ALEXANDER ADJEI (MINOR) SUING AS PER HIS NEXT FRIEND ALEX YEBOAH vs. MARTHA KODUA [2021]DLCA10800

ALEXANDER ADJEI (MINOR) SUING AS PER HIS NEXT FRIEND ALEX YEBOAH vs. MARTHA KOD... [2021]DLCA10800

Date	2021-07-24
Suit No.	CIVIL APPEAL NO.: H1/22/2020
Citation No.	[2021]DLCA10800

ANGELINA M. DOMAKYAAREH (MRS.) J A (PRESIDING)

ALEX B. POKU-ACHEAMPONG J A

SAMUEL K. A. ASIEDU J A

ASIEDU BASOAH WITH MICHAEL AGYEMANG ANOKYE FOR THE PLAINTIFF/APPELLANT

VICTOR WELENKAKI FOR SIC NOT IN COURT DEFENDANT/RESPONDENT NOT REPRESENTED.

[2021]DLCA10800
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													<main id="main" class="content" style="min-height: 60rem" >ALEXANDER ADJEI (MINOR)
SUING AS PER<o:p></o:p>HIS NEXT FRIEND ALEX
YEBOAH<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>MARTHA KODUA<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p>[COURT
OF APPEAL, KUMASI]<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;">

CIVIL APPEAL NO.: H1/22/2020&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&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:
24TH JUNE, 2021<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ASIEDU BASOAH WITH MICHAEL
AGYEMANG ANOKYE FOR THE PLAINTIFF/APPELLANT<o:p></o:p>VICTOR WELENKAKI FOR SIC NOT
IN COURT<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;">

DEFENDANT/RESPONDENT
NOT REPRESENTED.<o:p></o:p>

</div>CORAM:<o:p></o:p>ANGELINA M. DOMAKYAAREH
(MRS.) J A (PRESIDING), ALEX B. POKU-ACHEAMPONG J A, SAMUEL K. A. ASIEDU J A<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="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:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>&nbsp;DOMAKYAAREH
(MRS.), JA:<o:p></o:p>[1] This interlocutory appeal
is against the Ruling of the High Court, Kumasi dated 30th May,
2019. The case is a running down case in which the Plaintiff (4 years old)
instituted an action through his next friend on 4th July, 2017
against the Defendant wherein he claimed the following reliefs from the
Defendant as endorsed on the Writ of Summons:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
General damages for serious injuries
sustained by the Plaintiff in a motor accident involving vehicle bearing
Registration Number AS 97 – 14, Mercedes Benz Bus the property of the Defendant
which accident was caused by the negligent, careless and reckless driving by
the Defendant’s driver who was at the material time of the accident, the
driver, agent, servant, employee of the Defendant and was in the cause of
activities and or duties as such driver, agent, servant, employee of the
Defendant and for which accident, the Defendant is vicariously liable<o:p></o:p>AND<o:p></o:p>Such
further Order(s) as this Honourable Court might judicially make.<o:p></o:p>[2] The Defendant duly
entered appearance and filed a Statement of Defence on 8th September,
2017 through the Legal Affairs Department of SIC Insurance Company Ltd.(SIC).
On 6th December, 2017, SIC filed a Motion on Notice for withdrawal
of representation for the Defendant supported by an Affidavit. The Plaintiff
opposed this Motion to withdraw the representation through his Affidavit in Opposition
filed on 14th December, 2017. The Record does not indicate the
outcome of this Motion. However, on 19th December, 2017, the SIC
filed a Motion on Notice for Joinder to the suit as a defendant. The Plaintiff
opposed this Motion for Joinder through his Affidavit in Opposition filed on 15th
January, 2018. This Motion for Joinder was refused on 15th March,
2018 on the grounds that the liability of the Defendant is limited to issues
raised by the Claim and that nowhere in the Statement of Claim is there an
apportionment of liability to the Applicant (SIC). The trial court further held
that the contention of the Applicant deposed to in the Plaintiff’s Affidavit in
Opposition can be adjudicated in Third Party Proceedings. See page 71 of the
Record of Appeal. <o:p></o:p>[3] On 23rd
March, 2018, the SIC filed a Motion on Notice for Review of the Ruling given on
15th March, 2018 accompanied by a Supporting Affidavit. The gravamen
of the Affidavit in Support of the Motion for Review was that on the day the
Motion for Joinder was to be moved, counsel for the Applicant was late to court
because of a delay of the flight from Accra to Kumasi. The Deponent to the Affidavit
in Support for the Review also bemoaned the fact that the court considered the Application
for Joinder and gave its Ruling without giving counsel the opportunity to move
the motion and to make bare to the court the Applicant’s (SIC’s) interest in
the matter which in their view was supported by law.<o:p></o:p>[4] The Application for Review
was granted on 3rd May, 2018. See page 73 of the Record of Appeal.
Pursuant to this grant of the order for joinder, the Plaintiff filed an Amended
Writ of Summons together with an Amended Statement of Claim on 30th
May, 2018 with SIC insurance Company Ltd as the 2nd Defendant. The 2nd
Defendant also filed a Notice of Appearance together with its Statement of
Defence on 12th June, 2018.<o:p></o:p>[5] On 29th
April, 2019, the Plaintiff filed a Motion on Notice accompanied by a Supporting
Affidavit, praying the Court to set aside its Ruling of 3rd May,
2018. The gist of the Affidavit in Support of the Application to set aside the
Ruling of 3rd May, 2018 was that none of the documents filed by the 2nd
Defendant was served on the 1st Defendant; that by failure to serve
the 1st Defendant with the processes thus filed, a rule of natural
justice was breached and therefore subsequent judgments or rulings obtained
would be null and void. The Next Friend of the Plaintiff, who deposed to the
Affidavit in Support of the Motion to set aside the Ruling of 3rd
May, 2018 also bem</main>