Y. K. QUARTEY v. JOHN HAMMOND,
1999
COURT OF APPEAL
GHANA
CORAM
- ESSILFIE-BONDZIE JA (PRESIDENT)
- TWUMASI JA.
- ARYEETEY JA
Areas of Law
- Civil Procedure
1999
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The plaintiff filed a suit regarding land ownership and other related claims in 1991, but the case saw periods of inactivity. The trial judge permitted substituted service and proceeded to hear the case in the absence of the defendant, who was not properly notified. The trial court awarded judgment to the plaintiff, but the defendant's subsequent motion to set aside the judgment was denied. On appeal, the higher court found that the trial judge erred by not ensuring proper notice was served to the defendant and declared the proceedings and judgment of July 1995 null and void. The case was remitted back to the Circuit Court for a retrial.
JUDGMENT
ESSILFIE-BONDZIE JA.:
The facts in this appeal are simple and straight forward. The plaintiff took out writ for declaration of title, recovery of possession of the land in dispute, damages for trespass and perpetual injunction. The suit was instituted on the 19th July 1991. Pleadings were closed before the Circuit Court with the taking of summons for Directions on the 29th January 1992.
Subsequently there was on application for amendment of the title of the suit on the 24.3.92. It is on record that there were on further proceedings from the 24.3.93 until 25.1.94 when plaintiff filed a motion ex-parte for substituted service.
In his judgment the learned trial judge also buttressed these facts. He commenced his judgement thus:—
“The suit was instituted some where in 1991 and for no apparent reason went into abeyance until June 1995 when counsel for the plaintiff caused it to be reviewed.”
On the 12th July 1994 however, the Court granted on ex-parte application for substituted service filed by the plaintiff. In making the order for substituted service the learned trail judge said:—
“By Court
The application granted as prayed for service of process can be effected in the following manner:—
(1) A copy to be posted on the notice board, 28th February Road Court complex, Accra.
(2) A copy to be posted on the wall of the structure of the land in dispute.
(3) A copy to be posted on the Notice Board High Court, Accra.
(4) A copy to be sent by Registered post to Barsbury Chambers, Accra, the Last known address of Counsel for the defendant. Hearing notices to be posted should read 18/8/94”
The Record of proceedings disclosed that on the 6th day of July 1995, when the Court assembled to hear the case neither the defendant nor his counsel were present. The learned trial judge however proceeded to hear the suit by taking evidence from the plaintiff. The plaintiff gave his evidence and closed his case on the same day. The record indicates that the case was thereafter adjourned to the 10/7/95 for the defendant to open his case. There was no order that the defendant should be served with a hearing notice. There is also no proof that the defendant was served with a notice that the case had been adjourned for him to open his defense on the 10/7/95. On the 10/7/95 as it should be expected neither the defendant nor his counsel appeared. The Court nevertheless adjourned the case to the 28/7/95 for judgment. On the 26/7/95 the learned judge gave judgment to t