TABIRI vs. APPIAH [1987]DLCA809

Date	1987-11-30
Suit No.
Citation No.	[1987]DLCA809

ABBAN JA

AMUA-SEKYI JA

AMPIAH J.A

ADUANI FOR THE DEFENDANT-APPELLANT.

NO APPEARANCE BY OR FOR THE PLAINTIFF-RESPONDENT.

[1987]DLCA809
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >TABIRI<o:p></o:p>&nbsp;vs. <o:p></o:p>APPIAH <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] 1 GLR 428<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
NOVEMBER 1987<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">

ADUANI FOR THE DEFENDANT-APPELLANT. <o:p></o:p>

NO APPEARANCE BY OR FOR THE PLAINTIFF-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">

ABBAN, AMUA-SEKYI AND AMPIAH JJ.A<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ABBAN J.A.<o:p></o:p>Abban
J.A. delivered the judgment of the court. This is an appeal from the ruling of
the high Court, Sunyani dated 29 July 1981. The plaintiff-respondent (hereafter
referred to as the plaintiff) had sued for a declaration of title to land,
perpetual injunction and damages for trespass.<o:p></o:p><o:p>&nbsp;</o:p>As it
turned out from the pleadings, the plaintiff based his root of title on a grant
made to him by the Dormaa stool in Brong-Ahafo while the defendant-appellant
(hereafter referred to as the defendant) claimed to have got his grant from the
Sefwi Wiawso stool in the Western Region. It was therefore necessary to find
out whether the land in dispute was in Brong-Ahafo or in the Western Region, as
that would affect the jurisdiction of the High Court, Sunyani.<o:p></o:p><o:p>&nbsp;</o:p>Again, it
appeared that the boundary between the Dormaa stool and the Sefwi Wiawso stool
was in dispute before the Boundaries Settlement Commissioner. The court was not
so sure; so on 24 November 1977 the learned judge adjourned the case to 8
December 1977 to enable counsel for the plaintiff to find out whether the
matter was before the said Boundaries Settlement Commissioner.<o:p></o:p>On 8
December 1977 it was further adjourned to 23 January 1978; the court recorded
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">“This
case was fixed definitely for hearing. Counsel should have arranged for
representation for the defendant. In the circumstances, I will grant a last
adjournment for the plaintiff to file a notice of trial after consultation with
counsel for the defendant. As the plaintiff came prepared to proceed, he will
have his costs of 50 guineas.”<o:p></o:p><o:p>&nbsp;</o:p>No date
was fixed and there is no indication also that hearing notices were served on
parties or counsel after 23 January 1978. The case was however called on 13
October 1978 and the court realising that the defendant had had no notice,
adjourned the case to 15 December 1980 and ordered hearing notice to be served
on “counsel for the defendant”<o:p></o:p><o:p>&nbsp;</o:p>This
order was never complied with. The defendant or his counsel was never served
with any hearing notice. But strangely enough the court proceeded to hear the
case on 23 February 1981 and gave judgment on 25 March 1981.<o:p></o:p><o:p>&nbsp;</o:p>In our
view, the whole proceedings were a nullity. When the appellant applied to the
court to have that judgment set aside, the learned judge ought to have acceded
to that request, notwithstanding any delay. Since the proceedings were a
nullity the appellant was entitled ex debito justitiae to have it set aside,
and the court had no discretion in the matter. The authorities which counsel
for the appellant have referred to clearly support this view.<o:p></o:p><o:p>&nbsp;</o:p>In the
circumstances, the appeal will be allowed. The ruling and the order of 29 July
1981 (refusing to set aside the judgment) is itself set aside. In place thereof
we make a</main>