YEBOAH ASIAMAH vs. ALHAJI SEIDU APANA NUHU [2020]DLHC9177

Date	2020-06-08
Suit No.	SUIT NO. P/RPC/06/2017
Citation No.	[2020]DLHC9177

HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE

AKWASIARHIN FOR THE PLAINTIFF

[2020]DLHC9177
																																						<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" >YEBOAH ASIAMAH<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>ALHAJI SEIDU APANA NUHU<o:p></o:p>(DEFENDANT)<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. P/RPC/06/2017&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:
8TH JUNE, 2020<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">

AKWASIARHIN
FOR THE PLAINTIFF.<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><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

</div><o:p>&nbsp;</o:p>On
10th January, 2017 the Plaintiff herein instituted action against
the Defendant for payment of cash the sum of GHC50,000.00 being the amount he
paid to the Defendants for two parcels of land which the Defendant refused to
convey to him. The Plaintiff is also claiming interest on the said amount from
May 2012 till date of final payment as well as cost on full indemnity basis.<o:p></o:p>On
25th January, 2017, an appearance was entered on behalf of the
Defendant and a Statement of Defence was filed on 7th March, 2017 on behalf of
the Defendant. One Andrew Allotey was subsequently joined to the suit but was
later unsuited when he passed on.<o:p></o:p>After
unsuccessful attempt at settlement, the following issue was set down for trial
namely:Whether or not the Plaintiff is
entitled to his claim.<o:p></o:p>The
Defendant, however, failed or refused to file his Witness Statement after the
Court had made several orders for it to be filed. The court consequently
invoked Order 32 rule 7A of the High Court (Civil Procedure) (Amendment) Rules,
2014, CI 87 and struck out the statement of defence of the Defendant. <o:p></o:p>With
the continuous absence of the Defendant, the court had no option than to
proceed with the case under Order 36 Rule 1(2)(a) of the High Court (Civil
Procedure) Rules 2004, CI 47. It states:<o:p></o:p>Rule 1(2) where an action is
called for trial and a party fails to attend, the trial judge may;<o:p></o:p>a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
where
the plaintiff attends and the defendant fails to attend, dismiss the
counterclaim, if any and allow the plaintiff to prove the claim; …<o:p></o:p>On
the basis of the rule, the plaintiff was allowed to prove his claim on 18th
May, 2020. The plaintiff relied on his witness statement filed on 20th May,
2019.<o:p></o:p>The
Plaintiff’s case is that sometime in 2012, the Defendant sold parcels of land
situate at Asuoyeboah to him. He says that he paid an amount of GHC 112,500.00
and added an infinity vehicle valued at GHC 43,000 as payment for two plots of
land leaving an outstanding balance of GHC 4,500.00. He says that when he
started work on the plots he was confronted by someone who made adverse claim
to the land. The Plaintiff’s case is that he subsequently demanded a refund
from the Defendant. That he lodged a criminal complaint against the Defendant
and he dropped the complaint at the time when the Defendant was left with an
outstanding balance of GHC 50,500.00to be paid to him. That the Defendant has
since failed or refused to pay the balance due him.<o:p></o:p>The
Plaintiff was discharged from the witness box after his evidence-in-chief, as
the defendant was not available to cross examine him. The matter was adjourned
for judgment. This was justifiable as the defendant had notice of the hearing
but failed to avail himself. In the case of Doris Naadu Nartey v Christian
Kumi, Civil Appeal No. J4/20/2006 dated 13th March, 2007, the Supreme Court
held per Sophia Adinyira (Mrs) JSC as follows:<o:p></o:p>“As I see it the main point
raised in this appeal by the appellant is that he was not given a hearing and
this was a breach of natural justice i.e. a breach of the maxim audi alterem partem
rule. However, this maxim cannot avail a party who has notice of a trial but
fails or refuses to appear.”<o:p></o:p>Also,
in the case of Sylvester Bortey v Paresh and 2 others (2018) 120 GMJ 1, the
Supreme Court reiterated this legal principle when it held that: <o:p></o:p>