Gianno Vrs Muntari [2022] GHAHC 123 (14 November 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE (COMMERCIAL DIVISION) ACCRA HELD MONDAY THE 14TH DAY OF NOVEMBER, 2022 BEFORE HER LADYSHIP AKUA SARPOMAA AMOAH J. (MRS.) JUSTICE OF THE HIGH COURT ================================================================= SUIT NO. CM/RPC/0356/2022 RODRIGO RENATO GIANNO …. PLAINTIFF VS. SULLEY ALI MUNTARI .… DEFENDANT ================================================================= PARTIES: ABSENT COUNSEL: - GILBERT RICHMOND ROCKSON HOLDING BRIEF FOR KWADWO GYASI NTRAKWAH FOR PLAINTIFF/APPLICANT – PRESENT NOTE: MOTION FOR JUDGMENT IN DEFAULT OF APPEARANCE SUIT NO.: CM/RPC/0356/2022 RODRIGO RENATO GIANNO VS SULLEY ALI MUNTARI J U D G M E N T On the 21st of March, 2022, the Plaintiff issued a writ against the Defendant herein for the following reliefs: a) The sum of Ninety-Seven Thousand Three Hundred and Twenty Euros (€ 97, 320) being the amount owed for Airline ticketing and reservation services b) Interest on the outstanding amount of Ninety-Seven Thousand Three Hundred and Twenty Euros (€ 97, 320) at the prevailing commercial bank interest rate from 2016 till date of final payment c) General damages for breach of contract d) Costs The case of the Plaintiff is, in my opinion, quite straightforward. It may be summarized as follows: Plaintiff is engaged in the business of airline ticketing and hotel booking services. The Defendant is a footballer who currently plays for the Accra Hearts of Oak Sporting Club in Accra. Plaintiff says that between the years of 2015 and 2017, the Defendant engaged his services to purchase various airline tickets and to book various SUIT NO.: CM/RPC/0356/2022 RODRIGO RENATO GIANNO VS SULLEY ALI MUNTARI hotel rooms for and on behalf of the Defendant himself as well as the Defendant’s friends and relatives. According to the Plaintiff, he fully pre-financed these services but prior to doing so it was agreed and understood that the Defendant would refund the monies expended by the Plaintiff in respect of these services immediately. The Defendant however, in breach of the said agreement reached between the Parties, has failed or refused to make good his indebtedness to the Plaintiff despite several demands on him to do so. The Defendant indeed issued certain cheques in payment of the said debt, but the said cheques were all dishonored upon presentation. The Defendant also by a letter dated the 1st of December, 2016 acknowledged his indebtedness to the Plaintiff and promised to pay the said amount but has since reneged on his promise. Plaintiff says that the Defendant having acknowledged his indebtedness by the said letter is estopped from asserting otherwise. Plaintiff further refers to a judgment delivered by the Court of Milan where it was adjudged that the Plaintiff recover an amount of Ninety-Seven Thousand Three Hundred and Twenty Euros (€ 97, 320) among others from SUIT NO.: CM/RPC/0356/2022 RODRIGO RENATO GIANNO VS SULLEY ALI MUNTARI the Defendant. Plaintiff contends that the Defendant having been found by the said Court to be indebted to him, cannot now assert otherwise. According to Plaintiff, his Solicitors by a letter dated the 4th of November 2021, made a formal demand on the Defendant to settle his indebtedness but the Defendant, in keeping with his previous conduct totally ignored same. It is for this reason that the Plaintiff seeks the intervention of this Court. First, it is necessary to mention that following futile attempts at serving the Defendant personally, this Court, on application by the Plaintiff ordered substituted service of the Writ and other processes on the Defendant. The position of the law which is well-established, is that, a Defendant will be deemed to have receipt and knowledge of a process served by substituted service once the mode(s) of service directed by the Court have been complied with. The Court is not to concern itself with whether or not the said process(s), served pursuant to its order, actually came to the notice of Defendant. Having been duly served and having failed to file an appearance and/ or file a defence to Plaintiff’s suit, it was well within the power of this Court to proceed with the matter in the absence of the Defendant. This power is clearly provided for in Order 10 of our rules of Civil Procedure (CI 47). SUIT NO.: CM/RPC/0356/2022 RODRIGO RENATO GIANNO VS SULLEY ALI MUNTARI Again, the Defendant would have been left in no doubt of this well- established fact as it is clearly stated on the face of the Writ of Summons that judgment may be given in his absence, if he fails to cause an appearance to be entered for him. That said, it still behooved this Court to evaluate all the evidence on record in order to satisfy itself that the Plaintiff had established its case on a balance of probabilities. See Sections 10 and 12 of the Evidence Act, 1975 (NRCD 323) At the hearing of the Plaintiff’s Application for Judgement in Default of Appearance, Counsel explained that the Plaintiff’s action was not grounded on the judgment of the Court of Milan as our Foreign Judgement and Maintenance Orders Reciprocal Enforcement Instrument (LI 1575) does not recognize Judgments of the said Court. Plaintiff’s action, Counsel submitted, is based on the admissions of the Defendant in his letter to Plaintiff dated the 1st of December, 2016 which Plaintiff attached to his Supplementary Affidavit filed on the 2nd day of November, 2022 as Exhibit ‘SK1’. The said letter reveals that the Defendant admitted to owing Plaintiff an amount of One Hundred and Fifty-Two Thousand Five Hundred and Forty Euros (€ 152,540). Clearly, the admitted amount is over and above the principal amount claimed by the Plaintiff in the present suit. SUIT NO.: CM/RPC/0356/2022 RODRIGO RENATO GIANNO VS SULLEY ALI MUNTARI Plaintiff’s averments however disclose that the amount presently outstanding is Ninety-Seven Thousand Three Hundred and Twenty Euros (€ 97, 320). The fact that an assertion which stands unchallenged does not require further proof is so trite that I need not cite any authority in support of same. The Defendant having been duly served with Plaintiff’s writ and statement of claim and having spurned the opportunity granted him to be heard in the matter, must be deemed to have no defence to the Plaintiff’s claims . It is based on the foregoing that I hold that the Plaintiff is entitled to Judgment in respect of the reliefs sought. Counsel however informs the Court that Plaintiff does not intend to pursue Relief (c) which prays for damages for breach of contract. The said relief is therefore struck out as abandoned. In the premises default judgment is entered in favour of the Plaintiff to recover from the Defendant as follows: a) Recovery of the sum of Ninety-Seven Thousand Three Hundred and Twenty Euros (€ 97, 320) being the amount owed to Plaintiff by Defendant for Airline ticketing and reservation services offered Defendant by the Plaintiff. b) Interest shall be payable on the said amount of Ninety-Seven Thousand Three Hundred and Twenty Euros (€ 97, 320) at the SUIT NO.: CM/RPC/0356/2022 RODRIGO RENATO GIANNO VS SULLEY ALI MUNTARI prevailing commercial bank interest rate from 2016 till date of final payment. I award Costs of Forty Thousand Ghana Cedis (GH¢40,000.00.) in favor of the Plaintiff against the Defendant. (SGD) AKUA SARPOMAA AMOAH (MRS) JUSTICE OF THE HIGH COURT Statute referred to: Evidence Act, 1975 (NRCD 323) SUIT NO.: CM/RPC/0356/2022 RODRIGO RENATO GIANNO VS SULLEY ALI MUNTARI 7