GLORIA FRIMPONG vs. GEORGE AYENSU AFFUL [2009]DLHC8497

Date	2009-03-15
Suit No.	SUIT NO. C8\|29\|2008
Citation No.	[2009]DLHC8497

HIS LORDSHIP JUSTICE JACOB B. BOON

VICTOR WALENKAKI FOR DEFENDANT /APPLICANT

E. A. ANSAH FOR PLAINTIFF / RESPONDENT

[2009]DLHC8497
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													<main id="main" class="content" style="min-height: 60rem" >GLORIA
FRIMPONG<o:p></o:p>vs.<o:p></o:p>GEORGE AYENSU AFFUL<o:p></o:p>[HIGH COURT,
KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO. C8|29|2008&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:
15TH MARCH, 2009<o:p></o:p>

</div>COUNSEL:<o:p></o:p>VICTOR
WALENKAKI FOR DEFENDANT /APPLICANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

E.
A. ANSAH FOR PLAINTIFF / 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;
padding:0cm 0cm 1.0pt 0cm">

HIS LORDSHIP JUSTICE JACOB B. BOON<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:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div>This ruling is in respect
of an application for stay of the execution of a judgment of this court entered
for the defendant on 23rd November, 2009. According to the defendant
/ applicant, hereafter called the applicant, this is to enable him pursue an
appeal against the judgment at the Court of Appeal, notice of which was filed
in the registry of this court on 15/02/10.<o:p></o:p><o:p>&nbsp;</o:p>On 08/10/07, the
plaintiff/respondent, to be referred to hereafter as the respondent, issued a
writ of summons claiming from the defendant special and general damages for
injuries she suffered as a result of an accident involving applicant’s vehicle
with registration number AS 776 V. From the record, after the issues were set
down for trial, the applicant and his counsel consistently absented themselves
from court until the court was compelled to call on the respondent to establish
his claim. After it took evidence from the respondent, the court entered
judgment for her on her claim. Cost of GH¢ 1500.00 were awarded for her.<o:p></o:p><o:p>&nbsp;</o:p>In an affidavit in
support of the application for the stay, the applicant deposed that he was
served with the judgment after it was given in favour of the respondent; that
he was not personally served with hearing notices, and his lawyer never
informed him of any hearing notices served on him. He also deposed that his
lawyer had been indisposed, and he was unaware he did not attend court on his
behalf. He further referred to a receipt that was tendered in evidence by the
respondent to show that the accident was reported to State Insurance Company
Ltd. which issued the receipt in acknowledgment that the accident was
officially reported to the company as the insurers, and deposed that he did not
make the receipt available to counsel for the respondent and wondered how it
was obtained by the respondent and his counsel. It is his case that the court
was misled into believing that the receipt was provided by him, and based on
this deception judgment was entered for the respondent. He therefore prayed
that the judgment be stayed as the appeal has a reasonable chance of success.<o:p></o:p><o:p>&nbsp;</o:p>The motion was
rightly opposed by the respondent who asserted that the relevant processes in
the action were served on counsel for applicant; that the said counsel was
regular in court till directions were taken. Thereafter, according to the
respondent, the case suffered sixteen adjournments at the instance of the
applicant’s lawyer who notoriously absented himself until judgment was entered
for respondent after she led evidence to establish her claim. She further
deposed that the receipt from the insurers which the applicant wondered how it
was obtained was actually handed over to her lawyer by a gentleman who claimed
to be owner of the accident vehicle, and who said he was issued with the
receipt after he reported the accident to the company.<o:p></o:p><o:p>&nbsp;</o:p>Now, on the
receipt issued by the insurers of the vehicle, I found that it was tendered in
evidence by a witness called by the respondent. This was on 29, July, 2009. The
witness, one James Danso, testified that he was the new owner of the accident
vehicle, having bought it from the defendant. He testified that a little over
two weeks after he fully paid for the vehicle but before documents were
prepared in his name, it got involved in the accident. According to him, as
defendant was not available, he made a report to the insurers of the vehicle,
and was issued with the receipt. If the applicant’s counsel had taken the pains
to read the proceedings’ the concerns he raised about the receipt would have
been avoided, as it is obvious it was tendered in evidence when respondent led
evidence in prove of her claim.<o:p></o:p><o:p>&nbsp;</o:p>