OSMAN vs. HAUSA AND ANOTHER [1971]DLHC2143

Date	1971-06-22
Suit No.
Citation No.	[1971]DLHC2143

TAYLOR J.

OWUSU YAW FOR THE PLAINTIFF.

POBEE FOR ASUMADU-SAKYI FOR THE DEFENDANTS.

[1971]DLHC2143
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													<main id="main" class="content" style="min-height: 60rem" >OSMAN <o:p></o:p>vs. <o:p></o:p>HAUSA AND ANOTHER <o:p></o:p>[HIGH COURT,
KUMASI]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1971] 2 GLR 195<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
22 JUNE 1971.<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">

OWUSU YAW FOR THE PLAINTIFF.<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">

TAYLOR J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF TAYLOR J.<o:p></o:p>On 20
January, 1968 the plaintiff as head of family of one Mamiru (deceased) sued the
defendants claiming by his writ of summons a declaration of title to and
possession of a house and an order of perpetual injunction restraining the
defendants from interfering with his ownership and possession of the said
house. Pleadings were duly delivered, and on 18 April 1968 the plaintiff by his
solicitor took out a summons for directions under the Supreme [High] Court (Civil
Procedure) Rules, 1954 (L.N. 140A), Order 30, returnable on 29 April 1968. On
29 April 1968 the summons for directions came before Francois J. who made an
order that the case should proceed to trial on the agreed issues and ordered
the registrar to fix a date.<o:p></o:p><o:p>&nbsp;</o:p>It
appears that the registrar did not fix a date and no further steps were taken
in this action until 5 May 1971 when the solicitor of the plaintiff by a letter
to the registrar requested the suit to be listed for hearing on a date in June.
This was acceded to and the registrar fixed 15 June 1971 as the hearing date
and on 20 May 1971 the solicitor for the defendants was served to appear on the
said 15 June 1971 for the hearing.<o:p></o:p><o:p>&nbsp;</o:p>On 15
June 1971 Owusu Yaw appeared for the plaintiff and Abeyie holding brief for
Asumadu-Sakyi appeared for the defendants. Having regard to the provisions of
Order 64, r. 12 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N.
140A), I took the view that the case was not properly before me. I drew counsel’s
attention to the said rule and invited arguments. Counsel for the plaintiff has
submitted very vigorously that Order 64, r. 12 does not apply because writing
to the registrar, as they did, does not amount to a “proceeding.” Counsel
submitted further that after summons for directions a case is ripe for hearing
and there is no other proceeding to be taken apart from fixing a date for
hearing. He submitted that proceeding is a step in connection with the case
which one party or the other may take but that in this particular case he has
taken no steps and there is no step to be taken by the parties as the matter of
fixing a date has been left by the court to the arbitrary discretion of the
registrar who is not a party to the suit. Therefore this case is not covered by
the rule.<o:p></o:p><o:p>&nbsp;</o:p>I must
say that these apparently plausible arguments are at first blush attractive and
superficially ingenious but on careful examination they appear to be
misconceived. Nevertheless, they do raise the issue as to the meaning and
therefore scope of Order 64, r. 12 (supra). Before examining the argument it
may be worth while to look a little closely at Order 64, r. 12 as aforesaid.
The rule involves a rather obscure but simple point of procedure about which
there is probably no decided local authority; at least I have not succeeded in
laying hands on any local case in point. I must therefore resolve the issue as
best as I can. Now the Order is in the following form:<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">“in any
cause or matter in which there has been no proceeding for one year from the
last proceeding had, the party who desires to proceed shall give a month’s
notice to the other party of his intention to proceed. A summons on which no
order has been made shall not, but notice of trial although countermanded shall
be deemed to be a proceeding within this rule”<o:p></o:p><o:p>&nbsp;</o:p>It seems
to me quite clear on reading the rule that the first part of the rule means no
more than that a</main>