IBRAHIM MUHAMMAD MOUCKHTARI vs. KWABENA BOATENG, SANKARA SAIDOU AND MR. KIENDREBEOGO BASSIBIRI ADRIEN [2019]DLHC9234

IBRAHIM MUHAMMAD MOUCKHTARI vs. KWABENA BOATENG, SANKARA SAIDOU AND MR. KIENDREB... [2019]DLHC9234

Date	2019-08-21
Suit No.	SUIT NO. OCC/52/2018
Citation No.	[2019]DLHC9234

HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE

ALFRED ANIM QUARSHIE FOR THE PLAINTIFF/JUDGMENT CREDITOR/RESPONDENT

KWASI AMOFA AGYEMANG FOR THE DEFENDANT/JUDGMENT DEBTOR/APPLICANT

[2019]DLHC9234
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													<main id="main" class="content" style="min-height: 60rem" >IBRAHIM MUHAMMAD MOUCKHTARI<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>KWABENA BOATENG, SANKARA SAIDOU AND MR. KIENDREBEOGO BASSIBIRI
ADRIEN<o:p></o:p>(DEFENDANTS)<o:p></o:p>[HIGH COURT (COMMERCIAL DIVISION), KUMASI]<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">

SUIT
NO. OCC/52/2018&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; &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:
21ST AUGEST, 2019<o:p></o:p>

</div>COUNSEL:<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">

ALFRED ANIM QUARSHIE FOR THE PLAINTIFF/JUDGMENT
CREDITOR/RESPONDENT <o:p></o:p>

KWASI AMOFA AGYEMANG FOR THE DEFENDANT/JUDGMENT
DEBTOR/APPLICANT <o:p></o:p>

</div>CORAM:<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">

HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE, HIGH COURT
JUDGE<o:p></o:p>

</div><o:p>&nbsp;</o:p>Counsel for
Applicant:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; What we have before you this morning is a
motion to set aside the judgment which was entered by the Court against the
Defendants and all subsequent processes in this suit. I move in terms of the
motion paper, the supporting affidavit together with the annexures thereto. We
rely on all the averment in the affidavit in support particularly paragraphs 4
to 15. <o:p></o:p>The gravamen of this application is
that the Defendant/Judgment Debtors have never at any time been served with any
process in this suit and in the circumstances the judgment which was entered by
the Court breaches the rules of natural justice. <o:p></o:p>We also submit that the Court was not
properly seized with jurisdiction to proceed with the judgment that it entered
against the Defendants. This is because the Defendants are nationals of Burkina
Faso and live permanently in Burkina Faso and only come here occasionally to do
business to wit transporting produce from Burkina Faso to Blue Skies Companies
that import mangoes.<o:p></o:p>The Defendants live in Ouagadougou and
the address indicated as the address of the Defendants is not correct. That
address is the address of one Boateng. He has attached exhibit AA2 to his
Affidavit in Opposition and that is the address of Kwabena Boateng. Kwabena
Boateng is no more a party to the suit. We have shown by the Exhibit we have
attached, Exhibit A show that the Police Report which was produced by the Ghana
Police Service show that the address of the Defendant is in Burkina Faso. We
have also attached other Exhibits, Exhibit A1 which shows a letter which was
written by Ghana Free Zones Authority. We have also indicated in Exhibit B that
all the process which were served were served by substituted services. The
Defendants have said that they do not live there, they have filed affidavit and
attached documents to show that they live in Burkina Faso and therefore they could
not have been served by the Substituted Service which was effected at a house
at Akomadan in the Ashanti Region.<o:p></o:p>For that reason that we have stated,
the Defendants received no notice at all. they had no idea of what was taking
place in the Court against them. Incidentally, all processes were allegedly
served by the Court through a substituted service based on one order which was
given by the Court that all processes be served by substituted service. In the
case of Barclays Bank Gh. Ltd v Ghana Cables Co. Ltd 1998/9 SCGLR page 1
(Counsel reads...). <o:p></o:p>The Defendants have filed Affidavit in
Opposition and we have attached copious annexures to the Affidavit in
Opposition to try and to tell the Court that the Defendant lived at an address
that they have given as H/No. AM/12, Akomadan in the Ashanti Region. They have
attached Exhibit AA1, which is alleged to be a cognisant bail application which
was granted to the Defendant in August 2017. They have stated that the Police
is said to have stated that the Sankara Saidou resides at Akomadan. They stated
the name of the 1st Defendant but the 2nd Defendant's name is not anywhere on
it. <o:p></o:p>Even if the Plaintiff want this Court
to believe that the Defendants who are Burkinabes resides in the address which
they have given, which we disagree, the document did not show anything
connected to the 2nd Defendant and for that reason alone the judgment entered
against the 2nd Defendant is wrong.<o:p></o:p>They have said so many things in the
affidavit to explain that the Defendants were served and that the judgment was
right, and they have stated in paragraph 17 of the affidavit that the
Defendants have deliberately spun the hearing of the Civil matter by saying
that they don't live in the said address. Our simple answer to that is that the
Plaintiff has rather deceived this Court by misleading this Court to believe
that the live in the address that they provided.<o:p></o:p>They have also stated in paragraph 8 of
the affidavit that the Bailiff of the Court attempted services of the Writ of
Summons and Statement of Claim on the Defendant except that the then 1st
Defendant was served person</main>