ASNETH GYABENG SERWAA v. LORD WINNERS INVESTMENT LIMITED
2016
HIGH COURT
GHANA
CORAM
- ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
Areas of Law
- Civil Procedure
- Contract Law
- Evidence Law
2016
HIGH COURT
GHANA
CORAM
AI Generated Summary
The case revolves around the Plaintiff's claim to recover GHS 17,000.00 plus interest from the Defendant, following a breach of an investment contract. The Court acknowledged that the Defendant’s defense and counterclaim were struck out due to non-compliance with procedural requirements. The Plaintiff had to prove her case on a balance of probabilities. Relying on her oral testimony and documented evidence, the Court found in favor of the Plaintiff, granting her the recovery of the principal amount with interest, but refused to award general damages. The judgment was based on the application of civil procedure rules and evidence law principles, focusing on proving the claims and awarding reasonable compensation for the breach.
JUDGMENT
It is provided under Order 32 Rule 7A (3) (b) of the High Court (Civil Procedure) Rules, 2004, C.I. 47 as amended by C.I. 87 as follows:
“where a party has failed to comply with any of the directions given at a case management conference or a pre-trial review or both, the Judge may ...
(b) strike out the defence and counterclaim as the case may be, if the non-complying party is a defendant"
It is further provided under Order 36 rule 1 (2) (a) of C.I. 47 that:
(2) Where an action is called for trial and a party fails to attend, the trial Judge may
(a) where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove the claim.
These rules have been applied to the circumstances of this case. The plaintiff caused a writ of summons and statement of claim to be issued from the registry of this court on 08/04/2014. She sought to recover a liquidated sum of GHS 17,000.00, interest thereon as well as general damages from the defendant. The defendant filed a late defence on 09/06/14. It appears to me that the non-compliance with Order 11 rule (2) (1) of C.I. 47 was waived by the court when the defendant brought it to the court's attention that it was in the process of filing its late defence as can be seen from the court notes of 03/06/2014.
Irrespective of that waiver, the defendant failed to file its witness statement(s) as ordered by the court on 08/03/2016. Even though the defendant and its counsel were not in court on the said date, an order was made for the court notes (order) and a hearing notice to be served on counsel for the defendant. Accordingly, these processes were served on counsel for the defendant through his clerk by name Tina on 17/03/2016. Subsequent to that, the plaintiff's witness statement and pre-trial check-list were served on defendant's counsel on 21/03/2016 and 05/04/2016 respectively.
Notwithstanding the service of these processes on counsel for the defendant, it turned out at the case management conference held on 20/04/2016 that the defendant had failed to file its witness statement. In compliance with the provisions in respect of the filing of witness statements referred to above, the court duly struck out the statement of defence filed by the defendant and a date was set for the plaintiff to prove her claims.
It is to be noted that the defendant's counterclaim was not struck out on the same date that the defence was struck out as per the court's recor