GOOD NEWS CO-OP CREDIT UNION LIMITED vs. BETTY KYEI ASANTE & ANOTHER [2013]DLHC3866

Date	2013-07-29
Suit No.	SUIT NO.BFS/48/13
Citation No.	[2013]DLHC3866

ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT

JUDY EDUSEI FOR THE PLAINTIFF.

MATHIAS GOLLO FOR THE DEFENDANT.

[2013]DLHC3866
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													<main id="main" class="content" style="min-height: 60rem" >GOOD NEWS CO-OP CREDIT
UNION LIMITED<o:p></o:p>vs.<o:p></o:p>BETTY
KYEI ASANTE &amp; ANOTHER <o:p></o:p>[HIGH COURT
(COMMERCIAL DIVISION), KUMASI]<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.BFS/48/13&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 29TH JULY, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>JUDY EDUSEI FOR THE
PLAINTIFF.<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">

MATHIAS
GOLLO FOR THE DEFENDANT. <o:p></o:p>

ANGELINA
MENSAH-HOMIAH (MRS.) JUSTICE
OF THE HIGH COURT<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:0in 0in 1.0pt 0in">

</div>The plaintiff herein commenced the
instant action against the Defendants jointly and severally for the reliefs as
set out below:<o:p></o:p><ol style="margin-top:0in" start="1" type="1">
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l1 level1 lfo1;
 tab-stops:list .5in">The
 Recovery of cash, the sum of forty five thousand five hundred Ghana Cedis
 (GH¢45,500.00) being balance outstanding on a loan granted to the 1st
 Defendant at her own request and repayment of which&nbsp; the 2nd Defendant
 secured&nbsp; with property numbered plot
 34 Block B, Kumasi.<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l1 level1 lfo1;
 tab-stops:list .5in">Interest
 on the said sum at the prevailing bank rate from 30th
 September, 2012 till date of final payment.<o:p></o:p></li>
</ol>Alternatively<o:p></o:p><ol style="margin-top:0in" start="3" type="1">
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l1 level1 lfo1;
 tab-stops:list .5in">An
 order for the judicial sale of property numbered plot 34 Block B,
 Kromoase, Kumasi used to guarantee the loan.<o:p></o:p></li>
</ol>The writ of summons and statement of
claim were personally served on the 1st Defendant on 17/01/2013 but
the 2nd Defendant could not be served. However, Mathias Gollo Esq.
entered appearance on behalf of the two Defendants at a time when the 2nd
Defendant had not been served. Upon an application filed by counsel for the
Plaintiff, the 2nd Defendant was also served with the writ of
summons and statement of claim by substituted service. An affidavit of posting
to that effect was filed on 20/03/2013. She entered appearance in person on
25/03/2013. It can be inferred that the 2nd Defendant did not
instruct Mathias Gollo to file any process on her behalf after she had been
properly served with the writ of summons and statement of claim. Any process
purportedly filed on behalf of the 2nd Defendant when she had not
been served with the writ of summons and statement of claim and therefore could
not have given any instructions cannot be valid. After she had entered
appearance in person, Mathias Gollo did not file any notice of appointment of
solicitor so as to represent her in court.&nbsp;
Impliedly, the 2nd Defendant did not have any legal
representation at all times. She did not also take steps to file her statement
of Defence. Hearing notice was also not served on her personally as ordered by
the court on 03/07/2013. Instead, the 1st Defendant and her counsel
were served.&nbsp; <o:p></o:p><o:p>&nbsp;</o:p>The need for personal service of
court processes, including writ of summons, was emphasized by the Supreme Court
in the case of Barclays Bank of Ghana Ltd v Ghana Cable Co Ltd &amp; Others
(1998-99) SCGLR 1. The Court per Acquah JSC (as he then was) held, among other
things, that “a court has generally no jurisdiction to proceed against a party
who has not been served.”<o:p></o:p><o:p>&nbsp;</o:p>Under the circumstance, it will not
be prudent for the Plaintiff to proceed against the 2nd Defendant at
this time. At best, the Plaintiff can apply for judgment in default of defence
against the 2nd Defendant who failed to file any process after
entering appearance personally.<o:p></o:p><o:p>&nbsp;</o:p>The Plaintiff’s case was that on or
about 31/07/2012, it granted a loan facility of GH¢30,000.00 to the 1st
Defendant at her request at an agreed interest rate. The 2nd
Defendant used her property, described above, to secure the loan. It was
alleged that the 1st Defendant failed to retire the loan by
30/09/2012 as agreed by the parties.<o:p></o:p><o:p>&nbsp;</o:p>The Defendants denied the quantum of
the debt as well as the interest rate allegedly agreed on. The 1st
Defendant pleaded that she paid GH¢2,400.00 on six occasions and she has
receipts to back her assertions.&nbsp; She
further pleaded that in December, 2012, she paid an amoun</main>