NAA KLORDEY ODONKOR vs. REGINA AKOWUAH AND OTHER [2012]DLHC8206

Date	2012-05-07
Suit No.	SUIT NO. C2/25/12
Citation No.	[2012]DLHC8206

HIS LORDSHIP JUSTICE JACOB B. BOON

E. N. POKU FOR PLAINTIFF/APPLICANT

MARIAM GYASI FOR FIRST DEFENDANT/RESPONDENT

[2012]DLHC8206
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													<main id="main" class="content" style="min-height: 60rem" >NAA KLORDEY
ODONKOR<o:p></o:p>vs.<o:p></o:p>REGINA AKOWUAH
AND OTHER<o:p></o:p>[HIGH COURT,
KUMASI]<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. C2/25/12&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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:
7TH MAY, 2012<o:p></o:p>

</div>COUNSEL:<o:p></o:p>E.
N. POKU FOR PLAINTIFF/APPLICANT<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">

MARIAM
GYASI FOR FIRST DEFENDANT/RESPONDENT&nbsp; <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 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;
padding:0cm 0cm 1.0pt 0cm">

</div>This ruling is in respect of an application by the
plaintiff/applicant (to be called the plaintiff) for summary judgment against
the first defendant/respondent, to be referred to simply as first defendant,
for the recovery of an amount of GH¢10,000.00, described as a loan, allegedly
given to her and another &nbsp;by the
plaintiff on or about the 8th of June, 2011, to be repaid by the 8th
of July, 2011.The defendants are alleged to have defaulted in honouring their
obligation of repaying the loan at the stipulated time. The plaintiff therefore
filed the instant motion against the first defendant claiming the GH¢10,000.00
on the ground that the first defendant signed a Memorandum of Understanding
acknowledging receipt of the money, and undertook to pay back same at the due
date. Plaintiff also called on the court to regard a statement of defence filed
by the first defendant as a sham, in view of the provisions of the memorandum
of understanding attached to the motion. In the said defence, the first defendant
denied she was part of any loan transaction involving plaintiff and the second
defendant, whom she said she got to know through the plaintiff. She also
pleaded that she signed the Memorandum of Understanding because the plaintiff
represented to her that she did so as a witness and, as she is not very
literate she signed the document without knowing its full import and meaning.
She also raised the issue that plaintiff is not a licensed money lender and is
not therefore entitled to the claim.<o:p></o:p><o:p>&nbsp;</o:p>At the hearing of the motion, counsel for the plaintiff
referred to the defence as a sham, and urged the court to disregard it and
grant plaintiff’s prayer for leave to enter final judgment against the first
defendant.<o:p></o:p><o:p>&nbsp;</o:p>In response, counsel for first defendant was of the
opinion that, in so far as defence to the action was filed before the instant application
for summary judgment, the said application was not properly before the court
because nowhere is it stated in Order 14 rule 1 of the High Court (Civil Procedure)
Rules, 2004, CI 47 that an application for summary judgment can be made when a
statement of defence has already been filed. In this action, the writ was
issued on 17/1/12. The first defendant was served with the writ of summons and
statement of claim on 25/01/12. On 31/1/12 appearance was entered on her behalf
by her lawyer, and a statement of defence was filed on 13/2/12. The instant motion
was filed on 16/2/12. Clearly, the motion was brought before the court after
the statement of defence of first defendant was filed and served on counsel for
the applicant. It would appear that it was upon the receipt of the statement of
defence that, the instant motion was filed on the grounds that the defence, as
filed, was a sham. It is relevant to decide whether such an application could
be filed after a statement of defence has been filed and brought to the
attention of a plaintiff and the court. From the authorities, the rational for
summary trials under Order 14 of C.I. 47 is for speedy disposal of&nbsp; a case in a situation where a defendant has
no reasonable defence to such an action, though he or she may express an
intention to defend it. It is emphasized by the authorities that the court may
only uphold such an application where the defendant is unable to set up a reasonable
defence to the cause or matter. In Ballast Nedam Ghana BV v Horizon Marine
Construction (2010) SCGLR 435, Gbadegbe JSC, who delivered the judgment of the
court, quoted the learned authors in Halsbury Laws of England, Vol. 37 (4th
Edition) paragraph 414 at pages 305-309 as regards summary trials in the
following terms:<o:p></o:p><o:p>&nbsp;</o:p>“The
power to give summary judgment under order 14 is intended to apply to clear
cases, where there is no reasonable doubt that the applicant is entitled to
judgment and where it is inexpedient to allow a defendant to defend for more
purposes of delay. Leave to defend will therefore be given where the defendant
shows that he has a fair case, that there are reasonable grounds for setting up
a defence or even a fair probability that he has a bona-fide defence. However,
the defendant does not have to show a complete defence but only a fair
probability of a defence, or that there is a real or substantial issue or
question to be tried or that there is a dispute as to facts or law which raises
a reasonable doubt whether applicant is entitled to judgment. The procedure
under Order 14 was not intended to shut out a defendant who could show that
there was an issue or question that ought to be tried or that for some other
reason there ought to be a trial.”<o:p></o:p><o:p>&nbsp;</o:p>In Sadhwani v A</main>