AXEX COMPANY LIMITED vs. KWAME OPOKU & 2 ORS. [2013]DLSC6379

Date	2013-03-05
Suit No.	REVIEW MOTION NO. J7/7/2012
Citation No.	[2013]DLSC6379

ATUGUBA JSC (PRESIDING)

ANSAH JSC

ANDINYIRA [MRS] JSC

OWUSU [MS] JSC

DOTSE JSC

GBADEGBE JSC

AKAMBA JSC

KWAME AKUFFO BOAFO (WITH HIM AUGUSTUS ABEIKU BREW) FOR THE DEFENDANTS/APPELLANTS/APPLICANTS

JAMES AGALGA FOR THE PLAINTIFF/RESPONDENT/RESPONDENT

[2013]DLSC6379
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													<main id="main" class="content" style="min-height: 60rem" >AXEX COMPANY LIMITED<o:p></o:p>vs.<o:p></o:p>KWAME OPOKU &amp; 2 ORS.<o:p></o:p>[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">

REVIEW MOTION NO. J7/7/2012&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 5TH
MARCH, 2013<o:p></o:p>

JAMES
AGALGA FOR THE PLAINTIFF/RESPONDENT/RESPONDENT.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>AKAMBA JSC <o:p></o:p>This
review application lies from the unanimous decision of this court rendered on
19th July 2012 dismissing an appeal from a decision of the Court of Appeal
dated 31st July 2008. <o:p></o:p>The
material facts giving rise to the present application are as follows:&nbsp; <o:p></o:p>The
plaintiff/respondent/respondent (Axes Company Ltd) herein after simply referred
to as the respondent issued a writ of summons in the High Court claiming as
plaintiffs for an order of interim injunction restraining the 1st
Defendant/Appellant/Applicant from disposing of a building at the Tema end of
the Motorway (Tema); an order freezing the accounts of the 1st, 2nd and 3rd
Defendants/Appellants/Applicants at Ecobank, Tema; an order freezing the
accounts of the 1st Defendant/Applicant at Barclays Bank, Tema; an order compelling
Barclays Bank, Tema to furnish the court with the statement of accounts of the
1st Defendant/Appellant/Applicant from January 2004 to date; an order
compelling Ecobank to furnish the court with the statement of accounts of the
2nd and 3rd Defendants/Appellants/Applicants from January 2004 to date.
Attached to the writ was an 18-paragraph statement of its claims. The
Defendants/Appellants/Applicants are hereinafter simply referred to as
Applicants. <o:p></o:p>The
writ was immediately followed with an application for interim injunction on
9/01/07 which application was heard on 12/01/07.&nbsp; Mr. Amua Sekyi who appeared as counsel for
the Applicants had no objection to the application except that they be given
time within which a statement of account be furnished of the period so as to
advise themselves.&nbsp; Mr Amua Sekyi appears
to have made the above concessions without any formal filing of appearance that
day. He eventually entered appearance on 2/02/07.&nbsp; The application was granted and certain
consequential orders made, including that: <o:p></o:p>“5. The managers of the above banks
(i.e. Barclays Bank, Tema and Ecobank, Tema) are to prepare and submit before
this court statement of the respective accounts from January 2003 to date on
30/1/2007.” <o:p></o:p>The
two banks complied with the court’s directive and duly submitted statements on
accounts being kept by the Applicants. <o:p></o:p>Subsequent
to the filing of the accounts by the affected banks, the respondents herein,
filed an application for Summary Judgment for the sum of $3,042,000.00 relying
on grounds deposed to in a 27-paragraph supporting affidavit. <o:p></o:p>In
an affidavit in opposition sworn to by one John Cobbina Buabeng, Managing Clerk
at the law firm of Amua Sekyi &amp; Co., the Applicants conceded owing
$1,475,330. <o:p></o:p>On
the day of the application Mr. Amuah Sekyi again made the following
intervention: <o:p></o:p>“My Lord, we admit owing the plaintiff
the sum of $1,475.330 as contained in our affidavit in opposition” <o:p></o:p>In
a swift reaction to the intervention, the court on 14th March 2007 ordered as
follows: <o:p></o:p>“By Court: Based on the process before
me as well as learned counsel’s submissions, summary judgment is entered for
the plaintiff for the recovery of the sum of $1,475,330.........The outstanding
balance of $1,467,000 is set down for hearing.&nbsp;
Suit to take its normal course.”<o:p></o:p>The
respondent thereafter set the execution processes in motion for the payment of
the judgment debt of $1,475,000 and agreed costs of $100,000.&nbsp; A writ of Fi Fa was issued and certain
properties were attached and valued for auction.&nbsp; Three (3) months after these events and while
the execution process was still in motion, the applicant changed solicitors. <o:p></o:p>The
change in solicitors appears to have brought a new drive in the conduct of the
case.&nbsp; The new solicitors initiated an
appeal against the judgment of the court on 18/6/07 and also applied to the
court for stay of execution pending appeal.&nbsp;
The trial High Court judge ruled that the appeal was filed out of time
and therefore the application for stay of execution was not properly before the
court and could not be entertained.&nbsp;
Undaunted by the ruling, the Applicant applied for an extension of time
within which to file appeal which was granted on 13th August, 2007.&nbsp; The Applicant’s subsequent appeal was heard
by the Court of Appeal which dismissed same on 31st July 2008.&nbsp; The Applicant appealed against that decision
to this court on the following grounds: <o:p></o:p>