FAUSTINA GYANEWA vs. KWAHU SOUTH DISTRICT ASSEMBLY, MPRAESO KWAHU [2017]DLCA4739

Date	2017-02-28
Suit No.	SUIT NO: H1/03/2016
Citation No.	[2017]DLCA4739

ADJEI J.A. (PRESIDING)

SOWAH J.A.

MENSAH J.A.

ANTWI ABANKWA ESQ. FOR THE PLAINTIFF/APPELLANT

MILLS ESQ. FOR THE DEFENDANT/RESPONDENT

[2017]DLCA4739
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													<main id="main" class="content" style="min-height: 60rem" >FAUSTINA GYANEWA<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>KWAHU SOUTH DISTRICT ASSEMBLY, MPRAESO KWAHU<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p>[COURT OF APPEAL, KOFORIDUA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO: H1/03/2016&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; &nbsp; &nbsp; &nbsp; DATE: 28TH FEBRUARY,
2017&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>

</div>COUNSEL:<o:p></o:p>ANTWI ABANKWA ESQ. FOR THE
PLAINTIFF/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MILLS
ESQ. FOR THE DEFENDANT/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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ADJEI
J.A. (PRESIDING), SOWAH J.A., MENSAH J.A. <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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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>ADJEI,J.A:<o:p></o:p>This appeal emanates from
the judgment of the Circuit Court, Mpraeso delivered on 1st June,2015.
The Plaintiff/Appellant who will be referred to as the Plaintiff in this appeal
does not challenge the Judgement entered by the trial Court except that she is
dissatisfied with the fact that interest and cost were not awarded by the trial
Circuit Court.<o:p></o:p>The Plaintiff is
dissatisfied with the judgment on two grounds. The Plaintiff’s first
dissatisfaction of the judgment was that the trial Judge failed to award
interest when it was clear from the processes filed that the Defendant has been
owing to the Plaintiff for barely six years and interest on the&nbsp; amount&nbsp;
should have&nbsp; been awarded from
2009 when a demand was made for it. The Plaintiff’s second dissatisfaction with
the judgment was that the trial Circuit Court Judge failed to award cost on the
judgment sum.<o:p></o:p>The brief facts of&nbsp; the case which culminated in this appeal
were&nbsp; that the Plaintiff sued the Defendant
for the recovery of the sum GH5,903.00 being the cost of food and drinks
supplied to the Defendant by the Plaintiff in 2009 which the Defendant willfully
refused to pay despite repeated&nbsp; demands.
The Plaintiff in her second relief claimed for interest on the amount from
February,2009 to the date of final&nbsp;
payment. The Defendant upon the service of his writ of summons and the
statement of claim on it entered appearance. The Defendant entered appearance
on 31st December, 2014. However, on 16th March, 2015 the
Plaintiff filed an application ex parte for judgment in default of appearance.
In the application for judgment in default&nbsp;
of appearance even though it was incompetent&nbsp; as the Defendant&nbsp; had entered appearance, the Plaintiff
attached annexures to her application to satisfy the Court that the Defendant
has not&nbsp; got any defence to her action.
There is no&nbsp; evidence that the
application&nbsp; for judgment in default of
appearance was heard. On 23rd March, 2015 the Plaintiff filed an
application&nbsp; for&nbsp; judgment in default&nbsp; of defence. The Defendant in its affidavit to
oppose the judgment in default of defence admitted owing the Plaintiff an
amount of GH5,903.00 and explained that it made a payment of GH2,000.00 to the
Plaintiff on 30th June,2011 when the Plaintiff had not instituted &nbsp;the&nbsp;
action against it. Furthermore,&nbsp;
after the institution of the action by the Plaintiff, the&nbsp; Defendant paid an amount of&nbsp; GH3,300.00 on 25th January,2015
and the Defendant was at that time owing an amount of GH607.00. The Plaintiff purported
to pray for leave of the trial&nbsp; Circuit
Court&nbsp; to amend the endorsement on her
writ of summons to reflect an amount of GH3,073.80 which&nbsp; the Defendant owed her&nbsp; at the time&nbsp;
of the institution of the action. The legal effect of all the wrong processes
filed by the Plaintiff will be discussed in the course of the appeal. The
judgment&nbsp; in default &nbsp;of defence&nbsp;
was not heard and the Plaintiff on 18th May,2015 applied for
judgment&nbsp; on admission. It is the grant
of the judgment&nbsp; on admission which is
the subject matter of this appeal.<o:p></o:p>The two grounds of appeal
filed by the Plaintiff are as follows:<o:p></o:p><o:p>&nbsp;</o:p>“1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Judge was wrong in saying that
the&nbsp; interest be calculated&nbsp; on GH3,907 from January,2015&nbsp; to date of final payment since the Defendant
became indebted to Plaintiff since 1st January,2009.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The judgment was wrong in refusing to
award costs against the Defendant”.<o:p></o:p>The Defendant has sought
to challenge the competence of the appeal on the ground&nbsp; that the nature of the appeal is an
interlocutory and the appeal should have been fil</main>