EDC STOCKBROKERS vs. CIG MICROFINANCE LTD AND 7 OTHERS [2017]DLHC3692

Date	2017-11-09
Suit No.	SUIT NO. CM/0080/15
Citation No.	[2017]DLHC3692

GEORGE K. KOOMSON JUSTICE OF THE HIGH COURT

FRED ASARE DANQUAH FOR PLAINTIFF

KEN TSCHRIDI FOR 5TH & 6TH DEFENDANTS

[2017]DLHC3692
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													<main id="main" class="content" style="min-height: 60rem" >EDC STOCKBROKERS<o:p></o:p>vs.<o:p></o:p>CIG MICROFINANCE LTD AND
7 OTHERS<o:p></o:p>[HIGH COURT (COMMERCIAL
DIVISION), ACCRA]<o:p></o:p>SUIT NO. CM/0080/15&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; 9TH
NOVEMBER, 2017<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<o:p>&nbsp;</o:p>

</div>COUNSEL:<o:p></o:p>FRED ASARE DANQUAH FOR PLAINTIFF <o:p></o:p>KEN TSCHRIDI FOR 5TH &amp; 6TH DEFENDANTS <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<o:p>&nbsp;</o:p>

</div>CORAM:<o:p></o:p>GEORGE K. KOOMSON JUSTICE OF THE HIGH COURT <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<o:p>&nbsp;</o:p>

</div>RULING<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>In this application the 5th &amp; 6th defendants
pray the court to set aside the judgment obtained by the Plaintiff against them
as they were not served with the writ of summons and statement of claim. <o:p></o:p><o:p>&nbsp;</o:p>I have examined the application and the affidavits filed by the
parties. I have also read the written submissions filed by both counsel. I have
given consideration to Order 7 of C.I. 47. Regard has also been given to the
principles governing service of processes and the setting aside of judgments
generally. <o:p></o:p><o:p>&nbsp;</o:p>It is to be noted that though Messrs Djabanor &amp; Co. entered
appearance for all the defendants in the suit. There is however no proof of
service of the writ of summons and statement of claim on the 5th &amp;
6th defendants on the docket. It therefore appears to me that on the
facts the 5th &amp; 6th defendants were not personally
served with the writ of summons and statement of claim. <o:p></o:p><o:p>&nbsp;</o:p>And as Kpegah JSC said in the case of BARCLAYS BANK OF GHANA (Ltd)
v. GHANA CABLE CO. LTD AND ORS, [1998-99] SCGLR 1, that: where an appearance is
entered on behalf of the defendants without authority, although the court will
not enquire whether the said solicitor has authority to do so or not, the
defendant has the right to set aside every process based on such unauthorised
entry of appearance, otherwise, grave injustice will be done to him. As I have
stated earlier, I have gone through the docket, I do not find any proof of
service on the 5th &amp; 6th defendants. I do not intend
to enquire how Dbabanor &amp; Co. entered appearance for and on behalf of the 5th
&amp; 6th defendants. I am also aware that in the statement of
defence filed by the lawyers for defendants, they have stated in paragraph 7
that the 5th, 6th and 7th defendants admit
paragraph 7 of the statement of claim. This notwithstanding, it is the duty of
the court to ensure that justice is done and manifestly so. Since personal
service is required in such matters, it is incumbent on the Plaintiff to
establish that they did indeed serve the 5th &amp; 6th defendants
personally. The plaintiff however has failed to show that the 5fth &amp; 6th
defendants were personally served with the writ of summons. <o:p></o:p><o:p>&nbsp;</o:p>It is therefore my opinion that the plaintiff cannot hide behind
the unauthorised entry of appearance filed on behalf of 5th &amp; 6th
defendants by Djabanor &amp; Co. and subsequent processes filed by David
Essuman Koomson, Esq., of Ringway Law office to defeat the requirement of
personal service of the writ of summons on the 5th &amp; 6th defendants.
<o:p></o:p><o:p>&nbsp;</o:p>It is unfortunate that this case travelled a full trial and the
court appreciates the inconvenience </main>