M & K GHANA LIMITED vs M & K GHANA LIMITED

The motion on notice to summary judgment against Defendant/Respondent herein[Respondent hereafter] by Plaintiff/Applicant herein, [hereafter the Applicant] was filed on 27-04-2020, under order 14 of C. I. 47/04. There is affidavit in support with EXHIBIT ‘TAA1 -10’ as annexures.

The Respondent on 05-06-2020 has filed a response.

The Writ of Summons taken from the registry of this Court, on 28-01-2019, has recovery of GH¢146, 035. 00 with interest as the reliefs, applicant is seeking.

There is a defence filed on 24-01-2020. The averments in the defence are the same as the depositions in the affidavit filed in opposition.

THE LAW APPLICABLE

A long line of cases foreign and local have established that, it is a Defendant who has established in the affidavit evidence or otherwise, a FAIR case for defence or reasonable grounds for setting up a defence or a fair probability of a bona fide defence, that relate to questions of fact and Law raised, and also a Defendant who has established a case for interpretation of documents which are necessary for the understanding of whether a defence exist or not, is the Defendant who may be given leave to defend the action The duty of the trial judge in an application to sign summary judgment, is to examine the pleadings [if the defence has filed one as in this case] and determine whether there is a bona fide or good defence, that is a defence, known in law.

If there is or are such defences raised, they constitute or will constitute triable issues or an issue fit to be tried.

But at this stage of the litigation, when all the facts are not fully established, the trial judge is NOT empowered or permitted to Test, the success or otherwise of the defence intended to be relied on.

The merits of the respective claims cannot be determined on the affidavit evidence on hand or at the stage of the application for summary judgment, on the balance of probabilities, thereby, disposing of with finally matters fit to be submitted in the main trial for consideration.

The inherent powers of the Court and extraneous matters should not be the basis of the decision to be made.

However, the Court has power to determine summarily a defence that is PLAINLY misconceived or unsustainable.

The rationale behind the summary procedure being that, disputes that involve the determination of short or simple questions of law or construction should be identified and dealt with, to avoid a full blown trial in all cases.

I have perused the plea