MINCOR RESOURCES LTD. vs. TROPICAL MINERALS CO. LTD. AND EDWARD KUSI AWUAH [2008]DLCA6518

Date	2008-05-08
Suit No.	No. H1/49/2007
Citation No.	[2008]DLCA6518

QUAYE J.A. [PRESIDING]

DOTSE J.A.

MARIAMA OWUSU J.A

MR. JOHN AIDOO FOR THE 1ST DEFENDANT/J/D/APPELLANT

MR. ROBERTSON KPATSA FOR THE PLAINTIFF/J/C/RESPONDENT

[2008]DLCA6518
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													<main id="main" class="content" style="min-height: 60rem" >MINCOR
RESOURCES LTD.<o:p></o:p>(PLAINTIFF/J.CREDITOR/RESPONENT)<o:p></o:p>vs.<o:p></o:p>TROPICAL
MINERALS CO. LTD. AND EDWARD KUSI AWUAH<o:p></o:p>(DEFENDANT/J.DEBTORS/APPELLANTS)<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;
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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;mso-outline-level:1;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">QUAYE J.A. [PRESIDING], DOTSE
J.A., MARIAMA OWUSU J.A.<o:p></o:p>

</div><o:p>&nbsp;</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:0in;margin-bottom:.0001pt;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>MARIAMA
OWUSU, J.A. <o:p></o:p>On
the 22-3-06, the High Court, Accra, ruled that, "the preliminary objection
raised by the plaintiff’s counsel is upheld. The court is also of the view that
the applicant is totally out of time. That the summary judgment was regularly
obtained, I therefore find that the application should be dismissed, I make no
order as to cost." It is against this ruling that the 1st
Defendant/Appellant has appealed against. <o:p></o:p>The
grounds of appeal are as follows; <o:p></o:p>a.
The ruling is against the weight of evidence. <o:p></o:p>b.
The learned judge erred in law when she upheld the plaintiff’s lawyer’s
preliminary legal objection to 1st Defendant’s application to set aside the
court’s earlier summary judgment dated 26-7-05 by dismissing the application in
limine. <o:p></o:p>c.
The learned judge erred in law when she upheld the plaintiff’s lawyer’s
objection aforesaid without any affidavit in opposition having been filed
against the 1st Defendant’s application. <o:p></o:p>d.
The learned judge erred in law when she breached the audi alterem partem rule of
natural justice by not determining the 1st Defendant/Appellant’s application on
its merits, particularly when the application raised the fundamental issues of
fraud and illegality surrounding the summary judgment obtained by the
Plaintiff/Appellant. <o:p></o:p>e.
Additional grounds of appeal shall be filed upon receipt of the record of
proceedings. <o:p></o:p>On
the 31-5-07, this court granted the 1st Defendant/Appellant leave to argue two
additional grounds of appeal and they are as follows; <o:p></o:p>1.
The learned judge erred in law when she ruled that the summary judgment was
regularly obtained. <o:p></o:p>2.
The learned judge erred in law when she ruled that the 1st Defendant/ Appellant’s
application to set aside the summary judgment was out of time when fraud and
illegality had been alleged against the judgment. <o:p></o:p>The
brief facts of the case are as follows. The Plaintiff obtained summary judgment
against the Defendants for the sum of US$76,000.00 allegedly paid to Defendants
by virtue of a joint venture concluded in 1996 among other relief’s. Initially
the application for summary judgment was listed before Her Lordship Mrs. F.
Owusu-Arhin. When the application came on for hearing, same had to be adjourned
sine die. Meanwhile counsel for the Defendants had filed Notice of Withdrawal
as lawyer for the Defendants. On the 26-7-05, the application for summary
judgment came on before His Lordship Anthony Oppong who granted the
application. In his ruling he said “I have looked at the application for the
summary judgment and I have also looked at the defence filed on the 26-7-04 and
I have formulated the view that the defence put up by the Defendants does not
disclose any reasonable defence to the plaintiff’s action, especially in the
face of exhibit KLL 3. Indeed the exhibits attached to the plaintiff’s
application reduced the defendants defence to the level that can be described
as a sham. In the circumstances it is my liable opinion that no useful purpose
will be served if the case is to proceed to a trial as no issue can be said to
have been joined. I will therefore grant the plaintiff’s application for
summary judgment which at any rate was duly served on</main>