SAM JONAH vs. LORD DUODU-KUMI [2003]DLSC2393

Date	2003-01-22
Suit No.	CIVIL APPEAL NO. 1/2003
Citation No.	[2003]DLSC2393

WIREDU C.J. (PRESIDING)

ACQUAH J.S.C

AKUFFO J.S.C

AFREH J.S.C

DR. TWUM J.S.C.

MR. AMARTEIFIO WITH MRS. AGNES TAGOE AND ALEX OWOO FOR THE APPELLANT

MR. BOSSMAN WITH HEWARD MILLS FOR RESPONDENT.

[2003]DLSC2393
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													<main id="main" class="content" style="min-height: 60rem" >SAM JONAH<o:p></o:p>vs.<o:p></o:p>LORD DUODU-KUMI<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. 1/2003<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:
22ND JANUARY, 2003.<o:p></o:p>

</div>COUNSEL<o:p></o:p>MR.
AMARTEIFIO WITH MRS. AGNES TAGOE AND ALEX OWOO FOR THE APPELLANT<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">

MR.
BOSSMAN WITH HEWARD MILLS FOR RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp; <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">

WIREDU,
C.J. (PRESIDING), ACQUAH, J.S.C., AKUFFO, J.S.C., AFREH, J.S.C., DR. TWUM,
J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>AKUFFO,
J.S.C.:<o:p></o:p>This
is an appeal from the judgement of the Court of Appeal, delivered on July 26th,
2001, which:—<o:p></o:p>a) granted the appeal of the
Respondent herein, <o:p></o:p>b) set aside the High Court’s summary
judgement and orders in suit no. 855/97, <o:p></o:p>c) dismissed the Appellant’s
application for Summary Judgement and <o:p></o:p>d) granted to the Respondent leave to
defend the action in the High Court. <o:p></o:p>Aside
from the usual ground that the judgement of the Court of Appeal was against the
weight of the evidence, the main ground for the appeal herein is that:—<o:p></o:p>The
Court of Appeal erred in law by dismissing the Appellant’s application for
Summary Judgement and granting the Respondent leave to defend, when the defence
filed by the Respondent clearly showed that he had no defence in law and no
possibility of a real defence on the questions of fact.<o:p></o:p>The
application on which the High Court made its decision was brought under Order
14 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), as amended by
L.I. 1129 of 1977, Rules 1 and 3(1) of which read as follows:—<o:p></o:p>“1. Where in an action begun by writ a
defendant has been served with a Statement of Claim and has entered an
appearance, the plaintiff may apply to the Court for judgement against him on
the ground that he has no defence to a claim included in the writ, or to a
particular part of such a claim, or that he has no defence to such claim or
part except as to the amount of any damages claimed.<o:p></o:p>3(1) A defendant may show cause
against the application by affidavit or otherwise to the satisfaction of the
Court”<o:p></o:p>The
objective of Order 14 is to facilitate the early conclusion of actions where it
is clear from the pleadings that the defendant therein has no cogent defence.
It is intended to ‘prevent a plaintiff being delayed when there is no fairly
arguable defence to be brought forward.” (See Halsbury’s Laws of England,
Fourth Edition, 516). What we are, therefore, required to do in this appeal is
to ascertain whether, on the totality of the pleadings and all matters before
the High Court at the moment it delivered the Summary Judgement, the Respondent
had, demonstrably, any defence, in law or on the available facts, such as would
justify his being granted leave to defend the Appellant’s claim.<o:p></o:p>At
the time the Court decided to grant the application, it had on its record the
Writ of Summons claiming an order of ejectment from property no. 109, East
Cantoments, Accra; rent arrears in the sum of $38,250.00 or its equivalent in
Cedis; interest on the rent arrears from 1st July 1996 up to the date of
payment and, mesne profits. There was also the Statement of Claim, the
affidavit in support of the Appellant’s application and the Statement of
Defence. Attached to the supporting affidavit (which simply confirmed the
averments contained in the Statement of Claim) were exhibits A and B which
were, respectively, a letter from the Group Legal Advisor/Company Secretary of
Unilever notifying the Respondent of the sale of the property to the Appellant,
and a letter from the solicitor for the Appellant to the Respondent, dated 12th
September, 1997. In the latter correspondence the solicitor informed the
Respondent of his breach of his tenancy by his failure to pay any rent since
July 1996, despite the Appellant’s demands and gave notice that the Respondent
must vacate the premises within 3 months. The letter also gave the Respondent
14 days within which to settle the arrears of rent due. The Respondent filed no
affidavit in opposition to the application but, rather, relied on his Statement
of Defence.<o:p></o:p>Looking
at the Statement of Claim (as amended on 24th July, 1998, pursuant to leave
granted on 13th July, 1998), the main thrust of the Appellant’s case was that
he purchased the property from its previous owner, Unilever Ghana Limited, who,
after the sale, by a letter dated 29th December 1995, informed the Respondent
of the transfer of ownership and requested him to attorned tenancy to the
Appellant. According to the Appellant, the Respondent duly attorned tenancy to
him by paying rent up to 30th July 1996. However, since 1st July 1996, the
Respondent had continued to occupy the premises without paying any rent,
despite the Appellant’s repeated demands for rent. Also according to the
Appellant, the rent at the time the Respondent attorned tenancy to him was the
Cedi equivalent of $2,125.00 per month.<o:p></o:p>By
his Statement of Defence, the Respondent contended that the sale of the
property was a sham and he, therefore, denied that the appellant is the owner
of the property. He, however, admitted in paragraph 4 that he is the tenant of
the premises as averred in paragraph 2 of the Statement of Claim. It appears to
us that the key portions of the Statement of Defence are paragraphs 3 and 5-9,
which read as follows:—<o:p></o:p>