SUMAILA SANUNU vs. FRANKLIN GADO SALIFU [2009]DLSC2723

Date	2009-04-22
Suit No.	CIVIL APPEAL № J4/13/08
Citation No.	[2009]DLSC2723

ATUGUBA J.S.C. (PRESIDING)

AKUFFO (MS) J. S C.

DATE-BAH (DR) J.S.C.

OWUSU (MS) J.S.C.

BAFFOE-BONNIE J.S.C.

SOMUAH ASAMOAH FOR THE APPELLANT.

AMADU MUMUNI FOR THE RESPONDENT.

[2009]DLSC2723
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													<main id="main" class="content" style="min-height: 60rem" >SUMAILA SANUNU<o:p></o:p>vs.<o:p></o:p>FRANKLIN GADO SALIFU<o:p></o:p>[SUPREME
COURT]<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">

CIVIL
APPEAL № J4/13/08&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 22ND
APRIL, 2009.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>SOMUAH
ASAMOAH FOR THE APPELLANT.<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">

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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">

ATUGUBA
J.S.C.&nbsp; (PRESIDING), AKUFFO (MS) J. S C.,
DATE-BAH (DR) J.S.C., OWUSU (MS) J.S.C., BAFFOE-BONNIE J.S.C.<o:p></o:p>

</div>J U D G M E N T<o:p></o:p>BAFFOE-BONNIE,
J. S. C:-&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>The
Defendant/Appellant,(Appellant herein) a contractor, was awarded a contract by
Ghana Telecom to build Payphone Shelters and Telephone Stand structures in the
Wa District. As the Appellant’s company was cash strapped he approached the
Plaintiff/Respondent, (Respondent herein) to assist him financially to execute
the contract. The Appellant made a statutory declaration to jointly execute the
contract and share the profit from the contract sum. The Appellant claims in
Paragraph 4 of his statement of defence that the statutory declaration was
between Franksali Enterprise Ltd of which the Appellant is the Managing
Director and the Respondent.<o:p></o:p>Upon
completion of the contract a total sum of ¢137,286,033.50 was paid to the
Appellant Company. The Respondent claimed he alone financed the entire project
to the tune of ¢107,627,000[Paragraph 8 and 9 of the Statement of claim] and
this was denied by the Appellant [Paragraph 8 of the statement of defence]. The
Appellant stated that the Respondent informed one Mr. Ibrahim Sefa that he
spent an amount of ¢95,000,000 on the execution of the project. Despite the
respondents refusal to give receipts to the Appellants to show how much he,
Respondent, actually spent the appellant paid an amount of ¢94,074,631 to the
Respondent.<o:p></o:p>On
the appellant’s failure to pay what the respondent deemed to be due him on the
agreement he brought an action at the High Court claiming a number of
reliefs.&nbsp; After the appellant had entered
appearance and filed a defence&nbsp; the Respondent
applied for summary judgment claiming the Appellant had no defence to the
action. To the affidavit supporting the application for summary judgment was
annexed a document titled CONTRACT/AGREEMENT in which the defendant was
admitting liability and promising to pay certain sums of money within a certain
period. The application for summary judgment was granted. The appellant’s
appeal to the Court of Appeal against the summary judgment was&nbsp; equally dismissed.&nbsp;&nbsp;&nbsp; <o:p></o:p>The
Court of Appeal held (page 8)<o:p></o:p>“-considering&nbsp; that the statement of defence does not
disclose any real grounds of defence, we are of the view that the learned trial
judge was right in coming&nbsp; to the
conclusions he did based on the findings of facts before him i.e. the
documentary evidence exhibited. We will therefore not disturb his
judgement.”&nbsp; <o:p></o:p>It
is this decision that the Appellant is contesting. <o:p></o:p>After
special leave to appeal had been granted by this court, the appellant filed the
following grounds of appeal.<o:p></o:p>1 The Court of Appeal erred when it
held that the document headed CONTRACT/AGREEMENT dated 13th day of april 2004
constituted the basis of this suit and that the action is one on a promissory
note<o:p></o:p>2 The court of appeal erred when it
failed to consider the circumstances in which the document headed
CONTRACT/AGREEMENT was procured by the plaintiff and the part the hearing
notice issued in the Circuit Court ,Wa on 8th April 2004 by the Circuit
Registrar Wa, before the institution of the action on 10th may 2004, played in
the procurement of that document<o:p></o:p>3&nbsp;
The Court of Appeal erred when it held that the statement of defence did
not disclose any real grounds of defence<o:p></o:p>4 The Court of Appeal failed to
consider adequately or at all the case for the defendant<o:p></o:p>5&nbsp;&nbsp;
additional grounds of appeal may be filed upon the receipt of the record
of appeal.<o:p></o:p>No
additional grounds were filed<o:p></o:p>In
spite of the long list of grounds of appeal I think the main issue to be
determined is whether the trial court acted in accordance with the law when it
granted an order for summary judgment on the face of pleadings at that stage of
the trial, and whether the court of appeal’s confirmation of same is
justifiable.&nbsp;&nbsp; <o:p></o:p>Order
14, r. 1 of the High Court civil procedure rules as amended by LI&nbsp; 1129 states:<o:p></o:p>"1. Where in an action begun by
writ a defendant has been served with a statement of claim and has entered an
appearance, the plaintiff may apply to the Court for judgment against him on
the ground that he has no defence to a claim included in the writ, or to a
particular part of such a claim, or that he has no defence to such a claim or
part except as to the amount of any damages claimed."<o:p></o:p>As Jessel M.R. said in Anglo-Italian
Bank v. Wells (1878) 38 L.T. 197 at p. 199, C.A. Order 14,<o:p></o:p>