AMARKAI AMARTEIFIO vs. ANANG SOWAH [2017]DLSC4539

Date	2017-10-25
Suit No.	CIVIL APPEAL NO. J4/57/2014
Citation No.	[2017]DLSC4539

DOTSE JSC PRESIDING

GBADEGBE JSC

AKOTO-BAMFO JSC

BENIN JSC

PWAMANG JSC

AMARKAI AMARTEIFIO FOR THE PLAINTIFF/RESPONDENT/APPELLANT.

KWAKU OSAFO-BUABENG FOR THE DEFENDANT/APPELLANT/RESPONDENT.

[2017]DLSC4539
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													<main id="main" class="content" style="min-height: 60rem" >AMARKAI AMARTEIFIO<o:p></o:p>(PLAINTIFF/RESPONDENT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>ANANG SOWAH<o:p></o:p>(DEFENDANT/APPELLANT/RESPONDENT)<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO. J4/57/2014&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;DATE: 25TH OCTOBER,
2017<o:p></o:p>

KWAKU
OSAFO-BUABENG FOR THE DEFENDANT/APPELLANT/RESPONDENT.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>PWAMANG, JSC:- <o:p></o:p>This
appeal lies from the decision of the Court of Appeal delivered on the 4th of
June 2009 which upturned the decision of the High Court for the reason that it
glossed over two serious legal questions namely; whether or not the action was
determinable within the purview of the Legal Profession Act 1960, (Act 32) and
whether the writ of summons in the case was valid at the time it was served.
The appeal has suffered delay in this court for various reasons including the
retirement of Akamba JSC who had participated actively in the hearing and
consideration of the case but the judgment could not be delivered before his
retirement, necessitating his replacement by Benin JSC and a rehearing. It is
relieving that judgment is being delivered today.&nbsp; <o:p></o:p>FACTS<o:p></o:p>The
parties in this appeal, from all indications, were great friends who had money
transactions between them. However this great friendship has given way to
rancor and ill feelings and not least is this spiral of litigation spanning
some two decades. When the matter was called before us, we took time to
recommend Alternative Dispute Resolution (ADR) to the parties so as to stem
their continued bitterness for a more win-win resolution of their differences.
The response we received was one of initial reluctance and eventual stark
refusal from both parties. We have no option than to deal with the matter
according to the law.<o:p></o:p>The
early stages of this case were mired by procedural challenges which have
followed the parties through their journey to this court. By a writ of summons
with an accompanying statement of claim filed on 20th May 1997 in the High
Court, Accra, the Plaintiff/Respondent/Appellant herein, (hereinafter simply
referred to as the&nbsp; plaintiff), initiated
his claims against the defendant/appellant/respondent herein, (herein after
referred to as the defendant), for a number of reliefs set out below.<o:p></o:p>The
rather terse accompanying statement of claim states that: <o:p></o:p>“1. The plaintiff is a Lawyer.<o:p></o:p>2. The defendant is a businessman.<o:p></o:p>3. In February 1992, the Defendant
received £15,000 from the plaintiff to repair his vessel ‘M V Oblayoo’ with the
promise to repay it within three months.<o:p></o:p>4. The amount remains unpaid despite
several demands.<o:p></o:p>5. During the period October 1991 to
May 1994, the plaintiff has performed diverse services for the Defendant as a
lawyer for which the Defendant has failed or refused to pay the Plaintiff
despite several demands.<o:p></o:p>Wherefore the Plaintiff claims as per
his Writ of Summons.<o:p></o:p>CLAIM<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An
order upon the Defendant to refund to the Plaintiff the sum of £15,000 being
money had and received.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An
order upon the Defendant to pay the sum of £20,000 being fees for professional
service rendered to the Defendant.<o:p></o:p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Interest
on the said £35,000 at the current bank interest rate from the 1st February
1992 to date of payment.”<o:p></o:p>The
plaintiff’s writ of summons and statement of claim were served on the defendant
by substituted service on the orders of the High Court. The defendant failed to
enter appearance to the suit wherefore the High Court granted default judgment
for the plaintiff on his reliefs on the 2nd March 1998. However, on 11th August
1998, the defendant, per his counsel, Cyril Quartey, Esq. filed a motion on
notice praying the court to set aside the default judgment. The main grounds
for the application as set out in the affidavit in support were as follows; (1)
that defendant was out of the jurisdiction of the court at the time of issuance
of the writ so it could not be served by substitution and defendant was
entitled ex debito justit</main>