TAKORADI TIMBERS LIMITED vs. AMUAH [1983]DLHC2175

Date	1983-05-13
Suit No.
Citation No.	[1983]DLHC2175

TWUMASI J.

DONKOR FOR APPLICANT.

ATTA-ERSKINE FOR THE RESPONDENT.

[1983]DLHC2175
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													<main id="main" class="content" style="min-height: 60rem" >TAKORADI TIMBERS LIMITED<o:p></o:p>&nbsp;vs. <o:p></o:p>AMUAH <o:p></o:p>[HIGH COURT, SEKONDI]<o:p></o:p>[1982-83] GLR 1140<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DATE:
13 MAY 1983<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;
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DONKOR FOR APPLICANT. <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;
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TWUMASI J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF TWUMASI J.<o:p></o:p>The
plaintiff-respondent, hereafter called the plaintiff, issued a specially
indorsed writ claiming the sum of ¢12,000 against the defendant-applicant,
hereafter called the defendant. Pursuant to his writ, the plaintiff by a
summons filed on 2 February 1982 applied for summary judgment. The defendant filed
a statement of defence, which in the view of the court, disclosed a triable
issue. In the circumstances, the court granted him leave to defend the action.
From that stage, rules of procedure required the plaintiff to file a reply to
the statement of defence and follow it up with a summons for directions under
the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), Orders 23 and 36
respectively, before the case could be tried but the court directed that the
case be tried summarily on 12 January 1983. The submission by the defendant’s
counsel that non-compliance with Orders 23 and 36 vitiated the proceedings was
therefore misconceived.<o:p></o:p><o:p>&nbsp;</o:p>With
regard to the trial of the case, it would be recalled that counsel for the
defendant proposed and counsel for the plaintiff agreed, that the case be
further adjourned for settlement at the request of the defendant. The case was
adjourned to 26 January 1983 with the understanding that counsel would announce
settlement on that date. On the next adjourned date, the parties were absent.
And Forson for the defendant asked, and was granted leave of the court to
withdraw his representation on the ground that he had lost contact with his
client. Erskine for the plaintiff demanded immediate judgment for the plaintiff
but the court directed that the plaintiff ought to enter the witness-box to
prove his case in view of the court’s earlier ruling that there was a triable
issue on the pleadings. The case was adjourned to 7 February 1983 for hearing.
Judgment was entered for the plaintiff on the latter date.<o:p></o:p><o:p>&nbsp;</o:p>The
record of proceedings shows that the court inadvertently omitted to serve the
defendant with a hearing notice. This in my view, vitiated the proceedings of 7
February 1983. It seems to me imperative that whenever a party to a suit is
absent from court and his counsel withdraws his representation, a hearing
notice be sent to the absentee party. It is also the duty of counsel to
communicate the withdrawal of his representation to his client.<o:p></o:p><o:p>&nbsp;</o:p>The court
concedes the fact that the defendant now coming to apply for an order to set
aside the judgment after about two months of its delivery, cannot exonerate
himself from blame and contempt of the court for his lukewarm attitude toward
the progress of the case. Nevertheless, since the defendant has a triable
defence and a counterclaim it would be unjust to refuse this application. The
court can and must always do justice upon such terms as to payment of costs as
it may deem fit.<o:p></o:p><o:p>&nbsp;</o:p>I must
point out here that Order 36, r. 18 which requires that applications to set
aside judgment must be brought within fourteen days cannot apply to cases under
Order 14, r. 1 where the court directs that the case be heard summarily. Any
judgment obtained at such summary trial can be set aside within a reasonable
time after service of entry of the judgment. I would set aside the judgment and
order a fresh trial. The plaintiff is awarded ¢1,500 costs. Case adjourned to
23 May 1983 for hearing.<o:p></o:p>

<o:p>&nbsp;</o:p></main>