AGBEMABIESE vs. DZISAM AND OTHERS [1973]DLHC2356

Date	1973-11-27
Suit No.
Citation No.	[1973]DLHC2356

ATA-BEDU J.

GIKUNOO FOR NUTSUGAH FOR THE APPELLANT.

DEEGBE FOR THE RESPONDENTS.

[1973]DLHC2356
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													<main id="main" class="content" style="min-height: 60rem" >AGBEMABIESE <o:p></o:p>vs. <o:p></o:p>DZISAM AND OTHERS <o:p></o:p>[HIGH COURT, HO]<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;[1973]
1 GLR 45<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:
27 NOVEMBER 1972.<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">

GIKUNOO FOR NUTSUGAH 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">

ATA-BEDU J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ATA-BEDU J.<o:p></o:p>The facts
of the circumstances leading to this appeal as presented by counsel for the
appellant are that the appellant was a successful party in a suit at the Native
Court B Anloga on 14 May 1953. Later the appellant applied to the District
Court Grade II for a writ of possession in satisfaction of the judgment. On 3
November 1970 the appellant who was then the applicant withdrew his
application. On the day the application was withdrawn the respondents who were
not in court were not awarded costs. On 24 September 1971, the respondents
brought an ex parte application for costs. Upon the hearing of the application,
the court granted the respondents then applicants (hereinafter referred to as
the respondents) costs of ¢200.00 under Order 39, r. 1 of the Courts Ordinance,
Cap. 4 (1951 Rev.), Sched. II for the withdrawal of the application.
Subsequently the appellant herein brought an application made under Order 42,
r. 1 of Schedule II to Cap. 4 for a review of the order. The ruling was
delivered on 20 April 1972 and appears at pp. 12-13 of the record of
proceedings. It is from this ruling that the appeal has been brought to this
court on the following grounds:<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">&nbsp;(a) The trial magistrate erred in law in not
setting aside his order of 24 September 1971.<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">(b) the
costs of 100 cedis awarded to the defendants on 20 April 1972, are harsh and
excessive.<o:p></o:p><o:p>&nbsp;</o:p>In
arguing the first ground counsel for the appellant says the sole point to
consider is whether the respondents could under Order 39, r. 1 of Cap. 4,
Sched. II bring an ex parte application for costs. Counsel submits that the
respondents’ initial ex parte application of 24 September 1971 for costs was
misconceived and for that matter the magistrate was wrong in hearing the
application and awarding the respondents ¢200.00 costs. According to counsel,
there was no suit pending before the court as to entitle the respondents to
bring the application under Order 39, r. 1. All that was pending before the
magistrate was the application for the writ of possession which was an
ancillary proceeding but not the original suit. Counsel refers to Vanderpuije
v. Akwei [1971] 1 G.L.R. 242 on the definition of suit.<o:p></o:p><o:p>&nbsp;</o:p>Counsel
for the respondents in reply, contends that the interpretation of the
circumstances in which Order 39, r. 1 is applied is a narrow interpretation and
it does not accord with common sense and practice. Order 39, r. 1. he says,
embraces “suits,” “claim” and “matter”; he concedes that what happened at the
district court was not a suit but it was at least a matter. He says the use of
the word “suit” at page 2 of the record was a misuse of that word by a lay
magistrate. With due respect to both counsel, I cannot understand why the use
of the word “suit” in the order of the magistrate, lay as he is, should be a
bone of contention when even they, so learned as they are in law, had fallen
into the alleged error of misusing the same word in their arguments heard
respectively on 24 September 1971 in support of the ex parte application for
costs and on 14 January 1972 in support of the application for a review of the
order for the costs awarded. According to him, the word “matter” cannot be
limited to the proceedings referred to by the learned judge in the light of the
definition at section 2 of Cap. 4 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">‘Matter’
includes every proceeding in the Court not in a cause.” In the same section,
“cause” is defined as including “any action, suit or other original proceeding
between a plaintiff and a defendant, and any criminal proceeding.” “Suit” is
also defined as including “action, and shall mean a civil proceeding commenced
by writ of summons or in such other manner as may be prescribed by Rules of
Court, and shall not include a criminal proceeding.”<o:p></o:p><</main>