FIRST ATLANTIC BANK LTD v. SOLID DEVELOPMENT LTD & ORS
2019
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO
Areas of Law
- Civil Procedure
- Property and Real Estate Law
2019
HIGH COURT
GHANA
CORAM
AI Generated Summary
The case revolves around a dispute where the original writ of summons led to a default judgment. Subsequent motions and terms of settlement were executed, and the plaintiff purchased the defendant's property at an auction. The defendants later alleged fraud and sought to amend their statement of defense, which the court dismissed. The court upheld that amendments to pleadings could be made at any stage, provided it does not prejudice, surprise, or ambush the other party. The court dismissed the motion, asserting that the main issue was resolved with the terms of the settlement and that any new issues including fraud must be ventilated in a fresh suit.
MOTION ON NOTICE FOR AMENDMENT
i. 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 November 28, 2013. The writ of summons with the statement of claim was served on the 1st Defendant through Anthony Kwame Haick (the 2nd Defendant, now deceased) personally on November 29, 2013. The record further shows that the Defendants failed to enter appearance to the writ of summons and therefore on February 11, 2014 the Court presided over by His Lordship, L.L. Mensah J (as he then was) entered default judgment against the 1st and 2nd Defendants.
[2] On May 8, 2014 J. Opoku Agyei Esq filed a Motion on Notice for Leave to Enter Appearance after Judgment. The Plaintiff resisted the application by filing an affidavit in opposition. However, the Court granted same on June 5, 2014 and on June 12, 2014 Mr. Opoku Agyei entered appearance for the 1st and 2nd Defendants. The record further shows that on June 26, 2014 the Court after hearing both Counsel of record, Mr. Kwame Boafo Akuffo and Mr. Opoku Agyei ordered that “Director of the Architectural Engineering Services Limited (A.E.S.L.) be appointed to value the property known as No, 29 Boundary Road, West Legon, Accra and the vehicle VW Tourage with Registration No: CR 888-10 should also be valued by the State Insurance Company (SIC) at the current market rate”.
[3] Further to that on December 18, 2014 the parties executed Terms of Settlement after the Defendants had filed Motion for Stay of Execution and for Leave to pay Judgment Debt by Installments. The record further shows that the Plaintiff was granted leave to go into execution after the Defendants defaulted on the terms of settlement on July 10, 2015 by Anthony K. Yeboah, J (as he then was).
[4] On October 24, 2016 the Plaintiff applied to the Court to substitute the 2nd Defendant, Anthony Kwame Haick who had passed on. An Amended Writ of Summons was thereafter filed on October 11, 2017 to reflect the new parties. The record again shows that the Plaintiff as Judgment Creditor on December 4, 2017 purchased the property of the original 2nd Defendant which was attached as part of the execution process at an auction organized by Mayfair Mart (F.N.B. Tagoe (Licensed Auctioneer). This Court differently constituted on Janua