Zubeiru v Baffoe and Others (2025) [2025] GHAHC 168 (3 February 2025)

INTHE SUPERIOR COURTOF JUDICATURE,INTHE HIGHCOURTOF JUSTICE HELDATSUNYANI ONMONDAY THE 3RD DAY OFFEBRUARY, 2025 BEFOREHISLORDSHIPJUSTICE NATHANPARKER YARNEY ISSAHAKUZUBEIRU -PLAINTIFF/RESPONDENT VRS. 1. MICHAELSARKODIE BAFFOE - 1ST DEFENDANT/APPELLANT 2. GYERENGYE BAFFOE - 2NDDEFENDANT 3. KINTAMPOMUNICIPALASSEMBLY - 3RDDEFENDANT JUDGMENT This is an appeal from the District Court, Kintampo, against the judgment of His WorshipKwameAdjeiManudated 1stSeptember,2023. The grounds of appeal, per leave granted by the High Court, Sunyani on 20th August, 2024,arethe following: 1 I. The Judgment is against the weight of evidence adduced before the trial Court; II. That the learned trial judge erred when he proceeded to enter judgment against the 1st Defendant/Appellant whiles the 1st Defendant/Appellant had notbeen served with the Writof Summonsand Statement ofClaim. III. That the learned trial judge erred when he failed to uphold that the Plaintiff/Respondent did not have a cause of action against the 1st Defendant/Appellant. Considering the overriding importance of Ground II, which tests the jurisdiction of the District Courtinproceeding tojudgment inthis case, same shall be determined first. Ground II There is an established process to follow strictly when one elects to invoke the jurisdiction ofthe District Court, or any other court for that matter,in respect of a cause. An initiation document should be filed out of the registry of the court. This process, a 2 writ in this case, should then be served on the party against whom it is issued. Order 4 rule 1oftheDistrict CourtRules, 2009,C.I. 59provides as follows: A writ or document intended for service shall be served on a party within the time and in the manner specified by these Rules or directed by the Court Order4rule 5ofC. I. 59also provides that: Unless the Court considers it just and expedient to direct otherwise, service shall be personal with the document to be served being delivered to the person to be served. So,from the above, whether there is one party, or several parties sued, it is required that eachis personally served,except where personalservice is excused by the rulesof court. Order4rule 5ofC. I. 59wouldcover such situations. It providesas follows: Where it appears to the Court either after or without an attempt at personal service that for any reason personal service cannot be conveniently effected, the Court mayorder thatservice be effected 3 (a) By delivery of the document to an adult resident at the usual place or last known place of abode or business of the person to be served, or (b) By delivery of the document to a person who is an agent of the person to be served, or to some other person, if it is proved that there is reasonable probability that the document will, though that agent or other person, come to the knowledge of the person to be served, or (c) In any other manner thatthe Courtdirects. In the well-thumbed case of Barclays Bank Gh. Ltd v. Ghana Cable Co. Ltd [1998-99] SCGLR 1 the importance of personal or such valid service of processes is emphasized. The effect of non-compliance with proper personal or other legally permissible substituted service renders all proceedings based on that defect a nullity. As stated by Acquah JSC(as he thenwas)at page 9 4 …when a defendant complains that he has not been served with a writ of summons or any process which requires his personal service, the court is duty-bound to examine that complaint thoroughly and make a definitive finding, irrespective of whether there is proof of service or entry of appearance on behalf of the defendant. For the success of his complaint would render both the proof of service and the appearance a brutum fulmen, thereby consigning all proceedings, orders and judgment procured thereon into the realm ofnullities. The Plaintiff/Respondent (hereafter the Respondent) in this case on appeal from the District Court, Kintampo, sued two people, the 1st Defendant/Appellant (hereafter the Appellant) and his brother, the 2nd Defendant. Evidence appearing on page 4 of Volume 1 of the Record ofAppeal, being a proof-of-service of the Writ, shows that it was served personally on the 2nd Defendant. It is also indicated thereon that the Appellant was served ‘through the 2nd Defendant.’ Would that amount to personal or legally recognized substitutedservice ontheAppellant? There is an indication in the Record of Appeal that the 2nd Defendant in several processes expressed that he was representing the Appellant upon his instructions. A lawyer is retained thereafter to represent the Appellant and the 2nd Defendant. The 5 lawyer proceeded to file a Notice of Appointment on 5th September, 2022 on behalf of both parties (See page 30 of Volume 1 of the Record of Proceedings). The same lawyer has now sought to question the judgment obtained against his ‘client’, raising inter alia the allegation that the Appellant, his client, was not personally served with the writ initiating the action. Obviously, had he conducted a compliance check at the time he took instructions to represent the Defendants, this defect in compliance he alleges would have been found. It is however necessary to comb the Record of Appeal on proceedingsbefore the lawyerfortheAppellant filed his representation. Proceedings before the District Court on 16th May, 2022 are instructive. The following pronouncement isrecorded by the District Magistrate,His Worship KwameAdjeiManu, Esq. It is further ordered that the 1st Defendant who has been absent from the current proceedings on numerous occasions be served with all processes so far filed in the suit, since in the opinion of the Court, this will effectively bring all current processes and proceedings in the suit to his attention. Plaintiff is ordered in term of Order 4 Rule 5 of CI 59 of 2009, that 1st Defendant in addition to being served through 2nd Defendant, who is his brother, be served with all previous processes so far filed, and 6 all future processes through 1st Defendant’s WhatsApp, with proof of delivery furnished to this Court. Adjourned to 20th June, 2022 for the Plaintiff to serve the Kintampo Municipal Assembly properly as ordered by the Court. On 20th June, 2022 the following is recorded, as appears at page 5 of Volume 2 of the RecordofAppeal BY COURT: Suit is adjourned to 25th July, 2022 for the Plaintiff to comply with the order ofthe Courtasto service. Then, on15thAugust, 2022the District Magistraterecorded as follows: I have seen no process from the 1st Defendant on the Court’s docket. Again although 3rd Defendant was joined to the suit, it has not formally entered appearance, but there is a witness statement filed on behalf of Alhaji Inusah Yarifa who states that he is the coordinating Director for Kintampo Municipal Assembly, that is the 3rd Defendant. The Court is of the view that all parties to the suit have been given sufficient time and indulgence to file the appropriate processes and to partake in the instant 7 proceedings. Accordingly this suit is set down for trial on the 5th day of September, 2022. Plaintiff is ordered to serve hearing notice and Court notes for today on 1st and 3rd Defendants, and in respect of the 1st Defendantin the manner ordered on the 16thday of May,2022. As indicated earlier, Kwasi Etur Ohene Essel, Esq. filed a Notice of Appointment as Lawyer for the Appellant and the 2nd Defendant on 5th September, 2022, same day the case was to be called. It was so called, because the entries as shown at page 7 of Volume 2ofthe Record ofAppealconfirms that.He addressed the courtas follows: My lord, I have just been engaged.I pray for an adjournment so that I can putthe Defendantshouse in order and we can proceed with the trial. His prayer was granted. The case was adjourned to 4th October, 2022. On that day, he announced himself as lawyer for both Appellant herein and the 2nd Defendant. From that time till the end of the case, he always announced his representation for the two defendantstherein. It is imperative for a lawyer taking over a case that is pending before a court to conduct a compliance check to ensure that all questions arising in respect of proper compliance 8 with the rules of procedure are answered in the affirmative, proven as such from the recordsofthe court.This ensures thatthe lawyeravoids pitfallscreated asaresult ofthe failure to comply fully with the rules of procedure, which could lead to possible nullification of the proceedings, and in certain cases create disciplinary issues a lawyer willhaveto answer,such asacting onbehalf ofapartywithout instructions. The record shows a meticulous magistrate who identified possible stumbling blocks that threatened the progress of the case before him and sought to have these cleared. He insisted on service of all processes on record as at then on the 1st Defendant, despite the fact that the 2nd Defendant, when not represented by alawyer, keptclaiming thathe was appearing for the 1st Defendant as well. They are said to be siblings. This was, rightly, not enough for the magistrate. He therefore ordered that processes be served on the 1st Defendant by substituted service, something the District Court had the power to order under its rules. The magistrate refused to proceed with the case until he was satisfied that the service had been effected, before directing that trial proceed. It happens that it was on the date trial was to start that Kwasi Etur Ohene Essel, Esq. filed his Appointment to represent the two defendants, the Appellant included, and thereafter alwaysannounced himself forbothdefendants. 9 Not once did the Appellant sign a process filed in the suit. Never did he appear before the District Court. However, considering the meticulous record showing the cautious steps taken by the magistrate out of the abundance of caution to insist on legal service of the processes existing on the Appellant, this Court can safely assume that same was done before the magistrate decided to proceed with trial, and the later appointment of Essel, Esq. Again, it is instructive to note the image ofa WhatsApp page that appears on page 29 of Volume 1 of the Record of Proceedings. It shows two files having been posted in that chat that incontrovertibly show that they are files of scans of court processes. It was filed in the registry of the District Court, Kintampo on 25th July, 2022 at 9.50am as the filed stamp thereon shows. It was on the same day that the judge had adjourned the case to for such service to be effected, as mentioned above. These several events are clearly linked and leave no doubt in the mind of this Court that the 1st Defendant was properly served by substituted service upon the order of the District Magistrate. Therefore, it is safe to presume that it was after such service that Essel, Esq. was retained, enabling him file, announce and appear as lawyer for the Appellant and the 2nd Defendant. The Appellant therefore went over and beyond the circumstances found inthe case ofColeman v.Tripollen andothers [2019-2020] SCLRG 433where Dotse JSC atpage 443 statedthus: 10 If a defendant not served with a writ enters appearance and actively takes part in the case till conclusion, he cannot seek to vitiate the resulting judgment. The Appellant, from a deduction made from the contents of the Record of Proceedings was effectively served by substituted service, leading to the appointment of Essel, Esq. as lawyer for the Appellant and his brother the 2nd Defendant. The opposite situation would be that Essel, Esq. acted without the authority of the Appellant, a situation that would make such conduct liable for disciplinary proceedings for unprofessional conduct. Albeit, his brazenness in mounting this ground of appeal, with all the possible conclusions suggesting incompetence and unprofessionalism on his part is reprehensible. It is the finding of this Court that the District Court was clothed with the requisite jurisdiction to proceed to try and determine the action before it. Ground II of theappeal thereforefails. Ground III TheAppellant further argues that the Respondent did not have a cause of action against the Appellant in the case before the District Court. This represents a good time to appreciatethe facts thatwerepresented beforethe District Court,Kintampo. 11 The Plaintiff is a staff member of the Kintampo Municipal Assembly, the 3rd Defendant. He represents to be an internal auditor. The 3rd Defendant put up some items for public auction with the approvalofthe centralgovernment. One ofsuch was the Isuzu truck in issue in this case.An auctioneer was appointed by the 3rd Defendant to conduct the sale. The Respondent attended the auction and bid for the purchase of the Isuzu truck and his bid won. A receipt was accordingly issued by the auctioneer to him when he paid the bid price accepted. The vehicle, however, was located at a mechanic shop. He went to this mechanic shop to take delivery of the vehicle. The mechanic, one Emmanuel Die, who then appeared not to have been informed of the Respondent’s success at the auction, insisted that he would only release the vehicle upon instructions received from the Municipal Chief Executive. The vehicle, however, was released to another person. According to the Respondent, that other was the 1st Defendant. He alleged that the Appellant, a former Municipal Chief Executive of the 3rd Defendant, had taken possessionofthevehicle, denying him possessionand custodyofanitemhe had validly purchased at an auction. His action, therefore, was for the recovery of the vehicle from the Appellant and his brother, both of whom, from information reaching him through thesaid EmmanuelDie, acted together in towing thevehicle fromhis mechanic shop. 12 The Respondent sued and conducted his case personally. He claimed for the recovery of the vehicle, and general damages for the inconvenience caused to him. The magistrate elegantly rationalized the claim as one for damages for conversion based, obviously from an analysis of the facts and evidence. He was right in doing so, in the view of this Court,taking a cue fromthe decision ofEdusei J (as he thenwas) in the case of Kabbara Brothers Transport v. Anin and others [1966] GLR 751, where he defined conversion at page753as follows: In Salmond on Torts (14th ed.), pp. 143-144, conversion is defined as, “an act of wilful interference, without lawful justification, with any chattel in a manner inconsistent with the right of another, whereby that other is deprived of the use and possession of it.” Again in Halsbury’s Laws of England(3rd ed.), Vol. 2.P.89,para. 186itis stated thus: “an action for conversion lies against an auctioneer who with or without knowledge of the true ownership has, in cases not covered by the Factors Act, 1889, dealt with the property in and possession of goods without the consent or authority of the true owner.” 13 When the above definitions relied on by Edusei J are applied to the facts of this appeal, they are in accord and confirm that the magistrate was right about the subject area of the dispute. It also should enable us answer whether the Respondent had a cause of actionagainst theAppellant, and against theotherDefendants. The Respondent alleges that he was informed by Emmanuel Die that theAppellant and the 2nd Defendant had caused the vehicle to be towed away from his workshop. He mounted the Witness Box to testify, called by the Defendants as DW1. His testimony, however, did not reveal that he told the Respondent anything as alleged by the Respondent. He claimed in cross-examination however, that the person who authorized him torelease the vehicle wascalled Sarkodie Baffoe. TheAppellant is Michael Sarkodie Baffoe, a former MCE of the 3rd Defendant. DW1 was emphatic that he required the authorization of the MCE before he would allow the towing of the car away by anyone. At that time, the Appellant was no longer the MCE, but had been before. With the vehicle having been with DW1 since 2003, it is possible that he would have dealt with the Appellant as the MCE at some point. This fact causes this Court to construe that at the time of the incident DW1 identified the Appellant as the MCE even though he no longer was, and as a result of that familiarity, when directed to allow the towing of the vehicle awayby personsunknown, he did. 14 Meanwhile, per the conclusion of the auction, and upon payment of the bid price, the vehicle no longer belonged to the 3rd Defendant, since legally, title had passed to the Respondent. Getting to know therefore that the Appellant was the one who had directed the recovery of the vehicle from DW1, the Respondent was well placed legally to contest the actions of theAppellant for depriving him of immediate possession of his chattel, a specific property, which fact is sine qua non to maintaining an action in the tort ofconversion (see Harlley v.Ejura Farms(Ghana) Ltd [1977] 2 GLR179at page 200 perAzuCrabbe CJ). This ground ofappeal therefore,also fails. Ground I The omnibus ground of appeal remains the last to be considered. In this ground, an appellant contests a judgment on the grounds that evidence exists on record which, if properly evaluated, should change the decision in his favour (see: Djin v. Musah Baako [2007-2008] SCGLR 686 at 691 per Aninakwah JSC). The onus rests on the Appellant to show the said improper evaluations and considerations that were applied and led to a judgment to his detriment. An appellate court therefore has to rehear the action by conducting a pathological exercise of the judgment in its entirety to determine whether the findings reached by the court below were sound, considering the facts pleaded and theevidence tenderedin proofofsuchfacts. 15 In the case of Weredu v. West Coast Co. Ltd 14 WACA 718 Hearne JA opined at pages 721and 722as follows: The gist of conversion by retention is the withholding of the property of another and the usual way of proving it is to show that there has been a refusal to deliver on demand. It may, however, and in particular, if the property is not in the custody of the defendant, be inferred from his acts and fromthe intention he hasevinced by hisacts. Guided by this statement on how to evaluate issues and evidence arising in respect of the tort of conversion, an assessment will be made to determine whether the magistrate was well-placed in his analysis of the evidence adduced at trial, and whether the Appellant’sreliance onthe omnibus ground ofappealis well-founded. Exhibit A is a set of receipts (see page 33 of Volume 1 of the Record of Appeal), one dated 4th January, 2019, and the other, a waybill dated 9th January, 2019. This set of receipts, on the face of it, are issued by theAuctioneer in favour of the Respondent. The entries thereon have the make, model and registration number of the vehicle sold, Isuzu Tipper Truck,AS 1357 D. On that dated 4th January, 2019 is an indication of the bid price of GH¢3000.00. It is also signed. The waybill dated 9th January, 2019 obviously, being a 16 waybill, permitted the Respondent to have immediate possession of the vehicle. It has the registration number, make and model of the vehicle, and again, it is signed. In contest to this exhibit is Exhibit 1, a statement issued by the 3rd Defendant that indicates that an Isuzu Tipper Truck with registration number AS 1357 D, same as that for which a receipt and waybill were issued by the Auctioneer, was sold at auction to one Isaac Tweneboah of Kintampo for GH¢3000.00. Exhibit 1, on the face of it, is signed, but not by theAuctioneer. This situation led the magistrate to say at page 4 of his judgment(see: page38ofVolume Twoofthe Record ofAppeal)as follows: 3.2. At the end of the day, one thing remains to be determined. Who purchased the vehicle? On this question, the answer is simple for me. A receipt, the authenticity of which has not been discredited in this trial, shows rather clearly that Plaintiff did purchase the vehicle in question. I find Plaintiff’s receipt more credible as opposed to the list tendered by 2nd Defendant. I find as a fact that Plaintiff purchased the ISUZUtruck andbecame the owner thereof It is the view of this Court, taking all facts and evidence into consideration, that the magistratewasright in his finding. 17 The magistratefurther declaredas follows: 3.3. Since Defendants admit that after the auction, the Truck was released on the instructions of the 1st Defendant to a third party whose existence I have received no credible evidence of, no further evidence is required of that fact. Defendant’s witness Emmanuel Die and all who testified admit this fact, most importantof them being the testimony ofEmmanuelDie. One wonders, what was thebusiness ofthe 2nd Defendant, representing theAppellant at trial, calling DW1 to testify when by his own Witness Statement he claimed, together with the Appellant, not to know where the vehicle was? Why did he bother to secure Exhibit 1 from the 3rd Defendant to press home anything about an auction of a vehicle the whereabouts he knew nothing of? Yet, he knew of someone who went with one Issac Tweneboah, supposed to havepurchased the vehicle at the auction, to DW1 to tow it away? How did he, not being a member of staff of the 3rd Defendant come by Exhibit 1? Having testified and mentioned the name of the Appellant as the one who had directed him to release the car to one Kwame George, why the contrivance of this appeal? Then there is Kwame George, DW2. He claimed in his witness statement that he wentto the auction held on 4th January, 2019, same day and same auction attended by the 18 Respondent. By his evidence he saw one Isaac Tweneboa there who bought the vehicle in issue. Then, without explaining any relationship between them, he claimed that this Isac Tweneboa took his number that anytime he decided to go to pick up the car, he would use the assistance of DW2. DW2 is not a staff member of the 3rd Defendant. He claims to be a welder. Besides, in this witness statement, without stating whether he knows the Appellant and the 2nd Defendant or not, claims that neither knows anything about the towing of the truck. His evidence contained nothing but inconsistencies and falsehoods, and no part of it was helpful in determining the action, save to add to the suspicion that he was part of the contrivance to deceive the District Court, which evil enterprise failed. On the face of the evidence on record and the testimonies of all the witnesses, there is nothing to stand on to support the Appellant in his attempt to question the judgment reached against him. This ground ofappealalso fails. Inconclusion, the entire appealfails and same isdismissed. CostofGH₵15,000.00infavour ofthe Respondent against theAppellant. (SGD.) NATHANPARKERYARNEY JUSTICEOF THE HIGH COURT 19 Lawyers: KwasiEturOhene Essel Esq. for theAppellant. FrancisAsiedu, Esq. for the Respondent. 20