HINSON vs. ANKOMAH [1988]DLHC2251

Date	1988-12-05
Suit No.
Citation No.	[1988]DLHC2251

KPEGAH J.

ADDINGTON FOR THE PLAINTIFF.

ODRO FOR THE DEFENDANT.

[1988]DLHC2251
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													<main id="main" class="content" style="min-height: 60rem" >HINSON<o:p></o:p>vs.<o:p></o:p>ANKOMAH<o:p></o:p>[HIGH
COURT, CAPE COAST]<o:p></o:p>[1991] 2
GLR 61<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: 5 DECEMBER 1988<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ADDINGTON
FOR THE PLAINTIFF.<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">

ODRO FOR
THE DEFENDANT. <o:p></o:p>

</div>JUDGMENT
OF KPEGAH J.<o:p></o:p>The point
I have assigned myself the task of considering in this ruling may be considered
by many as trivial and not deserving any serious attention. This view may be
held because the types of applications I will be focusing on in my ruling are
very prevalent in the courts and are often made without anybody questioning their
validity. I have myself been subjected to such applications several times and,
I must confess, have on some occasions reluctantly yielded to them. Of late,
however, I have began to seriously question the validity of such applications.
This is why I have decided to address the matter fully taking advantage of the
opportunity presented me in this case.<o:p></o:p>On 7
November 1988 the defendant’s motion to set aside a default judgment earlier
entered against him came on for hearing. Learned counsel for the applicant was
not in court so the defendant was compelled to ask for an adjournment. Taking
into account the antecedents of the application, the adjournment was granted
subject to terms. The defendant was ordered to pay ¢10,000 costs. The motion to
set aside the default judgment was then adjourned to 21 November 1988 for
hearing. When the motion was called, learned counsel for the plaintiff, Mr
Addington, complained to the court that although the court had ordered the
defendant to pay the costs immediately, he had refused to do so. After this,
learned counsel resumed his seat; obviously leaving the matter in the lap of
the court to decide what to do with either the defendant or his motion to set
aside the default judgment. As often happens to me in such situations, I, for a
brief period suffered from indecision. I was in doubt as to what was expected
from the court: was it an invitation to the court to deny the defendant a
hearing until he had paid the costs because he can be said to have been in
contempt of the court? Or was the court being invited to immediately extract
from the defendant the costs for the plaintiff?<o:p></o:p>This was
not to be the end of my woes, if I may say so. When Mr Addington resumed his
seat, Mr Odro, learned counsel for the defendant, apologised to the court for
his failure to attend court on 7 November 1988. Mr Odro then proceeded to offer
an explanation for his absence from court and later used his explanation as a ground
for a viva voce application to have the order for costs against his client reviewed.<o:p></o:p>According
to Mr. Odro, he had to urgently go to the Court of Appeal and he arranged with
Mr Kofi Lamptey to hold his brief. But while in court, Mr Lamptey was suddenly
taken ill (he had toothache) and had to go to the hospital. He was not able to arrange
for another counsel to hold his brief. This was why nobody was in court to hold
his brief thereby necessitating a request by his client for adjournment.
Learned counsel therefore urged the court to either waive the costs completely
or reduce it. After both counsel had put their respective prayers before the
court, I decided to adjourn to the next day to enable me give a considered
opinion on the matter and possibly, in the process, erase or confirm my doubts
about the validity of such applications.<o:p></o:p>As
indicated earlier, I take it that Mr Addington was either raising an objection
to the defendant moving his motion when he had not paid the costs and the
proceedings must therefore be stayed, or was seeking the court’s assistance in
immediately getting the costs paid to him by the defendant. And, in the case of
the defendant, Mr. Odro is seeking a review of the order awarding costs against
the defendant. The legal issues I intend to consider are as follows:<o:p></o:p><p class="MsoListParagraphCxSpFirst" style="margin-bottom:5.0pt;mso-add-space:
auto;text-align:justify;text-indent:-.25in;mso-pagination:none;mso-list:l1 level1 lfo1;
border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(a).&nbsp; “Where costs are awarded in favour of a
party in the cause of proceedings with an ancillary order that it be paid
immediately, or on or before the next adjourned date, and the party against
whom the costs are awarded defaults to comply, can the party for whom the costs
is awarded by a viva voce application in court ask for: <o:p></o:p><p class="MsoListParagraphCxSpMiddle" style="margin-top:0in;margin-right:0in;
margin-bottom:5.0pt;margin-left:1.0in;mso-add-space:auto;text-align:justify;
text-indent:-.5in;mso-pagination:none;mso-list:l2 level1 lfo2;border:none;
mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
a stay of
proceedings until the costs are paid?; and <o:p></o:p>