ATTIYYATUL AZIZ ABDULLAH v. JOSEPH AMON KOTEY & RICHARD HLORMADOR
2019
HIGH COURT
GHANA
CORAM
- His Lordship Justice Kweku T. Ackaah-Boafo
Areas of Law
- Civil Procedure
- Property and Real Estate Law
- Equity and Trusts
2019
HIGH COURT
GHANA
CORAM
AI Generated Summary
Justice Kweku T. Ackaah-Boafo of the High Court ruled on an application by Richard Hlomador seeking leave to re‑file a Notice of Claim to a parcel of land at Dzorwulu that had been attached in execution of a GH¢538,000 judgment against Joseph Amon Kotey in favour of the Plaintiff/Judgment Creditor. After the original ex parte judgment in December 2016 and subsequent fi.fa, Hlomador’s 2017 claim was struck out for non‑appearance when his counsel failed to attend despite service. Opposing the application, Plaintiff’s counsel argued functus officio and reliance on Order 44, and pointed to a related pending land suit. The Court held the Notice of Claim was an interpleader under Order 48 of C.I. 47, that the strike‑out did not adjudicate the merits nor bar a renewed claim under Order 48 Rule 10, and that inherent jurisdiction and fairness—anchored in audi alteram partem—warranted hearing Hlomador before any sale. Balancing prejudice and conduct, the Court granted leave with GH¢4,000 costs to the Plaintiff/Respondent.
RULING
Introduction:
Background:
(1) The facts of this case are free from complexity but in order to understand the reasoning behind my conclusion it is important to give the historical background of this suit and the instant application. My review of the docket shows that the Original Writ of Summons was filed on July 28, 2016. The claim was for the refund of the amount of GH¢ 538,000 and interest and cost. The writ of summons with the statement of claim was served on the Defendant through the Legal Department of Nsawam Prisons. After no appearance was entered by the Defendant, a Motion Ex Parte for Final Judgment was filed on December 20, 2016. On December 22, 2016 the application was granted and judgment was entered in favour of the Plaintiff. I note that though the Defendant was serving a prison term he was in Court with Prison Officers and did admit to the Court that he had no defence to the claim because he was owing the Plaintiff.
(2) The Plaintiff filed an Entry of Judgment on January 19, 2017 and same was again served on the Defendant through the Legal Department of the Nsawam Prisons. The Plaintiff set the execution process in motion and filed an application for Fi.fa on February 2, 2017 and attached a parcel of land at Dzorwulu among others. A Notice of Claim was filed by Richard Hlomador, the Applicant herein by his Counsel on February 20, 2017 and the address provided was: Afadjato Chambers, Graphic Road, A. Lang Building, Adabraka, Accra. A Notice of Dispute was filed by the Plaintiff on February 22, 2017.
(3) The record further shows that on March 27, 2017 this Court granted the Registrar’s application for the parties to appear before the Court so that the issue between them could be dealt with in accordance with law. Because no personal address of the Claimant was provided when the claim was filed, according to the Plaintiff/Disputant personal service of the order on the Claimant became impossible and therefore on April 26, 2017 the order was varied by the Court and the Plaintiff was granted leave to serve the order on Afadjato Chambers. The order was complied with and thereafter numerous hearing notices including the Court notes of May 12, 2017 were also served on the lawyers for the claimant but they failed and/or neglected to attend Court.
(4) On May 26, 2017 this Court finally made an order setting aside the claim after the Claimant and his Counsel failed to attend Court. The Court’ notes of May 26, 2017 and which is attached as E