AXEX COMPANY LIMITED v. KWAME OPOKU SYLOP COMPANY LIMITED & ANOTHER

GBADEGBE JSC:

This is an appeal from the decision of the Court of Appeal dated 31 July 2008, that dismissed an appeal from the previous decision of the High Court, Accra entered on 14 March 2007. In outline, the respondent commenced the action herein in the court below seeking certain orders directed at specified bank accounts alleged to be operated by the 1st appellant with proceeds that had been transferred from a business account held by the respondent company of which the 1st appellant herein was a 50% shareholder.

Following the issue of the writ of summons herein, certain interlocutory applications were made to the court below and granted including an order freezing the specified accounts and an order for the managers of Ecobank and Barclays Bank, Tema to furnish the court with statements of accounts relating to the said accounts from January 2003 to January 2007. On 14 March 2007, the respondent applied to the court below for summary judgment against the defendants in the sum of US$3, 042, 000.00. At the hearing of the application to sign summary judgment, learned counsel for the defendants made a statement that appears in the record of appeal at page 140 as follows:

“My Lord, we admit owing the plaintiff the sum of $1,475,330.00 (one million four hundred and seventy five thousand three hundred and thirty United States dollars) as contained in our affidavit in opposition.”

As a result, the learned trial judge of the court below made the following order that appears at pages 140- 141 of the record of appeal:

“Based on the processes before me as well as learned counsel’s submissions, summary judgment is entered for the plaintiff for the recovery of the sum of one million four hundred and seventy five thousand three hundred and thirty United States dollars against the defendants…………The outstanding balance of $1,467,000.00 (one million four hundred and sixty seven thousand United States dollars) is set down for hearing. Suit to take its normal course”.

The appellants unsuccessfully appealed to the Court of Appeal from the summary judgment and have now appealed to this court. In the notice of appeal by which these proceedings were initiated, the following grounds were formulated:

(1) “The judgment is not warranted by law.

(2) The judgment is against the weight of the evidence.”

An aspect of the appeal herein has been the subject of a previous determination of a point of law touching the nature of the summary judgment that was delivered by the tri