IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION
KUMASI - A.D 2019
KINGSLEY KWADWO APPIAH - (Plaintiff)
FIRST ALLIED SAVINGS AND LOANS LIMITED - (Applicant)
DATE: 14 TH JUNE, 2019
SUIT NO: OCC/32/2019
JUDGES: HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE
LAWYERS: KWAKU YEBOAH APPIAH FOR THE PLAINTIFF/APPLICANT
Before me is an application for an order of the court to enter summary judgment against the Defendant on the ground that the statement of defence discloses no defence to the action. The application is premised on Order 14 rule 1 of the High Court Civil Procedure Rules, 2004 (CI 47).
On 29th October, 2018, the Plaintiff/Applicant (hereinafter referred to as the Applicant) filed a writ of summons against the Defendant/Respondent (hereinafter referred to as the Respondent) for:
a. An order for the payment of the sum of Nine Hundred and Thirty-Eight Thousand Ghana Cedis (GHC938,000.00) less Sixty Thousand Ghana Cedis (GHC60,000.00) being the principal sum placed by the Plaintiff with the Defendant as fixed deposit investment and the interest accrued thereon as at 23rd October, 2018 and ought to have been paid to him at the said date but which sum the Defendant has failed to pay despite repeated demand.
b. An order for the payment of interest on the sum of Eight Hundred and Seventy-Eight Thousand Ghana Cedis (GHC878,000.00) being the balance of the investment mentioned in paragraph (a) supra at the prevailing commercial bank lending rate from 23rd October, 2018 being the date of maturity of his investment to the date of final payment.
c. An order for the payment of Nine Hundred and Thousand Ghana Cedis (GHC 900, 000.00) being money the Plaintiff placed with the Defendant on 23rd March, 2018 as fixed deposit investment.
d. An order for the payment of interest on the said sum mentioned in paragraph (c) supra at the rate of Thirty-one (31%) being the interest rate the Defendant was to pay to the Plaintiff on his fixed deposit investment from 23rd March, 2018 to the date of final payment.
e. Costs including legal fees.
According to the applicant, the defence filed on behalf of the defendant does not reveal any defence to the claim and for that matter no useful purpose will be served by going into a full trial of the matter.
It is the case of the applicant that several weeks have elapsed since the maturity of his investments but the defendant has failed or refused to pay him after several demands. That the defendant has denied its indebtedness to him in its statement of defence just to prolong the case before this Court.
The motion was duly served on the respondent but it failed or refused to file an affidavit in response. On the return date of the application, both the respondent and its lawyer were absent in court without any reason. The court had no option than to allow counsel for the applicant to move the motion.
Order 14 rule 1 of CI 47 provides:
‘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’.
The legal principles relating to application for summary judgment are also settled in numerous judgments of the court which set out those principles.
An aggrieved person and his adversary have the right to access to court and with it the right to have their day in court. Hence, case laws dictate that the court should only exercise its power to enter judgment without a trial provided the plaintiff can prove his or her claim clearly by affidavit evidence. The following conditions must, however, be fulfilled prior to the entry of summary judgment:
1. The plaintiff must have served a writ and statement of claim on the defendant.
2. The defendant must have entered appearance.
3. It must be clear that the defendant has no reasonable defence to the action. See Yartel Boat Building Co. v Annan  2GLR 11
In this application, the burden is on the applicant herein to show to the Court that the respondent’s defence is so plain and obviously unsustainable or in other words, the statement of defence is outmoded at birth and bound to fail at trial. This principle is at the forefront in the consideration of this application.
From a cursory look at the contents of the statement of defence vis-à-vis the statement of claim, I hasten to conclude that beside the bare denial of its indebtedness, it discloses no reasonable defence.
In the instant case, the writ of summons and statement of claim were issued on 29th October, 2018. The respondent caused an appearance to be entered on its behalf on 9th November, 2018 and the statement of defence was filed on 14th November, 2018. The motion was duly served on the respondent but it failed or refused to file an affidavit in response. When the matter came up for hearing the defendant never showed but its lawyer came to court and prayed for an adjournment to enable them file an affidavit in opposition. The court obliged them an adjournment. On the return date of the application, both the respondent and its lawyer were absent in court without any reason.
The court had no option than to allow counsel for the applicant to move the motion.
From Exhibits KAA7 and KAA8, the investment maturity dates were October 23, 2018 and March 23, 2019 respectively. The respective amounts of GHC 938,000.00 and GHC 1,179,000.00 ought to have been paid to him upon maturity of his investments. The fact that the defendant failed to file an affidavit denying these facts contained in the documentary evidence means it has admitted them. See Asumin v DIC and 640 Others (2008) 3GMJ.
It is palpably clear from the affidavit evidence that the applicant has satisfied the condition precedent for the payment of his monies. It is, therefore, untenable for the respondent to suggest in its statement of defence that the investment has not matured. In view of this, I agree with the applicant that the respondent’s defence to the claim is a sham. It is also clear from the evidence on record that the applicant’s claim is sustainable.
Accordingly, the application succeeds. Summary judgment is hereby entered in favour of the plaintiff/applicant in respect of reliefs (a) to (e) of the writ of summons. Costs of GHC 70,000 awarded against the defendant/respondent.