YASOAAH VRS. HELINA [2023] GHACC 1165 (15 November 2023)

IN THE CIRCUIT COURT HELD AT DUAYAW NKWANTA ON MONDAY THE 15TH DAY OF NOVEMBER, 2023 BEFORE H/H AKOSUA ASANTEWAA SARPONG ESQ CIRCIUT COURT JUDGE C2/12/2022 YASOAAH GIFTY VRS. SISTER HELINA JUDGMENT The plaintiff Yasoaah Gifty is a business woman who resides at Bomaa Asukese and Kintampo whiles the defendant sister Helina is a trader and resides at Bomaa. The plaintiff’s main business is fish selling. It is the case of the plaintiff that she used to buy fish from Buipe to other parts of Ahafo region to sell. According to the plaintiff in February, 2020 the defendant came to her to supply her with fish to sell and after pay her. The plaintiff supplied her with fish worth (GH¢4,600.00) four thousand six hundred Ghana cedis. After selling the fish the defendant has failed to pay the plaintiff upon persistent demands. It is the case of plaintiff that she took a loan from someone to operate her business which attracts an amount of GH¢50.00 each month as interest. The plaintiff reported the matter to the Bomaa Police and defendant assured her that she was going to sell her land to pay her but still did not do so. The plaintiff states that through persistent demands the defendant paid an amount of (GH¢1,000) one thousand Ghana cedis leaving an outstanding balance (GH¢3,600) three thousand six hundred Ghana cedis. Wherefore the plaintiff claims against the defendant for (a) An amount of three thousand six hundred Ghana cedis (GH¢3,600) being the remaining balance of money plaintiff lend to defendant in the year 2020 of which defendant has refused to pay to plaintiff in spite of persistent demands made by plaintiff (b) An accrued interest of GH¢1,500.00 from February 2020 to 15th July 2022. The writ of summons was filed on the 20/07/2022 and the defendant was served with same on the 31st of August 2022. The defendant did not file an appearance. A search conducted at the court registry revealed that the defendant was served with the writ of summons and statement of claim on 3/08/2022. The defendant failed to filed an appearance as well as a statement of defence. The plaintiff filed a motion on notice for interlocutory judgment against the defendant upon her failure to file to file an appearance on 3/08/2023. The motion was served on the defendant on 14/08/2023 and the defendant did not file any affidavit in opposition to the motion. The motion was moved on the 17/08/2023 the court granted an interlocutory judgment for the plaintiff for judgment in default of appearance. The court ordered for the plaintiff to filed her witness statement to adduce further evidence in support of her case so that the interlocutory judgment will convert to a final judgment. The plaintiff filed her witness statement as well as witness statement of her witness on the 25/08/2023 and same 25/08/2023 at 4:58pm. The case was fixed for hearing on the 4/10/2023. Hearing notice was served on the defendant on 28th September 2023. On the 4th October 2023 the case was heard when the Plaintiff tendered her witness statement. The defendant did not appear in court to cross-examine the plaintiff. The witness of the plaintiff Gladys Kyeremeh witness statement was filed 25/08/2023. She was also called to testify and her evidence-in-chief with no cross-examination from the defendant and the plaintiff closed her case and it was adjourned for judgment. Order 10 of C. I.47 is on default of appearance. Order 10 rule 1 states “where the plaintiff’s claim against the defendant is for a liquidated demand only, and the defendant fails to file appearance, the plaintiff may, after the time limited for appearance apply to enter final judgment against the defendant for a sum not exceeding that claimed by the writ and costs, and proceed with the action against other defendants, if any”. A defendant is put on notice that if he does not enter appearance within the period given, judgment may be obtained without further notice to him. A defendant will therefore not suffer any miscarriage of justice if judgment is entered in default of appearance without notice to such a defendant, as long as there is proof of service of the writ of summons on the defendant. Where a plaintiff brings an application for judgment in default of appearance where the claim is a liquidated claim, the plaintiff is entitled to final judgment on the amount endorsed on the writ of summons and statement of claim. The judge cannot award a higher or lower sum on an application for judgment in default of appearance than what is endorsed on the writ. In the case of ASAMOAH VRS MARFO [2011] 2 SCGLR 832 Anin Yeboah JSC (as he then was) stated “The principle of law governing judgment in default of appearance or defence in civil proceedings is that the judgment entered must be for the actual amount claimed. A judge has no power to enter a judgment for an amount more than what was claimed; he equally has no such power to enter judgment for a lower figure not asked for in the proceedings when on record there was no admission in any manner or form for lessor amount”. In the case of BONSU VRS DOE [1984 - 86] G L R 788, Jiagge, J A stated the position of the law at page 80 as follows: “We think that as a judge has no power to enter a judgment for an amount more than that was claimed, he equally has no such power to enter judgment for a lower figure and asked for in the proceedings when on record there was no admission in any manner or form for the lesser amount.” In this case the plaintiff served the writ of summons together with the statement of claim on the defendant. The defendant failed to enter appearance, there was prove of service to that effect. The plaintiff filed a motion on notice for interlocutory judgment in default of appearance the defendant was again served but did not do anything and the prayer of the plaintiff was thus - granted. The plaintiff had to adduce evidence for the interlocutory judgment to be converted into a final judgment. The defendant was served hearing notice before the hearing of the case but the defendant still did not do anything. Therefore final judgment is entered for the plaintiff to recover the amount of three thousand six hundred Ghana cedis (GH¢3,600.00) being the remaining balance of money plaintiff lent to the defendant in the year 2020 which defendant has refused to pay the plaintiff in spite of persistent demands made by plaintiff. An accrued interest of one thousand five hundred Ghana cedis (GH¢1,500.00) from February 2020 to 15th July 2022. Cost of One Thousand Ghana Cedis (GH¢1,000.00) is awarded in favour of the plaintiff against the defendant. SGD. H/H AKOSUA ASANTEWAA SARPONG ESQ (CIRCUIT COURT JUDGE) 5