MAKAF MICRO FINANCE vs. RAHINATU M. MALIK & ANOR [2016]DLHC3818

Date	2016-12-15
Suit No.	SUIT NO.BFS/113/15
Citation No.	[2016]DLHC3818

ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT

MARGARET MARY ADJEI-TWUM FOR PLAINTIFF

MUJEEB RAHMAN AHMED FOR DEFENDANT

[2016]DLHC3818
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													<main id="main" class="content" style="min-height: 60rem" >MAKAF MICRO FINANCE<o:p></o:p>vs.<o:p></o:p>RAHINATU M. MALIK &amp;
ANOR<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL
DIVISION), KUMASI]<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">

SUIT NO.BFS/113/15&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 15TH
DECEMBER, 2016<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>MARGARET MARY ADJEI-TWUM
FOR PLAINTIFF<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">

ANGELINA
MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT<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;
padding:0in 0in 1.0pt 0in">

</div>This
is indeed a small commercial claim .The amount sought to be recovered by the Plaintiff
from the Defendant is the sum of GH¢ 12, 160.00 and interest thereon from
08/08/2013 to the date of final payment.<o:p></o:p>The
Plaintiff's case is very simple and concise. It is alleged that the 1st
&nbsp;Defendant contracted for a loan of GH¢ 4,000.00
on 08/05/2013 from the plaintiff Micro Finance institution at an interest rate
of 12% per month to be repaid within three (3) months. The 2nd Defendant
is alleged to have guaranteed the repayment of the said loan which remains
unpaid to date. It is this non-payment that has led to the instant suit.<o:p></o:p>A
few observations before I go into the merits of the case. From the record, the
2nd Defendant was not served with the Plaintiff's writ of summons
and statement of claim even though a lawyer filed an appearance on behalf of
the two Defendants on 06/01/15 at 10:00am.&nbsp;
On the same day, but at 1:20pm, counsel for the Plaintiff conducted a
search to ascertain whether both Defendants had been served with the writ of
summons and statement of claim. The search result indicated that the 2nd
Defendant had not been served. Counsel took no steps to ensure that the 2nd
Defendant was duly served. Indeed, there is only one affidavit of service of
the writ of summons on the 1st defendant on the court's docket. The 2nd
Defendant never appeared in court. There is a real doubt as to whether the 2nd
Defendant was ever served with the Plaintiff's writ of summons and statement of
claim. I am inclined to believe that&nbsp; he
was not served and the entry of appearance for both defendants might have been
filed in error. as was held in the case of Barclays Bank of Ghana Ltd v Ghana
Cable Co Ltd &amp; Ors (1998/99) SCGLR 1 at&nbsp;
page 2 ( holding 1): " A court has generally no jurisdiction to
proceed against a party who has not been served...". The trial proceeded
in respect of the 1st Defendant only.<o:p></o:p>In
her statement of defence filed on 26/01/2015, the 1st Defendant did
not deny taking&nbsp; the said loan from the Plaintiff
to support her business but alleged that on or about June, 2013, thieves broke
into her shop and stole all the items she had purchased with the loan. Prior to
that, she alleged that she made various payments on the loan to the plaintiff.
After notifying the plaintiff about the alleged theft, the 1st Defendant
asserted that the Plaintiff's manager assured her that interest would be frozen
to enable her raise funds from other sources to complete repayment of the loan.<o:p></o:p>Following
unsuccessful attempts at settlement, the case was placed before me for trial
and both counsel were duly served with hearing notice on 15/06/2016 to appear
in court on 29/06/2016. However, counsel for the defendants did not show up,
the court proceeded to give directions for the filing of witness statements. <o:p></o:p>A
witness statement filed on behalf of the Plaintiff together with its pre-trial
check-list on 03/10/2016 were duly served on the 1st Defendant personally on
04/10/2016 as evidenced by the affidavit of service deposed by Samuel Oduro
Agyemang and field on 11/10/2016. The 1st Defendant did not file her
witness statement and failed to show up at the Case Management Conference scheduled
for 18/10/2016. Two hearing notices were again served on her lawyer on
20/10/2016&nbsp; and 28/10/2016 respectively
and there is are affidavits of service filed by Kwabena Gyan (senior bailiff)
to that effect. The Plaintiff did not give up and caused another hearing notice
to be served on counsel for the 1st defendant on 17/11/2016 in respect of the
hearing set for 21/11/2016. Service was effected on counsel because he had not
filed any notice of withdrawal. As to be expected, there was a "no
show" by the 1st defendant and her lawyer.&nbsp;
The court had no other option than to proceed to hear the Plaintiff's case
under Order 36 rule 1 (2) (a) of the High Court (Civil Procedure) Rules, 2004
which states as follows:<o:p></o:p><p class="MsoNormal" style="text-align: justify; text-indent: 0.5in; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;">" Where an action is called
for trial and a party fails to attend, the trial Judge may<o:p></o:p><p class="MsoNormal" style="margin-left: 1.5in; text-align: justify; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;">