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December 21, 2016
HIGH COURT
GHANA
CORAM
JUDGMENT
On 27 April, 2016 the Plaintiff herein instituted the instant action against the Defendant herein. The following reliefs were sought by the Plaintiff:
Specific performance of the agreement entered into by the Plaintiff and the Defendant on the 12th day of February, 2016.
Interest on the amount of money entered into on the 12th day of February, 2016.
Cost of legal fees.
After unsuccessful attempts to serve the Defendant with the writ of summons and the statement of claim, the plaintiff applied to the Court for an order for Substituted Service of the processes on the Defendant herein.
Upon service of the writ of summons and statement of claim by substitution, Sambian & Co entered conditional appearance on behalf of the defendant. The Defendant did not set aside the writ of summons and statement of claim neither did he file a defence.
Consequently, the plaintiff filed a motion on notice for judgment in default of defence on 18/07/2016, with a return date of 1/08/2016. The said motion was served on Counsel for the defendant, Sulley Sambian Esq., through his clerk by name Mr. Essibu on 29/07/2016.
On 01/08/2016, both the defendant and his counsel were absent. Counsel for the plaintiff was present. The motion was duly moved and final judgment was entered against the Defendant for the reliefs endorsed on the writ pursuant to Order 13 rule 2 of the High Court Civil Procedure Rules, 2004, CI 47.
The Plaintiff applied to the court on notice to amend the writ of summons. The process was served on the defendant through his lawyer but they (defendant and his lawyer) failed to appear in court when the motion was moved. The motion for an amendment of the writ of summons was subsequently granted. The amended writ of summons read as follows:
1. Specific performance of the agreement entered into by the Plaintiff and the Defendant on the 12th day of February, 2016 or in the alternative the payment of Fifty Two Thousand Ghana Cedis (GHC 52,000) by the Plaintiff to the Defendant.
2. Interest on the amount of money entered into on the 12th day of February, 2016.
3. Cost of legal fees.
It is on record that the amended writ of summons together with the statement of claim was served on lawyer for the defendant on 28/10/2016.
It is observed that the amended writ of summons did not change the colour of plaintiff’s case. When the case came up for assessment of the claim on 13/10/2016, the defendant and his lawyer did not show up. The case was adjourned to 2/
AI Generated Summary
Presided over by Dr. Richmond Osei-Hwere, the Ghana High Court addressed a claim arising from an agreement dated 12 February 2016. The claimant advanced GHC 52,000 to the other party, received the document covering his house as security, and was promised repayment within six months, with an option to take the house and pay a GHC 13,000 balance if he defaulted. After substituted service, Sambian & Co entered conditional appearance for the other party, but no defence was filed; default judgment was entered under Order 13 rule 2. The writ was amended and served, but the other party and counsel, Sulley Sambian Esq., repeatedly failed to appear, with brief holding by Felix Osei Bonsu. The claimant testified, tendering Exhibit A, and the court found breach and entitlement to the reliefs on the amended writ. The court declined to treat Exhibit A as a consent judgment, awarded general damages of GHC 2000 guided by Delmas Agency and substantial justice principles recognized in Major Mac Dorbi, and granted costs of GHC 6000 under Order 74.