MERCHANT BANK GHANA LTD. v. GENERAL DEVELOPMENT CO. & ANOTHER
2013
COURT OF APPEAL
GHANA
CORAM
- ADJEI JA. (PRESIDING)
- ACKAH-YENSU JA.
- DORGU J
Areas of Law
- Civil Procedure
2013
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The case revolves around the procedural impropriety in adopting court proceedings without the plaintiff's consent in a civil matter. The appeal challenged multiple aspects of the trial court's judgment, focusing primarily on the adoption of proceedings after the original judge stopped presiding. The Court of Appeal held that such an adoption without the parties' consent is void and invalidates the subsequent judgment. The appeal succeeds, and the case is remanded for a new trial before a differently constituted High Court. The concurring opinions and the legal principles cited support this procedural safeguard, emphasizing the necessity of parties' consent in adopting court proceedings.
J U D G M E N T
DENNIS ADJEI, JA:
On 1st March, 2010 the High Court Sekondi dismissed the action initiated by the plaintiff against the defendants for failing to prove the reliefs it sought from the court. In this appeal the Plaintiff /Appellant would be referred to as the Plaintiff and the Defendants / Respondents as the Defendants. The Plaintiff dissatisfied with the judgment of the trial High Court filed an appeal against same to this court praying for the reversal of the judgment. The Plaintiff in its original grounds of appeal set forth the omnibus grounds of appeal, that is, the judgment is against the weight of evidence on record. The plaintiff indicated its intention to file additional grounds of appeal on receipt of the record of appeal.
On 16th May, 2012 this court granted leave to the Plaintiff to file additional grounds of appeal. The additional grounds of appeal filed by the Plaintiff are as follows:
"A) The learned trial judge erred in law by adopting the
proceedings despite plaintiff's contention to have the suit tried de novo.
B) The learned trial judge was misled by his misrepresentation of the court referee's report.
C)The learned trial judge erred in holding that the various bank statements tendered by the plaintiff company were self serving and did not amount to proof of the 1st defendant's indebtedness
D) The court erred in holding that although facilities were approved by the Plaintiff /Appellant and accepted by the 1st Defendant /Respondent there was no evidence of disbursement of the facilities to 1st Defendant /Respondent.
E) The learned trial judge was bias in his assessment of the evidence.
F) The learned trial judge was confused about the various accounts leading to his wrongful rejection of recommendations of the court expert favourable to the Plaintiff /Appellant.
G) The learned trial judge erred in law by ignoring admissions of the 1st Defendant /Respondent.
H) The learned trial judge erred by holding that the Appellant's failure to amend the writ of summons to reflect the indebtedness of Defendants/Respondents in dollar was fatal to the Plaintiff /Appellant's claim”.
I will discuss ground (A) of the appeal which if sustained will determine the appeal as it goes to the root of the appeal. The suit was heard by C.J. Honyenuga J (as he then was) and continued to hear it after his elevation to the Court of Appeal. The Plaintiff closed its case and the Defendants opened their defence. On 13th June, 2008 the defendant