FORI II vs. AKROBETTOE II AND OTHERS [1971]DLSC2111

Date	1971-05-04
Suit No.
Citation No.	[1971]DLSC2111

AZU CRABBE J.S.C.

LASSEY JA

ARCHER J.A.

QUIST FOR THE APPLICANT.

J. REINDORF FOR THE RESPONDENT.

[1971]DLSC2111
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													<main id="main" class="content" style="min-height: 60rem" >FORI II <o:p></o:p>vs. <o:p></o:p>AKROBETTOE II AND OTHERS <o:p></o:p>[COURT OF APPEAL]<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 137<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:
4 MAY 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">

QUIST FOR
THE APPLICANT.<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">

AZU CRABBE J.S.C., LASSEY AND ARCHER
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AZU CRABBE J.S.C<o:p></o:p>Azu
Crabbe J.S.C. delivered the judgment of the court. On 9 November 1970 when the
above appeal came on for hearing, neither the claimant- appellant (the
applicant herein) nor his counsel attended the court, and the appeal was struck
out for want of prosecution. The claimant-appellant has now brought this
application for an order to relist the appeal for hearing, pursuant to rule 23
(2) of the Supreme Court Rules, 1962 (L.I.218).<o:p></o:p><o:p>&nbsp;</o:p>In Adjani
v. Agyeman III (Court of Appeal, 6 November 1969, unreported; digested in
(1970) C. C. 14) this court said that it would not grant indulgence to a party
who had not been diligent and stated the grounds upon which it would exercise
its discretion under rule 23 (2) 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">“The
granting of an application under rule 23 (2) is not a matter of course; it is
entirely in the discretion of this court, a discretion which will be exercised
judicially,’according to the rules of reason and justice’ (Rooke’s Case, 77
E.R. 209). In exercising this discretion the court will take into consideration
all the circumstances of the case, including such question as the nature of the
subject-matter of the appeal and the effect of granting the application upon
the rights of the parties or third parties (that is, whether greater hardship
would be caused to the applicant by granting the application than by refusing
it), the promptness or the extent of delay in making the application, and
whether the applicant has good prospect of success in the appeal.”<o:p></o:p><o:p>&nbsp;</o:p>The
grounds for the present application are: (i) that the applicant was ill, and
(ii) that without his knowledge, counsel, whom he had instructed to appear and
argue the appeal, had been disbarred from practicing.<o:p></o:p><o:p>&nbsp;</o:p>Where an
applicant comes to this court for an order under rule 23 (2) of L.I. 218
directing an appeal to be re-entered for hearing, and he alleges as a ground
for the application that he was incapacitated by ill-health from appearing at
the hearing of the appeal, the court would like to be satisfied (i) that the
appellant was in fact afflicted by some illness, and (ii) that by reason of his
illness he was unable to instruct counsel to appear on his behalf. In this
application the applicant alleges that after he had filed his appeal against
the decision of the Reserve Settlement Commission on 3 April 1965, he entrusted
the conduct of the appeal to his counsel, Mr. Albert Asafu-Adjaye, who informed
him that no date for hearing had then been fixed, and that it was likely that
the appeal might be heard some time in 1970. It would appear from the medical
certificate attached to the notice of motion that the applicant was admitted
into hospital on 10 November 1970, for a major operation, and was discharged on
18 November 1970. Whilst in hospital the applicant developed a mild stroke, and
he continued with physiotherapy treatment for some time. There is also an
affidavit by one Alafaa of Atanve, near Ho in the Volta Region, who deposed
that the applicant had been receiving treatment from him as an in-patient, and
that at the time he swore to the affidavit, that is 23 February 1971, the
applicant had only then begun to show signs of slight improvement in health.<o:p></o:p><o:p>&nbsp;</o:p>There is
further evidence that the government was officially informed that owing to the
illness of the applicant he was unable to perform his duties as the P</main>