MICHAEL PUTO SUGRE v. ISSIFU AYARIGA & ANOTHER
2017
COURT OF APPEAL
GHANA
CORAM
- E. K. AYEBI (PRESIDING), JA
- GERTRUDE TORKORNOO, (MRS.), JA
- ANGELINA M. DOMAKYAAREH (MRS.), JA
Areas of Law
- Civil Procedure
- Constitutional Law
2017
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Ghana Court of Appeal judgment, authored by E. K. Ayebi JA with Gertrude Torkornoo JA and Angelina M. Domakyaareh JA concurring, arose from a High Court dispute over House No. Plot 44 Block “B” at East Tafo, Kumasi. The 1st defendant/appellant had sold the property to the plaintiff/respondent while his sister (2nd defendant) occupied two bedrooms and later claimed ownership. After joinder, amendments, and substituted service, Justice Amissah-Koomson heard the plaintiff’s evidence without the 1st defendant or counsel present and no order or proof of hearing notices; Justice E. Gyinae had earlier granted substituted service of amended process. The High Court set aside the sale and awarded recovery of the purchase price against the 1st defendant. On appeal, the sole issue was compliance with Order 36 rule 1 and natural justice. Finding no hearing notice for trial dates, the Court of Appeal held the proceedings a nullity for breach of audi alteram partem, set aside the judgment, and granted relief (a), ordering a retrial.
JUDGMENT
AYEBI, JA
1. The sole issue for resolution in this appeal is whether or not trial judge conducted the trial in accordance with the provisions of Rule 1 of Order 36 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) on “Proceedings at the Trial”. That rule is headed “Failure to attend at trial”. The rule provides:
“Subrule (1): where an action is called for trial and all the parties fail to attend, the trial judge may strike the action off the trial list.
(2): Where an action is called for trial and a party fails to attend, the trial judge may
(a) where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim if any, and allow the plaintiff to prove the claim,
(b) where the defendant attends and the plaintiff fails to attend, dismiss the action and allow the defendant to prove the counterclaim, if any, or
(c) make such other order as is just”.
2. In view of the fact that the issue to be resolved is procedural rather than factual, the gist of the facts of the case will suffice. In 2006, the 1st defendant/appellant sold his house No. Plot 44 Block “B”, East Tafo, Kumasi with sitting tenants to the plaintiff/respondent. The 2nd defendant, sister of the 1st defendant/appellant also lived in a two bedroom and a hall in the house free of charge. The 1st defendant/appellant introduced the plaintiff/respondent to the tenants as their new landlord. The tenants atoned tenancy to the plaintiff/respondent and he collected two years rent advance from some of them.
3. As regards the 2nd defendant, the 1st defendant/appellant rented a new apartment for her and led her in. Although 2nd defendant agreed to move into the new apartment, she failed to do so after a reasonable time. In April 2008 therefore, the 1st defendant/appellant and plaintiff/respondent jointly sued the 2nd defendant at the District Court, Kumasi for recovery of possession of the two bedrooms in her possession. But before then on 22nd February 2008, the plaintiff sued the 1st defendant in this action for the recovery of the purchase price of the house for failure to yield up possession of the house despite repeated demands.
4. However, in stating the number of the house bought in the writ of summons, the plaintiff described it as House No. Plot 23 Block 1, Asawasi Kumasi. The 1st defendant, who by himself entered appearance to the suit, denied that he sold the house with the number stated in the writ of summons to the plaintiff because he had never ow