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December 21, 2016
HIGH COURT
GHANA
CORAM
RULING
In this application brought pursuant to Order 14 of the High Court Civil Procedure Rules, 2004, CI 47, the Applicant seeks against the Respondent an Order for summary judgment.
The grounds of the application are contained in the Affidavit in Support filed on 25/10/2016. The gravamen of the applicant’s motion per the affidavit is that the Defendant/Respondent had committed himself to pay his indebtedness to the Plaintiff/Applicant prior to the issuance of the Writ of Summons by the latter. A copy of the issuance of the said Undertaking is attached to the affidavit and marked Exhibit “AKP4”. Applicant prayed the court to grant the summary judgment as the Defendant/Respondent’s Statement of Defence (Exhibit “AKP3”) does not disclose any defence.
The Respondent is opposed to the application and has demonstrated the grounds in an affidavit in opposition. The relevant parts of the Affidavit in Opposition are as follows:
“3. That I deny paragraph 1, 2, 3, 8, 9 and 11 of the plaintiff’s affidavit in support.
4. That I am advised by counsel and verily believe same to be true that the instant application is completely misconceived.
5. That the Power of Attorney on which the applicant relies to depose to the Affidavit in Support is defective and does not clothe the plaintiff’s attorney with the requisite capacity to swear to the said affidavit.
That I am advised by counsel and verily believe same to be true that the resort by the applicant to applying for summary judgment is facetious and completely ignores the applicable law relevant to when a Party can resort to this mode of judgment to access relief(s).
That I am advised by counsel that my Statement of Defence leaves no doubt whatsoever in denying any indebtedness to the plaintiff and consequently the instant application is without reference to the rules of court as well as to the pertinent law relating to the circumstances which would trigger an application such as the instant.
That I am again advised by counsel and verily believe same to be true that the applicant has completely misconstrued the ambit of an application for summary judgment as when an issue of even minor significance is joined with the Plaintiff which calls for an investigation of same by hearing, summary judgment cannot be applied for.
That a cursory look at my Statement of Defence will show that I have an ironclad defence to the instant suit contrary to the postulations of applicant.”
In moving the motion, counsel for the Ap
AI Generated Summary
The Ghana High Court, per Dr. Richmond Osei-Hwere, considered an application for summary judgment brought by Romesh Mirpuri through his attorney, Andrew Kofi Poku, against Osei Kwabena under Order 14 of CI 47. Mirpuri alleged Kwabena’s indebtedness and relied on an undertaking to pay, while Kwabena’s defence denied liability and asserted that any dealings were with West Africa Holdings Company Limited rather than with Mirpuri. The court examined the validity and scope of the power of attorney, whether the case title should bear the attorney’s name, and whether triable issues existed. Applying holistic construction of the instrument and the standard for summary judgment, the court held that Poku had capacity, the action was properly titled in Mirpuri’s name, but capacity and liability issues raised a triable issue. The application was dismissed, with costs of GHC 1,000 awarded to the defendant.