OPANIN ANTHONY APPIAH vs. KWASI POKU ADINKRA [2013]DLHC3882

Date	2013-09-24
Suit No.	SUIT NO.RPC/112/13
Citation No.	[2013]DLHC3882

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

MR. SAEED KOFI SAM FOR THE PLAINTIFF.

NO LEGAL REPRESENTATIVE FOR THE DEFENDANT.

[2013]DLHC3882
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													<main id="main" class="content" style="min-height: 60rem" >OPANIN ANTHONY APPIAH<o:p></o:p>vs.<o:p></o:p>KWASI POKU ADINKRA<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL
DIVISION), KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT NO.RPC/112/13&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;DATE: 24TH SEPTEMBER, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>MR. SAEED KOFI SAM 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">

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;
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</div>The
Plaintiff herein, who describes himself as the head of family of Agona Abusua
of Bekwai Penipa in the Ashanti Region has instituted the instant action on his
behalf and on behalf of the said family. He is seeking a declaration and an
order compelling the Defendant to account to him a total sum of GH¢31,400.00
being the family’s share of the sale of H/No. Plot 31 Block X, Aboabo, Kumasi
which formed part of the estate of their family member by name Kofi Krah
(deceased)<o:p></o:p>It
is alleged that the one Samuel Sarkodie (now deceased) was appointed customary
successor of the late Kofi Krah who died intestate in January, 1997. Upon the
Demise of the said Samuel Sarkodie, one Kwabena Manu allegedly succeeded him
and after him came Kwasi Poku Adinkra who is the current customary successor of
the late Kofi Krah.<o:p></o:p>The
Plaintiff further alleged that the wife, children and family of the late Kofi
Krah, came to an agreement for the sale of the above mentioned property so as
to defray the cost incurred in the sharing of his properties. According to the
Plaintiff, the property was sold for GH¢221,000.00 and after all legal fees had
been paid, the family’s share was an amount of GH¢31,400.00. One Lawyer Adu
Gyamfi, who was allegedly involved in the estate matter, is said to have handed
a cheque for that amount to the Defendant on behalf of the Plaintiff’s family
but the Defendant has refused to account to them.<o:p></o:p>The
writ of summons and statement of claim were personally served on the Defendant
at Adinkra on 15th May, 2013 but he neglected to enter appearance.
Thus, on 28th June, 2013, Counsel for the Plaintiff moved the court
on an ex-parte application for judgment in default of appearance under Order 10
of C.I. 47. An interlocutory judgment was entered against the Defendant and the
court ordered a hearing notice to be served on him. He was personally served
with a hearing notice on 9th July, 2013 but he refused to appear in
court on 17th July for the assessment of damages. The Court ordered
another hearing notice to be served on him. This time round, he could not be
traced for personal service. Consequently, an order for substituted service was
obtained on 16th August, 2013. The hearing notice was duly posted on
the Defendant’s last known place of abode as per the affidavit of posting filed
on 19th August, 2013.<o:p></o:p>Subsequently,
the court called upon the Plaintiff to mount the witness box for the assessment
of damages on 27th August, 2013. The Plaintiff was not in court but
was represented by one Stephen Peprah Agyepong. His lawyer indicated that the
Plaintiff will not testify but would prove his case through a witness.<o:p></o:p>Based
on the principle stated in Nyamekye v Ansah (1989-90) 2 GLR 152, CA to the
effect that a party need not testify but can prove his case through witnesses,
the court allowed the Plaintiff’s witness to testify. In the Nyamekye case, the
court held in head note (1) as follows:<o:p></o:p>“a party to an action did not need to
give evidence himself. Provided he could adduce evidence from other sources the
court would have a look at that evidence in considering the totality of the
evidence before it…”<o:p></o:p>One
Stephen Peprah Agyapong, who was mentioned in paragraph 3 of the Plaintiff’s
statement of claim, gave evidence for the Plaintiff. According to him, when the
family’s share of GH¢31,400.00 was given to him and the Defendant in the form
of a cross cheque, he told the Defendant to liaise with the head of family for
an account to be opened at the Bank. According to PW1, the Defendant told him
he had deposited the cheque in an amount and that the money would be ready in a
month’s time. Later, when the family approached the Defendant to account to
them, he told them that he litigated on his own and won so he would not share
the money with any family member. Hence, the instant action.<o:p></o:p>If
the Defendant had filed a statement of Defence, he would have had an
opportunity to state his version of the story. He had another golden
opportunity when he was served with hearing notices to come to court for the
assessment of damages and other consequential matters to be gone into. He
disregarded these hearing notices. The court has only the evidence adduced on
behalf of the Plaintiff to consider.<o:p></o:p>