JOSEPH MARTEYE vs. DORA KARLEY ADOTEY [2016]DLCA7980

Date	2016-04-21
Suit No.	CIVIL APPEAL NO. H1/21/2016
Citation No.	[2016]DLCA7980

V.D. OFOE JA (PRESIDING)

ACQUAYE JA

AGYEMANG (MRS.) JA

[2016]DLCA7980
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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; DATE: 21ST APRIL, 2016<o:p></o:p>

</div>CORAM:&nbsp; <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>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>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
The
judgment is manifestly against the weight of the evidence adduced at the trial;<o:p></o:p>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 Suit No.
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 were exhibited in the application for summary judgment) to evidence
the series of transactions, clearly showed that the recipient of the sums
claimed in the suit was Jamaco Trading Ltd. Thus did he pray for the setting
aside of the summary judgment entered against him. The learned trial judge
after giving the argument due consideration, rejected it. In dismissing the
suit, the learned trial judge held that there was no merit in the argument,
seeing that in the statement of defence, the defendant admitted the transaction
as having been between him and the plaintiff, and never at any time raised the
issue of capacity in the suit against him. He reasoned that in the light of the
admission in pleading and the lack of objection to the suit, the fact that the
receipts attached to the summons for summary judgment by the respondent were in
the name of the said Jamaco Trading Ltd did not affect the capacity of the
defendant in the suit.<o:p></o:p>The appellant has complained that this was against
the weight of the evidence. It is well settled, (in line with its jurisdiction
set out in Rule 8(1) of the Court of Appeal Rules CI 19 - which provides that
an appeal shall be by way of rehearing), that a complaint that a judgment is
against the weight of evidence, invites the appellate court which is in much
the same position as the trial court regarding the evidence led, to evaluate
the same, and come to its own conclusions, in support of or against the trial
court’s findings, see: Oppong Kofi and Ors v. Attibrukusu III
[2011] 1 SCGLR 176. In</main>