TANKO vs. STATE FARMS CORPORATION AND ANOTHER [1988]DLHC686

Date	1988-10-18
Suit No.
Citation No.	[1988]DLHC686

KPEGAH J.

J. D. HAMMOND FOR THE PLAINTIFF.

E. F. SHORT FOR THE DEFENDANTS.

[1988]DLHC686
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													<main id="main" class="content" style="min-height: 60rem" >TANKO <o:p></o:p>vs. <o:p></o:p>STATE FARMS CORPORATION AND ANOTHER<o:p></o:p>[HIGH COURT, CAPE COAST] <o:p></o:p>[1980] GLR 259<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:
18
OCTOBER 1988<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">

J. D. HAMMOND FOR THE PLAINTIFF.<o:p></o:p>

E. F. SHORT FOR THE DEFENDANTS.<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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF KPEGAH J.<o:p></o:p>I will
here be considering whether a defendant in a civil case can bring an
application in arrest of judgment.<o:p></o:p>This case
was originally fixed for hearing on 20 June 1988 to be taken from day to day up
to 22 June 1988 for completion. When the matter was called, learned counsel for
the defendants, Mr. E. F. Short, sought and was granted an adjournment to 19
July 1988. On the said adjourned date, neither learned counsel nor his client
were in court. The case was stood down in the hope that they would later turn
up in court. The case was later called a second time and they were still not in
court. I decided, therefore, to proceed with the case ex parte. The plaintiff
then led evidence in support of his claim. I adjourned to 22 July 1988 for
judgment. Mr. Short became aware of this and immediately filed a motion to
arrest judgment. Despite my certain misgivings about the application to me to
restrain myself from giving judgment, a legitimate function, I decided, on the
side of caution and a desire to learn, to hear the motion. As a result, I
suspended giving the judgment. I cannot say that my initial misgivings have
been cleared after taking argument, but rather deepened.<o:p></o:p><o:p>&nbsp;</o:p>In
arguing the motion, Mr Short tried to explain why he was not in court thereby
prompting the decision by the court to proceed ex parte. The type of
explanation offered by him, on the basis of facts deposed to in his affidavit
in support of the motion, are matters which should clearly be relevant when the
application is one to set aside a default-judgment.<o:p></o:p><o:p>&nbsp;</o:p>My
decision to proceed with the case in the absence of the defendants and learned
counsel was a discretion exercised under Order 36, r.16 of the High Court (
Civil Procedure) Rules, 1954 ( L.N. 140A) which provides:<o:p></o:p><o:p>&nbsp;</o:p>“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.”<o:p></o:p><o:p>&nbsp;</o:p>The power
of a court to proceed with the hearing of a case in the absence of the
defendant is coercive in character.<o:p></o:p>In the
cause of argument learned counsel was asked under what rules of court his
application was being brought. He said it was a prayer to the inherent
jurisdiction of the court. In other words, this court’s inherent jurisdiction
is being invoked for it to restrain itself from doing what it is permitted
under the rule to do, namely proceeding with the hearing, in the absence of the
defendant, of a case fixed for hearing and giving judgment thereafter. In the
case of Attoh Quarshie v. Okpote [1973] 1 G.L.R. 59, Hayfron-Benjamin J. (as he
then was) gave the scope of the inherent powers of the High Court, and the
circumstances under which these powers could be exercised. This is what he said
at 67 of the report:<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">“Tradition
has sanctioned three areas where the court generally invokes its inherent
powers. First, where the exercise of the powers is necessary for the
maintenance of the court’s dignity and independence; such powers include the
power to punish for contempt and enforce obedience to its mandates and
judgments and orders. Secondly where the powers are necessary to ensure the
control of its officers ... the power to hold its officers to a proper
accountability for any default or misfeasance in the execution of its process.
Thirdly powers to prevent wrong or injury being inflicted by its own acts or
orders or judgments including the p</main>