EMELIA ARYEETEY (PLAINTIFF) vs. EBENEZER ARYEETEY AND THE REGISTRAR, HIGH COURT ACCRA (DEFENDANT) [2012]DLHC7498

EMELIA ARYEETEY (PLAINTIFF) vs. EBENEZER ARYEETEY AND THE REGISTRAR, HIGH COURT... [2012]DLHC7498

Date	2012-04-20
Suit No.	SUIT NO. BFA 110/11
Citation No.	[2012]DLHC7498

HIS LORDSHIP MR. KWASI DAPAA J.

[2012]DLHC7498
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													<main id="main" class="content" style="min-height: 60rem" >EMELIA ARYEETEY<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>EBENEZER ARYEETEY AND THE
REGISTRAR, HIGH COURT ACCRA<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH
COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO. BFA 110/11&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:
20TH APRIL, 2012<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;
padding:0cm 0cm 1.0pt 0cm">

HIS
LORDSHIP MR. KWASI DAPAA J.<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 to this motion initiated the proceedings with a writ of
summons filed on the 16-03-11 against the said 2 defendants for reliefs
endorsed as follows: <o:p></o:p>"1. An order that plaintiff
and 1st defendant are the co-administrators of the estate of Robert Adjamah
Aryeetey (deceased). <o:p></o:p>2. An order that the
purported power of attorney that the plaintiff is alleged to have granted to
the 1st defendant on the 2-05-03 which was subsequently revoked on the 19-10-10
was fraudulent and fictitious. <o:p></o:p>3. An order upon the 2nd
defendant not to pay any monies from the estate of Robert Adjamah Aryeetey
(deceased) to the 1st defendant especially monies paid into court in and for
the beneficiaries of the estate of Robert Aryeetey (deceased) in suit No
L625/02 entitled Ebenezer Aryeetey v. Daniel Sasu which is currently before an
Accra High Court, pending the hearing and final determination of this suit. <o:p></o:p>4. Costs." <o:p></o:p>The
1st defendant entered a conditional appearance on the 28-03-11 and followed up
with a statement of defence filed on the 4-05-11 but the 2nd defendant did not
file any process at all. <o:p></o:p>On
the 9-06-11 the plaintiff applied by a motion ex-parte for judgment against the
2nd defendant in default of appearance. When the motion came up for hearing on
the 13-06-11 the court "suo motu" directed that the plaintiff to
serve a copy of the motion with a hearing notice on the 1st defendant having
regards to the possible effect the judgement against the 2nd defendant in the
light of the pleadings could have on the interest of the 1st defendant. The
plaintiff and the 1st defendant and their counsel attended the hearing on the
22-06-11 and the court adjourned the motion to the 14-07-11 to enable counsel for
the 1st defendant to respond to same if desired. The 1st defendant and counsel
did not react to the motion and the court on the said 14-07-11 granted the
motion and entered an interlocutory judgment for relief `3' against the 2nd
defendant. Application for directions then pending was adjourned for hearing as
between the plaintiff and the 1st defendant. <o:p></o:p>The
counsel for the 1st defendant then filed the instant motion on the 3-02-12 for
an order to set aside the said interlocutory judgment which was opposed with an
affidavit in opposition by the lawful attorney of the plaintiff filed on the
2-03-12. The motion was moved and opposed by counsel for the 1st defendant and
the plaintiff respectively on the 22-03-12. <o:p></o:p>The
main contentions of counsel for the 1st defendant are that the 2nd defendant
was sued in his official capacity the Registrar of the High Court which was
wrong in law because the Attorney General ought to have been proceeded against
the circumstances. The second ground is that the supporting affidavit deposed
to by the plaintiff to procure the default judgment was incompetent because the
plaintiff thumbprinted as an illiterate but no jurat clause was provided to
show that the contents of the affidavit were read to her and she understood
same before making her said mark. In support of his submissions counsel
referred the court to section 3(a) of the Iliterates' Protection Act 1912
(CAP.262) and also pages 290-293 of the Practice and Procedure in the Trial
Courts and Tribunals of Ghana, Volume I by Justice Brobbery. <o:p></o:p>In
opposing the motion counsel challenged the authority of counsel for the 1st
defendant to move the court on behalf of the 2nd defendant. He countered the
submissions of counsel for the 1st defendant against the prosecution of the
action against the 2nd defendant in his official capacity saying that the 2nd
defendant was susceptible to sue and be sued under law and that it was for the
2nd defendant to decide either to defend the action by himself or by reference
to the Attorney General. On the question of the want of the jurat clause on the
affidavit of the plaintiff used in the motion for the default judgment, counsel
for the plaintiff argued that the illiterates' Protection Act was for the
protection of illiterates who executed documents against literate parties
seeking to take advantage over them and not the other way round. He contended that
so long as the illiterate did not complain about lack of appreciation of the
contents of the document the lack of the jurat clause could not be held against
his interest under it. He cited the case of Boakyem &amp; others v. Ansah
(1963) 2 GLR 223 SC to support his said contention. <o:p></o:p>After
reading the contesting affidavits of the 1st defendant and the plaintiff and
considering the submissions of their counsel in expatiation I am of the opinion
that the motion should not be granted. In the first place the 1st defendant has
not demonstrated in any way that he has the consent and or authority of the 2nd
defendant to apply for an order to set aside the judgment which is against the
2nd defendant alone. Even though it is obvious that the judgment ordering the 2nd
defendant not to pay monies accruing to the estate to the 1st defendant pending
the final determination of the suit would affect the interest of the 1st
defendant(if any) in the interim, the 1st defendant was not the party directly
affected and not the one against whom it could be enforced. Besides that fact,
the 1st defendant was given ample opportunity to state and protect whatever
interest of his that was at stake which he failed to do. He thereby forefeited
any right (if any) which he had to do so. This court would not re-open the
issue at this late hour especially so because the nature of the judgment
against the 2nd defendant is effectively one for the interim protection of the
proceeds from the estate for the eventual winner of the litigation between the
plaintiff and the 1st defendant himself. The judgment to that extent is not
only</main>