WISE BOATENG v. JAMES KWABENA ANTWI
2018
HIGH COURT
GHANA
CORAM
- DR. RICHMOND OSEI-HWERE
Areas of Law
- Contract Law
- Civil Procedure
- Evidence Law
- Property and Real Estate Law
2018
HIGH COURT
GHANA
CORAM
AI Generated Summary
Mr. Wise Boateng, trading as Wise Boateng Enterprise in Adum, Kumasi, sued a haulage transport businessman for repayment of a loan after default. The High Court noted the Defendants nonattendance and struck out his defence under Order 32 rule 7A of CI 87, proceeding to trial under Order 36 rule 1(2)(a) of CI 47 allowing the Plaintiff to prove his claim. Evidence, including a statutory declaration and exhibits, showed he borrowed GH250,000 in December 2016 at 10% monthly interest, secured by Plot 22, Kwabena Antwi Street, Twumduase, Kumasi. Only GH75,000 was repaid; three cheques were dishonoured by Societe Generale Bank Ghana. Applying the Evidence Act and freedom-of-contract principles (Oppong v. Anarfi; Printing & Numerical Registering Co. v. Sampson), the court entered judgment for GH310,000 plus prevailing commercial bank interest on the principal from 1 August 2018, authorized judicial sale of the property, and awarded GH6,000 costs.
JUDGMENT
On the 22nd of August, 2017 the Plaintiff instituted an action against the Defendant. By his writ of summons, the Plaintiff sought the following reliefs:
a. Recovery of an amount of Three Hundred and Ten Thousand Ghana Cedis (GHC310,000.00) inclusive of interest being the total outstanding amount due the Plaintiff from the defendant as at 31st July, 2017.
b. Interest rate on the said sum beginning from 1st August, 2017 till date of final payment.
c. Cost
Appearance was entered on behalf of the Defendant by his solicitor on the 10thof October 2017 and he later filed a statement of defense. The Defendant denied liability to the plaintiff’s claim on the basis that he does not owe him.
After unsuccessful attempts at settlement, three issues were set down for trial namely:
1. Whether or not the Defendant is indebted to the Plaintiff to the tune of GHC310, 000 as at 31st July, 2017.
2. Whether or not the Defendant secured the transaction with the landed property numbered Plot 22 Kwabena Antwi Street, Twumduase, Kumasi.
3. Whether or not the Plaintiff is entitled to his claim.
It is observed that per the Court’s records, the Defendant was duly served with hearing notices to attend court for the trial to commence but he failed to show up. This is evidenced by the affidavits of service sworn on 09/05/2018, 31/05/2018 and 03/06/2018. The Defendant also failed to comply with the orders of the court to file his witness statement. The court consequently invoked Order 32 rule 7A of the High Court (Civil Procedure) (Amendment) Rules, 2014, CI 87 and struck out the defence of the defendant. With the continuous absence of the Defendant, the court had no option than to proceed with the case under order 36 rule 1(2)(a) of the High Court (Civil Procedure) Rules 2004, CI 47. It states:
Rule 1(2) where an action is called for trial and a party fails to attend, the trial judge may;
a. Where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove the claim.
On the basis of the rule, the plaintiff was allowed to prove his claim on the 19/06/2018. The Plaintiff relied on his witness statement filed on 28/5/2018. The plaintiff’s case is that he is a businessman trading under the name and style ‘Wise Boateng Enterprise’ located within Adum, Kumasi. Plaintiff says that he knows the Defendant as a businessman in the haulage transport business and that sometime in December 2016, the Defendant ap