REPUBLIC vs. CIRCUIT COURT JUDGE; EX PARTE DZAKAH [1984]DLHC978

Date	1984-01-17
Suit No.
Citation No.	[1984]DLHC978

APATU-PLANGE J.

TOGBE AGAMA AMATTA IV FOR THE APPLICANTS.

E. K. AMANEY FOR THE RESPONDENT.

[1984]DLHC978
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REPUBLIC <o:p></o:p>

{HIGH COURT, HO} <o:p></o:p>

[1984-86] 1 GLR 741<o:p></o:p>

DATE:
17 JANUARY 1984<o:p></o:p>

</div><o:p>&nbsp;</o:p>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">

TOGBE
AGAMA AMATTA IV FOR THE APPLICANTS. <o:p></o:p>

E.
K. AMANEY 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">

APATU-PLANGE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APATU-PLANGE J.<o:p></o:p>This is
an application at the behest of Godzah Dzakah and Goldsmith Akpah praying this
court for an order of certiorari to quash the judgment of his Honour C. Adamah,
Circuit Judge dated 27 October 1983. The grounds on which the said relief is being
sought are contained in the statement of the applicants, i.e. “breach of the
principles of natural justice—audi alteram partem.”<o:p></o:p><o:p>&nbsp;</o:p>Before
counsel for the applicants could be heard, counsel for the respondent raised a
preliminary objection as to the propriety of the certiorari application. He
contended that the applicants should have applied to the lower court to have
the judgment set aside to enable them to be heard, and if such an application
was refused, then they could appeal against the refusal, and that apart from
that procedure, they were not entitled to come by way of certiorari on the
grounds that they were denied the right of being heard and therefore the rules
of natural justice had been breached. In Furtherance of this argument counsel
relied on the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 36,
rr. 16 and 18 and invited the court to strike out the application as not
properly before this court.<o:p></o:p><o:p>&nbsp;</o:p>In reply,
counsel for the applicants submitted that Order 36, rr. 16 and 18 cannot
prevent the applicants from bringing this instant application, for an aggrieved
person is given opportunity to either have a judgment set aside or to have the
judgment quashed. Thus where there are several remedies open to an aggrieved
person, he is entitled to choose what remedy he thinks fit and proper under the
circumstances. He submitted further that this is an application in which the
applicants are saying that they were not given a hearing, amounting to a gross
violation of the audi alteram partem rule, and when an order or judgment is
given in violation of the rules of natural justice, it is open to the aggrieved
party to seek leave of the High Court to obtain an order of certiorari to quash
the said order or judgment and this is exactly what the applicants have done.
Counsel therefore finally submitted that the cause of action adopted by the
applicants is in law open to them and they cannot be prevented from seeking
their relief under an order of certiorari.<o:p></o:p><o:p>&nbsp;</o:p>Now Order
36, rr. 16 and 18 of L.N. 140A relied on by counsel for the respondents provide
as follows:<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">“16. If,
when a trial is called on, the plaintiff appears, and the defendant does not
appear, then the plaintiff may prove his claim, so far as the burden of proof
lies upon him . . . 18. Any verdict or judgment obtained where one party does
not appear at the trial may be set aside by the Court or a Judge upon such
terms as may seem fit, upon an application made within fourteen days after the
trial.”<o:p></o:p><o:p>&nbsp;</o:p>It will
be noticed that Order 36, r. 17 also empowers the court to proceed to give
judgment for the defendant in default of the appearance of the plaintiff.<o:p></o:p><o:p>&nbsp;</o:p>It seems
to me therefore that Order 36, rr. 16 and 17 contemplate situations where both
parties are aware of or have been served with hearing notices and yet one party
fails to appear at</main>