PIETER RODOLPH J. ROOMJIN vs. GEORGE KWABENA BOADI [2016]DLSC2818

Date	2016-07-14
Suit No.	CIVIL APPEAL NO. J4/32/2013
Citation No.	[2016]DLSC2818

DOTSE JSC (PRESIDING)

ANIN YEBOAH JSC

GBADEGBE JSC

AKAMBA JSC

PWAMANG JSC

KWAME BOAFO AKUFFO ESQ. FOR THE PLAINTIFF/RESPONDENT/ APPELLANT.

BOAKYE AGYEN ESQ. WITH HIM MRS. REBECCA BOAKYE FOR THE DEFENDANT /APPELLANT /RESPONDENT.

[2016]DLSC2818
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													<main id="main" class="content" style="min-height: 60rem" >PIETER RODOLPH J.
ROOMJIN<o:p></o:p>vs.<o:p></o:p>GEORGE KWABENA BOADI<o:p></o:p>&nbsp;[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">

CIVIL
APPEAL NO. J4/32/2013&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&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: 14TH JULY, 2016<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
<o:p></o:p>KWAME
BOAFO AKUFFO ESQ.&nbsp; FOR THE
PLAINTIFF/RESPONDENT/ 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">

&nbsp;BOAKYE AGYEN ESQ. WITH HIM MRS. REBECCA BOAKYE
FOR THE DEFENDANT /APPELLANT /RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p>DOTSE JSC
(PRESIDING), ANIN YEBOAH JSC, GBADEGBE JSC,<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">

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
justify;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">AKAMBA
JSC, AND PWAMANG JSC<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">

JUDGEMENT<o:p></o:p>

</div>GBADEGBE JSC:&nbsp;&nbsp;&nbsp; <o:p></o:p>This
appeal arises from the decision of the Court of Appeal dated November 19, 2009
by which the summary judgment obtained in the trial High Court was set aside.
The circumstances in which our jurisdiction has been invoked may be briefly
stated as follows. The Plaintiff/Respondent/Appellant (to whom I shall for
convenience hereinafter describe as the Plaintiff) took out the writ of summons
herein against the Defendant/Appellant/Respondent (hereinafter conveniently
referred to as the Defendant) seeking the refund of a specified sum of money
denominated in the United States dollars. As the defendant was ordinarily
resident outside the jurisdiction, the plaintiff applied and obtained leave to
issue and have the writ served outside the jurisdiction. The defendant
subsequently entered appearance to the writ and following his submission to the
jurisdiction, the plaintiff applied for summary judgment against him on the
claim. The defendant’s solicitors filed an affidavit in answer to the
application under order 14 of the rules of the High Court contained in High
Court (Civil Procedure) Rules, CI 47. The hearing appears from the record of
appeal to have suffered some adjournments from the return date of April 15,
2005 to May 06, 2005 when it was determined.<o:p></o:p>Following
the entry of the summary judgment, the defendant applied to have the judgment
set aside under Order 14 rule 9 of&nbsp; the
High Court (Civil Procedure ) Rules, LN 140A on the ground that he was not
present at the hearing. The gravamen of his complaint at the hearing of the
application to set aside the judgment was that he was not served with notice of
the adjournment of the hearing of the application to May 06, 2005 when the
court proceeded to hear the application and yielded to the prayer of the
plaintiff. The said application was dismissed by the trial court and an appeal
lodged there from to the Court of Appeal. In the Court of Appeal, the
defendant’s appeal was allowed and an order of retrial ordered. The plaintiff
has appealed to us and by the processes initiating these proceedings seek a reversal
of the judgment of the Court of Appeal.<o:p></o:p>&nbsp;Before us, the plaintiff has contended among
other grounds of objection contained in his notice of appeal that the appeal
from the High Court to the Court of Appeal was improperly constituted as it was
filed out of time. Although the notice of appeal did not specifically refer to
the applicable rule, in the written briefs submitted by the parties, the arguments
were submitted in relation to Rule 9 of the Court of Appeal Rules, CI 19.There
is no dispute that although the decision on appeal from the trial court to the
Court of Appeal was delivered on May 6, 2005, the appeal there from was filed
on May 2, 2006.&nbsp; <o:p></o:p>&nbsp;The defendant’s answer to the issue of the
appeal to the Court of Appeal having been filed out of time is that by virtue
of the decision in the case of Morkor v
Kuma [1998-99] SCGLR 620, the right to appeal from the summary judgment
first arose in his favour only after the court had refused to set aside the
summary judgment on February 3, 2006. The substance of the said answer is that
by the decision of the Supreme Court in the Morkor case (supra) the appeal was
filed within time.&nbsp; It appears to us that
this procedural point touches the question of our jurisdiction and so it is
important that we consider it first before proceeding to a merit consideration
of the other grounds of objection contained in the notice of appeal. See: Tindana (No 2) v Chief of Defence Staff and
Another [2011] 2 SCGLR, 732.<o:p></o:p>The
first question which arises from the said jurisdictional point is whether the
decision in the Morkor case (supra) applies to the circumstances of this
appeal. A careful consideration of the Morkor case (supra) reveals as appears
from holding 2 of the judgment is that the judgment must have been granted for
a sum greater than what was claimed in the action. The judgment, it seems to me
must not only be entered in the absence of a party within the scope of Order 9
rule 14 of the High Court (Civil Procedure) Rules, CI 47 but “for an amount greater than what was in fact
due, the summary judgment cannot be treated as final once the applicant had
filed an application to set aside same”. In the instant cas</main>