SOCIAL INVESTMENT FUND vs. WILLIDON ENTERPRISE [2010]DLCA6979

Date	2010-01-14
Suit No.	SUIT NO. H1/24/09
Citation No.	[2010]DLCA6979

B.T. ARYEETEY J.SC. (PRESIDING)

IRISMAY BROWN J.A

W.H.K. ADDOH J.A

EDU YEBOAH FOR MR. GUSTAV FOR DEFENDANT/APPELLANT

MICHAEL ARTHUR-DADZIE FOR PLAINTIFF/RESPONDENT

[2010]DLCA6979
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													<main id="main" class="content" style="min-height: 60rem" >SOCIAL INVESTMENT FUND<o:p></o:p>(PLAINTIFF/APPLICANT)<o:p></o:p>vs.<o:p></o:p>WILLIDON ENTERPRISE<o:p></o:p>(DEFENDANT/RESPONDENT)<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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NO. H1/24/09&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 14TH JANUARY, 2010<o:p></o:p>

EDU YEBOAH FOR MR. GUSTAV FOR
DEFENDANT/APPELLANT <o:p></o:p>

MICHAEL ARTHUR-DADZIE FOR
PLAINTIFF/RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p>B.T.
ARYEETEY J.SC. (PRESIDING), IRISMAY BROWN J.A, W.H.K. ADDOH J.A.<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="margin-bottom:0in;margin-bottom:.0001pt;
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</div>&nbsp;ADDOH J.A.:<o:p></o:p>&nbsp;This interlocutory appeal seeks to overturn
the ruling of the Circuit court, delivered by His honour Judge Beresford Acquah
Esq. on 14th August, 2008. <o:p></o:p>The
brief facts of the case as presented by the defendant are that the
plaintiff/respondent (hereinafter called the plaintiff) mounted the instant
action against the defendant/appellant (hereinafter called the defendant)
claiming among other reliefs the sum of ¢63,220,000 being mobilization sum paid
to the defendant for the construction of six (6) unit classroom block with
offices and store and a 5-seater KVIP at Nyankokwaa in the Awutu-Efutu Senya
district. The defendant in turn counter-claimed against the plaintiff among
other reliefs for a declaration that the termination of the contract awarded to
the defendant by the plaintiff was illegal.<o:p></o:p>&nbsp;The court granted application for directions
on 13th March, 2008 in the absence of both parties and counsel for the
defendant and adjourned the case to 26th March, 2008, for hearing. On the said
date i.e. 26th March, 2008, nothing happened. <o:p></o:p>The
appeal record is silent on what happened on the said date. On 2nd April, 2008,
the plaintiff opened his case and called his only witness PW1 on 14th April,
2008. The case was adjourned to 2nd May, 2008 for plaintiff’s Counsel to file
his address. <o:p></o:p>The
defendant who was oblivious that trial had started got wind of it and quickly
filed an application to arrest the judgment. His application was opposed tooth
and nail by the plaintiff and finally dismissed by the court in the following
words;<o:p></o:p>&nbsp;"the application of the defendant/applicant
is hereby dismissed since in civil procedure, unlike criminal procedure, a
party cannot arrest a judgment of a court which is about to be written or
delivered."<o:p></o:p>&nbsp;This decision precipitated the instant appeal.
The grounds of appeal are as follows:<o:p></o:p>&nbsp;"i. That the ruling of the Court is
against the weight of evidence. <o:p></o:p>ii. That the decision of the Court
amounts to a breach of the rules of natural justice and thereby sins against
the Audi Alteram partem rule. <o:p></o:p>iii. That the decision aforementioned
sins against the 1992 constitution of the land. <o:p></o:p>iv. That the decision is unfair to the
defendant/appellant. <o:p></o:p>v. That the decision seeks to shut the
doors of justice in the face of the defendant/appellant when in fact no
judgment had been delivered by the court".<o:p></o:p>&nbsp;The defendant did not file new grounds of
appeal. <o:p></o:p>Counsel
for the defendant argued grounds I, II and IV together. He submits that the
decision of the court in refusing to give the defendant the opportunity to
contest the Suit amounts to a breach of the rules of natural justice and
thereby sins against the "audi alteram parterm"
rule. It is his submission further that when the case was adjourned from 13th
March 2008 to 26th March 2008, there was no indication that hearing notice was
ordered and served on the defendant or his counsel as practice demands. <o:p></o:p>He
contended that everything that the trial court did which culminated in the
commencement of the hearing of the case was without jurisdiction and therefore
a nullity. He referred to and relied on the case of Mosi vars. Bagina [1963]
1GLR 337. To buttress his point he again referred to McFoy vs. UAC [1962] AC P.
160.<o:p></o:p>&nbsp;In respect of grounds III and V Counsel
submits that the decision of the trial court sins against the 1992 c</main>