LYDIA ANANE ASAMOAH v. JENNIS MARFO

J U D G M E N T.

ANIN YEBOAH JSC

The appellant herein was the plaintiff in a suit at the High Court, Kumasi. Her claim against the respondent herein as defendant at the High Court was for the following reliefs:

“1. An order for the payment of the sum of US$130,000 (One Hundred and Thirty Thousand United States Dollars) being the price agreed upon by the plaintiff and Defendant herein pursuant to a contract entered into between the parties herein for the defendant to supply to the plaintiff herein second-hand clothing between 26th December 2004 and April 2005 which clothing the defendant failed to deliver to the plaintiff herein and which amount the defendant has failed to refund to the plaintiff herein despite repeated demand.

2. Interest on the said sum of US$130,000.00 (One Hundred and Thirty Thousand United States Dollars) from May 2005 till date of final payment at the prevailing commercial bank rate”

The respondent entered appearance but failed to file any statement of defence within the statutory period provided under the rules of court. The appellant filed a motion for judgment which the trial court granted on the 14/12/2005. The nature of the judgment entered will be discussed later in this judgment. Upon the filing of an Entry of Judgment by the appellant the respondent filed a motion for stay of execution and further order to pay the judgment debt by installments. There were several applications which do not appear to be material in the determination of this appeal.

The respondent herein subsequently filed a motion to set aside the judgment on stated grounds that as the motion for judgment was fixed for the 13/12/2005 and adjourned to the 14/12/2005 without notice to the respondent the judgment so obtained was a nullity.

The learned trial judge after hearing arguments from both sides on the 9/06/2006 dismissed the application with cost. He concluded his ruling as follows:

“It is therefore my finding that the non-service of a hearing notice on the applicant to appear the next day was not so vital as to render the application that was granted a nullity. Bluntly put, there was no substantial miscarriage of justice against the applicant by that non-service. I award cost of ¢3,000,000.00 to the respondent”.

The respondent herein lodged an appeal against the ruling at the Court of Appeal on the 13/07/2008 to set aside the judgment of the trial court together with the ruling of 9/06/06 and ordered a retrial before a court differently constitut