YARO TRANSPORT AND ANOTHER vs. AGYARE [1987]DLHC690

Date	1987-04-01
Suit No.
Citation No.	[1987]DLHC690

ABAKAH J.

POBEE FOR THE DEFENDANT-APPLICANTS.

ABOAGYE DA COSTA FOR THE PLAINTIFF-RESPONDENT.

[1987]DLHC690
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													<main id="main" class="content" style="min-height: 60rem" >YARO TRANSPORT AND ANOTHER <o:p></o:p>vs. <o:p></o:p>AGYARE<o:p></o:p>[HIGH COURT, KOFORIDUA] <o:p></o:p>[1980] GLR 110<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:
1
APRIL 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">

POBEE FOR THE DEFENDANT-APPLICANTS.<o:p></o:p>

ABOAGYE DA COSTA 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">

ABAKAH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ABAKAH J.<o:p></o:p>This is a
legal objection raised by Mr. Pobee, learned counsel for the defendants, under
Order 5, r. 1 (6) as inserted by the High Court (Civil Procedure) (Amendment)
Rules, 1977 (L.I. 1107), challenging the jurisdiction of this court to
entertain this case, a running down case which emanated from Sagyimase, a town
in the Eastern Region of Ghana. The objection does pray therefore that the case
be dismissed.<o:p></o:p><o:p>&nbsp;</o:p>In an
affidavit in support of the motion which carries the objection it is deposed
that the first defendants carry on business in Kumasi. A further affidavit
filed by the defendants following the plaintiff’s affidavit in opposition to
the objection, deposes that the second defendant and other witnesses are
resident in Kumasi.<o:p></o:p><o:p>&nbsp;</o:p>The
affidavit in opposition states that the jurisdiction of the High Court is not
created by statute, and that L.I. 1107 cannot override section 13 of the Courts
Act, 1971 (Act 372). According to the affidavit Sagyimase is the place of the
accident as a result of which this action was taken; that the accident was
handled by the Kyebi and Anyinam police; that all the victims of the accident
were treated at the Nkawkaw Holy Family Hospital and that the criminal trial to
which the accident gave rise took place in the Circuit Court, Nkawkaw. It was the
first defendant’s driver who was prosecuted. The plaintiffs finally argued that
L.I. 1107 cannot purport to abrogate section 14 (1) of Act 372.<o:p></o:p><o:p>&nbsp;</o:p>A
peculiar feature of the affidavit in opposition is that instead of deposing to
facts it rather sets out the arguments directed at opposition to the objection.
This feature of the plaintiffs’ affidavit drove Mr. Pobee on to deal with a lot
of matters which in the long run were left unpursued by the opposing affidavit
which did raise them. One of these matters was that the jurisdiction of the
High Court is not created by statute. Mr. Pobee said it is and he cited section
14 (1) of Act 372. It was paragraphs 3 and 4 of the affidavit in opposition
which provoked this submission from Mr. Pobee. Mr. Aboagye da Costa did not
pursue this line and I must say that sections 14-20 of Act 372 have spelt out
extensively the jurisdiction of the High Court.<o:p></o:p><o:p>&nbsp;</o:p>The
second is an impression which is clear in the opposing affidavit. It is that
L.I. 1107 conflicts with Act 372 with respect to the jurisdiction of the High
Court and therefore no effect should be given to it. Again<o:p></o:p><o:p>&nbsp;</o:p>Mr. Pobee
had to dispel this impression by going to great pains to expatiate on the
repugnancy rule. Mr. Pobee contended that the rule is inapplicable since L.I.
1107 only seeks to provide the procedure to give effect to jurisdiction already
conferred on the High Court. He cited the case of Ababio v. Ackumpong (1940) 6
W.A.C.A. 173 at 175-178. The issue raised by the affidavit in opposition and
which drew out this submission from Mr. Pobee was also not after all pursued by
Mr. da Costa. Mr. Pobee’s submissions in the areas referred to above were all
left unanswered and I must myself express doubt as to how these submissions
could have been met. I hold the view that they are sound and unimpeachable.<o:p></o:p><o:p>&nbsp;</o:p>The one
point which Mr. da Costa took up in argument which sounds in the likeness of a
compromise is the </main>