BRAKOWAAH v. AWUAKYEWAH AND GYASI

JUDGMENT OF VAN LARE J.S.C.

The plaintiff (the respondent herein) was a defendant in a suit instituted by the first defendant in the present case before the North Birim Court “A” in the year 1953, against her and another by the name of Kwame Noah for a debt due and owing. Judgment was purported to have been entered by the court against both defendants in that suit and following a fi. fa. the plaintiff’s cocoa farm was attached and sold in execution of the purported decree against her. The said property was bought by the second defendant in the present case. By this action before the said native court instituted in July, 1954, the plaintiff challenges the judgment recovered against her on the ground that she had not been served with any writ of summons concerning the matter and was not present at the hearing and that therefore the judgment entered against her was in the circumstances null and void of effect, and could not warrant the sale of her cocoa farm, the subject-matter in dispute, concerning which she seeks a declaration of title. It is common ground that the only issue for determination in this matter was whether the plaintiff was served with the writ of summons which was numbered as 642/53 and exhibited as exhibit A in these proceedings.

This is the second time that this matter has reached this court, an earlier appeal having been allowed by special leave by the predecessor of this court, i.e., the West African Court of Appeal, which set aside a judgment in favour of the defendants and the case was remitted to the native court for a re-hearing in whole on the grounds that “evidence as to service of the writ of summons in the case against the plaintiff [was] unsatisfactory, and that the native court misdirected itself as to proof of service”.

It was observed that in the abortive proceedings the bailiff or person entrusted with service of the writ of summons did not give evidence but the court appeared to have taken notice of some scribbled notes, not quite conclusive of service on the plaintiff in the instant case, appearing on the summons directed for service on the other party as evidence of service on the plaintiff. Following an indication in the judgment of this court remitting the case as to the best evidence required with respect to proof of service, the native court in the present proceedings heard the bailiff. He deposed that he effected service on the plaintiff, who in no uncertain terms denied the same, alleging that she had been abse