GHANA HOME LOAN LTD vs. KIMATHI MAWUSE DAKE & 2 ORS [2015]DLCA6470

Date	2015-04-23
Suit No.	SUIT NO.: H1/40/2015
Citation No.	[2015]DLCA6470

MARFUL-SAU J.A. (PRESIDING)

ACQUAYE J. A.

TORKORNOO J. A

MARCUS OWUSU PEPRAH FOR 1ST AND 2ND DEFENDANTS/APPLICANTS

AMELIA ADJOTEYE FOR PLAINTIFF/RESPONDENT

[2015]DLCA6470
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >GHANA HOME LOAN LTD<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>KIMATHI MAWUSE DAKE &amp; 2 ORS<o:p></o:p>(DEFENDATS/APPELLANTS)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>SUIT
NO.: H1/40/2015&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: 23RD APRIL, 2015<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

COUNSEL: <o:p></o:p>

MARCUS
OWUSU PEPRAH FOR 1ST AND 2ND DEFENDANTS/APPLICANTS <o:p></o:p>

AMELIA
ADJOTEYE FOR PLAINTIFF/RESPONDENT<o:p></o:p>

</div>CORAM:&nbsp;&nbsp; <o:p></o:p>MARFUL-SAU J.A. (PRESIDING), ACQUAYE J. A. , TORKORNOO
J. A<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="text-align:center;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>TORKORNOO,
J. A.<o:p></o:p>&nbsp;The Appellants were sued for the sum of
$147,038.52, interest thereon at the rate of 18.5% per annum from 10th July,
2012 to date of final payment, and costs of the action. Along with a Statement
of Defence to the action, they counterclaimed for <o:p></o:p>a.
A declaration that on a proper interpretation of the agreement the interest applied
historically by the Plaintiff is wrong.<o:p></o:p>&nbsp;b. An order for all true proper and necessary
account to be taken between the parties on all payments made and received by
Plaintiff to ascertain the correct account between the parties. <o:p></o:p>c.
A declaration that the agreement between the parties is still subsisting and
valid.<o:p></o:p>d.
A declaration that the suit is caught by the doctrine of lis alibi pendes, is
an abuse of process and not maintainable.<o:p></o:p>&nbsp;The Respondents filed an application for
summary judgment which was granted. The judgment can be found on pages 90 and
91 of the Record of Appeal. In her judgment, the learned trial judge cited Sam Jonah v. Duodu-Kumi (2003 - 2004) SC
GLR 50 in which the Supreme court held that in an application for summary
judgment, a court must critically examine the pleadings and be satisfied that
there are no triable issues of fact or of law for which a Defendant should be
granted leave to defend. She held that in the case before her, the thrust of
the defence mounted by defendant was that the rate of interest stated on the
Statement of Claim is not what the parties agreed to. She said that after
reading Exhibit YE1, she would uphold the submission by counsel for Applicant
(Respondent herein) that the agreed interest rate is as stated in the
agreement. Further, she was 'satisfied
that the Defendant has no demonstrable defence to the Plaintiff's claim'.
She entered judgment as prayed on 17th June 2013. <o:p></o:p>On 10th July 2013, she
dismissed an application to set aside the judgment she entered. This ruling can
be found on pages 128 and 129 of the Record of Appeal. This appeal was filed
against this decision refusing to set aside the summary judgment. Notice of the
appeal can be found on pages 130 to 131 of the ROA. The grounds of appeal are:<o:p></o:p>&nbsp;a. That the Appellant demonstrated a defence
to the Plaintiff's claim and the learned trial judge erred in law in not
setting aside the Summary Judgment dated the 17th of June, 2013. <o:p></o:p>b.
That there is a substantial defect in the Respondents Statement of Claim which
is not deserving of a grant of Summary Judgment.<o:p></o:p>&nbsp;c. Additional grounds to be filed upon receipt
of proceedings and certified true copy of the ruling. <o:p></o:p>These additional grounds
of appeal can be found on pages 132 and 133. They are:<o:p></o:p>&nbsp;1. The ruling is against the weight of
evidence on record before the court. <o:p></o:p>2.
The learned judge erred in law when she held that the defects on the
Respondent's Statement of Claim were irregularities which should have been
raised timeously. <o:p></o:p>3.
That the learned trial judge did not have jurisdiction to hear and grant the
summary judgment application on the ground that the writ was issued by Sterling
Partnership which is an entity which lacked capacity to institute an action on
behalf of the plaintiff. <o:p></o:p>Ground
A -That the appellant demonstrated a defence to the plaintiff's claim and the
learned trial judge erred in law in not setting aside the Summary Judgment
dated the 17th of June, 2013. <o:p></o:p>A fundamental role of the
appellate court is to conduct a rehearing of the process leading to the ruling
or judgment appealed against. This is catered for in Rule 8 of The Court of
Appeal Rules, 1997, CI 19 and Section 30 of Courts Act, 1993, 459. Decisions
abound to affirm this direction of statute. See the dicta in Tuakwa v. Bosom 2001-2002 SCGLR 61;
Sarkodie v. FKA Co 2009 SCGLR 65, Fosua &amp; Adu-Poku v. Dufie (Decd) &amp;
Adu-Poku Mensah 2009 SCGLR 310. <o:p></o:p>As recognized by the trial
judge, prior to a decision to enter summary judgment for an Applicant, a court
must critically examine the pleadings and be satisfied that there are no
triable issues of fact or of law for which a defendant should be granted leave
to defend. The defence filed by the Appellant can be found on page 65 to 67 of
the ROA. <o:p></o:p>