CHARLOTTE YAA BADU – BENEWAA vs. MATHIAS ANTO [2010]DLHC8468

Date	2010-03-31
Suit No.	SUIT NO. E1\|231\|06
Citation No.	[2010]DLHC8468

HIS LORDSHIP JUSTICE JACOB B. BOON

RICHARD ABABIO FOR PLAINTIFF / APPLICANT

OSEI TUTU FOR DEFENDANT / RESPONDENT

[2010]DLHC8468
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													<main id="main" class="content" style="min-height: 60rem" >CHARLOTTE YAA
BADU – BENEWAA<o:p></o:p>vs.<o:p></o:p>MATHIAS ANTO<o:p></o:p><o:p>&nbsp;</o:p>[HIGH COURT, KUMASI]<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. E1|231|06&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: 31ST MARCH, 2010<o:p></o:p>

</div>COUNSEL:<o:p></o:p>RICHARD
ABABIO FOR PLAINTIFF / APPLICANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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OSEI
TUTU FOR DEFENDANT / 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;
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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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</div>The Plaintiff
/Respondent, hereafter called the respondent, is the biological daughter of the
defendant / applicant, to be referred to in this ruling as the applicant.<o:p></o:p><o:p>&nbsp;</o:p>The respondent
caused to be issued a writ of summons from the registry of this Court claiming
declaration of title to a house situated at Denchemuoso in Kumasi, damages for
trespass and injunction to restrain the defendant.<o:p></o:p><o:p>&nbsp;</o:p>The applicant
counter-claimed for ownership of the house, an order for the piece of land on
which the house is situated to be re-registered in her name, recovery of
possession, general damages and injunction. After the directions were taken,
the respondent applied, and was granted an order dismissing the claim of the
applicant on the ground that she and her counsel were persistently absent from
court, and were, therefore, not interested in prosecuting her action.<o:p></o:p><o:p>&nbsp;</o:p>The applicant has
now applied for an order of the court to set aside the order that dismissed her
claim because she asserts she was not given notice of the application. She
conducted a search, results of which she exhibited, and this showed that she
was not served with the notice of the application.<o:p></o:p><o:p>&nbsp;</o:p>In his affidavit
in opposition, the respondent deposed that counsel for the applicant, who
instituted the action on her behalf, indicated his address for service of all
documents in this action. According to the affidavit, when the motion was filed
there was an attempt to serve it on counsel for the respondent but he refused
to accept the service. At the hearing, it came to light that counsel declined
the service because he was not then in touch with the applicant. Nonetheless,
counsel for the respondent urged the court to regard the attempt to serve his
colleague with the notice of the application, though he refused to accept it,
as good service. He prevailed upon the court to dismiss the instant application
as unmeritorious.<o:p></o:p><o:p>&nbsp;</o:p>It is a
fundamental principle of law that a court has no jurisdiction to proceed
against a party who has not been served with notice of a process in that court.
Unless such a party is served no action can be taken to enter judgment against
him. Where personal service is abortive, the party could be served by
substitution. Thus in Barclays Bank v.
Ghana Cable Co. Ltd. and Others (1998-99) SCGLR1, Acquah JSC, as he then
was, quoting with approval at p 7 of the report from the case of Vasquez v.
Quarshie (1968) GLR62 in holding (3) at p.63 said: “A court making a decision in a
case where a party did not appear because he has not been notified would be
doing an act which was a nullity on the grounds of jurisdiction” He
went on at the same page to quote from Broom Legal Maxims (9th ed)
at p78 thereof that: “It has long been a received rule that no
one is to be condemned, punished, or deprived of his property in any judicial
proceedings unless he has had an opportunity of being heard”.<o:p></o:p><o:p>&nbsp;</o:p>In the instant
application, wa</main>