance of the purchase price of the goods sold by the
plaintiff to the 1st and 2nd defendants. The plaintiff next sought an interim
order to freeze the bank account of the 1st defendant with the said bank,
prevent any transfer, payment or withdrawal by the defendants of any check or
monies deposited with or standing to the credit of the 1st defendant, pending
the determination of this action. There was an alternative claim for the return
of all the quantity of gold the plaintiff sold to the 1st and 2nd defendants
that the defendants failed to pay for. As the record of proceedings had it, the
plaintiff discontinued the action against the 3rd, 4th and 5th defendants. <o:p></o:p>The
facts that gave rise to the action were, as per the statement of claim, that
pursuant to an agreement between the plaintiff company, the 1st and 2nd defendants
for the purchase of One Hundred Kilograms of AU gold at a unit price of $7,300
per kilogram, a total of $730.000. The plaintiff deposited the entire
consignment with the 3rd defendant company. The 4th and 5th defendants gave
samples of the gold to the 1st and the 2nd defendants to be tested and weighed.
Thereafter, they made a part payment of $60,000 to the plaintiff and promised
to pay the balance of $670,000 as soon as the consignment was handed over to
them. The 3rd defendant acknowledged the receipt of a check for the balance
from the 1st and 2nd defendants and guaranteed the payment of the same to the
plaintiff as soon as the consignment was delivered to the 1st and 2nd
defendants. All the parties signed an undertaking to that effect, and in consequence
of that, the plaintiff consented to the release of the whole consignment of
gold to the 1st and 2nd defendants by the 3rd defendant. The 3rd and 4th
defendants failed to either release the check or pay the balance of the
purchase price to the plaintiff. The 1st and 2nd defendants had taken delivery
of the gold; they could not be traced and were preparing to abscond the
jurisdiction without settling the unpaid balance. They were also trying to stop
the payment of the check and monies they had paid into the 1st defendant's
account with the 3rd defendant. To forestall these the plaintiff took this
action for the remedies outlined above. <o:p></o:p>When
the defendants defaulted in entering an appearance, the plaintiff applied for
an order of default judgment. The application succeeded against the 1st and 2nd
defendants, but was discontinued against the 3rd defendant for it had entered
appearance at the time of hearing the application. The plaintiff next applied
for summary judgment against the 3rd defendant. The trial judge dismissed the
application. <o:p></o:p>Meanwhile,
the 1st defendant succeeded in setting aside the default judgment against it
only to face another application for an order for summary judgment filed
against it on 19 March 2002 on the grounds that the 1st defendant had no
defense to the action. The trial court granted the application and entered
summary judgment for the plaintiff and ordered the specific performance of the
agreement in question. It is against this judgment that this appeal has been
brought. The ground proffered was the general ground that the judgment was
against the weight of evidence. <o:p></o:p>The
first defendant-appellant (thereinafter called simply the appellant) adopted
the curious procedure of substituting this ground of appeal with others not covered
in the notice of appeal. This is permissible but with the leave of court under
Rule 8 (7) and (8) of the Court of Appeal Rules, 1997, CI 19. The new grounds
of appeal became as follows:<o:p></o:p>&nbsp;1. The judge erred in law in ignoring the
jurisdictional objection raised on behalf of 1st defendant.<o:p></o:p>&nbsp;2. The judge erred in holding that the first
defendant was served with the Statement of claim. <o:p></o:p>3.
The judge erred in law in purporting to regularize the conditional appearance
of the 1st defendant without offering him an opportunity to react to it in any
way, and proceeded to enter summary judgment against him. <o:p></o:p>4.
The judge was incompetent or had no power to regularize the irregular
appearance. <o:p></o:p>5.
The judge erred in law when he glossed over or disregarded substantive issues
of fact, which were joined on the record.<o:p></o:p>&nbsp;6. The judge erred in law when he held that
Exhibit A attached to the Summons for Summary Judgment did not offend against
the Contracts Act, and, similarly, that it was not subject to the Stamp Act.<o:p></o:p></s</main>