CAL BANK LIMITED (PLAINTIFF) vs. KINGSMAN MODERN AUTO COMPLEX AND KINGSLEY YAW AGYEMANG (DEFENDANTS) [2019]DLHC7158

CAL BANK LIMITED (PLAINTIFF) vs. KINGSMAN MODERN AUTO COMPLEX AND KINGSLEY YAW A... [2019]DLHC7158

Date	2019-06-07
Suit No.	SUIT NO. BFS/292/2009
Citation No.	[2019]DLHC7158

HIS LORDSHIP GEORGE K. KOOMSON (J).

LINDA AKYEAA AWUA FOR SHADRACK ARHIN FOR PLAINTIFF

SEAN POKU WITH BAFFOUR BONSU GYAWU ASHIA FOR DEFENDANT

[2019]DLHC7158
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													<main id="main" class="content" style="min-height: 60rem" >CAL BANK LIMITED<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>KINGSMAN MODERN AUTO
COMPLEX AND KINGSLEY YAW AGYEMANG<o:p></o:p>(DEFENDANTS)<o:p></o:p><o:p>&nbsp;</o:p>[HIGH COURT (COMMERCIAL DIVISION),
ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

SUIT
NO. BFS/292/2009 &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: 7TH
JUNE, 2019<o:p></o:p>

</div>COUNSEL: <o:p></o:p>LINDA AKYEAA AWUA FOR
SHADRACK ARHIN FOR PLAINTIFF<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

SEAN
POKU WITH BAFFOUR BONSU GYAWU ASHIA FOR DEFENDANT&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP GEORGE K.
KOOMSON (J).<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>On 7th November, 2013, this
Court gave judgment in favour of the Plaintiff/Judgment Creditor/Respondent (herein
&nbsp;called the Respondent) for the recovery
of an amount of GH¢806,038.07 being the outstanding balance on a medium term
loan facility as well as interest on the amount at 18% p.a till the date of
final payment. The Respondent filed and served an Entry of judgment pursuant to
an order of the Court for substituted service, and proceeded to go into
execution of the judgment by attaching certain immovable properties of Defendant/Judgment/Applicants
(hereinafter referred to as Applicants). It is this execution that the
Applicants seek to set aside.<o:p></o:p>It is the case of the Applicants that
they were not served with the notice of Entry of Judgment according to the terms
of the order of the Court for substituted service. The Applicants contend
therefore that the Respondent’s failure to comply with the order of the Court
makes the service defective.&nbsp; The
Applicants further contend that the issuance of the Writ of fi fa was
fundamentally defective as the Writ of fi fa was issued a day before the order
for substituted service of the Entry of Service of the Entry of Judgment
lapsed.&nbsp; It is also the case of the
Applicants that the attachment of the immovable property at Dansoman was
erroneous and done not in conformity with the rules of Court.<o:p></o:p>The Respondent is opposed to the present
application. It is the case of the Respondent that not only did it comply with
the terms of the order for substituted service but it also served the 2nd
Defendant personally with the Entry of Judgment. Respondent further contends
that the Applicant had ample notice of the judgment and Entry of Judgment and
even participated in post-judgment negotiations to an extent and paid off a
part of the judgment debt. It is further the case of the Respondent that the
contention by the Applicants that the Dansoman property does not belong to the
Applicants stands unproven despite the denial of the Respondent. <o:p></o:p>I have read the application and the
affidavits filed by both parties. I have also considered the written
submissions filed by both Counsel. The issues which, in my view, require my
adjudication in this matter are as to whether or not the Respondent did not
comply with the order of the Court for service of the Entry of Judgment on the
Defendants by substituted service and whether or not the Writ of fi fa filed by
the Respondent was defective.<o:p></o:p>Before dealing with the issues, it is
noted that the contention of the Applicants that they were not served with any
hearing notice to attend Court for the judgment to be read, to me, is not worth
any consideration.&nbsp; The Defendants
participated in the trial fully. A date was given for the judgment. On the said
date, the trial Judge adjourned the delivery of the judgement. The failure of
the Applicants to make themselves available for the delivery of the judgment
should not be a ground to set aside the judgment.<o:p></o:p>I shall proceed to resolve the issue
whether or not the Respondent did not comply with the order of the Court for
service of the Entry of Judgment on the Applicants by substituted service. <o:p></o:p>On the 6th June, 2014, the
Court made the following orders:<o:p></o:p>&nbsp;“IT IS HEREBY ORDERED that the
Defendants/Respondents be served by way of substituted service the Entry of
Judgment in the following manner and places:<o:p></o:p><p class="MsoListParagraph" style="margin-top:0in;margin-right:0in;margin-bottom:
0in;margin-left:.75in;margin-bottom:.0001pt;mso-add-space:auto;text-align:justify;
text-indent:-.25in;line-height:115%;mso-list:l5 level1 lfo1">1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; By
posting copies of this Order and the Entry of Judgment at the last known place
of business of the Defendants on the Graphic Road – Accra. (Plaintiff/Applicant
to direct service).<o:p></o:p><o:p>&nbsp;</o:p>