SAMUEL GYAMFI AND OTHERS vs. BANK OF GHANA AND ANOTHER [2017]DLHC4163

Date	2017-02-20
Suit No.	SUIT NO. OCC 113/2014
Citation No.	[2017]DLHC4163

DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT

SAMUEL CUDJOE FOR 1ST DEFENDANT

[2017]DLHC4163
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													<main id="main" class="content" style="min-height: 60rem" >SAMUEL GYAMFI AND OTHERS<o:p></o:p>vs.<o:p></o:p>BANK OF GHANA AND ANOTHER <o:p></o:p>[HIGH COURT (COMMERCIAL DIVISION), KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT&nbsp;NO. OCC 113/2014&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 20TH 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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</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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</div><p class="MsoNormal" align="center" style="margin-top:1.45pt;margin-right:0in;
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<p class="MsoNormal" align="center" style="margin-top:1.45pt;margin-right:0in;
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</div>In Samuel Gyamfi &amp; Others v Bank of Ghana Civil Appeal No.
J4/52/2014 delivered on 19th November, 2015, Gbadegbe JSC read the
judgment of the Supreme Court as follows:<o:p></o:p>‘‘We
have just this morning delivered judgment in civil appeal no. J4/52/2014 which
involves substantially the same parties and raises for our determination the
same points of law as confronts us in this case. We think that we are in
principle bound by the reasons which lead us to that decision. Accordingly, we
apply the decision in that matter to the appeal herein.<o:p></o:p>The
result is that we allow the instant appeal and set aside the judgment of the
Court of Appeal and in place thereof substitute an order granting the appellant
a leave to enter appearance to the action herein out of time and for the matter
to be thereafter dealt with in accordance of law.’’<o:p></o:p>It is the above judgment
of the Supreme Court that has necessitated the determination of this
preliminary issue i.e. whether or not by virtue of the Supreme Court&nbsp; Decision in Civil Appeal No. J4/52/2014
Samuel Gyamfi &amp; Ors v Bank of Ghana dated 19/11/2015,KwesiAmissah Arthur
and Franklin Belnye remain Parties to this suit?<o:p></o:p>The 1st
Defendant has filed an affidavit as well as statement of case in respect of the
preliminary issue. Both were filed on 01/12/2016. This was after the court had
ordered parties to file their respective affidavits and statements of case on 22/11/2016.
Parties were given up to 13/12/2016 to file their processes. On 20/12/2016,
when the matter came up for hearing, the Plaintiff had not filed its affidavit
in response as well as the statement of case. The court gave the Plaintiff the
opportunity to file the processes by the next adjourned date i.e. 16/01/2017. <o:p></o:p>On 16/01/17 when the suit
came up for hearing the Plaintiff had not complied with the order of the court
to file its affidavit and statement of case. The case was adjourned to today, 20/02/2017
for ruling.<o:p></o:p>At this juncture, it is
important to give the background to this preliminary issue.<o:p></o:p>The plaintiff caused a
writ of Summons to be issued against the Defendants therein (The Bank of Ghana,
Kwesi Amissah Arthur, Franklin Belnye and Onward Investment Limited) on the
29th day of June, 2012, for the reliefs endorsed therein. The plaintiffs on the
16th day of July 2012 obtained judgment in default of appearance against the Defendants
therein. The 1st, 2nd and 3rd Defendants therein subsequently filed an
application for the stay of execution of the judgment of the court and to set
aside judgment for default of appearance and for leave to enter appearance out
of time which application was dismissed by the court upon hearing same. Dissatisfied
with the ruling of the court, 1st, 2nd and 3rd Defendants appealed against the
ruling to the Court of Appeal. The Court of Appeal dismissed the appeal but the
Courtstruck out the names of the 2nd and 3rd Defendants as being unnecessary
and improper parties to the suit. The court of Appeal stated as follows at page
28:<o:p></o:p>‘‘(47)
There is however a collateral matter I notice from the record. It is obvious
that the 2nd and 3rd Appellants have been sued co
nomine.&nbsp; Examining the statement of
claim, I do not find any allegation made against them either individually or
jointly in their personal capacities outside the scope or purview of the respective
positions they held in the 1st Respondent’s organization. It does
appear to me that the only reason for joining them to the action is because of
their portfolios at the time of the transaction.<o:p></o:p>(48)
I find that they are unnecessary and improper parties to the action and the
Learned Trial Judge ought to have struck out their names from the suit in
accordance with the provisions of Order 4 Rule 5 (2) (a) of High Court (Civil
Procedure) Rules 2004 C.I. 47. Since this appeal offers us the opportunity of
rehearing the entire suit , pursuant to our jurisdiction under Rule 8(1) of
C.I. 19 (as amended) the names of the 2nd and 3rd
Appellants which out to have been struck out are hereby struck out from the
record.’’<o:p></o:p>Dissatisfied with the
judgment of the Court of Appeal in dismissing the appeal to set aside the
defau</main>