CONCERNED TRANSPORT OPERATORS UNION vs. P & C TRANSPORT SERVICE AND INTER STATE TRANSPORT SERVICE [2013]DLCA8078

CONCERNED TRANSPORT OPERATORS UNION vs. P & C TRANSPORT SERVICE AND INTER STATE... [2013]DLCA8078

Date	2013-07-25
Suit No.	CIVIL APPEAL NO. HI/30/2013
Citation No.	[2013]DLCA8078

HONYENUGA J.A. (PRESIDING)

DENNIS ADJEI J.A.

ACKAH YENSU (MS) J.A.

MR. BAFFOUR DWUMAH FOR THE DEFENDANTS/APPELLANTS

MR. PHILIP NKRUMAH FOR THE PLAINTIFF/ RESPONDENT

[2013]DLCA8078
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													<main id="main" class="content" style="min-height: 60rem" >CONCERNED TRANSPORT
OPERATORS UNION<o:p></o:p>(PLAINTIFF/
RESPONDENT)<o:p></o:p>vs.<o:p></o:p>P &amp; C
TRANSPORT SERVICE AND INTER STATE TRANSPORT SERVICE<o:p></o:p>(DEFENDANTS/
APPELLANTS)<o:p></o:p>[COURT OF APPEAL,
CAPE COAST]<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">

CIVIL
APPEAL NO.&nbsp; HI/30/2013&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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:
25TH JULY, 2013<o:p></o:p>

</div>COUNSEL.<o:p></o:p>MR.
BAFFOUR DWUMAH FOR THE DEFENDANTS/APPELLANTS<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">

MR.
PHILIP NKRUMAH FOR THE PLAINTIFF/ 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;
padding:0cm 0cm 1.0pt 0cm">

HONYENUGA
J.A. (PRESIDING), DENNIS ADJEI J.A., ACKAH YENSU (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;
padding:0cm 0cm 1.0pt 0cm">

JUDGMENT<o:p></o:p>

</div>HONYENUGA,
J.A.<o:p></o:p>This
in an appeal by the defendants/appellants against the ruling of the High Court,
Tarkwa dated the 28th July, 2011.&nbsp;
The said court dismissed an application for amendment.<o:p></o:p><o:p>&nbsp;</o:p>The
facts of this appeal is that the parties are all transport operators.&nbsp; The plaintiff/respondent applied for and was
granted a licence to operate and manage transport services by the then Wassa
West District Assembly which later became a Municipal Assembly.&nbsp; The defendants/appellants without the consent
and authority of the plaintiff/respondent entered the lorry station and
operated transport services.&nbsp;
Dissatisfied with the conduct of the defendants/appellants, the
plaintiff/respondent caused a writ of summons which was accompanied by a
statement of claim to be issued against the defendants/appellants claiming the
following reliefs:-<o:p></o:p>“a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; A declaration that defendant entry and
occupation of the lorry part at old Mobil filling station, Tarkwa is illegal
and unlawful.<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; General
Damages for trespass.<o:p></o:p>&nbsp;c.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Perpetual
injunction restraining the defendants, their agents, assigns and workmen from
entering and operating at the lorry park”.<o:p></o:p>The
defendants/appellants also filed an appearance and a statement of defence. The
defendants/appellants filed a motion to strike out the action but before a
ruling could be delivered, they filed another motion to amend their statement
of defence.&nbsp; The motion to strike out the
action was earlier dismissed.&nbsp; Upon
hearing both counsel, the learned trial judge on the 28th July 2011
dismissed the application to amend with costs based on the grounds that once
the trial court had declared that the plaintiff/respondent is a registered
company and has capacity to sue and be sued, the issue is settled and can only
be raised on appeal or review and that the court was functus officio.&nbsp; It is against this ruling that the
defendants/appellants have appealed to this court, based on the following
grounds:-<o:p></o:p>“(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The learned trial judge erred in law by
refusing the 1st and 2nd defendants/appellants
application for leave to amend their Statement of Defence.<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;(ii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
costs awarded was excessive”.<o:p></o:p>The
defendants/appellants would be referred to in this appeal as the appellants and
the plaintiff/respondent as the respondent.<o:p></o:p><o:p>&nbsp;</o:p>I
must observe that Counsel for the appellants inadvertently failed to file his
written submissions in respect of this appeal.&nbsp;
Learned counsel only re-filed the written submissions against the ruling
of the trial court dated 26th July 2011.&nbsp; In essence, no written submissions were filed
by the appellants against the ruling of the trial court dated 28th
July 2011.&nbsp; Learned counsel must be
devoted and be diligent in the performance of their duties to their
clients.&nbsp; This is sheer professional
negligence.&nbsp; Learned counsel for the
respondent has rightly filed his written submissions based on this appeal.&nbsp; The evidence is available in the record of
appeal, to avoid delay and in the interest of justice, I shall consider the
grounds of appeal as filed</main>