GLOVER vs. KORLI [1960]DLHC315

Date	1960-11-07
Suit No.
Citation No.	[1960]DLHC315

ADUMUA-BOSSMAN J.

DANQUAH FOR THE APPELLANT.

LASSEY FOR THE RESPONDENT.

[1960]DLHC315
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													<main id="main" class="content" style="min-height: 60rem" >GLOVER <o:p></o:p>vs. <o:p></o:p>KORLI<o:p></o:p>&nbsp;[HIGH
COURT, ACCRA]<o:p></o:p>[1960] GLR 213<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
7TH NOVEMBER, 1960.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DANQUAH FOR THE APPELLANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ADUMUA-BOSSMAN, J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ADUMUA-BOSSMAN J.<o:p></o:p>(His
lordship referred to the facts and continued).<o:p></o:p>It was in
the foregoing circumstances that on the appeal coming up for argument before me
on 21st October, 1960, I addressed Dr. Danquah as follows:—<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“It
appears to the court that the final judgment of the trial court was that dated
31st December, 1958, see Muffat v. Tetteh Kpeshie II (14 W.A.C.A. 44) and that
the application to set aside that judgment which was disallowed and the
judgment of 31st December, 1958 confirmed, was interlocutory and order
appealable by special leave which has not been obtained. Moreover, the appeal
lies to the Magistrate’s Court. Can you satisfy the court that is not the legal
position?”<o:p></o:p><o:p>&nbsp;</o:p>Learned
counsel then submitted firstly that the decision of 3rd February, 1959, was not
interlocutory but final; and secondly that the decision of 31st December, 1958,
was an ex parte decision which was not appealable until application to set it
aside had been made and refused as provided by section 51 of the Native Courts
Ordinance Cap. 98.<o:p></o:p>It falls
therefore, to examine learned counsel’s contentions. It will be more
convenient, however, to deal with them in the reverse order.<o:p></o:p><o:p>&nbsp;</o:p>Firstly
then, is it correct to say that the decision of 31st December, 1958, was an ex
parte judgment? The designation of or reference to, a judgment, where it is
given when a party has not appeared, as ex parte judgment, is a legacy from
section 93 of the former Native Administration Ordinance, (Cap. 76 of the 1930
Revision of the Ordinances) which provided that:—<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“No
appeal shall lie from a judgment order or decision given or made by a Tribunal
ex parte, the defendant or respondent not having appeared.”<o:p></o:p>When the
Native Administration Ordinance was replaced by the Native Courts Ordinance,
(Cap. 98 in the 1951 Revision of the Ordinances,) section 51 reproduced the
same provision but with the words ex parte omitted.<o:p></o:p>It will
be observed that in the old Ordinance as well as the new, the crucial words are:—”The defendant or respondent not having
appeared.”<o:p></o:p><o:p>&nbsp;</o:p>It is
scarcely necessary to point out that the words “appear” and “appearance” as
used in English rules of procedure, have a totally different meaning from their
meaning in our former local rules borrowed mainly from Indian sources. A writ
of summons issued in the English High Court specifying a period within which
appearance might be entered, does not require the defendant to attend court on
a specified day. Here on the other hand, until the introduction of our Civil
Procedure Rules in 1954, the Writ of summons following Indian procedural
enactments and rules, was framed requiring the defendant to attend on a named
day, and in such a case his personal attendance was required in the court on
the named day, and appearance therefore meant his personal attendance. It was
that form of appearance which was prescribed for the native tribunals and/or
courts, and that which was envisaged and intended by the provisions to which
reference has been made.<o:p></o:p><</main>