ANGELA BEMPONG vs. DIAMOND ESTATE & CONSTRUCTION GH LTD. [2017]DLHC3956

Date	2017-02-02
Suit No.	SUIT NO: GJ/1371/2016
Citation No.	[2017]DLHC3956

JUSTICE KWEKU T. ACKAAH-BOAFO

KOFI BOSOMPEM FOR THE PLAINTIFF

GODWIN AKPADIE FOR THE DEFENDANT

[2017]DLHC3956
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													<main id="main" class="content" style="min-height: 60rem" >ANGELA BEMPONG<o:p></o:p>vs.<o:p></o:p>DIAMOND ESTATE &amp;
CONSTRUCTION GH LTD.<o:p></o:p>[HIGH
COUR (GENERAL JURISDICTION DIVISION, COURT 6), ACCRA]<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: GJ/1371/2016&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;DATE: 2ND
FEBRUARY, 2017.<o:p></o:p>

</div>COUNSEL: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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KOFI
BOSOMPEM FOR THE PLAINTIFF <o:p></o:p>

GODWIN
AKPADIE FOR THE DEFENDANT <o:p></o:p>

</div>CORAM:<o:p></o:p>JUSTICE
KWEKU T. ACKAAH-BOAFO<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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</div>Introduction&nbsp; [1] This is an application by
Plaintiff/Applicant herein praying that summary judgment be entered against the
Defendant/Respondent for the reliefs endorsed on the Writ of Summons filed on
October 12th, 2016 stated below as:- <o:p></o:p>The
Plaintiff claim is for: <o:p></o:p>1.&nbsp; An order directed at the Defendant to refund
to the Plaintiff an amount of GH¢59,132.00. <o:p></o:p>2.
Interest on the said amount from 25th August 2016 till the date of final
payment at the prevailing commercial banks rate. <o:p></o:p>3.
Legal costs assessed at the Ghana Bar Association scale of fees. <o:p></o:p>[2]
The grounds upon which the instant application is premised are catalogued in
the supporting affidavit accompanying the motion paper.&nbsp; The thrust of the Plaintiff/Applicant’s case
is that the Plaintiff applied through her sister Mrs. Rita Antwi-Boasiako to
purchase one of the three-bedroom houses being constructed by the Defendant, a
Company incorporated under the laws of Ghana and doing business as a real
estate developer at Oyarifa, a suburb of Accra. The Applicant attached Exhibit
MN1, a copy of the application form she filled and submitted to the Defendant.
According to the Plaintiff/Applicant the agreed Purchase price was
GH¢165,000.00) payable on instalments.&nbsp; <o:p></o:p>&nbsp;<o:p></o:p>[3]
The Plaintiff/Applicant says after paying an amount of GH¢60,960 to the
Defendant she had a change of mind and therefore instructed her Solicitors to
write to demand a refund of the money paid less three percent (3%)
administrative charges as per the terms of the agreement. The
Plaintiff/Applicant attached Exhibits “MN2”, “MN3” and “MN4” the receipts
issued when the payments were made and Exhibits “MN5” and “MN6”, the demand
letters sent to the Defendant by the Plaintiff’s Solicitors. It is the case of the
Plaintiff/Applicant that the Defendant has refused to refund the money despite
the repeated demands made. As a result of the Defendant’s refusal to pay the
debt, the Plaintiff says she issued the instant writ on October 12, 2016. The
Plaintiff says the Defendant is presently indebted to her in the sum of
GH¢59,132 being the principal sum. She is also demanding interest thereon. <o:p></o:p>[4]
Arguing the motion, learned Counsel for the Plaintiff/Applicant, Mr. Kofi
Bosompem conceded that the Defendant has filed a defence in the matter but
referred to the affidavit evidence before the court as well as the pleadings
and submitted that the Defendant has no plausible defence and that the defence
filed is a sham and only calculated to delay the suit.&nbsp; Learned Counsel submitted that the
defendant’s defence including the averment that “there are no records of the
transaction with the Plaintiff” flies in the face of the rules of court and a
wicked lie on the grounds that the Defendant took the Plaintiff’s money and
issued out receipts to acknowledge same. His view therefore is that considering
the totality of the pleadings, the Plaintiff/Applicant is not precluded from
bringing this instant application.&nbsp;&nbsp; He
is of the strongest conviction that the court has the inherent power to enter
summary judgment under Order 14 of CI 47 at this stage of the litigation.&nbsp; Counsel relied on the case of Sam Jonah v
Duodu-Kumi (2003-2004) SCGLR 50 for the submission. <o:p></o:p>[5]
I note that the Defendant after being served with the writ of summons entered
Appearance on October 31, 2016 and filed a defence on November 17, 2016.
Consequent to that, the Plaintiff filed the instant motion for summary judgment
on January 6, 2017 and served the Defendant/Respondent counsel of record,
Gordon C. Akpadie on January 9, 2017. The Defendant/Respondent has not filed an
affidavit in opposition to the motion. I have however, considered the
Defendant’s position in this application based on the statement of defence
filed and on the docket. <o:p></o:p>[6]
In the Defendant’s Statement of Defence filed, it first denies each and every
averment of the Plaintiff and contends that it is not in a position to admit or
deny that the Plaintiff applied to purchase one of its homes through Mrs. Rita
Antwi-Boasiako because it has no records of the transaction. The Defendant
further denies all the averments and contends that it would put the Plaintiff
to strict proof of the claims at trial and avers that the Plaintiff is not
entitled to her claim.&nbsp; <o:p></o:p>Court’s
Opinion And Analysis: <o:p></o:p>I
start my analysis by posing the question: <o:p></o:p>Is the court precluded from entering a
Summary Judgment after a Defence is filled in the matter? <o:p></o:p>[7]
To my mind, a moving party, in this case the Plaintiff herein by the instant
application is attempting to establish that there is no “triable issue” or no
“genuine issue of fact requiring a trial” and that she is entitled to judgment
as a matter of law.&nbsp; <o:p></o:p>