GLORIA BARTELS vs. EMMANUEL IHEME [2006]DLCA6476

Date	2006-11-17
Suit No.	CIVIL APPEAL NO. H1/267/2005
Citation No.	[2006]DLCA6476

QUAYE J.A (PRESIDING)

KANYOKE J.A

KUSI-APPIAH J.A

MR. KWAKU PAINTSIL FOR PLAINTIFF/RESPONDENT

MR. MOHAMMED SAHNOON FOR DEFENDANT/APPELLANT.

[2006]DLCA6476
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													<main id="main" class="content" style="min-height: 60rem" >GLORIA BARTELS<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>EMMANUEL IHEME<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO. H1/267/2005&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 17TH NOVEMBER, 2006<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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COUNSEL:<o:p></o:p>

&nbsp;MR. KWAKU PAINTSIL FOR PLAINTIFF/RESPONDENT <o:p></o:p>

MR. MOHAMMED SAHNOON FOR
DEFENDANT/APPELLANT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>QUAYE J.A (PRESIDING), KANYOKE
J.A, KUSI-APPIAH J.A<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;border:none;
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</div>Kanyoke J. A. <o:p></o:p>This appeal is against the
judgment of the High Court, Accra dated the 22nd day of April 2004 in favour of
the plaintiff/Respondent (hereinafter called the Respondent) for the sum of
66,000 United States dollars being the balance of the sum of 70,000 United
States dollars the defendant/appellant (hereinafter called the appellant)
demanded and received from the Respondent under the false representation that he
(the appellant) had 250,000 United States dollars with a cousin called Mr.
Barry in the U. K and that the Respondent could contact Mr. Barry for that
money to enhance her business and also pay herself by way of refund of her
70,000 United states dollars. When the Respondent contacted the said Mr. Barry
in the United Kingdom Mr. Barry told her that the appellant had no such money
in the U.K. Back in Ghana the respondent made several repeated demands for a
refund of the 70,000 United States dollars from the appellant without success
hence the action.<o:p></o:p>&nbsp;In addition to initiating these civil
proceedings for the refund of her money, the Respondent also reported the
matter to the police in Ghana and the appellant (a Nigerian National) was
arrested and prosecuted before the circuit Tribunal, Accra for fraud. He was
found guilty and convicted. The record of proceedings indicates that before the
Circuit Tribunal could give its judgment the appellant had absconded from Ghana
in February 2000. Upon the order of the Circuit Tribunal, a vehicle belonging
to the appellant was auctioned and the proceeds used to defray part of the
70,000 United States dollars owed the Respondent leaving a balance of U.S
66,000.<o:p></o:p>&nbsp;It was upon these facts that the High Court
entered judgment in favour of the Respondent for the balance of 66,000 United
States dollars with cost upon trial. <o:p></o:p>The appellant feeling
aggrieved by the judgment has appealed to this court on the following grounds
of appeal:<o:p></o:p>&nbsp;"(i) The judgment of the court is against
the weight of evidence<o:p></o:p>&nbsp;(ii) The judgment was not warranted by the
rules of procedure as the defendant was not heard on the address filed by the
plaintiff which was served on the defendant on the date of delivery of the
judgment. Under the circumstances there was a breach of the rules of natural
justice. <o:p></o:p>(iii)
The learned judge erred in entering judgment for the plaintiff as the plaintiff
woefully failed to discharge the burden of proof to establish her case.<o:p></o:p>&nbsp;(iv) The learned judge erred in finding that
the plaintiff’s association with the defendant grew to the extent that the
plaintiff was getting foreign cash from the defendant when in fact there was no
record in support of this finding. <o:p></o:p>(v)
The learned judge further erred in finding that there was an order from the
criminal trial that directed the auctioning of the defendant’s vehicle when no
such order was adduced in evidence by the plaintiff.<o:p></o:p>&nbsp;(vi) The learned judge further erred in law by
awarding interest on the judgment debt from 30th December 1996 when the
plaintiff by her writ of summons statement of claim and evidence clearly
indicated that the debt was as a result of a transaction entered into in
1997."<o:p></o:p>&nbsp;Let me put on record that learned counsel for
the Respondent had told this court during the course of the proceedings in this
court that he was waiving his right to respond to the statement of case filed
by counsel for the appellant and did not therefore file a statement of
response.<o:p></o:p>&nbsp;In his writ ten statement of case learned
counsel for the appellant abandoned ground (i) of the grounds of appeal and
confined his submissions on grounds (ii), (iii), (iv), (v) and (vi) of the
grounds of appeal. Proceeding on ground (ii) of the grounds of appeal learned
counsel for the appellant, referred to and relied on order 36 r.21(f) of the
High Court (Civil Procedure) Rules, 1954 (L.N 140A) and submitted that since
the defendant either by himself or through his counsel did not offer evidence
or state his case or sum up his defence on the close of the plaintiff’s case,
the audi alteram parterm rule of natural justice was breached by the
trial High Court judge and therefore for this reason this court should allow
the appeal. <o:p></o:p>Order 36 rule 21(f) of
L.N.140A (now order 36 rule 4 of C.I. 47) provided as follows: <o:p></o:p>“21. The order of
proceedings at the hearing of a cause shall be as follows:<o:p></o:p>&nbsp;(f) When the party beginning has concluded his
case, the other party shall be at liberty to state his case and to call
evidence and to sum up and comment thereon.” (My emphasis). <o:p></o:p>The language of rule 21(f)
of L.N.140A is clear and</main>