TSUIM TAWIAH FAMILY v. FRANK ETWI KARIKARI

J U D G M E N T

RICHARD ADJEI-FRIMPONG JA:

This appeal turns on a procedural issue not of any wide compass. It has been brought to

challenge the decision of the trial High Court to set aside its own judgment previously

given in favour of the plaintiff/appellant (herein plaintiff). This was on the basis that the

defendant/respondent (herein defendant) was not duly served with the writ and the statement of claim, a position the plaintiff disputes. The trial judge however accepted

the defendant’s case resulting in this appeal.

The plaintiff’s writ filed against the defendant was for Declaration of title, recovery of

possession, Damages for trespass, Perpetual injunction and Costs. Following a failed

aGempt at serving the defendant, the plaintiff filed an ex parte application for an order of

substituted service. The mode of service proposed in the affidavit in support was as

follows:

a. Copies posted on the structure on the disputed land situate at Odokor

Tsuim also known as Odorkor-been-to, plot No. 128

b. Copy posted on the Notice Board of this Honourable Court.

The order was granted in the terms prayed. A copy of the order was aGached to the

defendant’s affidavit in support of the motion to set aside interlocutory judgment as

Exhibit FEK2. [Page 68 ROA] The bailiff who effected the posting later filed an affidavit

of posting to that effect. [Page 10. ROA]

With no appearance and defence filed at all, the plaintiff subsequently filed an

application for interlocutory judgment in default of defence deposing to the fact that the

defendant who had been duly served had failed to file defence. The said motion was

also served by substituted service and by the same mode.

On the return date, the trial judge, apparently on satisfaction that service was duly

effected by substituted service, proceeded to grant the application. He also ordered,

rightly in our view, that since the reliefs sought included a declaration of title of the

disputed land, the court will adjourn to enable the plaintiff prove title.

In due course, evidence was taken. The plaintiff testified through an aGorney and

tendered documents material to prove his claim. On 7th May 2021, the trial court

delivered judgment in favour of the plaintiff not before a closing address had been filed

at the close of evidence. The plaintiff filed an entry of judgment to commence the

process of execution. All these maGers were not a subject of any argumentation.

According to the defen