SUNBELTIC COMPANY LIMITED v. TEMA DEVELOPMENT CORPORATION & ORS
2021
SUPREME COURT
GHANA
CORAM
- BAFFOE-BONNIE, JSC (PRESIDING)
- PWAMANG, JSC
- AMADU, JSC
- PROF. MENSA-BONSU (MRS.), JSC
- KULENDI, JSC
Areas of Law
- Civil Procedure
- Evidence Law
2021
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana, per Kulendi JSC, decided an appeal by the 2nd and 3rd Defendants/Respondents/Appellants challenging the Court of Appeal’s order re‑listing an appeal previously struck out for non‑appearance. The case arose from the Tema High Court judgment of 28 May 2015 delivered by Avril Lovelace Johnson, JA. Although both parties had filed written submissions, the Respondent and counsel were absent on 7 November 2018 and the Court of Appeal struck out the appeal. On application, the Court of Appeal re‑listed the matter on 11 February 2019. The Appellants argued service was effected at “Oseawuo Chambers” and relied on Sappor v. Wigatap, contending the Respondent should prove arguability. The Supreme Court held Rule 23(2) of C.I. 19 vests discretion; found service at chambers defective for failing to name an individual recipient; distinguished Sappor; declined to require proof of arguability at re‑listment; and affirmed the Court of Appeal’s discretionary decision.
KULENDI, JSC:-
INTRODUCTION
We have before us, an appeal from the decision of the Court of Appeal (Civil Division), Accra dated 11th February, 2019 re-listing an appeal filed by the Respondent which was earlier struck out for want of prosecution on 7th November, 2018.
BACKGROUND
Following the judgment of the trial High Court, Tema, presided over by Avril Lovelace Johnson, JA, sitting as an additional High Court Judge, dated 28th May, 2015, the Respondent herein filed an appeal to the Court of Appeal. The Parties filed their written submissions in respect of the Appeal and hearing of the appeal was fixed for 7th November, 2018. On the said date, both the Respondent and his Counsel were absent from Court and the Appeal was consequently struck out for want of prosecution by the Court of Appeal.
Subsequently, the Respondent filed an application to re-list the Appeal and this application was granted on 11th February, 2019. Aggrieved by the decision of the Court of Appeal to re-list the Appeal of the Respondent herein the Appellants herein brought this Appeal on the following grounds which may be found at page 89 of the Record of Proceedings:
1. The Court of Appeal erred when it held that it is their candid opinion that there is a controversy as to whether Counsel for the Applicant was served or not with the hearing notice;
2. That the Court of Appeal erred when it held that the appeal which was struck out on the 7th day of November, 2018, be re-listed on the cause list;
3. That the Court of Appeal erred when it failed to consider Respondent Counsel’s second submission that in accordance with law, the Applicant had failed to demonstrate on the face of his affidavit that he has an arguable and not a frivolous case on appeal;
4. That the decision is against the weight of evidence put forth before the Court
It is significant that the 1st Defendant/Respondent the Tema Development Corporation has not appealed the decision of the Court of Appeal to re-list the Appeal to be heard on the merits.
ARGUMENTS OF THE APPELLANTS
In the Statement of Case of the 2nd and 3rd Defendants/Respondents/Appellants (hereinafter called “the Appellants”), they argue that contrary to the holding of the Court of Appeal at page 88 of the record, that “there is a controversy as to whether counsel for the Applicant was served or not, taking into consideration Exhibit ‘C2’, the Official Search” the Respondent was served with the hearing notice. Appellants point to the Affidavit