UT FINANCIAL SERVICES v. FRANK ATO ABRAHAM & 2 OTHERS
June 26, 2014
COURT OF APPEAL
GHANA
CORAM
- ABBAN (MRS.) J.A. (PRESIDING)
- ACQUA YE, J.A.
- TORKORNOO (MRS.)J.A.
June 26, 2014
COURT OF APPEAL
GHANA
CORAM
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TORKORNOO (MRS. )J. A.
I The plaintiff/respondent claimed against three defendants recovery of GHC 1, 543, 552.
10 with compound interest computed at 6% a month from 23rd February 20 IO to date of final payment; an order setting aside the fraudulent sale of 2nd and 3rd defendant's properties to third parties on account of their having been used to secure the loan facility advanced to I st defendant; and alternatively, an order of judicial sale of Trazville International School which is 2nd defendant's property at Maccarthy Hill and 3rd defendant's property at Zero, Gbawe.
l Appearance was entered for all three defendants by counsel named Isaac Gyasi Nimako.
A defence was then filed for the 1st defendant who is the appellant in this appeal.
In Paragraph 6 of the Statement of Defence, it was pleaded 6. 'The l" defendant denies partially paragraph 11 of the Statement of Claim 'The plaintiff/respondent filed an application for particulars of the word 'partially' in the said paragraph 6 of the Statement of Defence which it described in the supporting affidavit as 'unclear and ambiguous'. See page 11 of the Record of Appeal (ROA). When the application came up for hearing, the defendant/appellant was recorded as served but absent from court (see page 12 of the ROA). The learned trial judge, after listening to the plaintiff respondent's counsel, ordered'that leave be and is hereby granted to the plaintiff to file interrogatories on the defendant to give particulars of their pleadings per their statement of defence within 14 days from today'. ( emphasis mine)This.
order dated 16th July 2010 was headed 'ORDER FOR LEA VE TO FILE PARTICULARS'. On 21st July 2010, the respondent filed a process headed 'INTERROGATORIES.
It read'On behalf of the above-named Plaintiff for the examination of the above-named defendants pursuant to the order herein dated the 16th day of July 2010 1. Did you obtain a loan facility from the Plaintiff 2. When did you obtain the loan 3. How much was the loan facility? 4. Have you paid the said loan with all the interest 6. Are you indebted to the Plaintiff 7. How much was your indebtedness to the Plaintiff as at 23rd February 2010'According to appellant, the order of the court was not served on the appellant or his counsel.
However the respondent served the appellant's counsel with the process containing the interrogatories on 12th August 2010.
On 21st October 2010, the respondent filed an application under Order 22 rule 6 of the High Co
AI Generated Summary
In this Ghana Court of Appeal decision, Justice Gertrude Torkornoo authored the lead opinion reversing a High Court’s summary judgment entered after it struck out the 1st defendant’s defence for failure to answer interrogatories. The underlying suit sought recovery of GH¢1,543,552, 6% monthly compound interest from February 2010, and orders relating to alleged fraudulent property sales involving Trazville International School and other assets at Gbawe. Although the plaintiff filed for particulars under Order 11 rule 12, the High Court issued an order headed “ORDER FOR LEAVE TO FILE PARTICULARS” but improperly directed the plaintiff to file interrogatories within 14 days and no such order was served. The Court of Appeal emphasized the strict requirements of Order 22 for interrogatories—application by a party, proposed questions served, and court scrutiny—and held that non-service is a jurisdictional defect implicating audi alteram partem and not curable by Order 81. The trial court’s reliance on Order 22 rule 6 was ultra vires, and entering judgment without evidentiary evaluation (amid allegations of fraud and onerous interest) was an abdication of duty. The Court set aside the orders and judgment and restored the defence, directing the case to proceed from the application-for-particulars stage.