NAMOUK ENTERPRISE vs. GN BANK LTD. & 2 OTHERS [2017]DLHC9182

Date	2017-12-04
Suit No.	SUIT NO. CM/RPC/0408/16
Citation No.	[2017]DLHC9182

HER LADYSHIP JUSTICE JENNIFER ABENA DADZIE

GEORGE TETTEH WAYOE ESQ. OF BCMS CONSULTING KOKOMLEMLE ACCRA COUNSEL FOR PLAIINTIFF/RESPONDENT

DENNIS OWUSU-APPIAH OFOSUAPEA ESQ. OF GN BANK LEGAL DEPARTMENT ASYLUM DOWN ACCRA COUNSEL FOR 1ST DEFENDANT

EVANS GADETO DJIKUNU ESQ. OF HAYIBOR DJARBENG & CO. KOKOMLEMLE ACCRA COUNSEL FOR 2ND DEFENDANT/APPLICANT

[2017]DLHC9182
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													<main id="main" class="content" style="min-height: 60rem" >NAMOUK ENTERPRISE<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>GN BANK LTD. &amp; 2
OTHERS<o:p></o:p>(DEFENDANT/APPLICANT)<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;line-height:150%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">SUIT
NO. CM/RPC/0408/16&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 4TH DECEMBER,
2017<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align:
justify;line-height:150%;tab-stops:298.8pt;border:none;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">EVANS
GADETO DJIKUNU, ESQ. OF HAYIBOR, DJARBENG &amp; CO., KOKOMLEMLE, ACCRA, COUNSEL
FOR 2ND DEFENDANT/APPLICANT<o:p></o:p>

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;line-height:150%;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div><o:p>&nbsp;</o:p>Before
me is a Motion to set aside the Judgment on Admission granted by this Court,
differently constituted, and delivered on September 5, 2017 in favour of the
Plaintiff/Respondent, referred to hereafter as the “Respondent” against the 2nd
Defendant/Applicant, who hereafter is referred to as “Applicant”.<o:p></o:p>Detailed in the affidavit accompanying
the motion paper are the following facts, which, according to the Applicant
gave rise to the instant application. &nbsp;On August
30, 2017, the Applicant was served with a Motion for Judgment on Admission
filled by the Respondent with a return date of September 4, 2017. It is the
claim of the Applicant that in view of the short service of the motion on it,
coupled with the fact of the indisposition of its counsel handling the brief, its
counsel by a letter dated August 31, 2017 requested the Court to adjourn the
matter to September 19, 2017, to enable it respond to the application
appropriately.&nbsp; The said letter was
copied to the counsel of the Respondent and 1st Defendant,
respectively, and is marked as Exhibit
“BBGA1” of the Applicant.&nbsp; That
notwithstanding, on the return date of the motion, Applicant was represented in
Court by its representative, Mr. Owusu Appiah-Kubi, Head of Forensic
Investigations and Whistleblowing Unit, but the motion was not heard.&nbsp; It is his claim that he was informed by the court
clerk that as the motion had not been assigned to any Vacation Judge at the time,
it would not be heard on that day. In any case, the Court’s record shows that
the case was not heard on September 4, 2017. According to the Applicant, without
a hearing notice being served on it, the Court on the next day, September 5,
2017, heard and granted the Respondent’s Motion for Judgment on Admission. &nbsp;The Applicant has attached a copy of the
search report issued by the Registry of this Court on October 20, 2017 to its
affidavit and is marked as Exhibit
“BBGA5” in support of this assertion.&nbsp;
Aggrieved by the Judgment on Admission granted by the Court, the
Applicant has filed this Motion seeking to set same aside.<o:p></o:p>As
is to be expected, the Respondent is opposed to a grant of this
application.&nbsp; The contention of the
Respondent as far as I can gather &nbsp;from
its affidavit in opposition and written submission submitted on its behalf by
its counsel, in the main, is to the effect that the Applicant was duly served
with the motion but in flagrant disregard for the rules it chose not to file an
opposition to same.&nbsp; It rather “… had the time and energy to write a letter
from its lawyers” to the Court to request an adjournment of the
matter.&nbsp; The Respondent further contends
that when the motion was not heard on the return date of September 4, 2017, per
the rules of practice, the Applicant ought to have appeared in Court the next
day, September 5, 2017 to mount its opposition to the application.&nbsp; Counsel for Respondent claims that per the
rules of practice, where a return date has been scheduled and
proceedings are not held on the said date, it is deemed that proceedings have
been adjourned to the following day. &nbsp;Counsel
did not state the particular rule under which he is coming.&nbsp; Maybe Counsel for Respondent is referring to Order 80 of the High Court (Civil Procedure) Rules, 2004
(hereinafter, “C.I. 47”) which deals with reckoning of time and in
particular the Order 80 Rule 3 which
deals with reckoning time on non-working days in respect of an act <span style="font-size: 12pt; line-height: 150%; font-family: &quot;Book Antiqua&quot;, serif; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;">prescribed
by the rules or by any judgment, order or direction, to be done at an office of
the Court; if the prescribed time expires on a day on which that office is closed,
and for that reason that act cannot be done on that day, the act shall be deemed
to have been done in time if done on the next day on which that office is open.
<s><o:p></o:p></s><span style="font-size: 12pt; line-height: 150%; font-family: &quot;Book Antiqua&quot;, serif; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial;">Be that as
it may and assuming for a moment that the practise at the bar is as advanced by
counsel for Respondent, the question that comes to my mind is, was
it proper, in the particular circumstances of this case for counsel for the
Respondent to move the motion the day following the return date of the motion
when </main>