MR. ERIC KARIKARI & ANOTHER v. MRS CYNTHIA SWANN
May 11, 2022
COURT OF APPEAL
GHANA
CORAM
- VICTOR OFOE, J.A (PRESIDING)
- MERLEY A. WOOD (MRS), J.A
- ERIC BAAH, J.A
Areas of Law
- Civil Procedure
- Contract Law
- Property and Real Estate Law
May 11, 2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Merley A. Wood, JA, delivering the Court of Appeals opinion, upheld a High Court, Commercial Division decision refusing to set aside a default judgment entered against a United Kingdombased defendant who is the sister of the second plaintiff. The plaintiffs, a married couple, paid 16,440 toward a 28,000 agreement for four plots at Lashibi after the defendant represented she had land from the Nungua Stool; when the transaction failed and the defendant withheld repayment, they sued and obtained default judgment with leave to serve outside the jurisdiction. Address-service disputes centered on Companies House records for BOCE Consulting Ltd showing the defendants correspondence address at 3 Duffield House, Stoke Poges, contrasted with council tax bills listing Lime Road. Overruling a preliminary objection on a notice-caption irregularity, the court carefully reviewed exhibits and held service at the correspondence address was proper, the default judgment regular, and the proposed defenceasserting dealings through the chiefunpersuasive against emails acknowledging receipt and a lease in the defendants own name. Applying settled principles on discretion, the court found no basis to interfere and dismissed the appeal, awarding GH5,000 costs.
MERLEY WOOD, JA
The antecedents leading to this appeal are that the Plaintiffs/Respondents who are a married couple hereinafter referred to as Plaintiffs or Respondents instituted an action on 29th January 2019 against the Defendant/Appellant who is a sister of the 2nd Plaintiff (hereinafter referred to as either Defendant or Appellant) by the filing of a Writ of Summons and Statement of Claim. The Defendant in or about February 2016, contracted to sell to the Plaintiffs four plots of land situate at Lashibi for the sum of £28,000.00. The Plaintiffs paid the Defendant a total sum of £16,400 after having paid an initial £6,440 by installments from February 2016 to July 2017 and £10,000 on 1st August 2017. The Plaintiffs were given the option to take up possession to develop same and to pay the balance by installments but they could not because the Defendant did not have any bonafide interest in the plots and thus the transaction failed. Despite repeated demands, the Defendant failed or refused to refund the money. The Plaintiffs therefore instituted the action for the following reliefs:
a. Recovery of the sum of Sixteen Thousand Four Hundred and Forty Pounds Sterling (£16,440.00) being the Appellant’s indebtedness to the Plaintiffs on account of the failed contract for the sale of four plots of land to the Plaintiffs.
b. Interest on the said £16,440 at the prevailing bank rate from 2nd August 2017 till date of final payment.
Since the Appellant lived out of the jurisdiction, on 21st January 2019, leave was granted to the Plaintiffs to issue the Writ of Summons and Statement of Claim and serve notice outside the jurisdiction. The Appellant did not enter appearance within the stipulated time and therefore the Respondents filed a Motion Exparte for Judgment in Default of Appearance. The said application was granted on 28th May 2019 after which they filed an Entry of Judgment on 12th November 2019 and applied for service outside the jurisdiction which was granted on 28th November 2019. Execution was levied and the Defendant’s undeveloped plot of land situate at Baatsonaa was attached and valued after which the Plaintiffs applied for a reserved price and upon further application they were granted leave to serve the motion and hearing notice on the Defendant outside the jurisdiction. On 24th July 2020, the Court granted the motion and fixed the reserved price at Three Hundred and Fifty Ghana Cedis (GHȼ350,000.00).
However, on 8th September 2020, the Defendan