AMIR HOTEL COMPLEX & ORS vs. AMAR MOHAMMED MAHMOUD (OMAR) AND 11 OTHERS [2020]DLHC10740

Date	2020-06-22
Suit No.	SUIT GJ 298/2019
Citation No.	[2020]DLHC10740

HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO.

JUSTICE ABDULAI FOR THE PLAINTIFF - PRESENT

NANA KOFI BEKOE H/B OF EMMANUEL MAURICE ANKRAH FOR THE DEFENDANTS

[2020]DLHC10740
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													<main id="main" class="content" style="min-height: 60rem" >AMIR HOTEL COMPLEX &amp;
ORS<o:p></o:p>(PLAINTIFFS)<o:p></o:p>vs.<o:p></o:p>AMAR MOHAMMED MAHMOUD
(OMAR) AND 11 OTHERS<o:p></o:p>(DEFENDANTS)<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;">

</div>COUNSEL &nbsp;&nbsp; <o:p></o:p>JUSTICE ABDULAI
FOR THE PLAINTIFF - PRESENT<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;">

NANA
KOFI BEKOE H/B OF EMMANUEL MAURICE ANKRAH FOR THE DEFENDANTS<o:p></o:p>

HIS
LORDSHIP, JUSTICE KWEKU T. ACKAAH-BOAFO.<o:p></o:p>

</div>BY COURT<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;mso-fareast-font-family:&quot;Arial Black&quot;;
mso-bidi-font-family:&quot;Times New Roman&quot;;mso-fareast-language:EN-GB">We have
before you an application seeking to set aside this court judgment that was in default
of defence on 27th November 2019. With the Court’s indulgent we pray
to move the court in terms of the motion paper together with the affidavit in
support and the attachment.<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;mso-fareast-font-family:&quot;Arial Black&quot;;
mso-bidi-font-family:&quot;Times New Roman&quot;;mso-fareast-language:EN-GB">&nbsp;<span lang="EN-GB" style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;mso-fareast-font-family:&quot;Arial Black&quot;;
mso-bidi-font-family:&quot;Times New Roman&quot;;mso-fareast-language:EN-GB">We rely
extensively on the depositions in our affidavit in support. In summary it is
our submission that although the writ of summons was filed on 23rd
of November 2018 and same was served on the applicants who duly instructed
their lawyer to enter appearance on their behalf. We respectfully submit as
indicated in paragraphs 7 and 8 in the affidavit in support that the Applicants
were unable to file their defence within the time stipulated by the rules of
this honourable court due to the manner in which their previous lawyer wanted
the action to be conducted.<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;mso-fareast-font-family:&quot;Arial Black&quot;;
mso-bidi-font-family:&quot;Times New Roman&quot;;mso-fareast-language:EN-GB">&nbsp;<span lang="EN-GB" style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;mso-fareast-font-family:&quot;Arial Black&quot;;
mso-bidi-font-family:&quot;Times New Roman&quot;;mso-fareast-language:EN-GB">The
Applicants subsequently engaged our law firm and a notice of change of
solicitors was also duly filed on 28th of November 2019. This
honourable court however gave judgment in default of defence on 27th
of November 2019 before we entered into the matter. My lord we submit once
again as we have indicated in paragraphs 9 of the affidavit in support that
some of the Applicants were out of the jurisdiction and my lord it is
instructive to note that there are 12 Applicants in this matter and we had the
instruction of the Applicants to take their brief for the defence together. My
lord it is for these reasons that is why the Applicants were unable to file a
defence on time even after our law firm had been engaged. If I may refer to the
case of AGYEMANG V GHANA RAILWAY &amp;
PORTS AUTHORITY [1969] CC where the factors that a court is to consider in
granting or refusing applications of this manner were stated.<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;mso-fareast-font-family:&quot;Arial Black&quot;;
mso-bidi-font-family:&quot;Times New Roman&quot;;mso-fareast-language:EN-GB">&nbsp;<span lang="EN-GB" style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;mso-fareast-font-family:&quot;Arial Black&quot;;
mso-bidi-font-family:&quot;Times New Roman&quot;;mso-fareast-language:EN-GB">One of the
factors is that the Applicant must have a reasonable defence to the suit. We
have attached Exhibit “1” which is a proposed statement of defence and
counterclaim. In addition, the Applicants herein are denying the allegations
made against them in the writ of summons. They have also raised poignant issues
that has necessitated the filing of a counter claim against the Respondents. We
submit that the proposed statement of defence contains a viable defence which
in our humble prayer we are of the view that this honourable ought to consider.<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;mso-fareast-font-family:&quot;Arial Black&quot;;
mso-bidi-font-family:&quot;Times New Roman&quot;;mso-fareast-language:EN-GB">&nbsp;<span lang="EN-GB" style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;mso-fareast-font-family:&quot;Arial Black&quot;;
mso-bidi-font-family:&quot;Times New Roman&quot;;mso-fareast-language:EN-GB">My lord
looking at the affidavit in opposition filed don 15th of June 2020,
the issue has been raised that the Applicants did not act in time and therefore
they have foregone their right of defence. My lord in addition to the reasons
we have provided above as the cause of our inability to file our defence in
time we pray that this honourable court takes cognisant of the fact that
between the months of Marc</main>