EDMUND BOAKYE vs. HOPESON YAW ADORYE [2018]DLHC10387

Date	2018-11-05
Suit No.	SUIT NO.: GJ/804/2018
Citation No.	[2018]DLHC10387

HER LADYSHIP JUSTICE ELLEN VIVIAN AMOAH

PLAINTIFF REP BY MICHAEL AGYARKO DEFENDANT ABSENT

CYNTHIA OFORI FOR THE PLAINTIFF/APPLICANT PRESENT

[2018]DLHC10387
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >EDMUND BOAKYE<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>HOPESON YAW ADORYE<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">SUIT
NO.: GJ/804/2018&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 5TH NOVEMBER,
2018<o:p></o:p>

</div>COUNSEL:<o:p></o:p>PLAINTIFF
REP BY MICHAEL AGYARKO DEFENDANT ABSENT<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

CYNTHIA
OFORI FOR THE PLAINTIFF/APPLICANT PRESENT<o:p></o:p>

</div>CORAM:<o:p></o:p>HER
LADYSHIP JUSTICE ELLEN VIVIAN AMOAH<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNoSpacing" align="center" style="text-align:center;line-height:115%;
tab-stops:4.5pt;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>&nbsp;This is an application for summary judgment filed
by the applicant on the 24th day of October, 2018. The court has had
sight of the motion paper and the supporting affidavit. Attached to the motion
paper are exhibit ‘WD1’ being a power of attorney and exhibit ‘WD2’ being terms
of settlement filed on the 13th of July, 2018.<o:p></o:p>&nbsp;It is also clear that subsequent to the filing of
the terms of settlement, the defendant entered appearance on the 27th
day of July, 2018. This to the court is indicative of the fact that the
defendant may have had or anticipated mounting a defence to the suit despite
whatever may have gone on before. <o:p></o:p>&nbsp;The law given this state of affairs bearing in mind
the reliefs being sought by the plaintiff falling into category of a liquidated
demand, can be pursued either under Order
13 rule 1 of CI 47 or under Order 14
of CI 47. <o:p></o:p>&nbsp;The difference between an application pursuant to Order 13 rule 1 of CI 47 and order 14 of CI 47 was discussed by His
Lordship Justice Anim Yeboah in the case of Ex-parte Porthandling dated 30th October, 2013. In that
case the distinction is made that a summary judgment is a judgement on the
merit even though it is obtained by a formal motion without going through the
rigmarole of a trial. Summary Judgement is granted basically on the ground
mainly that the defendant/respondent has no defence to the action in its
entirety or part thereof and crucially having come to this conclusion, the
court looking at the facts of the case should be in a position to conclude that
indeed it would not be a judicious use of the court’s time to enable the
defendant/respondent to put up a defence. <o:p></o:p>&nbsp;On the other hand, a default judgement one obtains
pursuant to Order 13 is a judgement
that is obtained not on the merit of the case but simply because the
defendant/respondent after entering appearance decides to go to sleep or fails
to file his defence within the time limited under the rules. <o:p></o:p>&nbsp;What is clear to me is that there are a number of
assumptions to be made by a judge in an application for summary judgement. The
phraseology used in Order 14 of CI 47
is permissive. The rules state that “the plaintiff may on notice apply to the
court...”<o:p></o:p>&nbsp;This court is of a constructionist persuasion. The
court is not amenable to implying or deducing matters except if enjoined to do
so by the rules. It is difficult for this court to conclude given the
circumstances of this case that the defendant indeed has no defence or does not
intend to mount a defence. The presence of terms of settlement itself cannot
automatically mean that the defendant has put to bed any defence that he may
have. Given that even though he was sued in May, 2018 and he signed the terms
of settlement on the 4th day of June, 2018, he found it fit to file
his entry of appearance in July, 2018. <o:p></o:p>&nbsp;Under the circumstances it is the opinion of this
court that the applicant ought to have come under Order 13 of CI 47. The said section reads:<o:p></o:p>&nbsp;<o:p></o:p>“where the plaintiff’s claim against a
defendant is for a liquidated demand only and the defendant fails to file a
defence to the claim the plaintiff may after the expiration of the period fixed
by these rules for filing the defence, apply to enter final judgment against
that def</main>