GH - MS. YVONNE AFUA BOAKYE v. CHARLES YAO MENSAH

SUURBAAREH, J.A.: This is an appeal against the judgment of Senyo Dzamefe J.A., sitting as an additional High Court judge, dated 18th May, 2011. In his judgment, the trial judge, in dealing with an issue of whether the action was not an abuse of the court process in view of the fact that a judgment in Suit No. C463/96 between the same parties and in respect of the same subject matter had been delivered, stated at page 256 of volume 1 of the Record of Appeal, in his judgment, which is also at page 368 of Volume II of the record of appeal that, even though an application to strike out the statement of claim and to dismiss the action had been filed, same was later struck out as withdrawn on 20th June, 2008, by the court differently constituted upon an application by counsel for the Defendant/Appellant. The learned trial judge thereafter went on to state that although the application to strike out the statement of claim and to dismiss the action was struck out as withdrawn and not dismissed, he would seek refuge under Order 1 r. 2 of the High Court (Civil Procedure) Rules 2004 C.I.47, to go into the merits of the case “to completely and effectively determine the issues between the parties.”

The learned trial judge thereafter went on to deal with the case on the merits by dealing with all the issues raised, including the issue of whether the judgment in Suit No. C463/96 was obtained by fraud, and at pages 272 to 276 of Vol. 1 of the Record of Appeal, same as pages 384 to 388 of Vol. II of the Record of Appeal, stated that as the Plaintiff/Respondent was never served personally with hearing notices in Suit No. C463/93, the judgment therein was given under the mistaken belief that he was served but failed to turn up. He also wondered why the court in that case decided to proceed under Order 36 r. 16 of LN 140 A to hear the matter without proof that the Plaintiff/ Respondent, who was the defendant in Suit No. C463/96, had been personally served (see page 381 of Vol. 2 of the Record of Appeal, which is also contained at page 275 of Vol. 1 of the Record of Appeal.

The learned trial judge who went on to consider all the issues set down, upon evaluation of the evidence, and the application of the relevant laws, entered judgment for the Plaintiff/Respondent, whilst dismissing the counterclaim of the Defendant/Appellant.

Dissatisfied with the judgment, the Defendant/Appellant, on 12th August, 2011, filed a Notice of Appeal with as many as 18 grounds of appeal. See pa

MS. YVONNE AFUA BOAKYE v. CHARLES YAO MENSAH

Areas of Law

JUDGMENT