DAVID SAMUEL OFORI MANTE vs. CECILIA OFORI MANTE [MRS] & ANOR. [2009]DLCA6715

Date	2009-03-12
Suit No.	SUIT NO: HI/87/08
Citation No.	[2009]DLCA6715

R K APALOO J A [Presiding]

P K GYAESAYOR J A

IRENE C DANQUAH J A

MR. R A AMPONSAH FOR PLAINTIFF/APPELLANT

MR. ADDO ATUAH FOR DEFENDANTS/RESPONDENTS

[2009]DLCA6715
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													<main id="main" class="content" style="min-height: 60rem" >DAVID SAMUEL OFORI MANTE<o:p></o:p>vs.<o:p></o:p>CECILIA OFORI MANTE
[MRS] &amp; ANOR.<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">

SUIT NO: HI/87/08&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: 12TH MARCH 2009<o:p></o:p>

MR.
ADDO ATUAH FOR DEFENDANTS/RESPONDENTS<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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>IRENE C DANQUAH JA <o:p></o:p>This
is an interlocutory appeal against the ruling of the High Court, Accra
delivered on 28th May 2007 by His Lordship Isaac Lartey-Young J setting aside
an earlier ruling which entered judgment in default of appearance for the
Plaintiff.&nbsp; <o:p></o:p>The
brief facts of the case are that on 18th July 2006 the Plaintiff filed a Writ
of Summons against the Defendants accompanied by a Statement of Claim seeking
the following reliefs: <o:p></o:p>1.
An order that House No.18 Osu Badu Street being the Matrimonial House of the
late Erasmus Ofori-Mante is sold and the proceeds shared according to PNDCL
111. <o:p></o:p>2.
An order that the proceeds from the Out-House being rent paid by the Tenant to
Defendants be declared so that the plaintiff’s share is paid to him. <o:p></o:p>On
28th July 2006 the Defendants Lawyers ABC Law Consult, (Akuamoah Boateng &amp;
Co) filed an Entry of Appearance on behalf of the Defendants “Pursuant to Order
9 Rule (1) of High Court (Civil Procedure) Rules, 2004 (C I 47) …..”.&nbsp; Annexed to it was a sealed Duplicate of
Memorandum of Appearance.&nbsp; On that same
day, the Lawyers for the Defendants filed a Statement of Defence.&nbsp; <o:p></o:p>Then
on 22nd August 2006 the Plaintiff filed a Motion Ex-Parte for Judgment In
Default of Appearance on the grounds that the process filed for and on behalf
of the Defendants did not conform to the High Court (Civil Procedure) Rules,
2004 C.I. 47 which came into effect on 3rd January 2005 and therefore should be
ignored and/or expunged from the record and judgment entered in favour of the
Plaintiff for the reliefs endorsed on the Writ of Summons.&nbsp; The application was granted on 28th August
2006 and upon service of the Entry of Judgment on the Defendants, a Law Firm,
Addo Atuah and Co., filed a Motion on Notice to set aside the Judgment in
Default of Appearance under Order 10 Rule 18 of C.I. 47. However the motion was
struck out on 16th October 2006 by Justice Ofori-Atta who was then sitting as
the vacation judge for want of prosecution. <o:p></o:p>Subsequently
on 20th March 2007 the Lawyers for the Defendants filed a Motion on Notice to
relist the Motion on Notice to set aside the default judgment that was struck
out for want of prosecution.&nbsp; The
application was heard on 15th May 2007 and the Learned Judge in his ruling
dated 28th May 2007 held that:<o:p></o:p>“Application dismissed though,
Judgment in default of appearance is set aside.&nbsp;
Leave is granted to defendant, suit shall take its normal course”. <o:p></o:p>It
is this ruling that has generated the instant appeal which is against the whole
decision.&nbsp; There were four grounds of
appeal but upon receipt of the Record of Appeal, the Appellant considered it
expedient to abandon Grounds (2) and (3) and argue Grounds (1) and (4) which
read as follows: <o:p></o:p>Ground (1) <o:p></o:p>The
Learned Judge having held in the ruling that the Motion to Relist and the
Motion to set aside the ruling of 28/8/2006 were not properly before him and
dismissing same could not go into the merits of the motions and set aside the
ruling dated 28/8/2006. <o:p></o:p>Ground (4) <o:p></o:p>Having
held that the motion to set aside filed on 20/3/2007 to Relist the Motion to
set aside filed on 20/9/2006 were not properly before the court and dismissing
same, the Learned Judge lacked jurisdiction to set aside the judgment dated
28/8/2006. <o:p></o:p>In
this judgment, the Plaintiff/Appellant and the Defendants/Respondents will be
referred to simply as the Appellant and Respondents respectively.&nbsp; <o:p></o:p>Although
counsel for the Appellant indicated that he was going to argue grounds (1) and
(4) he actually argued ground (4) only which is not surprising since a careful
look at the two grounds show clearly that the reliefs are essentially the same.
<o:p></o:p>For
the purposes of this judgment, I will restrict myself to the application that
was before the High Court on 26th March 2007 but heard subsequently on 15th May
2007 and the ruling emanating from it. <o:p></o:p>It
is pertinent to comment that on 15th May 2007 when the application for
relistment came on for hearing, the Learned Judge in the record of proceedings
for the day wrote that the matters for the day were:— <o:p></o:p>1. "Motion to set as</main>