OTIS ASANTE v. ANOWAH AFRIQUE LIMITD
2022
COURT OF APPEAL
GHANA
CORAM
- HENRY A. KWOFIE, JA (PRESIDING)
- GEORGE K. KOOMSON, JA
- RICHARD ADJEI-FRIMPONG, JA
Areas of Law
- Civil Procedure
- Corporate Law
2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Justice George K. Koomson authored a unanimous Court of Appeal decision arising from a default judgment entered by the Circuit Court, Accra, on a debt claim for industrial sewing machines. The appeal turned on whether the Appellant company was properly served with the writ of summons and whether the trial court had jurisdiction to enter default judgment without proper service. The affidavit of service recorded delivery to “Allein Dzomeku” described as secretary, but the Appellant produced evidence identifying Benjamin Amudzi Logo as the actual secretary and contended Dzomeku was a security officer. Applying Act 179 Section 263 and principles of fair notice and commencement of proceedings upon service, the Court held service defective, set aside the default judgment and all consequential orders, remitted the matter for proper service in the Circuit Court, and awarded GH¢5,000 costs to the Appellant. Presiding Justice Henry A. Kwofie and Justice Richard Adjei-Frimpong agreed.
KOOMSON J.A,
My Lords, the core issues which we have been called upon to adjudicate on in this appeal are as to: -
(a) Whether or not the Appellant was properly served with the writ of summons filed by the Respondent in the Registry of the trial Circuit Court.
(b) Whether or not the trial Circuit Court was clothed with jurisdiction to enter judgment against the Appellant.
The facts that have given rise to this appeal are that, on the 31st day of October, 2016, the Plaintiff/Respondent (henceforth called the ‘Respondent’) filed a writ of summons at the Registry of the Circuit Court, Accra, against the Appellant asking for the following reliefs:-
a) Recovery of an amount of Gh¢23,900.00 being monies Defendant owed the Plaintiff from the purchase of the latter’s Industrial Sewing Machines.
b) Interest on the said amount from the 30th day of June 2016 till date of final payment.
c) Cost including the legal cost of the suit.
On the 12th December, 2016, the Respondent conducted a search at the Registry of the Circuit Court, Accra. The search results showed that the Appellant had been served with the Respondent’s writ of summons but had not yet entered an appearance. The Respondent, therefore, filed an ex-parte application for judgment in Default of Appearance. The Circuit Court granted the said application on the 22nd day of December, 2016.
Subsequent to the judgment, the Respondent filed an entry of Judgment and same was entered on the 4th January, 2017. The Appellant conducted a search at the Registry of the Circuit Court, the results of which revealed that the writ of summons and statement of claim and the Entry of Judgment were all served on one Allein Dzomeku who was described as Company Secretary.
It is the case of the Appellant that the said Allein Dzomeku was a Security Officer at the Appellant’s company but not a Secretary. Based on this search results, the Appellant filed an Application on the 24th March, 2017, to set aside the service of the writ of summons and statement of claim. This application was however, not moved. No reason has been given, either from the Record of Appeal or from Appellant, why the said application was not moved. Then, on the 9th March, 2021 and 17th March, 2021, the Appellant filed two different Applications to set aside the Default Judgment and the Entry of Judgment respectively. Appellant further filed on the 22nd March, 2021, an application for an order to set aside all processes filed by Counsel Peter Nimoh on th