NANA ADU & ANOTHER v. GRACE ANDOH & ANOTHER
May 12, 2022
COURT OF APPEAL
GHANA
CORAM
- G. S. SUURBAAREH, JA (Presiding)
- MERLEY WOOD, JA
- ADJEI-FRIMPONG, JA
Areas of Law
- Civil Procedure
- Property and Real Estate Law
May 12, 2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
On appeal from the High Court, Criminal Division, Accra, the Court of Appeal considered whether a landowner plaintiff properly joined and served the second defendant, a dual Ghanaian–British citizen, in a land trespass and title action culminating in a 25 June 2019 judgment. The trial court had refused the second defendant’s application to set aside that judgment, finding valid substituted service and no proof she was outside Ghana. Justice G. S. Suurbaareh analyzed the chronology: the initial writ against the first defendant, police investigations linking Phinease Paito and “Cadman” to the second defendant, her joinder and use of a Ghanaian address given by her brother, multiple failed personal service attempts, and court-approved substituted service for all subsequent processes. Applying CI 47 and precedents including Lokko v Lokko, Dakar Ltd., and Barclays Bank v Ghana Cable, the Court held leave for out-of-jurisdiction service was unnecessary, the service record was sound, and the appellant had not proved residence abroad. The appeal was dismissed and the refusal to set aside affirmed.
SUURBAAREH, JA
This is an appeal against the ruling of the High Court, Criminal Division, Accra, dated 13th November 2019, in which the trial Court refused to grant the application of the 2nd Defendant/Appellant seeking to set aside a judgment that had been given against her and the first Defendant.
The application that was refused, and against which this appeal has been launched, was premised on allegation that the writ in respect of which judgment was entered against the defendants therein, ought to have been issued with the leave of the court since the second defendant/appellant, a person with dual citizenship, was then ordinarily resident outside the jurisdiction. The second defendant/appellant also alleged in her application that she was never aware of the suit against her and therefore was denied her right to be heard before judgment was given against her. She further contended in the application that from the record, she was never served with any processes and further that the purported substituted service of the amended writ on her predated the amended writ.
The learned trial judge, upon an examination of the affidavit evidence, and her consideration of the oral submissions on behalf of the parties, held that as there was no indication that the applicant therein was out of the jurisdiction, no attempt was made to serve her outside the jurisdiction. She went on to further hold, on the authority of Jonathan Nortey Sowah (Substituted Daniel Boye Sowah, per Lawful Attorney Matilda Klu) v Lands Commission and 51, Mary Osafo-Nowacki [2018] 188 GMJ 211, that as the applicant therein had a dual citizenship, she could be served in Ghana and was rightly served with the amended writ of summons by substituted service when it became impracticable to serve her personally. From the ruling of the trial court, it can also be discerned that, like the case she relied on, and which is cited above, the applicant therein failed to prove that she was outside the jurisdiction.
Obviously dissatisfied with the ruling of the trial Court, the second defendant/appellant has mounted the instant appeal, complaining about the whole judgment, and seeking to have the ruling of the trial court set aside, and in its stead, judgment entered in her favour setting aside the judgment dated 25th June 2019, which the trial Court failed to set aside. The grounds of appeal in her notice of appeal are the following:
“1) The learned judge, with respect, misdirected herself when she held