THE REPUBLIC vs. THE HIGH COURT (COMM. DIV) ACCRA EX PARTE: PORT HANDLING COMPANY LIMITED [2013]DLSC2827

THE REPUBLIC vs. THE HIGH COURT (COMM. DIV) ACCRA EX PARTE: PORT HANDLING COMPAN... [2013]DLSC2827

Date	2013-10-30
Suit No.	CIVIL APPEAL NO. J5/23/2013
Citation No.	[2013]DLSC2827

MRS WOOD C.J. (PRESIDING)

OWUSU (MS) JSC

DOTSE JSC

YEBOAH JSC

AKAMBA JSC

YONI KULENDI WITH HIM DANIEL SEGU OSEI AND MS. THERESA ESSON FOR THE APPLICANT.

KWEKU OSEI ASARE LED BY YAW BOAHENE ASARE FOR THE RESPONDENT.

[2013]DLSC2827
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>THE HIGH COURT (COMM.
DIV) ACCRA<o:p></o:p>EX PARTE: PORT HANDLING
COMPANY LIMITED<o:p></o:p>&nbsp;[SUPREME COURT, ACCRA]<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">

CIVIL APPEAL NO. J5/23/2013&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 30TH OCTOBER, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>YONI KULENDI WITH HIM
DANIEL SEGU OSEI AND MS. THERESA ESSON FOR THE APPLICANT.<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">

MRS
WOOD C.J. (PRESIDING), OWUSU (MS) JSC, DOTSE JSC, YEBOAH JSC, AKAMBA&nbsp; JSC<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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JUDGEMENT
<o:p></o:p>

</div><o:p>&nbsp;</o:p>ANIN YEBOAH, JSC:<o:p></o:p><o:p>&nbsp;</o:p>The applicant herein has invoked
this courts’ supervisory jurisdiction for the prerogative writ of certiorari to
quash the judgment of the High Court (Commercial Division) Accra, dated the
22/11/2010.<o:p></o:p><o:p>&nbsp;</o:p>The judgment sought to be
quashed was not a judgment on the merits and therefore the facts leading to
this application are devoid of controversy. On or about the 22/02/2010, the
interested party to this application issued a writ against the applicant at the
High Court, Commercial Division, Accra. The writ was indorsed with a claim of
Fifty – Eight Thousand United States Dollars (U$58,000.00) being unpaid fees
for services rendered by the interested party to the applicant for a period.
Upon service of the writ of summons and statement of claim, the applicant
consulted a law firm known as BMC Legal Services to enter appearance on its
behalf, which the firm did on 16/03/2010. After service of the Notice of
Appearance, the interested party on 18/03/2010 filed a motion on notice to set
aside the Notice of Appearance. <o:p></o:p><o:p>&nbsp;</o:p>The grounds for the
application was that the Notice of Appearance filed on behalf of the interested
party (the applicant herein) did not comply with the High Court (Civil
Procedure) Rules, 2004, (C 147) and that same was irregular under Order 9 rule
1(1) and 3(1) CI 47. As expected, the application was opposed but was
eventually struck out as withdrawn. On 6/04/2010, the interested party filed
another application praying for the same relief as in the earlier one. Before
the motion could be heard, the applicant filed its statement of Defence,
disputing most of the material averments in the statement of claim and
obviously the reliefs sought on the writ of summons. <o:p></o:p><o:p>&nbsp;</o:p>On the 14/06/2010, the
motion to set aside the applicant’s Notice of Appearance was argued before the
trial judge. The learned judge ruled that the Notice of Appearance was indeed bereft
of necessary details which the rules of court has envisaged and ordered the
applicant herein to comply with the rules within seven days by supplying the
necessary details. It appears that the judge’s ruling was not appealed.
However, on 28/5/2010, Messrs Akwetey &amp; Associates filed a Notice of Change
of Solicitor on behalf of the applicant herein. The interested party, however,
on 1/06/2010 filed an application to set aside the Notice of Appearance and for
judgment in Default of Appearance against that application. As per the
affidavit annexed to the said application, the grounds for it was that the
applicant had failed to amend its Notice of Appearance as ordered by the court.
&nbsp;Messrs Akwetey &amp; Associates upon
service of the motion filed a fresh Entry of Appearance on the 16/6/2010
instead of amending the Notice of Appearance filed earlier on which the learned
judge had declared as lacking in basic particulars as required by the rules of
court. When the application to set aside the appearance and enter judgment in
default of appearance was listed for hearing, the interested party sought leave
to withdraw the application on the grounds that the applicant had filed an
appearance which on record satisfied the requirements under the rules of court.
Even though the applicant had filed a fresh Notice of Entry of Appearance, it
probably did not find it necessary to file any fresh statement of defence. <o:p></o:p><o:p>&nbsp;</o:p>