GHANA HOME LOANS LIMITED (PLAINTIFF) vs. MR. CLIFFORD TAGOE (DEFENDANT) [2017]DLHC7367

Date	2017-06-23
Suit No.	SUIT NO.: CM/0301/2016
Citation No.	[2017]DLHC7367

HIS LORDSHIP SAMUEL K. A. ASIEDU J.

MS. NITA STEELE FOR THE PLAINTIFF

MR. STEPHEN BATSE FOR THE DEFENDANT

[2017]DLHC7367
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													<main id="main" class="content" style="min-height: 60rem" >GHANA HOME LOANS LIMITED<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>MR. CLIFFORD TAGOE<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT (COMMERCIAL DIVISION), 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.: CM/0301/2016&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:
23RD JUNE, 2017<o:p></o:p>

</div>COUNSEL: <o:p></o:p>MS. NITA STEELE FOR THE PLAINTIFF <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR. STEPHEN BATSE FOR THE DEFENDANT <o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP SAMUEL K. A.
ASIEDU, J.<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="margin-bottom:0in;margin-bottom:.0001pt;
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</div>The
instant application seeks an order of the court to enter summary judgment in
favour of the applicant against the respondent. The application is premised
upon a writ of summons and a statement of claim filed by the plaintiff in which
the plaintiff claims against the defendant the sum of $19,217.00 together with
interest and the judicial sale of property used as security for a facility made
available to the defendant by the plaintiff.<o:p></o:p>After
the defendant had filed his defence, the parties, in accordance with Order 58
of the High Court (Civil Procedure) Rules, 2004, CI 47 went through the
mandatory pre-trial settlement but could not settle the matter. Thereafter, the
pre-trial judge set down the issue “whether or not the plaintiff is entitled to
the reliefs claimed in the writ of summons” for trial.<o:p></o:p>It
was after all these steps have been gone through that the plaintiff filed the
instant application for summary judgment against the defendant.<o:p></o:p>The
defendant/respondent who is opposed to the application says that the statement
of defence which he filed raises triable issues for which reason this
application is incompetent.<o:p></o:p>The
plaintiff’s claim against the defendant has been described by the plaintiff in
paragraph 6 of the statement of claim as balances outstanding on the loan
facility made available to the defendant. According to the plaintiff, the
amount of $19, 217.00 has been outstanding since 11th April, 2016.
Indeed, the agreement between the parties has it that the loan was to be
serviced by the payment of the sum of $282.04 per month inclusive of interest
from the 1st February 2009 for a period of 15 years. <o:p></o:p>The
defendant’s answer to the plaintiff’s claim is that he has, at all times
material to this suit serviced the repayment of the loan and that it was on
only one occasion that the plaintiff wrote to him demanding an outstanding
amount of $1, 608.40 after which the instant writ was issued. This answer is
contained in paragraph 6 and 7 of the statement of defence.<o:p></o:p>The
effect of the averment contained in the statement of defence, particularly,
paragraphs 6 and 7 is that the defendant disputes the amount which is alleged
to be outstanding by the plaintiff as at 11th April, 2016.<o:p></o:p>In
the opinion of the court, therefore, the averments in the statement of defence
hit at the heart of the plaintiff’s claim.<o:p></o:p>Order
14 rule 1 of the High Court Rules under which the present application is
brought states that<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 1.&nbsp;&nbsp;&nbsp;Application
for summary judgment<o:p></o:p>Where in an action a defendant has been served with
a statement of claim and has filed appearance, the plaintiff may on notice
apply to the Court for judgment against the defendant on the ground that the
defendant has no defence to a claim included in the writ, or to a particular
part of such a claim, or that the defendant has no defence to such a claim or
part of a claim, except as to the amount of any damages claimed.<o:p></o:p>In
view of the above provision, all that a respondent needs to do is to show that
he has a defence to the claim made against him by the applicant. It is the
position of the law that where triable issues are raised in the defence,
judgment cannot be entered summarily against the defendant. See Atlanta Timber
Co. v. Victoria Timber Co. Ltd. [1962] 1 GLR 221. <o:p></o:p>In
OYOKO CONTRACTORS LTD v STARCOM BROADCASTING SERVICES [2003-2005] 1 GLR 445 it
was held that<o:p></o:p>Where there was a triable issue, summary judgment
would not be given. Thus, where in an action the parties joined issues and went
further to call for strict proof of assertions of fact, evidence was required
to prove the issue joined in a trial.<o:p></o:p>In
view of the opinion of the court expressed above, the court does not think that
the plaintiff is entitled to the reliefs it claims against the defendant in a
summary manner. The application is </main>