DAVID ASARE vs. MIKE ASOMANI [2007]DLCA6712

Date	2007-07-13
Suit No.	H1/37/2007
Citation No.	[2007]DLCA6712

AKAMBA JA [PRESIDING]

KUSI-APPIAH JA

DOTSE JA

K.A. OWUSU-ANSAH FOR RESPONDENT.

DESMOND QUAYNOR FOR APPELLANT.

[2007]DLCA6712
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													<main id="main" class="content" style="min-height: 60rem" >DAVID ASARE<o:p></o:p>vs.<o:p></o:p>MIKE ASOMANI<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">

H1/37/2007&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; &nbsp; &nbsp; &nbsp; DATE:
13TH JULY, 2007<o:p></o:p>

DESMOND
QUAYNOR FOR APPELLANT.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;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>DOTSE
J.A <o:p></o:p>This is an appeal from the
judgment of the High Court, Accra dated 16th July, 2004. In that judgment, the
learned trial Justice of Appeal, sitting with additional responsibility as a
High Court Judge, delivered judgment in favour of the Plaintiff/Respondent,
hereafter referred to as the Plaintiff and against the Defendant/Appellant
hereafter referred to as the Defendant. <o:p></o:p>In the High Court, the
Plaintiff claimed against the Defendant, the following reliefs:— <o:p></o:p>(a) Payment of the sum of
$37,400 or its equivalent in cedis at the current exchange rate. <o:p></o:p>(b) Interest on the
aforesaid sum of money from December 1991 until judgment. <o:p></o:p>FACTS
<o:p></o:p>Due to the special
circumstances of this case, it is necessary to set out in some detail the facts
of the case. <o:p></o:p>The Plaintiff commenced
the instant suit against the Defendant on 16th July, 1992. The action arose as
a result of an agreement entered into between the parties in or about
September, 1991.&nbsp; By that agreement, the
Plaintiff was to transfer an amount of $17,000 to the Defendant’s Barclays Bank
PLC, 414 Kennington Road, London. <o:p></o:p>The said amount was duly
transferred and was to attract interest at the rate of 120% in favour of the
Plaintiff every three months. <o:p></o:p>By the Plaintiff’s
calculation, the interest and the principal amount due and owing was this
amount of $37,400 at the time of the inception of the writ of summons on 16th
July, 1992. <o:p></o:p>The Defendant resisted the
plaintiff’s claims and contended that the agreement entered into between them
was to be a joint business with the plaintiff providing the capital and the
Defendant labour.&nbsp; The Defendant therefore
contended that, it was the type of business they decided to enter into which
did not move fast enough on the Ghanaian market. This was due to the fact that
the particular drugs he the Defendant imported into the country was unknown to
the market. <o:p></o:p>On the 10th day of March,
1993, summons for Directions and the Additional issues were set down for
hearing by the learned High Court Judge. <o:p></o:p>Actual hearing of the suit
commenced on 5th day of July, 1993 at the High Court when the plaintiff’s Lawful
Attorney, Pastor Felix Asare testified. The Defendant on the other hand
testified on 4th November, 1993 and called one witness, DW1 Seth Ofosu Asiamah.
<o:p></o:p>On the 12th day of May,
1994, the Defendant closed his case whereupon the learned trial judge directed
both counsel in the matter to file written addresses on or by 30th June, 1994. <o:p></o:p>We have observed that,
whilst learned counsel for the plaintiff, managed to file his written address
on the 30th June, 1994 as directed by the Court, learned Counsel for the
Defendant filed his written address on the 18th July, 1994. <o:p></o:p>Thereafter, the next
proceedings filed in the matter as disclosed by the record is a Motion Ex-parte
for an order directing costs paid into Court to be paid to Plaintiff or his
Attorney on 17thDecember 2003 by the Solicitors of the Plaintiff.&nbsp; Reference page 58 of the appeal record. <o:p></o:p>Judgment was later
delivered by the learned trial judge on the 16th day of July, 2004. <o:p></o:p>By that judgment, the
learned trial judge directed as follows:— <o:p></o:p>“I accordingly enter judgment for the
plaintiff for the sum of $17,000 or its equivalent in cedis at the current rate
of interest from December 1991 to date of judgment.” <o:p></o:p>GROUNDS
OF APPEAL <o:p></o:p>It is against this
judgment that the instant appeal has been filed with the following grounds of
appeal. <o:p></o:p>(a) The Judge lacked jurisdiction
to deliver the judgment. <o:p></o:p>(b) Alternatively the
judgment is a nullity in as much as it took the judge over 9 years to deliver
judgment after the conclusion of the case in or about 1995. <o:p></o:p>(c) The judgment is
irregular in as much as the plaintiff took judgment for more sum than is due. <o:p></o:p>