MERIGA SHEIMAWU v. MAHAMI BUKARI FUSEINI
2016
HIGH COURT
GHANA
CORAM
- DR. RICHMOND OSEI-HWERE
Areas of Law
- Contract Law
- Civil Procedure
2016
HIGH COURT
GHANA
CORAM
AI Generated Summary
The Plaintiff successfully sued the Defendant for specific performance of an agreement, interest, and legal fees. The court awarded general damages and costs to the Plaintiff, emphasizing the importance of substantial justice over procedural technicalities.
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/