MARTHA BOUR vs. MAXWELL OWUSU [2011]DLCA3709

Date	2011-04-01
Suit No.	NO. H1/31/2010
Citation No.	[2011]DLCA3709

MARIAMA OWUSU (MISS) J.A. (PRESIDING)

F.G. KORBIEH J.A.

IRENE C. DANQUAH (MS.) J.A.

[2011]DLCA3709
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													<main id="main" class="content" style="min-height: 60rem" >MARTHA BOUR<o:p></o:p>vs.<o:p></o:p>MAXWELL OWUSU<o:p></o:p>&nbsp;[COURT OF APPEAL, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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NO. H1/31/2010&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; &nbsp; &nbsp;&nbsp;DATE: 1ST APRIL, 2011<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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MARIAMA
OWUSU (MISS), J.A. (PRESIDING), F.G. KORBIEH, J.A. AND IRENE C. DANQUAH (MS.),
J.A.<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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JUDGMENT<o:p></o:p>

</div>IRENE
C DANQUAH JA<o:p></o:p>This
is an interlocutory appeal against the ruling of the High Court, Kumasi
delivered on 17th July 2009.&nbsp;
The Plaintiff sued the Defendant for general and special damages for
personal injuries sustained by the plaintiff in an accident which occurred on 8th
July 2002 near Fenaso-Nkwanta on the Obuasi/Dunkwa Road due to the negligent
driving of the Defendant’s driver then in charge of Defendant’s vehicle No: AS
2223 T.<o:p></o:p>The
Defendant entered appearance and subsequently filed a statement of
Defence.&nbsp; The Plaintiff proceeded to file
a reply followed by an application for Summons for Directions.&nbsp; The application for Directions was taken on
24th April 2007 and the issues filed by the Plaintiff were set down
for trial.&nbsp; The suit was then adjourned
to the 14th June 2007 for hearing.&nbsp;
<o:p></o:p>However,
on the 14th June 2007 when the trial was to commence, the Plaintiff
rather sought for an amendment of the Statement of Claim which was
granted.&nbsp;&nbsp; The judge however did not give
any date for hearing ostensibly to allow the case to take its normal cause by
allowing the Plaintiff to comply with the relevant rules under Order 16 of C I
47.&nbsp; The matter came on thereafter on 27th
June 2007 and was adjourned to 4th July 2007 for hearing.&nbsp; On the said date, the Plaintiff led evidence
and closed her case.&nbsp; The suit was then
adjourned to 19th July 2007 for judgment.&nbsp; The judgment however was not delivered until
7th November 2007.<o:p></o:p>Upon
service of the Entry of Judgment on the Defendant, he filed an application for
leave for extension of time within which to file an application to set aside
the judgment obtained against him on 7th November 2007.&nbsp; That application was filed on 2nd
May 2008.&nbsp; Eventually on 13th
January 2009 the application was struck out for Want of Prosecution.&nbsp; The Defendant filed an application for an
order to re-list the application that was struck out for want of prosecution.&nbsp; That application was strongly opposed by the
Plaintiff with the reason that the application to set aside the default
judgment ought to have been made two weeks after service of the said judgment
on him and further that the Defendant had never showed up in court and
therefore deserved to have his application struck out.&nbsp; <o:p></o:p>On
17th July 2009 the High Court delivered its ruling which is the
subject matter of this appeal.&nbsp; Since it
is very short, we will set it out in extenso as follows: <o:p></o:p>“Counsel for Plaintiff has been able to
convince the Court that after they were granted leave to amend the Statement of
Claim the amended Statement of Claim was duly served on the Defendant.&nbsp; Even though the Plaintiff has given oral
evidence, there is no proof again that notice was given for the Defendant to be
present.&nbsp; The Entry of Judgment was also
served on the Insurance Company that is not a party to the suit.&nbsp; Under Order 80 rule 4, I grant the
application for extension of time within which to apply to set aside the Entry
of Judgment.&nbsp; The Defendant has 14 days
within which to file his Motion.”&nbsp; <o:p></o:p>The
Plaintiff, aggrieved by the ruling mounted this appeal on two main grounds as
indicated on the face of the Notice of Appeal as follows:<o:p></o:p>“a. The judge failed to consider
Respondent’s Affidavit in Opposition and relied on the Applicant’s
unsubstantiated assertions.<o:p></o:p>b.&nbsp;
The judge erred in law by stating that there was no proof that Hearing
Notice was given to the Defendant to be present despite the fact that when the
case was fixed for hearing the Defendant’s Solicitor was in court.”&nbsp;&nbsp; <o:p></o:p>The
Plaintiff subsequently filed additional grounds.&nbsp; In arguing the appeal, Counsel for the
Plaintiff argued additional ground (a) first which reads;<o:p></o:p>“That the judge erred in law to allow the
applicant 14 days to file his motion to set aside the judgment given on 7th
November 2007 whereas the Defendant’s application before the court was only for
an order to relist the motion seeking for extension of time within which to
file a motion to set aside the judgment given on 7th November
2007.”&nbsp; Counsel for the Plaintiff referred to
page 36 of the record and argued that the motion that was struck out on 13th
January 2009 sought for an order granting leave for extension of time within
which to file an application to set aside the judgment against the Defendant on
7th November 2007.&nbsp; He argued
further that there was therefore no application before the court for leave to
apply for an order to set aside the judgment.&nbsp;
<o:p></o:p>Counsel contended that in view of the
considerable delay in the Plaintiff filing of the applicati</main>