REBECCA GYAMFI AND ERIC MANU BOAFO vs. ADU ESQ. ANAJI [2011]DLCA5698

Date	2011-10-27
Suit No.	SUIT NO. H1/155/10
Citation No.	[2011]DLCA5698

S. MARFUL-SAU J.A (PRESIDING)

SENYO DZAMEFE J.A

DENNIS D. ADJEI J.A

MR. ISHMAEL G. CARSON FOR THE DEFENDANT/APPELLANT

MR. EMMANUEL ARTHUR FOR THE PLAINTIFFS/RESPONDENT

[2011]DLCA5698
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													<main id="main" class="content" style="min-height: 60rem" >REBECCA GYAMFI AND ERIC MANU BOAFO<o:p></o:p>[PLAINTIFFS/RESPONDENTS]<o:p></o:p>vs.<o:p></o:p>ADU ESQ. ANAJI<o:p></o:p>[DEFENDANT/APPELLANT]<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;
padding:0in 0in 1.0pt 0in">

SUIT
NO. H1/155/10&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: 27TH
OCTOBER, 2011<o:p></o:p>

MR.
EMMANUEL ARTHUR FOR THE PLAINTIFFS/RESPONDENT<o:p></o:p>

</div>DENNIS
D. ADJEI (JA)<o:p></o:p>On 9th June, 2009 the High
Court, Sekondi gave final judgment in default of defence in favour of the
Plaintiffs/Respondents to recover the sum of GH¢15,500.00 with interest at the
current bank rate from July 2003 to the date of final payment. On 27 th July
2009, the Defendant/Appellant applied to the High Court to set aside the
default judgment entered in favour of the Plaintiffs and a further order
adopting the statement of defence filed out of time. The Defendant’s
application to set aside the judgment in default of defence was dismissed by
the trial High Court for failing to disclose any triable issue.<o:p></o:p>On 29 th October, 2009,
the Defendant/Appellant being dissatisfied with the ruling of the trial High
Court which refused to set aside the default judgment, appealed against it to
this Court.<o:p></o:p>The brief facts of this
appeal are that the Plaintiffs/Respondents instituted this action against the
Defendant at the High Court, Sekondi for the following reliefs:<o:p></o:p>“1. Recovery of the sum of
GH¢15,500.00 being monies advance to the<o:p></o:p>Defendant by the 1 st Plaintiff for
the purchase of a house which the Defendant sold to another person and has
refused to refund the money despite repeated demands for same.<o:p></o:p>2. Interest at the prevailing bank
rate from June 2007 to the date of final judgment”.<o:p></o:p><o:p>&nbsp;</o:p>The writ of summons was
accompanied by seven (7) paragraph statement of claim.<o:p></o:p>The efforts by the
Plaintiffs to serve the Writ of Summons and the Statement of Claim on the
Defendant personally failed as the Defendant could not be located. On 21 st
April, 2009, the Court granted an application Ex-parte for substituted service
of the Writ of Summons and the Statement of Claim on the Defendant. The notices
were posted as ordered by the trial Court. On 5 th May, 2009, the Defendant
entered appearance but failed to file his Statement of Defence. On 28 th May,
2009, the Plaintiffs filed notice for judgment in default of defence and was
duly served on the then lawyers for the Defendant on that very date. The
Defendant failed to file his Statement of Defence and failed to appear in Court
on the return date. The trial High Court therefore entered judgment for the
Plaintiffs for the reliefs endorsed on their writ of summons.<o:p></o:p>On 16 th June, 2009, the
entry of judgment was served on the Defendant personally. The Defendant’s house
was subsequently attached by the Sheriff of the trial High Court upon the writ
of fieri facias filed by the Plaintiffs. The Defendant in his effort to abate
the execution process, filed the motion to set aside the judgment in default of
defence and for a further order adopting the statement of defence filed by him
on 27 th July, 2009.<o:p></o:p>The three (3) grounds of
appeal filed by the Defendant are as follows: -<o:p></o:p>“a) That the ruling is against the
weight of the affidavit evidence.<o:p></o:p>b) That the affidavit of the Defendant
raised triable issues and the trial<o:p></o:p>Court erred in not granting the
Defendant leave to defend the action.<o:p></o:p>c) That it was the Defendant’s case
that time was the essence of the contract and that by failing to complete
within the stipulated time, the Plaintiff’s caused loss and damages to the
Defendant a ground which the trial Court failed to appreciate”,<o:p></o:p><o:p>&nbsp;</o:p>The Defendant indicated
his intention to file additional grounds of appeal but did not file any.<o:p></o:p>The import of Defendant’s
grounds 1, 2 and 3 of the appeal is that the ruling is against the weight of
the affidavit evidence as there are triable issues. By this the defendant is
saying that the affidavit in support of his application filed on 14th August,
2009 and the Supplementary Affidavit filed on 25 th August, 2009 disclose
triable issues and the judgment should be set aside on such terms as the Court
thinks just. Order 13 Rule 8 of the High Court (Civil Procedure) Rules</main>