JOSEPH MARTEYE vs. DORA KARLEY ADOTEY [2016]DLCA5000

Date	2016-04-21
Suit No.	CIVIL APPEAL NO. H1/21/2016
Citation No.	[2016]DLCA5000

V.D. OFOE JA (PRESIDING)

ACQUAYE JA

AGYEMANG (MRS.) JA

MR. AYIKOI OTOO FOR APPELLANT

MR. SAMUEL BOSOMPEM FOR RESPONDENT

[2016]DLCA5000
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													<main id="main" class="content" style="min-height: 60rem" >JOSEPH MARTEYE<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>DORA KARLEY ADOTEY<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p>[COURT OF APPEAL (CIVIL DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO. H1/21/2016&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: 21ST APRIL, 2016<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR. AYIKOI OTOO FOR
APPELLANT<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">

MR.
SAMUEL BOSOMPEM FOR RESPONDENT<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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V.D.
OFOE JA (PRESIDING), ACQUAYE JA, AGYEMANG (MRS.) JA<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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JUDGMENT<o:p></o:p>

</div>AGYEMANG JA:<o:p></o:p>In this appeal against the judgment of the High
Court Accra, the plaintiff/appellant (hereafter referred to alternately as the
plaintiff,or the appellant), prays this court for an order setting aside the
judgment of the High Court dated 11th day of May 2012. He also seeks
an order entering judgment for him.<o:p></o:p>The appeal is against the judgment of the court
below in suit described as: MISCN No. 1646/98, which was commenced by the
appellant to set aside a summary judgment entered by the learned trial judge in
the suit between the parties titled: Suit No. C.320/95.<o:p></o:p>These are the antecedent matters:<o:p></o:p>On 23rd May 1995, the defendant/respondent herein
(described alternately as the defendant, or the respondent), sued out a writ of
summons against the appellant seeking inter alia, the repayment of the sum of
c23,850,000.00 (old Ghana Cedis), owed to the respondent by the appellant.
After the appellant entered appearance,the respondent applied for summary
judgment on the ground that the former had no defence to the suit. The
appellant did not file an affidavit opposing the matters stated in the
affidavit in support of the application for summary judgment. He however filed
a statement of defence.<o:p></o:p>At the hearing of the summons, summary judgment was
entered for the respondent for the reliefs claimed.<o:p></o:p>On 5th October 1998, the
plaintiff/appellant commenced the aforesaid suit described as 1648/98, claiming
that the earlier suit titled Suit No. C320/95 and the judgment upon it, were
null and void as it was brought against the defendant in his personal capacity,
and not against the company Jamaco Trading Ltd which allegedly entered into the
transaction with the respondent. The appellant described himself as Managing
Director of the said company.<o:p></o:p>An application was made in that suit for the summary
judgment obtained in Suit No. C 320/95, to be set aside as being null and void.
It was unsuccessful. Following a trial ordered by the Court of Appeal to which
an appeal against that ruling had been lodged, the learned trial judge
dismissed the suit. It is against the dismissal of the said suit that the
present appeal has been brought. <o:p></o:p>The appellant filed two grounds of appeal which we
reproduce hereunder:<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;">1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
The
judgment is manifestly against the weight of the evidence adduced at the trial;<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;">2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
The
learned trial judge failed to consider the issue of capacity.<o:p></o:p>The appellant as plaintiff at the court below
pleaded that he had been wrongly sued by the respondent in the prior suitNo. C320/95.He
alleged that this was because the transaction which was the subject of the suit
was entered into with the respondent not by himself, but with the company
Jamaco Trading Ltd of which he was Managing Director. He contended that the
receipts given to the respondent to evidence the transaction (which receipts
wer</main>