DR B. ANKOMA-TUTUH AND LUCY DAYAN vs. GODWIN OHENE BOAKYE [2009]DLHC4180

Date	2009-06-04
Suit No.	SUIT NO.BC525/09
Citation No.	[2009]DLHC4180

HIS LORDSHIP JUSTICE P. BRIGHT MENSAH

ALEXANDER ABBAN FOR THE PLAINTIFFS

WISDOM ANTHONIO FOR THE DEFENDANT

[2009]DLHC4180
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													<main id="main" class="content" style="min-height: 60rem" >DR B. ANKOMA-TUTUH AND
LUCY DAYAN<o:p></o:p>vs.<o:p></o:p>GODWIN OHENE BOAKYE&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>[HIGH
COURT (FINANCIAL DIVISION ONE), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT NO.BC525/09&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 4TH JUNE, 2009<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ALEXANDER
ABBAN FOR THE PLAINTIFFS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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WISDOM
ANTHONIO FOR THE DEFENDANT<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP JUSTICE P. BRIGHT MENSAH<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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</div>This
is an application by lawyers for the Plaintiffs/Applicants praying that summary
judgment be entered against the defendant/respondent for the following
reliefs:-<o:p></o:p>1.
An order for the immediate refund of an amount of €20,116.97 transferred into
the defendant’s account with the International Commercial Bank and which amount
of money the defendant has failed, refused and/or neglected to pay to the
Plaintiffs.<o:p></o:p>2.&nbsp;&nbsp;&nbsp; Interest on the said amount at the
commercial bank lending rate from 9thApril, 2009 till the date of final
payment.<o:p></o:p>3.&nbsp;&nbsp;&nbsp; Costs, including the professional fees of
the Plaintiff’s lawyer.<o:p></o:p>The
groundsupon which the instant application is premised are catalogued in the
supporting affidavit accompanying the motion paper.<o:p></o:p>The
thrust of the case of the Plaintiffs/Applicants is that in or about March,
2009, the defendant, Godwin OheneBoakye attended the 1st Plaintiff’s dental
clinic. &nbsp;DrAnkoma-Tutu engaged the
defendant in a conversation regarding the difficulty of Lucky Dayan, 2nd
Plaintiff in transferring her money into Ghana from Switzerland.&nbsp; The defendant did agree to assist and
provided his account number with the International Commercial Bank, Ring Road,
Accra through which the money could be channeled.&nbsp; According to the Plaintiffs, the defendant
was prepared to receive the money into his account without charging any fees
for it.&nbsp; Thus the defendant was able to
convince the applicants to channel an amount of €20,116.97 into the account on
the 9th day of April, 2009 for the benefit of the 2nd Plaintiff.<o:p></o:p>It
is the case of the Plaintiffs/Applicants that the Union Bank of Switzerland
after the transfer duly advised the 2nd Plaintiff about the transfer.&nbsp; Armed with this information the defendant was
contacted who confirmed same and issued a cheque on 03/08/09,
No.048826-200105-0050 2002222001 for €20,116.97 drawn on the International
Commercial Bank, Ring Road, Accra.&nbsp;
However, upon presentation the cheque was returned as bounced.&nbsp; The defendant was confronted and since he was
not offering any reasonable explanation the matter was reported to the Police
Headquarters.&nbsp; As a result of persistent
refusal by the defendant to refund, the Plaintiffs issued the instant writ,
they added.<o:p></o:p>Arguing
the motion, learned Counsel for the Plaintiffs/Applicants, Mr Alexander Abban
referred to the affidavit evidence before the court as well as the pleadings
and submitted that the defendant has no plausible defence.&nbsp; His view is that once the defendant claims
that the money was paid into his company account but is yet to be refunded the
defendant has that obligation to refund the money.&nbsp; In support MrAbban relied on AMARTEY v SSB
(1987-88) 1 GLR 499 C/A at 503. Learned Counsel conceded that an Application
for Directions has been taken in the matter.&nbsp;
Nevertheless, his view is that considering the pleadings the
Plaintiff/applicants were not precluded from bringing this instant
application.&nbsp; He is of the strongest
conviction that the court has that inherent power to enter summary judgment
under Order 14 of CI 47 at this stage of the litigation because, according to
him, the defence so filed does not disclose any reasonable defence at all.<o:p></o:p>In
opposing the application, learned Counsel for the defendant respondent did
raise 3 interesting points.&nbsp; First, he
argues that if the Plaintiffs were contending that by the Statement of Defence,
the defendant has admitted the claim then the proper application ought to have
been one for judgment on admission and not the instant application for summary
judgment.&nbsp; Additionally, Mr Wisdom
Anthonio raised the capacity of the Plaintiffs to mount this instant action.&nbsp; According to Counsel, the 1st Plaintiff did
not have a cause of action against the defendant.&nbsp; His view is that if the defendant was alleged
to have only provided his company’s accounts to the 1st Plaintiff for money to
be transferred into it then he has no cause of action against the
defendant.&nbsp; The 1st Plaintiff has no
business to be in court and that he is only being a “busy body”.<o:p></o:p>He
submitted further that the 2nd Plaintiff in like manner does not have any cause
of action against the defendant in person because the money was transferred
into the accounts of the defendant’s company,Kings Eye Company Ltd.&nbsp; The cheque in refund of the money was issued
by the company, therefore, if the 2nd Plaintiff was minded to mount any action
after all, he should have commenced the action against the Kings Eye Company
Ltd.&nbsp; He posited that the company is a
different entity from the directors and shareholders and the writ is defective
and therefore unsustainable.<o:p></o:p>Concluding,
MrAthonio submitted that once Application for Direction has been taken in the
matter, the presumption is that issues have been joinedbetween the parties. <o:p></o:p>Is
the court precluded from entering a summary judgment after an Application
forDirections has been taken in the matter?<o:p></o:p>As
a matter of law, summary judgment cannot beentered under Order 14 with respect
to:<o:p></o:p>a)&nbsp;&nbsp;&nbsp; probate, matrimonial or maritime
proceedings;<o:p></o:p>