DONKOR vs. KUSI [1977]DLHC1312

Date	1977-03-30
Suit No.
Citation No.	[1977]DLHC1312

OSEI-HWERE J.

OPPONG FOR THE PLAINTIFF.

TAKYI FOR THE DEFENDANT.

[1977]DLHC1312
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													<main id="main" class="content" style="min-height: 60rem" >DONKOR<o:p></o:p>&nbsp;vs. <o:p></o:p>KUSI <o:p></o:p>[HIGH COURT, SUNYANI]<o:p></o:p>[1977] 2 GLR 242<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:
30 MARCH 1977<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">

OPPONG 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">

OSEI-HWERE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.<o:p></o:p>This is a
motion brought by the defendant to set aside the order of the court made on 28
October 1974, striking out the suit under the registrar’s summons. The brief
history of the suit is that the plaintiff issued his writ against the defendant
on 9 September 1971. On 20 January 1972 (when the case was ripe for hearing)
both counsel agreed that a plan of the disputed area be drawn out and the court
made its order accordingly. On 15 November 1972, the surveyor formally tendered
the plan in evidence and following that the suit saw many adjournments until it
was finally adjourned sine die on the application of both counsel on 2 July
1973. Thereafter the suit came before the court under a registrar’s summons on
28 October 1974 when it was struck out. On that date neither the parties nor
their counsel were in court but as their solicitors had, in fact, been served
with the summons that court obviously deemed that as sufficient service on the
parties and struck out the suit for want of prosecution. The present application
to relist the suit has been brought because both the defendant and his counsel
allege that they were never aware of the summons.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff’s counsel, at the hearing, took the objection that the defendant has
not shown under what authority he has brought his motion. Again, he argued, the
defendant has shown no cause why his motion should be entertained just over two
years after it had been struck out. Counsel referred to Order 62, r. 1 of the
High Court (Civil Procedure) Rules, 1954 (L.N. 140A), and submitted that the
last proceeding heard in the case was on 15 November 1972 and the registrar was
right to issue the summons. Service on both solicitors, he contended, was
sufficient reason to entitle the court to strike out the suit. The main arguments
proffered by the defendant’s counsel were that as the case was part heard the
registrar had no authority to issue out the summons to strike out but rather he
ought to have issued a hearing notice as the case was proceeding before the
court. According to counsel he has brought the application under Order 62, r. 2
which prescribes no time limit within which to make the application. Counsel
invited the court also to take notice of the affidavit from his clerk denying
service through him to the defendant’s solicitor.<o:p></o:p><o:p>&nbsp;</o:p>Order 62,
r. 2 of the High Court (Civil Procedure) Rules, 1954, under which the
defendant’s counsel purports to bring the motion is clearly inapplicable. That
rule directs what a judge may do after the parties have appeared before him
upon the summons issued under rule 1. Indeed two courses are open to the judge
when he comes to hear the summons. He may strike out the action if no good
cause is shown by the parties, or, if good course is shown he may order that
the action should proceed: see Ghassoub v. Dizengoff (W.A.) [1962] 2 G.L.R.
133, S.C. it has been observed that although the citing of rules of court in
applications before the court is desirable, yet it is not so indispensable that
failure to do so should rock the very foundation of the administration of
justice: see the dictum of Archer J.A. in Shardey v. Adamtey; Shardey v. Martey
(Consolidated) [1972] 2 G.L.R. 380 at p. 386, C.A. where he said:<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">“When an
application is made and the relevant rule is cited, it enables the court to
ascertain whether the application is properly before it and also what powers it
has under the rule. There are cases where an application is not governed by any
rule of court or by the inherent jurisdiction of the court. In such cases the
court has no hesitation in dismissing or striking out the application.”<o:p></o:p><o:p>&nbsp;</o:p>It is
clear then that if (although there being no rule to cover the application) the
applicant can rely on the court’s inherent jurisdiction to do him justice then
he must be heard. Order 62 of L.N. 140A which deals with delay in proceedings
is plainly aimed at withdrawing the processes of the court from the indolent
and it is no matter of surprise that nowhere do the rules seem to empower the
court to rescind a striking out order regularly sought and given.<o:p></o:p><o:p>&nbsp;</o:p>In
considering whether the defendant has recourse to the court’s inherent
jurisdiction two issues strive for deter</main>