KARLETSE-PANIN vs. NURO [1978]DLCA1149

Date	1978-06-01
Suit No.
Citation No.	[1978]DLCA1149

SOWAH JA

KINGSLEY-NYINAH JA

FRANCOIS J.A.

KOFI AKAINYAH FOR THE APPELLANT.

ADJEI-MENSAH FOR THE RESPONDENT.

[1978]DLCA1149
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													<main id="main" class="content" style="min-height: 60rem" >KARLETSE-PANIN <o:p></o:p>vs. <o:p></o:p>NURO<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>&nbsp;[1979] GLR 194<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:
1 JUNE 1978<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">

KOFI AKAINYAH FOR THE APPELLANT.<o:p></o:p>

ADJEI-MENSAH FOR THE RESPONDENT.<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">

SOWAH, KINGSLEY-NYINAH AND FRANCOIS
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF KINGSLEY-NYINAH J.A.<o:p></o:p>As I read
and understand the facts and circumstances clear from the record of
proceedings, the material data there provided places before us two distinct
aspects for our careful consideration.<o:p></o:p>To my
mind, the dictates of primary justice and fair-play make these relatively more
important and far-reaching than the purely technical question of whether
“leave” was required of the defendant to appeal, and whether he dutifully
complied with the mandatory provisions of section 19 (4) of the Courts Act,
1971 (Act 372), and sought and obtained that statutory permit to take his case
beyond the limits of the District Court Grade II Duayaw-Nkwanta.<o:p></o:p><o:p>&nbsp;</o:p>The first
aspect concerns the question whether there was justness, balance and propriety
in the proceedings before the Duayaw-Nkwanta District Court Grade II; while the
second has to do with the spirit and intendment, the true meaning and effect of
section 19 (4) of Act 372 aforesaid, having relevant regard to the facts and
circumstances of this present matter. It is necessary, in my judgment, that
whenever section 19 (4) of Act 372 comes to be considered and applied to the
incidents of a particular case, regard be had to the rational and dominant
trend that, in present-day administration of the law, the courts are slowly,
but positively, veering away from technicalities for technicalities’ sake; and
that they will, therefore, not favour such a narrow and illiberal adherence to
technicality as, when followed to its logical hilt, will stultify and destroy
substantial justice instead of advancing it. There is ample legal and social
justification for this salutary tendency which must be considered essential for
the more competent and effective operation of the rule of law in the
circumstances of our present legal and social development.<o:p></o:p><o:p>&nbsp;</o:p>When the
parties to a cause or matter place their dispute in the hands of our courts,
they do so in the justified expectation that, all the technical rules of
procedure notwithstanding, before a decision as to their rights and interests
in the matter is pronounced to bind them in law, a sufficiently adequate and
exhaustive investigation into the merits and demerits of both the claim and the
counter-charge urged in opposition thereto shall, first, have been carried out.
It is only when this has been done, and each and both sides have been properly
heard on the merits of their rival demands, that the requirements of proper
justice, natural equity, and good conscience can, in my judgment, be said to
have been met and satisfied.<o:p></o:p><o:p>&nbsp;</o:p>When this
has not been done, however, and one of the parties, feeling genuinely aggrieved
by an adverse decision, applies for better justice to be done the court
handling that application must be careful, statutory and other technicalities
notwithstanding, to preserve and advance substantial justice and fair equity,
and not to stultify or destroy it by unwittingly sacrificing the essential
merits of the case on the relatively unimportant altars of procedure and
technicalities.<o:p></o:p><o:p>&nbsp;</o:p>And now,
to the essential facts and incidents of this case. The record of appeal herein
shows that after the plaintiff-respondent (hereafter called the plaintiff) had
lodged her civil complaint against the defendant appellant (hereinafter
designated the defendant) for a declaration of title and damages for trespass.
The defendant was duly served, personally (on 9 May 1972), to attend the
District Court Grade II, Sunyani, on Wednesday, 17 May 1972, there to answer
the plaintiff’s suit.<o:p></o:p><o:p>&nbsp;</o:p>Thereafter,
and long before the suit itself became ripe for hearing, the defendant entered
t</main>