YAW MENSAH vs. EMMANUEL TETTEH & ANOR [2007]DLCA6785

Date	2007-12-13
Suit No.	CIVIL APPEAL NO. H1/263/2005
Citation No.	[2007]DLCA6785

ARYEETEY J.A. [PRESIDING]

QUAYE J.A.

ANIN YEBOAH J .A.

[2007]DLCA6785
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													<main id="main" class="content" style="min-height: 60rem" >YAW MENSAH<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>EMMANUEL
TETTEH &amp; ANOR<o:p></o:p>(DEFENDANTS/APPELLANTS)<o:p></o:p><o:p>&nbsp;</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;
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APPEAL NO. H1/263/2005&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; &nbsp; &nbsp;DATE: 13TH DECEMBER. 2007<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">ARYEETEY J.A. [PRESIDING],
QUAYE J.A., ANIN YEBOAH J .A. <o:p></o:p>

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</div>ANIN
YEBOAH <o:p></o:p>This
is an appeal from the judgment of the Circuit Court, Odumasi-Krobo in a claim
arising out of negligent driving. The plaintiff/Respondent who for sake of
brevity [shall be referred to as Respondent] sued the [Defendants/Appellants
herein who [shall henceforth be referred to as the Appellants] for general and
special damages arising out of the negligent driving by the first Appellant
herein. Other reliefs in the form of interest and costs were sought. <o:p></o:p>The
second Appellant was at the time material to the action the owner of the
vehicle driven by the first Appellant on 24/4/1999. It appears the statement of
claim as it stood was lacking in material facts contrary to the rules governing
pleadings. For example, the statement of claim did not mention where the
accident occurred and what caused the accident. The law is well settled in
BULLEN and LEAKE and JACOBS' PRECEDENTS OF PLEADINGS 18th edition at page 787
as follows:— <o:p></o:p>"The
statement of claim should state the material facts of the accident, describing
as clearly as possible what it is alleged each party was doing or attempting to
do at the time of the accident, and how the collision or the accident occurred
or happened." <o:p></o:p>It
appears, however, that learned counsel for the defendants did not raise any
procedural objections in any form whatsoever to this serious defect in the
statement of claim. The record does not show that the reply which was filed
subsequent to the delivery of the defence cured the detect. The case, however,
was heard to finality and the learned trial judge on 17/05/2005 delivered his
judgment which has culminated in this appeal before us at the instance of the
defendants who were adjudged to pay damages to the Respondent. <o:p></o:p>Several
grounds have been filed in this appeal seeking to invite us to reverse the
judgment. Learned counsel for the appellants, however restricted himself to two
main grounds which were extensively argued in the written submissions.<o:p></o:p>The
first ground of appeal which was argued with much industry touches on the
amendment of the writ of summons by the Respondent. The record of proceedings
shows that the writ of summons was issued on 6/8/2001 and was not accompanied
by any statement of claim. The first defendant who had not been served before
21/8/2001 had his appearance entered on his behalf by the second defendant. As
the second defendant was not a solicitor the rules of court did not permit him
to do so on behalf of the other defendant more so when the other defendant had
not been served with any writ of summons. <o:p></o:p>However,
on 1/2/2002 the plaintiff filed an AMENDED WRIT OF SUMMONS pursuant to Order 28
rule 2 and accompanied it with a statement of claim. On the 8/2/2002 the second
defendant filed a statement of defence for himself and on behalf of the first
defendant, which procedurally was irregular for the same reasons stated above. <o:p></o:p>On
15/11/2002 the Respondent filed an AMENDED WRIT OF SUMMONS PURSUANT TO ORDER OF
THE COURT DATED 6TH NOVEMBER, 2002. The writ of summons which initiated the
action had a suit number as follows: C.89/2001, whereas the amended writ of
summons had a new suit number as C.37/2002. The statement of claim bore the
suit number as on the first writ. Counsel for the appellants entered
conditional appearance and on 11/12/2002 filed a motion to set aside the writ
of summons. <o:p></o:p>The
grounds in support of the application as apparent on the affidavit in support
was that the trial court had not at any given time in the course of the
proceedings granted leave to the Respondent to file any amended writ of
summons. After hearing arguments the trial judge on 6/11/2002 set aside the
writ of summons without indicating whether he was setting aside the amended
writ or the original writ. In my view, I think the learned judge set aside the
amended writ of summons which was the subject of complaint by the appellant.
The record shows that counsel for the appellants subsequently filed a statement
of defence and reply and summons for directions were later filed. Indeed
counsel for the appellants on 21st July, 2003 before a new judge moved another
application to set aside the writ. The application was placed on suit No.
C.89/2001 before His Honour Judge Alomatu. Several grounds were canvassed
including lack of date on the writ of summons and the fact that what was sought
to be amended did not exist at all. After a lengthy arguments the learned trial
judge dismissed the application and subsequently granted leave to the
Respondent to amend his statement of claim and pursuant to that summons for
directions was taken on 28/7/2004. The parties and their solicitors were
present and raised no objection to the issues set down for determination. Both
parties gave evidence and judgment was accordingly delivered </main>