FRANCIS ANOKYE vs. DOMINIC ANANE [2019]DLHC6870

Date	2019-03-22
Suit No.	SUIT NO. OCC 05/2019
Citation No.	[2019]DLHC6870

HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE

MARGARET MARY ADJEI-TWUM (MRS) FOR PLAINTIFF/APPLICANT

DORCAS OTTI FOR THE DEFENDANT/RESPONDENT

[2019]DLHC6870
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													<main id="main" class="content" style="min-height: 60rem" >FRANCIS ANOKYE<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>DOMINIC ANANE<o:p></o:p>(DEFENDANT)<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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SUIT NO. OCC 05/2019&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: 22ND MARCH, 2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MARGARET MARY ADJEI-TWUM (MRS) FOR PLAINTIFF/APPLICANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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DEFENDANT/RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP JUSTICE DR. RICHMOND
OSEI-HWERE<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;line-height:115%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>Before
me is an application for an order of the court to strike out the statement of
defence of the defendant and for judgment to be entered for the plaintiff. <o:p></o:p>Counsel
for the plaintiff/applicant contends that the defendant/respondent has put out
a statement of defence which is entirely different from their case. According
to counsel, the nature of the defence necessitated the filling of
interrogatories in a bid to elicit further and better particulars from the
defendant. Counsel submits that the defendant did not only file a belated
response to the interrogatories but failed to answer some of the questions. In
counsel’s estimation the answers provided were insufficient. Counsel cited
Order 22 rule 6which gives the court the power to strike out the defence of a
defendant and enter judgment in favour of a plaintiff if the defendant gives
insufficient answers to the interrogatories. Counsel is therefore inviting the
court to strike out the defendant’s defence as his belated response amounts to
a violation of the order of the court and that the responses are insufficient.
She submits that the responses must be disregarded.<o:p></o:p>The
defendant/respondent is opposed to the application. Counsel for the respondent
submits that the defendant complied with the order of the court to file the
response to the interrogatories within 7 days after service. She submits that
the interrogatories document was brought to her attention on 11/01/2019 by one
Akwasi Opoku, the Office Manager of her firm. She refutes the notion that the document
was served on her on 12/12/2018. Counsel also submits that they provided
answers to the interrogatories and the fact that the answers are in conflict
with the plaintiff’s case does not mean the same is insufficient. It is
counsel’s submission that the response by the defendant shows that the court
ought to go into the merits of the case.<o:p></o:p>Before
I go into the merit of the application, I shall address the issue as to whether
the service on a lawyer through an office manager or clerk of her firm constitutes
good service on the lawyer.<o:p></o:p>Order
7 rule 2 of CI 47 deals with service of a document on a party. Indeed, service
shall be effected personally on a person who is required to be served with a
court process. It is, however, my considered pinion that in instances where a
person through his conduct represents to the world that a particular person can
receive a court process on his behalf, service on the second named person
constitutes good service provided the said person accepts the document on
behalf of the first named person. It has been the practice that clerks of
lawyers normally accept services of court processes on behalf of the lawyers.
So far as the services of these processes are concerned these clerks serve as
agents of the lawyers.<o:p></o:p>Professor
G.H.L. Fridman in his book The Law of Agency (Butterworths 7th edition, London
1996) at page 11 defines agency as the relationship that exists between two
persons where one, called the agent, is considered in law to represent the
other, called the principal, in such a way as to be able to affect the
principal’s legal position in respect of strangers to the relationship by the
making of contracts or disposition of property. An agent is, therefore, clothed
with the capacity to act on behalf of his principal to the extent that he can
enter into binding contracts on his behalf.<o:p></o:p>Section
26 of the Evidence Act, 1975 (NRCD 323) discusses estoppel by own statement or
conduct as follows:<o:p></o:p>“Except as otherwise provided by law,
including a rule of equity, when a party has by his own statement, act or
omission, intentionally and deliberately caused or permitted another person to
believe a thing to be true and to act upon such belief, the truth of that thing
shall be conclusively presumed against that party or his successors in interest
in any proceedings between that party or his successors in interest and such
relying person or his successors in interest.”<o:p></o:p>The
importance of this type of estoppel is that a person who by his words or
conduct willfully or negligently causes another to believe in the existence of
a certain state of things and induces him thereby to act on that belief or to
alter his position is estopped from asserting against the other person that a
different state of things existed at that time. In the instant case, the said
office manager/clerk of the defendant/respondent’s lawyer has on numerous
occasions received service of a process on behalf of the lawyer. This is
evidenced by affidavits of service dated 30/11/2018, 5/12/2018, 18/01/2019 and
1/02/2019 among other proof of service. In all those instances counsel never
raised any objection, as the said Nana Poku(whom counsel referred to as Akwasi
Opoku in her submission to the court) received the processes on her behalf.
Thus, counsel for the defendant made the plaintiff believe that Nana Poku is
her agent who had her authority to receive court processes on her behalf.
Therefore, counsel cannot be heard to be saying that Nana Poku is not competent
to receive on her behalf court processes that are meant to be served personally
on her. The result is that the service of the interrogatories on counsel
through Nana Poku was proper service and as such the defendant was required to
respond to the interrogatories within 7 days when the same was served on her on
12/12/2018.<o:p></o:p></main>