KHAWAJA BROTHERS CO. LTD v. ADOLF ADJEI H/NO. 532/2 AFRAM ROAD & ORS
2016
COURT OF APPEAL
GHANA
CORAM
- E. K. AYEBI, J.A. (PRESIDING)
- G. TORKORNOO (MRS), J.A.
- A. M. DOMAKYAAREH (MRS.), J.A.
Areas of Law
- Civil Procedure
- Evidence Law
- Contract Law
2016
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Court of Appeal decision arises from a High Court, Sunyani ruling dismissing a motion for interlocutory judgment in a dispute over 1,000 bags of sugar transported in articulator vehicle GN 384 Y that never reached the appellant. The respondents’ preliminary objections were that appellant’s counsel lacked a valid practising certificate at filing and that the application, properly treated under Order 11 rule 18(1)(a), could not rely on affidavit evidence. The High Court upheld both and dismissed the motion. On appeal, Domakyaareh JA, writing for the court, applied section 8(1) of the Legal Profession Act and binding Supreme Court authority (Korboe v Amosa) to hold that processes filed by an unlicensed solicitor are without effect and renewal is not retroactive. The court further found the motion invoked Order 11 rule 18(1)(a), making extrinsic evidence inadmissible, and emphasized best practice in expressly invoking inherent jurisdiction. An additional ground filed without leave was struck out, no conflict existed between two prior rulings on different objections, and the appeal was dismissed. Ayebi JA and Torkornoo JA concurred.
DOMAKYAAREH (MRS),J. A.
1. This is an appeal against the Ruling High Court sitting at Sunyani delivered on 20th April 2016. The Ruling was in favour of the 1st Defendant and the 2nd and 3rd defendants/respondent herein, collectively called the “Respondents”.
BACKGROUND OF THE CASE:
2. On 14th July, 2008, the appellant, through its agents, chartered Articulator Vehicle No. GN 384 Y to cart 1000 bags of its sugar from Tema to Kumasi. The 4th defendant was the driver of the said Articulator vehicle. Unfortunately the said sugar was never delivered to the appellant and the whereabouts of the sugar has since remained unknown.
The appellant, then plaintiff instituted an action at the High Court, Sunyani claiming four reliefs, namely recovery of the 1000 bags of sugar, recovery of the cost of the 1000 bags of sugar at the prevailing market price, general damages for breach of contract and any other relief from the Honourable Court.
3. At the close of pleadings and after Directions has been filed the appellant filed a “motion on notice for interlocutory judgement to be entered against the 1st, 2nd and 3rd defendants herein.” The motion paper, which can be found at page 185 of the Record of Appeal stated that the motion was based “on the grounds that on the basis of the pleadings and papers filed herein inter alia the 1st, 2nd and 3rd defendants have no reasonable defence to the plaintiff’s claims and therefore interlocutory judgement be entered against them as stated in the attached affidavit”. The motion paper was accompanied by an affidavit in support to which there was an affidavit in opposition filed on 14th March, 2016 indicating in paragraph 4 thereof that a preliminary legal objection shall be raised for the motion to be dismissed. (See page 193 of the Record of Appeal). The plaintiff/appellant then filed a Supplementary Affidavit in Support on 31st March, 2016 indicating in paragraph 12 thereof that the “application is founded on the inherent jurisdiction of the court”.
4. At the hearing of the motion, counsel for the Respondents raised two preliminary legal objections, namely:
1. That the lawyer for the applicant had not stated the number of his current Solicitors Practicing License which shows that he had none at the date of filing the Notice of Motion and therefore the lawyer for the applicant had no capacity to file the Notice of Motion and so the court should declare the Motion as null and void and
2. That the lawyer for the applicant sh