PIETER RODOLPH J. ROOMJIN v. GEORGE KWABENA BOADI
July 14, 2016
SUPREME COURT
GHANA
CORAM
- DOTSE, JSC (PRESIDING)
- ANIN YEBOAH, JSC
- GBADEGBE, JSC
- AKAMBA, JSC
- PWAMANG, JSC
Areas of Law
- Civil Procedure
July 14, 2016
SUPREME COURT
GHANA
CORAM
AI Generated Summary
On appeal from the Court of Appeal, the Supreme Court of Ghana (per N. S. Gbadegbe JSC, with Dotse JSC presiding, and Anin Yeboah, Akamba, and Pwamang JJSC concurring) addressed a dispute stemming from a High Court summary judgment for the refund of a specified sum denominated in United States dollars. The defendant, resident outside Ghana, had entered appearance and filed an affidavit in answer; the High Court proceeded to grant summary judgment after adjournment. The defendant’s attempt to set aside the judgment under Order 14 rule 9 was dismissed, and he appealed. The plaintiff later challenged the Court of Appeal’s retrial order, arguing the appeal was out of time. The Supreme Court held that Morkor v Kuma did not postpone the appeal period because the judgment did not exceed the claim, and therefore the May 2006 appeal was untimely. It set aside the Court of Appeal’s processes and restored the High Court judgment, payable in cedi equivalent, while clarifying the meaning of ‘absence’ under Order 14 and the need to show a defence to set aside.
GBADEGBE JSC:
This appeal arises from the decision of the Court of Appeal dated November 19, 2009 by which the summary judgment obtained in the trial High Court was set aside. The circumstances in which our jurisdiction has been invoked may be briefly stated as follows. The Plaintiff/Respondent/Appellant (to whom I shall for convenience hereinafter describe as the Plaintiff) took out the writ of summons herein against the Defendant/Appellant/Respondent (hereinafter conveniently referred to as the Defendant) seeking the refund of a specified sum of money denominated in the United States dollars. As the defendant was ordinarily resident outside the jurisdiction, the plaintiff applied and obtained leave to issue and have the writ served outside the jurisdiction. The defendant subsequently entered appearance to the writ and following his submission to the jurisdiction, the plaintiff applied for summary judgment against him on the claim. The defendant’s solicitors filed an affidavit in answer to the application under order 14 of the rules of the High Court contained in High Court (Civil Procedure) Rules, CI 47. The hearing appears from the record of appeal to have suffered some adjournments from the return date of April 15, 2005 to May 06, 2005 when it was determined.
Following the entry of the summary judgment, the defendant applied to have the judgment set aside under Order 14 rule 9 of the High Court (Civil Procedure ) Rules, LN 140A on the ground that he was not present at the hearing. The gravamen of his complaint at the hearing of the application to set aside the judgment was that he was not served with notice of the adjournment of the hearing of the application to May 06, 2005 when the court proceeded to hear the application and yielded to the prayer of the plaintiff. The said application was dismissed by the trial court and an appeal lodged there from to the Court of Appeal. In the Court of Appeal, the defendant’s appeal was allowed and an order of retrial ordered. The plaintiff has appealed to us and by the processes initiating these proceedings seek a reversal of the judgment of the Court of Appeal.
Before us, the plaintiff has contended among other grounds of objection contained in his notice of appeal that the appeal from the High Court to the Court of Appeal was improperly constituted as it was filed out of time. Although the notice of appeal did not specifically refer to the applicable rule, in the written briefs submitted by the parties, the a