SHANTI SUPPLIES LIMITED vs. CLEMENT SQUIRE & KOFI AIDOO [2005]DLCA6968

Date	2005-04-22
Suit No.	CIVIL APPEAL NO. H1/202/04
Citation No.	[2005]DLCA6968

ADINYIRA (MRS.) J.A. (PRESIDING)

ASIAMAH J.A.

DOTSE J.A.

KEN BROOKMAN-AMISSAH FOR 1ST APPELLANT

[2005]DLCA6968
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													<main id="main" class="content" style="min-height: 60rem" >SHANTI SUPPLIES LIMITED<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>CLEMENT SQUIRE &amp; KOFI AIDOO<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO. H1/202/04 &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;FRIDAY: 22ND APRIL, 2005<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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BROOKMAN-AMISSAH FOR 1ST APPELLANT<o:p></o:p>

</div>CORAM:<o:p></o:p>ADINYIRA
(MRS.) J.A. (PRESIDING), ASIAMAH J.A., DOTSE J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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</div>ADINYIRA
(Mrs.) J.A.:<o:p></o:p>&nbsp;This appeal raises, a point of fundamental
importance in the rules of pleadings and I think it is necessary to set out the
facts of the case that have culminated in this appeal. On 14 March 2003, the
plaintiff/respondent (hereinafter respondent) issued out at the High Court
Accra, (Fast Track Division), a writ of summons accompanied by statement of
claim against 1st defendant (hereinafter appellant) and another for: <o:p></o:p>1.
Two hundred million cedis (¢200,000,000.00) being the value of its underground
cable, which the defendants have wrongfully failed and or refused to deliver to
the plaintiff despite repeated demands. <o:p></o:p>2.
Interest thereon at the prevailing bank rate from the 10th day of August 1998
to date of final payment. <o:p></o:p>The
appellant entered appearance on 8th April 2003 and filed a defence on 22nd
April 2003. On 9th June 2003 the respondent applied for summary judgment under
Order 14 of the old High Court Rules, L.N. 140A as amended by L.I. 1129, for
the reliefs claimed on his writ. The facts upon which the respondent was
relying both by his statement of claim and affidavit in support are briefly
that, an underground cable belonging to the respondent was seized in execution
in satisfaction of a judgment debt and cost in a High Court Suit No. L 38/94,
entitled R.J. Amartey v. Shanti Supplies Limited. The underground cable was
sent to the appellant in this action who is an auctioneer, for sale by auction
authorized by the Deputy Sheriff of the High Court, Accra. Before the said
underground cable could be sold in execution, the respondent herein paid the
judgment debt and cost. The solicitor of the plaintiff in Suit No. L. 38/94
gave a letter to the respondent herein to be given to the appellant herein to
release the underground cable to the respondent after respondent had paid all
auctioneer’s charges. The respondent’s managing director went to see the
appellant with the release letter and paid him all the auctioneer’s charges,
but the cable was not released to him by the appellant with the explanation
that the underground cable was at his wholesale. The respondent persistently
demanded the release of the cables to no avail until the appellant vacated the
premises where he was operating. Accordingly to the respondent he managed to
trace the appellant who gave him a note Exhibit 1 to be given to the 2nd
defendant to collect the underground cable. But the 2nd defendant told him that
the appellant had sold the cable to him and gave him Exhibit 2 to be given to
the 1st defendant. Exhibit 2 stated as follows: <o:p></o:p>The
respondent therefore instituted this action to claim the current value of the
underground cable, which he stated as two hundred million cedis. On 3rd July
2003, judgment was given in favour of the respondent on all his reliefs. The
appellant being dissatisfied appealed on the following grounds: <o:p></o:p>a)
That the ruling is against the weight of evidence.<o:p></o:p>&nbsp;b) That the trial court failed to appreciate
that at the time of judgment there was no evidence in support of the value of
the underground cable, subject matter of the action and therefore erred in
entering judgment for the relief endorsed on the writ of summons.<o:p></o:p>&nbsp;c) That the trial court failed to assess and
determine the value of the underground cable and made no finding of fact
thereon, thereby occasioning to the 1st defendant appellant a substantial
miscarriage of justice. <o:p></o:p>Although
counsel stated in his notice of appeal the usual ground that "additional
grounds of appeal to be filed on receipt of the record of appeal" there is
no evidence on the record to show that indeed additional grounds of appeal was
filed. Counsel for the defendant also stated in his written submissions that
neither her nor the respondent was served with any additional grounds of
appeal. Yet in his written statement of case counsel for the appellant
addressed these additional grounds of appeal without leave of the court. This
is in flagrant breach of Rule 8(7) of the Court of Appeal Rules, 1997, C.I. 19 which,
provides as follows: <o:p></o:p>"R. 8 (7) The appellant shall
not, without the leave of the court, urge or be heard in support of any ground
of objection not mentioned in the notice of appeal, but the court may allow
the appellant to amend the grounds of appeal upon such terms as the court may
think just" (emphasis mine)<o:p></o:p>&nbsp;The wording of the above rule is clear and
unambiguous and it is a mandatory requirement as indicated by the word ‘SHALL’.
The effect of this rule is that in all cases where an appellant intends to
argue a ground of appeal not canvassed or put down as a ground of appeal in his
or her notice of appeal, prior leave of the Court must be obtained. This ru</main>