BARIMA PROF AZUMAH NELSON & ANOR vs. COLLINS OTOO & ORS. [2005]DLCA6654

Date	2005-02-11
Suit No.	H1/152/2004
Citation No.	[2005]DLCA6654

OWUSU J.A. [PRESIDING]

PIESARE J.A.

APALOO J.A

CHARLES TETTEH FOR EKOW AWOONOR FOR APPELLANTS

YAW OPPONG WITH NII BADDOO FOR A. AMARTEIFIO FOR RESPONDENTS.

[2005]DLCA6654
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													<main id="main" class="content" style="min-height: 60rem" >BARIMA PROF AZUMAH
NELSON &amp; ANOR<o:p></o:p>vs.<o:p></o:p>COLLINS OTOO &amp; ORS.<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">

H1/152/2004&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 11TH FEBRUARY, 2005.<o:p></o:p>

YAW
OPPONG WITH NII BADDOO FOR A. AMARTEIFIO FOR RESPONDENTS.<o:p></o:p>

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

</div>APALOO. J.A. <o:p></o:p>This
is an appeal from the High Court Accra presided over by his Lordship Justice J.
K. Ebiasah. The judgment was dated 31st January, 2003. The claim of the
Plaintiff/Respondent at the Court below was for a refund of the sums of:— <o:p></o:p>[a]&nbsp;&nbsp;&nbsp; US $12,225.00 <o:p></o:p>[b]&nbsp;&nbsp; £13,000.00 <o:p></o:p>being
monies Plaintiff/Respondent advanced to the Defendant/Appellant at
Defendant/Appellant's request but which Defendant/Appellant refused or failed
to pay despite persistent demands made on him for payment. <o:p></o:p>The
writ was endorsed with payment for interest at the prevailing Bank rate from
the dates the monies were paid to the Defendant/Appellant. <o:p></o:p>The
Defendant/Appellant appeared to the writ, filed a defence and counter claimed
for the following:— <o:p></o:p>[a]&nbsp;&nbsp; The return of 407 drums of alcohol. <o:p></o:p>[b]&nbsp;&nbsp; ¢53,807,799.00 <o:p></o:p>[c]&nbsp;&nbsp; $2,000.00. <o:p></o:p>as
monies paid to the Plaintiff/Respondent at his request or on his behalf by the
Defendant/Appellant but which Plaintiff/Respondent neglected, failed or refused
to settle when persistent demands were made for the same.&nbsp; The counter claim was equally endorsed with
payment of interest. <o:p></o:p>Although
pleadings had not closed the Plaintiff/Respondent moved Court by summons for
accounts which was granted and the Registrar General was ordered to go into the
accounts of the parties. The Registrar General in turn engaged the services of
a firm of chartered Accountants Messrs E.O. Lamptey &amp; Co. to investigate
the accounts of the parties. <o:p></o:p>While
the accounts were being taken the Plaintiff/Respondent amended his writ of
summons and his reason for so doing was that "in the course of taking
accounts further details of the Defendant's indebtedness were revealed." <o:p></o:p>Plaintiff/Respondent's
amended writ increased the original claim of $12,225.00 to $28,433.47.&nbsp; Other reliefs were substituted as well as
additions made to the original claim. <o:p></o:p>By
Exhibit 'B', E.O. Lamptey wrote to the Registrar of the Court below that other
transactions not involving the parties but related to them had come to his attention
when he was examining the documents of the parties.&nbsp; These bodies/entities were Zoom Ltd. and
Uprising Enterprise as well as Frank Lord Enterprise.&nbsp; They were equally joined as Co-Defendants. <o:p></o:p>Indeed
nothing whatsoever was done pursuant to the joinder and the case then proceeded
as if no order for joinder had been made.&nbsp;
The writ was not amended to reflect the joinder and the parties who were
joined did not file any process of any type.&nbsp;
The order for joinder was made on 16th August, 2001. <o:p></o:p>On
19th July 2002, the proceedings of the Court disclosed the following "The
statement of Account was filed on 28/5/2002.&nbsp;
The Registrar General by a letter dated 30/5/2002 adopted the report.&nbsp; This Court hereby adopts the said report as
judgment of the Court." <o:p></o:p>It
appears on record that Counsel for the Defendant/Appellant was unhappy with the
adoption of the report as judgment of the Court.&nbsp; He subsequently moved Court and that order
was set aside on 25/7/2002.&nbsp; The case was
then adjourned to 29/7/2002 and on that date, E.O. Lamptey gave evidence and
tendered as Exhibit "CWI" his accounts. <o:p></o:p>After
the cross-examination of CWI and a brief re-examination the Court adjourned the
matter to 15th January, 2003 for filing addresses.&nbsp; Judgment was reserved for 31st January, 2003.
<o:p></o:p>It
is noted with concern that after the evidence of Mr. Lamptey CWI was taken, no
other witness was heard. The parties themselves were never heard. One is at a
total loss to explain the procedure adopted by the lower Court in determining
the matter.<o:p></o:p>The
record discloses that on 20/2/95 an application for summary judgment was placed
before the Court but no further steps were taken.&nbsp; The Court did not disclose the fat</main>