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R U L I N G
This ruling is in respect of an
application by the Plaintiff for
summary judgment pursuant to
Order 14, Rule 1 of the High
Court (Civil Procedure) Rules,
2004 (C.I. 47).
Order 14, Rule 1 states as
follows:
“Where in an action a Defendant
has been served with a Statement
of Claim and has filed
appearance, the Plaintiff may on
notice apply to the Court for
judgment against the Defendant
on the ground that the Defendant
has no defence to a claim
included in the writ, or to a
particular part of such a claim,
or that the Defendant has no
defence to such a claim or part
of a claim except as to the
amount of any damages claimed.”
It is also provided in Rule 2 of
Order 14 that in an application
for summary judgment the
Plaintiff has to set out the
relief he seeks in the notice of
the application. Then in the
affidavit in support of the
application the Plaintiff has to
verify the facts on which the
relevant claim or part of a
claim is based, and state that
in his belief there is no
defence to that claim or part of
a claim, or no defence except as
to the amount of any damages
claimed.
In the instant application, the
Plaintiff rightfully set out the
reliefs he seeks as follows:
a)
Recovery of GH¢70,000.00 being
the outstanding amount;
b)
Interest on the outstanding
amount at the commercial bank
rate from August, 2011 till the
date of full and final payment;
c)
General damages;
d)
Costs on a full indemnity basis.
The Plaintiff in an affidavit
sworn to by one Eva Jackson-Etuah,
its solicitor, tries to verify
the facts the Plaintiff relies
on. The Plaintiff states that
somewhere in 2011, the Defendant
represented to the Plaintiff
that he had imported some
roofing sheets from China which
were on the high seas and
requested the Plaintiff to
advance payments in respect of
the roofing sheets to him. The
Plaintiff issued to Defendant, a
Zenith Bank (Ghana) Limited
cheque valued GH¢60,000.00 in
favour of the Defendant and the
latter issued a receipt to the
Plaintiff. The Plaintiff
exhibited copies of both the
cheque and the receipt as
Exhibits EJE1 and EJE2
respectively.
The Plaintiff states further
that upon the request of the
Defendant again it issued a UT
Bank cheque dated 25th
August, 2011 for an amount of GH¢10,000.00
to the Defendant to assist the
Defendant clear the roofing
sheets. Again the Plaintiff
exhibited a copy of the UT Bank
cheque as Exhibit EJE3.
After these advanced payments,
Plaintiff states that the
Defendant failed to supply the
Plaintiff the said roofing
sheets and also refused to
refund its monies despite
several demands.
In a reaction to a defence filed
by the Defendant the Plaintiff
denies buying any computers and
accessories from the Defendant
on account and states that the
defence is a sham.
By Order 14, rule 3 of C.I. 47
the Defendant is entitled to
show cause against the
application by affidavit. The
Defendant herein in an affidavit
swore that the Plaintiff is
aware that he neither deals in
roofing sheets as part of his
business nor did he represent to
Plaintiff that he had roofing
sheets on the high seas to sell
to him. The Defendant says that
he only offered to contact his
business partners in China to
supply the Plaintiff with
roofing sheets after the latter
informed him in a discussion
about how it would roof its
hotel building. The Defendant
denies requesting for an advance
payment in respect of the
roofing sheets. It was the
plaintiff who paid an advance of
GH¢60,000.00 for the roofing
tiles and another GH¢10,000.00
on account for computer and its
accessories.
It is further the case of the
Defendant that the goods delayed
in arrival due to the special
nature of the roofing tiles.
When the goods arrived it was
communicated to the plaintiff
company but it never gave any
feedback. It is therefore the
Defendant’s contention that if
the Plaintiff who is the
consignee to the goods has
anything in law against the
Defendant’s partners, then it is
damages on which evidence has to
be led.
From the defence put up by the
Defendant, triable issues are
raised as to who the Plaintiff
contracted with among others.
There is also the issue as
between the parties concerning
the computer and accessories who
is indebted to who. These
issues cannot be disposed of
summarily without taking
evidence.
The Plaintiff’s application is
accordingly dismissed.
UUTER PAUL DERY
JUSTICE OF THE HIGH COURT
COUNSEL
1. MR. SAMANI MOHAMMED
FOR PLAINTIFF/APPLICANT
2. MR. EBENEZER AHIAFOR
FOR DEFENDANT/RESPONDENT
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