BALLAST NEDAM GHANA B.V vs. HORIZON MARINE CONSTRUCTION LTD [2010]DLSC2546

Date	2010-07-28
Suit No.	CIVIL APPEAL NO. J4/18/2010
Citation No.	[2010]DLSC2546

WOOD (MRS) C.J. (PRESIDING)

BROBBEY JSC

DOTSE JSC

YEBOAH JSC

GBADEGBE JSC

F.S. TSIKATA FOR THE PLAINTIFF/RESPONDENT/APPELLANT.

DAVID OFOSU-DORTE FOR THE DEFENDANT/APPELLANT/RESPONDENT.

[2010]DLSC2546
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													<main id="main" class="content" style="min-height: 60rem" >BALLAST NEDAM GHANA B.V<o:p></o:p>vs.<o:p></o:p>HORIZON MARINE
CONSTRUCTION LTD<o:p></o:p>&nbsp;[SUPREME COURT, ACCRA]<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 NO. J4/18/2010&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 28TH
JULY, 2010<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>F.S. TSIKATA FOR THE
PLAINTIFF/RESPONDENT/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">

DAVID
OFOSU-DORTE FOR THE DEFENDANT/APPELLANT/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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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
justify;line-height:150%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">WOOD
(MRS) C.J. (PRESIDING), BROBBEY JSC, DOTSE JSC, YEBOAH JSC, GBADEGBE JSC<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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JUDGEMENT<o:p></o:p>

</div><o:p>&nbsp;</o:p>GBADEGBE,
JSC:-<o:p></o:p>This is an appeal from the decision of the Court
of Appeal that reversed the judgment of the High Court, Accra, which had
allowed in favour of the appellant an application for summary judgment. It
appears from the judgment of the Court of Appeal that it was of the opinion
that there were triable issues disclosed by the respondent’s affidavit to the
application under&nbsp;&nbsp; Order 14 of the High
Court (Civil Procedure) Rules, 2004, CI 47.Delivering the judgment of the
court, Kusi Appiah JA after referring to the case of SADHUWANI v AL- HASSAN [1999-2000] 1 G.L.R 19 observed as follows
at pages 162-163 of the record of appeal:<o:p></o:p>“In
the instant appeal, it is one of the appellant’s contentions that the mode of
payment to the respondent was subject to the general terms and conditions of
the contract, clause 4, where the defendant/appellant has to satisfy itself
that the works had been properly done according to the specifications before
invoices are accepted and payments made (see Exhibit “KET 4”). If the appellant
claims that they did not accept the last invoices for payment because the
respondent had not done the works in accordance with their specifications, it
certainly is an issue for the court to determine and apportion responsibility.”<o:p></o:p>In our view, the above pronouncement by the
learned justices of the Court of Appeal whose judgment is under attack before
us satisfies the requirements of Order 14 rule 3(1) of the High Court Rules, CI
47 that is expressed thus:<o:p></o:p>“A
defendant may show cause against the application by affidavit or otherwise to
the satisfaction of the court.”<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>Although the procedure for summary judgment under
order 14 enables the appellant to obtain speedy and summary judgment without a
trial even in cases where the defendant to the action expresses an intention to
defend the action, the court may only grant the application in cases where the
defendant is unable to set up a good defence or raise an issue which ought to
be tried. See: (1) ANGLO-ITALIAN BANK v WELLS, ANGLO-ITALIAN BANK v DAVIES (1878) 38
LT 197; (2) ROBERTS v PLANT [1895] 1 QB 597.<o:p></o:p>&nbsp;We are of
the opinion that the allegation by the respondent that the payment was subject
to the appellant satisfying the requirement contained in clause 4 of the
agreement was a good defence to the action and also raised an issue that under
rule 5 (1) of Order 14 raised an issue that comes under the description ‘there
ought for some other reason to be a trial of that claim or part of it.’ It is
to be observed that respondent had in “Exhibit HMC 1A” and “HMC 1B” which were
written before the commencement of the action herein raised issue with some
works that the appellant had carried out under the agreement between them.
These letters were written even before the appellant’s lawyers made a demand
contained in “Exhibit KET6”, which was dated 10 August 2007 in respect of the
same amount that is claimed by the appellant against the respondent in the
action herein. As it seems those issues were not resolved before the writ
herein was issued and therefore it was only right that when the appellants
filed the application for summary judgment the respondent by way of defence in
their affidavit in answer made reference to what in their view was an
outstanding obligation that was undischarged by the appellant. In our thinking,
the said defence was made in good faith and not being a sham ought to have been
inquired to by the learned trial judge else its effect would be to shut out the
respondent.<o:p></o:p>&nbsp;Indeed, the
respondent had categorically in its affidavit in answer to the application for
summary judgment deposed to in paragraphs 11 -14 as follows:<o:p></o:p>“(11) Defendant/Respondent denies paragraphs 4,
10, 11, and 14 of the Plaintiff/Applicant’s affidavit in support of this
present application.<o:p></o:p>