MOHAMMED SINARE ETC. vs. DR. E. AYITEY-SMITH [2004]DLCA6521

Date	2004-03-26
Suit No.	CIVIL APPEAL NO. 21/2003.
Citation No.	[2004]DLCA6521

LARTEY J. A. (PRESIDING)

ANSAH J. A.

MRS AKOTO-DAMFO J.A

KENNETH KUDJORDIE FOR APPELLANT

JOSEPH TURKSON FOR RESPONDENT

[2004]DLCA6521
																																						<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" >MOHAMMED
SINARE ETC.<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>DR. E.
AYITEY-SMITH.<o:p></o:p>(DEFENDANT/RESPONDENT)<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;
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. 21/2003.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 26TH MARCH, 2004<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">JOSEPH TURKSON FOR
RESPONDENT. <o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;mso-outline-level:1;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 0in 0in">LARTEY J. A. (PRESIDING),
ANSAH J. A., MRS AKOTO-DAMFO J.A.<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">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;mso-outline-level:1;border:none;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>ANSAH,
J.A. <o:p></o:p>On
23rd March 2001, the Circuit Court, Accra, entered judgment in this case in
favor of the defendant and awarded ¢2 million for damages upon his statement of
defense and counterclaim. The suit centered on a claim of ownership of a piece
of land in Accra. <o:p></o:p>The
facts that resulted in the judgment were that at the summons for directions,
the court appointed a Government Surveyor to survey the area in dispute and
submit a report on it. The parties were to bear the cost involved. Whereas the
defendant paid his portion, the plaintiff did not and the court proceeded to
strike out the plaintiff's writ on account of this failure to pay. The
defendant then went on to prosecute his counterclaim and gave evidence in
support of his case. <o:p></o:p>In
the course of the proceedings, the plaintiff died and the defendant applied for
an order for his (deceased') wife to be substituted for him in a motion filed
on 24/6/99. It is not clear from the record when the application was heard or
granted. On 4th august 1999 however, a hearing notice was prepared for service
on Salma Sinare, the wife of the deceased plaintiff, informing her that the
hearing of the matter had been fixed for 19th August 1999. A certificate of
service of this hearing notice stated that it was served on Salma by serving a
copy thereof on the co-defendant personally at Nima. Who was that co-defendant,
as there was nothing on the record to show any such party in the proceedings? I
think Salma ought to be served personally with the hearing notice, especially
when she did not apply for the order of substitution. Under the circumstances,
the service on a non-existing co-defendant instead of her as certified, was
wrong, null and void. No wonder Salma never appeared in court till 18/10/2000
when she did. Nothing shows from the record what happened on that day but there
was another notice meant for her that the hearing had been adjourned to
14/11/2000. This time the certificate of service had it that Salma was served
by serving a copy of the notice through the sister Jummai personally at Nima,
Accra. Why and under what authority Jummai was served was not explained or made
clear to the court. <o:p></o:p>On
the 14th November 2000, Salma was absent from court and there was a further
adjournment to 11/12/2000 for hearing. On that day when she absented herself
from court once again, the matter was adjourned sine die. <o:p></o:p>Then
on 16th February 2001, it appeared the plaintiff moved a motion for substituted
service of the hearing notice. Paragraph 3 of an affidavit in support stated
that, "Attempts made to effect Hearing Notices on the plaintiff have been
futile, and the plaintiff has refused to attend court". Counsel for the
defendant applicant prayed the court for an order to serve the plaintiff by
'posting the process on the Notice Board and the last known place of abode of
the plaintiff for 14 days'. The court granted the application and ordered the
plaintiff to be served by substitution in the manner proposed by the defendant
applicant for 14 days. The matter was adjourned for hearing on 23/3/2001. There
is no indication on the record of compliance with the court order. I think
there should have been proof that they were, so as to satisfy the court that
indeed the plaintiff was served. It is only when there was that proof that it
could be said the plaintiff had been served albeit by substitution which was as
good as personal service. <o:p></o:p>On
that day, i.e 32/3/2001, the plaintiff did not appear in court and the
defendant proceeded to give his evidence in chief at the end of which the court
entered the judgment aforesaid in his favour on his counterclaim. It is against
this judgment that this appeal has been brought. <o:p></o:p>The
original ground was that <o:p></o:p>"(a)
The learned trial judge erred in not ensuring that there is proof of service of
the court processes on the plaintiff before proceeding to take defendant's
evidence and gave judgment for him." The following additional grounds were
subsequen</main>