EBUSUAPANYIN EMMANUEL ASANTE VS GEORGE MENSAH & ORS
2024
COURT OF APPEAL
GHANA
CORAM
- P. BRIGHT MENSAH JA PRESIDING
- JEROME NOBLE- NKRUMAH JA
- HAFISATA AMALEBOBA (MRS) JA
Areas of Law
- Civil Procedure
- Contract Law
2024
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This case revolves around an interlocutory appeal against the Koforidua High Court's decision to set aside an ex parte default judgment it initially granted in favor of the plaintiff. The plaintiff originally faced difficulty serving the writ of summons on the 1st defendant domiciled in Germany and several others since they could not be traced personally. After obtaining an order for substituted service, the plaintiff served the writ on the 1st defendant's attorney, who later rejected it, claiming lack of authority. The trial judge granted the default judgment for the plaintiff but reversed this decision later that day, without clear cause, leading to the plaintiff's appeal. The Court of Appeal held that the trial judge's actions were capricious and arbitrary, upholding the default judgment and remitting the case to the lower court.
BRIGHT MENSAH JA:
This is an interlocutory appeal against an order of the Koforidua High Court made 12th May, 2022. The High Court had earlier granted an exparte application for default judgment against the 1st defendant. Subsequently the same day, the learned trial judge directed that the case be recalled upon which she set aside the default judgment. Dissatisfied with the turn of events, the plaintiff/appellant has mounted the instant appeal on grounds:
1. That the trial judge erred when after granting the motion exparte
for interlocutory judgment she in a few hours thereafter recalled the
case and changed the earlier decision without any cause.
2. That the trial judge erred when she ruled that the power of attorney
on record could be ignored.
3. That the trial judge erred when she ruled that a letter she referred
to as having been written to the court by the 1st defendant’s lawful
attorney could persuade her to make a decision in the writer’s favour.
Whereas the order complained of appears on pp 128-131 of the record of appeal [roa], the notice of appeal the appellant filed, appears on pp 132-133 [roa].
The appeal:
The law is certain that an appeal is by way of re-hearing the case. The Court of Appeal Rules, C.I 19 per rule 8(1) provides that any appeal to the court shall be by way of re-hearing. This rule has received ample judicial interpretation in a legion of cases to mean that the appellate court is enjoined by law to review the whole evidence led on record and to come to its own conclusion and to make a determination as to whether both on the facts and the law, the findings of the lower court were properly made and were supportable. Put differently, the appellate court is under legal obligation to examine the findings of the lower court or the trial court, and to determine on the evidence led on record, whether those findings are supportable in law.
Legal analysis & opinion of this court:
Undoubtedly, the instant appeal challenges the exercise of discretionary power of a judge and also, an invitation to the appellate court to interfere in the exercise of judicial discretion by the trial High Court. In the circumstance, I do propose to combine all the 3 grounds of appeal and discuss them together since they all deal with the alleged impropriety of exercise of judicial discretion.
To begin with, the power of the court to exercise discretion in a matter or a case is conferred by Article 296 of the 1992 Constitution, the fundamen