SAAWA vs. DUMAH [1987]DLHC2313

Date	1987-01-16
Suit No.
Citation No.	[1987]DLHC2313

DOVE J

E F SHORT FOR THE APPLICANT.

THE RESPONDENT IN PERSON.

[1987]DLHC2313
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													<main id="main" class="content" style="min-height: 60rem" >SAAWA<o:p></o:p>vs.<o:p></o:p>DUMAH<o:p></o:p>[HIGH
COURT, CAPE COAST]<o:p></o:p>[1991] 1
GLR 452<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 16 JANUARY 1987<o:p></o:p>

</div>COUNSEL:<o:p></o:p>E F SHORT FOR THE APPLICANT.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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">

THE
RESPONDENT IN PERSON. <o:p></o:p>

</div>JUDGMENT
OF DOVE J.<o:p></o:p>This is
an application by Nana Abena Saawa, the defendant, in an action pending before
the District Court, Grade II, Ajumako, for an order transferring the same to
the District Court Grade II, Cape Coast or to any other court in Cape Coast for
hearing and determination.<o:p></o:p>In
paragraph (8) of the affidavit in support of the application she has sworn that
at the district court she took objection to the venue because the cause of
action arose in Cape Coast and not at Ajumako. The district magistrate then
referred the case to one Nana Kwesi Ewuakyi II for an amicable settlement out of
court. When the parties appeared before Nana Kwesi Ewuakyi, the applicant asked
for an adjournment to call her witnesses; Nana Kwesi Ewuakyi became annoyed and
returned the case to the court.<o:p></o:p>In
paragraph (10) of the said affidavit the applicant has sworn that when she
appeared before the district magistrate on 27 November 1986 he welcomed her
with abuses saying:<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">“You are
not a respectful queenmother or one to be recognised as a queenmother; I am a
chief and I am respected because I always do what is respectful. You had abused
the plaintiff with her ‘yas’ and she had sued you.”<o:p></o:p>The
respondent, the plaintiff in the district court, has sworn to an affidavit in
opposition. She opposes the application principally on the ground that the
court at Ajumako has the same jurisdiction as the one in Cape Coast. She has
also sworn:<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">“(5) That
the whole of the defendant’s affidavit has no stand that the presiding
magistrate did abuse her in open court and as such the defendant’s affidavit
with its supporting motion paper should not be entertained by this court.”<o:p></o:p>This I
take to be a denial of the applicant’s version of what happened at the district
court on 27 November 1986. The respondent has not provided the court with her
version of what happened on that day. This is something she is in duty bound to
do.<o:p></o:p>Mr E F
Short, counsel for the applicant, expressed the view that the action ought to
be transferred as the magistrate has shown bias.<o:p></o:p>The
respondent who is unrepresented said that the applicant’s allegations are
untrue and that the action should be tried at Ajumako. I accept the applicant’s
version of what happened on 27 November 1986 at the District Court, Grade II,
Ajumako. The question is does the magistrate’s conduct amount to bias?<o:p></o:p>Bias has
been said to be prejudice and in a judicial capacity could mean deciding a
matter without reference to the evidence. A judge or magistrate is entitled to
promote reconciliation between the parties before him, it is not his function
to force them to settle their differences. The magistrate’s conduct as set out
in paragraph (10) of the applicant’s affidavit gives the impression that he had
already made up his mind about the liability of the applicant for the claim
made against her. In these circumstances, I do not see how he can adjudicate
with an open mind.<o:p></o:p>Section
35 of the Courts Act, 1971 (Act 372) provides that a district court can
exercise jurisdiction only “in respect of causes and matters arising within its
district subject to the other provisions of this act or to the provisions of
any other enactment.” In view of the allegations of bias and the provision of
section 35 of Act 372, 1 hereby order the transfer of the action pending in the
District Court Grade II, Ajumako to the District Court Grade II, Cape Coast.<o:p></o:p>I make no
order as to costs.<o:p></o:p>