MAHAMA vs. SOLI AND ANOTHER [1976]DLHC404

Date	1976-03-24
Suit No.
Citation No.	[1976]DLHC404

EDWARD WIREDU J.

PETER ALA ADJETEY FOR THE APPLICANT.

NANA AKUFO-ADDO FOR THE RESPONDENTS.

[1976]DLHC404
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													<main id="main" class="content" style="min-height: 60rem" >MAHAMA<o:p></o:p>&nbsp;vs. <o:p></o:p>SOLI AND ANOTHER<o:p></o:p>&nbsp;[HIGH
COURT, TAMALE]<o:p></o:p>[1976] 2 GLR 99<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:
24 MARCH 1976.<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">

PETER ALA ADJETEY FOR THE APPLICANT.<o:p></o:p>

NANA AKUFO-ADDO FOR THE RESPONDENTS.<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">

EDWARD WIREDU J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF EDWARD WIREDU J.<o:p></o:p>This is
an application by E. A. Mahama (who shall hereafter be referred to simply as
the applicant) to set aside a default judgment obtained against him on 11
February 1976 in an action commenced by Messrs. Soli and Amadu Seidu (who shall
hereafter also be referred to simply as the respondents, and where necessary as
the first or the second respondent respectively). The application itself is
brought under the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order
36, r. 18, and its propriety is not in issue.<o:p></o:p><o:p>&nbsp;</o:p>The brief
facts of the case which have provoked the application may be stated as follows.
On 19 February July 1975, the respondents as shareholders and directors of a
limited liability company incorporated in Ghana under the name of Mencilo &amp;
Co., Ltd. issued out of this court, an originating motion on notice against the
applicant, claiming among other reliefs (a) the removal of the applicant as
managing director of the company and (b) an order for accounts of all moneys of
the company diverted to the private use of the applicant. Among the allegations
complained of are oppressive conduct, misappropriation of the company’s funds,
mismanagement, establishment of other business concerns by the applicant in
competition with the company, conflicts of interest between other business
activities of the applicant and the company which he manages, arbitrary use of
power and disregard for decisions of the board of directors of the company. Of
course in his affidavit opposing the application in the substantive suit,
issues were joined on each of these complaints.<o:p></o:p><o:p>&nbsp;</o:p>On 28
January 1976 when this matter came on for hearing, the applicant requested for
an adjournment on the grounds of inability of his counsel to come to court. His
application was strongly resisted by learned counsel for the respondents who
had come to court with his witnesses and was willing to prosecute his case. In
the face of this strong opposition, however, I acceded to the request for the
adjournment and made it clear to all concerned that this was the last and final
adjournment I was prepared to grant in this matter. The case was therefore
adjourned to 10-12 February for definite hearing from day to day.<o:p></o:p><o:p>&nbsp;</o:p>I think
it is pertinent at this stage to mention that prior to the adjournment of 28
January there had been two previous adjournments which had been agreed upon by
solicitors for the parties and, on each such occasion, three clear days had
been set down for the hearing of the case from day to day.<o:p></o:p><o:p>&nbsp;</o:p>From 28
January 1976 to 10 February when the case was to come on for hearing, none of
the parties, nor any of the solicitors, had indicated to the court his
inability to attend the hearing. On the morning of 10 February when the case
was called the applicant was nowhere to be found, nor was his counsel in court,
and no explanation for their absence was offered to the court. This case was
the only one set down for hearing so in compliance with my order of 28 January
I invited the respondents to prove their claim, which they did. The case for
the respondents closed on the following day, i.e. 11 February. On that day also
neither the applicant nor his counsel was in court and no explanation was
before the court for their absence. After close of the respondents’ case, I
proceeded to write my judgment which I delivered the same day.<o:p></o:p><o:p>&nbsp;</o:p>I must
say that whilst I was in the course of considering reading my judgment I
received a telephone message from the Judicial Secretary, who claimed to have
been instructed by the Chief Justice, to have this case adjourned for one month
because of certain representations which had been made to him about the case
which he needed time to investigate. </main>