EDMUND AYITEY LARMIE (PLAINTIFF) vs. STEPHEN CLOTTEY (DEFENDANT) [2007]DLHC7440

Date	2007-12-21
Suit No.	SUIT NO. 34/2005
Citation No.	[2007]DLHC7440

HIS LORDSHIP E. K. AYEBI J.

SAMMY AGBODO FOR PLAINTIFF/APPLICANT.

GEORGE LOH FOR CHARLES HAYIBOR FOR DEFENDANT/RESPONDENT

[2007]DLHC7440
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													<main id="main" class="content" style="min-height: 60rem" >EDMUND AYITEY LARMIE<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>STEPHEN CLOTTEY<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT (FAST TRACK),
ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">SUIT NO. 34/2005&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 21ST
DECEMBER, 2007<o:p></o:p>

</div>COUNSEL:<o:p></o:p>SAMMY AGBODO FOR PLAINTIFF/APPLICANT. <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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GEORGE LOH FOR CHARLES
HAYIBOR FOR DEFENDANT/RESPONDENT<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>The
claim of the plaintiff against the defendant basically is for ¢399m as money
had and received, interest, accounts and exemplary costs. The claim arose out
of monies. Plaintiff sent to defendant between 4th August 2001 to 20th December
2004 to construct a house for residential purpose for him. Alleging that the
defendant squandered the money which was the cedis equivalent of €43,318.05,
the plaintiff said the structure put up by the defendant valued only
¢120million. Defendant denied this claim. <o:p></o:p>At
the application for directions stage, the court ordered a valuation of the
house. The value placed on the house by the experts is ¢504,454,000.00. <o:p></o:p>In
this motion, the plaintiff prayed for leave to amend the writ of summons and
the statement of claim. In particular, the plaintiff wants to amend the figure
¢399million endorsed on the writ of summons to read ¢215,862,900 as money had
and received. Then in the statement of claim, plaintiff prays for leave to add
a paragraph 4(a) to state the value of the land on which the house was built at
¢80,000,000.00 and the cost of a concrete platform he erected on the land
before he contracted the defendant to build the house at ¢38,196,000.00. <o:p></o:p>Defendant
opposed the application on three grounds. The affidavit to the application was
sworn to by Dr. Gemegah who described himself as a lawful attorney of the
plaintiff. It is submitted for the defendant that the said attorney having not
exhibited the power of attorney given him by the plaintiff, he had no capacity
and so the application is null and void. As regards the amendment sought of the
amount endorsed on the writ of summons, defendant submitted that it is brought
in bad faith. It is brought in bad faith because from the valuation report the
value of the house exceeded the amount plaintiff claims. Similarly the values
the plaintiff seeks by this amendment to place on the cost of the land and the
concrete platform were lifted from the valuation report. <o:p></o:p>On
the capacity of the deponent to the affidavit in support of the motion, the
practice is that the power of attorney is produced at the trial. It would have
been desirable to exhibit it with this motion. Non-production of the power of
attorney now is however, not fatal to the application. In any case, lawyers,
law clerks, relatives and even friends swear to affidavits on behalf of parties
with the consent of such parties provided such deponents show on the face of
the affidavit that they have personal knowledge of the matters they deposed to.
<o:p></o:p>I
notice paragraph 4 of the statement of claim filed on 23rd March 2005,
plaintiff pleaded that the parcel of land he bought had a concrete foundation
on it. Defendant admitted that the said concrete foundation was started but not
casted. <o:p></o:p>What
it meant therefore is that the land plaintiff bought had an uncompleted
concrete foundation on it before he contracted the defendant to build the
house. It is therefore out of place now for plaintiff to seek to place separate
values on the plot of land and the concrete foundation. Additional to that, the
cost of the plot of land and the concrete foundation at the time the plaintiff
bought the land cannot be the same in 2005 when the valuation was done. I
believe the valuation is based on current values. For the two reasons above, I
agree that amendment is not brought in good faith. It is refused. <o:p></o:p>

As
I understand it, an action for money had and received lay to recover money paid
under a mistake, compulsion or for a consideration which had wholly failed. In
the instant case, the plaintiff claims the amount endorsed on the writ of
summons because the consideration has failed completely. So if plaintiff now
wants to plead a lesser amount than the one originally endorsed on the writ of
summons I will allow it. I will allow it because the lesser amount ensures to
the benefit to the defendant. I therefore allow the amount endorsed on the writ
of summons to read ¢215,862,900.00. So the applicant is allowed to amend the
amount endorsed on the writ of summons. No order as to cost.<o:p></o:p></main>