NANA DWOMO SARPONG vs. MADAM AKUA KONAMA AND ORS. [2017]DLHC8727

Date	2017-12-19
Suit No.	C7/118/2007
Citation No.	[2017]DLHC8727

HIS LORDSHIP JUSTICE FRANCIS OBIRI HIGH COURT JUDGE

ANNIS MOHAYIDEEN FOR APPLICANT PRESENT

FRANKLIN ASAMOAH FOR RESPONDENT PRESENT

[2017]DLHC8727
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													<main id="main" class="content" style="min-height: 60rem" >NANA DWOMO
SARPONG<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>MADAM AKUA
KONAMA AND ORS.<o:p></o:p>(DEFENDANTS/APPLICANTS)<o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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C7/118/2007&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 19TH DECEMBER 2017<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ANNIS MOHAYIDEEN FOR APPLICANT PRESENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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FRANKLIN ASAMOAH FOR RESPONDENT PRESENT<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP JUSTICE FRANCIS OBIRI, HIGH COURT JUDGE<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;border:none;
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</div>On
30th January 2007, the plaintiff/respondent hereinafter called the
respondent issued a writ of summons against the defendants/applicants thereafter
called the applicants for certain reliefs.&nbsp;
Among the reliefs the respondent is claiming against the applicants is:<o:p></o:p>a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
An order of the court
directing the payment to the defendant’s (applicant herein) an amount of ¢700
million (Seven Hundred million cedis) representing the value of 37½ percent
shares held by the defendant’s in Suntex Company limited. <o:p></o:p>&nbsp;The respondent repeated this assertion in
paragraphs 9 (ii) (iii), 27, and 33 of the statement of claim.<o:p></o:p>The
applicants in their statement of defence and counterclaim filed on 12th
February 2007 appeared to have disputed the 37½ percent figure the respondent
stated in his writ.&nbsp; However, counsel for
the applicants filed the instant application on 31st October 2017
based upon the respondent’s relief ‘a’ in the writ of summons.&nbsp; The motion is praying the court for judgment
on admission in favour of the applicants in respect of the 37½ percent of the
proceeds from Sunstex Company Limited since 2002.&nbsp; The motion is supported by affidavit and annexures.&nbsp; The applicants main contention in the motion
paper is that, the court should give them judgment based upon the respondent
admission in his writ.&nbsp; This would entitle
them to 37½ percent shares in respect of any amount realized from the
operations of the company since 2002 when the applicants husband/father died.<o:p></o:p>The
motion was served on the respondent’s counsel through his clerk on 1st
November 2017 as per the affidavit of service commissioned on 3rd
November 2017.&nbsp; Counsel for respondent
did not file any affidavit in opposition.<o:p></o:p>When
the motion came up for hearing on 14th December 2017, counsel for
the applicants prayed the court that, per the respondent own endorsement on the
writ of summons, judgment should be given against him based upon his own
admission.&nbsp; Counsel added that, the court
should therefore order the plaintiff to refund 37½ percent of the amount
realized from the operations of the company in dispute to the applicants.<o:p></o:p>I
have indicated earlier that, the respondent was served with the motion through
his lawyers but he failed to file any affidavit in opposition.&nbsp; Counsel for the respondent also failed to
appear in court on the day the motion was heard.&nbsp; <o:p></o:p>In
respect of the respondent counsel not filing any process that does not give the
applicants automatic right to the grant of the application.In such cases, the
court has to examine the contents of the application and satisfy itself that,
it has substance or merit before same can be granted.&nbsp; It is the law that even Ex-parte application
should be scrutinized carefully before it can be granted.&nbsp; &nbsp;This
is to ensure that, applications brought before courts are not only legitimate
but based on sound principles of law.&nbsp;
And also to prevent collusion actions and abuse of the judicial system.<o:p></o:p>See:
Amidu (No.1) V Attorney-General
Waterville Holdings and Woyome (No.1) (2013-2014) 1 SCGLR 112 at 165.&nbsp; <o:p></o:p>In
respect of the respondent counsel not appearing in court on the date the applicants
motion was moved, it means the respondent and his counsel waived their right to
be heard.&nbsp; Counsel for the respondent was
in court on 1st November 2017 when the motion was adjourned to 14th
December 2017 for hearing.&nbsp; The
respondent representative was also in court.&nbsp;
Therefore, if the respondent and his counsel disabled themselves from
been heard in the proceedings, then it means they waived their right to be heard.
In &nbsp;&nbsp;that case, the court can proceed to
determine the merits of the application and that would not be in breach of the
natural justice rule.<o:p></o:p>See:
Republic V High Court (Fast Track
Division) Accra, Ex-parte (Ayikai Akosoku IV –Interested Party) (2015-2016) 1
SCGLR 289<o:p></o:p>Republic V High Court (Fast Track Division) Accra;
Ex-parte State Housing Company Limited (No. 2) (Koranten- Amoako- Interested
Party) (2009) SCGLR 185<o:p></o:p>I
now wish to examine the merits of the application.&nbsp; The respondent had unequivocally stated in
relief ‘a’ that, the applicants are entitled to the value of 37½ percent of the
disputed property and therefore th</main>