Smile Adzayao & ANOTHER v. Hans J. Finke & ANOTHER

AMMA GAISIE, JA:

This is an appeal against a decision of the High Court refusing to set aside a judgment dated 6th December 2011 that the Appellant complained was procured by fraud.

In a case commenced in July 1992 titled 1. Mr. Smile Adzayao, Utilitarian Handicrafts and Trading Enterprise v Hans J. Finke, Miss Angela Konadu, and Hilarious Afele, Suit No 1464/92, the Appellant had claimed inter alia for a. Declaration that the 2nd Plaintiff enterprise is the intended beneficiary of the business activities between the 1st Plaintiff and the 1st Defendant b. Declaration that the acquisition of the 5 plots of land, the wood working machines and the proceeds from the sale of the home secondhand tyres constitute part of the assets of the 2nd Plaintiff, and were meant to augment the operations of the 2nd Plaintiff enterprise to enable them produce the wood products designed by the 1st Defendant.

c. Declaration that the operations of the 2nd Plaintiff enterprise are limited to only the 1st Plaintiff and the 1st Defendant f. An order for perpetual injunction against the 1st, 2nd, 3rd Defendants herein to restrain them, their agents, assigns, privies, workmen and successors from harassing and intimidating the 1st Plaintiff and interfering with Plaintiffs use of premises and machinery situated thereonThe 1st and 2nd Defendants to Suit No 1464/92, who are the Respondents to this present appeal (hereinafter referred to as Respondents) filed a counterclaim with their defence to Suit No 1464/92.

According to the pleadings of Appellants, the Appellants discontinued their claim as Plaintiffs on 19th May 2010.

From the records, the Respondents pursued their counterclaims after that discontinuation.

Respondents obtained an order for substituted service of a hearing notice on the Appellant on account of difficulties encountered in directly serving the Appellant with hearing notice of the trial.

The record on page 113 of Volume One of the Record of Appeal (ROA) shows that hearing notice was served by a publication in the Ghanaian Times of 22nd January 2011 for hearing on 15th February 2011.

Page 277 of Volume Two of the ROA also shows that hearing notice for substituted service was done by posting the hearing notices on the notice board of the High Court on 28th January 2011.

Thereafter, the high court entered judgment for the Respondents on 6th December 2011, having adjourned proceedings from 15th February 2011.

Following notice of this judgment, the Appellant comme