OBADZEN II vs. ONANKA II [1982]DLCA2165

Date	1982-05-11
Suit No.
Citation No.	[1982]DLCA2165

FRANCOIS JA

MENSA BOISON JA

COUSSEY J.A.

NATER OLAGA FOR THE RESPONDENT.

DR. SETH TWUM FOR THE APPELLANT.

[1982]DLCA2165
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													<main id="main" class="content" style="min-height: 60rem" >OBADZEN II <o:p></o:p>vs. <o:p></o:p>ONANKA II <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1982-83] GLR 46<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:
11 MAY 1982<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">

NATER OLAGA FOR THE RESPONDENT. <o:p></o:p>

DR. SETH TWUM 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 1.0pt 0in">

FRANCOIS, MENSA BOISON AND COUSSEY
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF FRANCOIS J.A.<o:p></o:p>This
dispute relates to the common boundary of two Teshie families. It is a contest
essentially to determine the true boundary between the quarter lands of the
Agbawe and Kle Musum families of Teshie.<o:p></o:p><o:p>&nbsp;</o:p>The suit
originated in the District Court, Accra, and was transferred to the High Court
for trial under the provisions of the Courts Decree, 1966 (NLCD 84), para. 49
(2). The judge who commenced the trial could not continue and the suit had to
be completed by another judge after the earlier proceedings had been adopted by
consent. In the chequered course of the case it was inevitable that something
would go wrong. It is not surprising, therefore, that the entire pleadings
disappeared from the court docket. Unfortunately it was when the judge came to
write his judgment that he discovered this loss. He put it this way:<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">“Apart
from the record of events which took place in the district court and which was
transmitted to this court under paragraph 49 (2) of the Courts Decree, 1966
(NLCD 84), no writ or pleadings can be found on the docket. At first, I had
wanted to have this procedural irregularity rectified but in view of the stage
where the case had reached (the judgment stage) I decided to treat these
omissions as technical irregularities which can be saved under Order 70 of the
High Court (Civil Procedure) Rules, 1954 (LN 140A) especially so as it has
occasioned no injustice.”<o:p></o:p><o:p>&nbsp;</o:p>But the
appellant complains that it caused an injustice. The parties had come to court
prepared to fight the suit on pleadings; it would work hardship if their
pleadings were ignored and the matter determined without the benefit of their
stated respective cases.<o:p></o:p>Though no
criticism is intended of the judge’s reliance on LN 140A, Order 70 to supply
the lacuna since Omane v. Poku [1972] 1 G.L.R. 295, permits this course, both
on authority and good sense the complaint seems well founded. Suits transferred
to the High Court are governed by Order 30. r. 7. Order 30 envisages pleadings
after directions have been obtained. Indeed, actions in the High Court are commenced
by a writ and pleadings. This confines the parties to the matters in issue and
enables a judgment to be given on the real matters in controversy between the
parties as raised and fought on their stated cases. If pleadings are discarded,
the tram lines, within which the battle must be won or lost, are pushed out of
existence and the parties waffle unrestrainedly over wider parameters.<o:p></o:p><o:p>&nbsp;</o:p>It is my
view that a request to counsel to submit copies of their pleadings, would have
easily resolved the difficulty and not created the formidable handicap that
beset the trial judge. In fact, there was no insuperable difficulty to this
course, as the written addresses counsel filed, even relied on the parties’
respective pleadings. Clearly, copies could have been obtained as notice had
been given of their existence.<o:p></o:p><o:p>&nbsp;</o:p>This
court, with the consent of the parties, accepted counsel’s copies of the
pleadings. It became immediately apparent that an issue of arbitration raised
in the action could not be satisfactorily resolved without reference to the
pleadings and to hold, as the learned judge did, that the mutual boundary
between the disputants was the result of a negotiated settlement, could be an
erroneous conclusion if the pleadings were referred to.<o:p></o:p><o:p>&nbsp;</o:p>Turning
then to the pleadings, para</main>