JERIGOJI V. ISSAH [1989]DLHC610

Date	1989-08-05
Suit No.
Citation No.	[1989]DLHC610

BENIN J.

KORBIEH FOR THE DEFENDANT-APPLICANT.

M. MUMUNI FOR THE PLAINTIFF-RESPONDENT.

[1989]DLHC610
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													<main id="main" class="content" style="min-height: 60rem" >JERIGOJI <o:p></o:p>V. <o:p></o:p>ISSAH<o:p></o:p>[HIGH COURT, TAMALE] <o:p></o:p>[1989-90] 2 GLR 501<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:
5
AUGUST 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">

KORBIEH FOR THE DEFENDANT-APPLICANT.<o:p></o:p>

M. MUMUNI 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;
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BENIN J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF BENIN J.<o:p></o:p>The
plaintiff-judgment creditor-respondent (hereinafter called the plaintiff) took
an action on 23 August 1984 against the defendant-judgment debtor-applicant
(hereinafter called the defendant) claiming the following reliefs:<o:p></o:p>“(i)
restitution of a herd of 30 cattle or the recovery of ¢600,000 for the
conversion of same; <o:p></o:p>(ii) in
the alternative the enforcement of an arbitration award made by the Nayiri in
or about December 1983 in which it was declared that the plaintiff be entitled
to recover from the defendant a herd of 30 cattle; and <o:p></o:p>(iii)
damages for malicious prosecution.”<o:p></o:p><o:p>&nbsp;</o:p>The writ
and the accompanying statement of claim were served on the defendant personally
on 29 October 1984 per the address provided on the writ by the plaintiff. That
same day the defendant entered an appearance per his solicitor, and later filed
a statement of defence in which he completely denied and rejected the
plaintiff’s claims. Issues were then joined at the summons for directions and
the case was set down for trial on a number of occasions. Eventually when the
case was called for hearing on 25 March 1985 the plaintiff’s counsel was absent
from court, and, going by the court notes for that day, the plaintiff explained
that he did not know when his counsel would be present. Consequently, the court
adjourned the matter sine die. Then on 16 April 1985 counsel for the plaintiff
addressed the following letter to the registrar, and copied to counsel for the
defendant:<o:p></o:p>“Application
To Fix a Hearing Date I have been in touch with G. K. Mensa-Etsi, Esq, who is
counsel for the defendant in the above instituted suit and we are agreeable to
the case being listed for hearing on 11 June 1985. I should therefore be
grateful if you would cause the case to be listed for hearing on the said
date.”<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>The
judge’s minutes on this letter dated 17 April 1985 directed the registrar to
notify both solicitors, namely Messrs Mumuni and Mensa-Etsi for hearing on 11
June 1985. Accordingly, on 23 April 1985 a hearing notice was served on Mr.
Mumuni, counsel for the plaintiff, as well as on the clerk of Mr. Mensa-Etsi,
counsel for the defendant. The hearing notice was prepared and directed to only
the two solicitors. When the case came up for hearing on 11 June 1985 neither
the defendant nor his counsel turned up. The court heard evidence from the
plaintiff and entered judgment for him instantly. The defendant was
subsequently served with notice of an entry of judgment on 21 June 1985. The
plaintiff went into part execution recovering part of the cattle. There was
continuing execution and in this process an attempt to go into further
execution on the judgment was resisted by the defendant. This led to
proceedings for attachment for contempt being instituted by the plaintiff
against the defendant and one other person. The defendant was arrested on a
bench warrant, and when he was brought before the court he explained verbally
that he was completely surprised by the execution levied against him because he
was not made aware of the hearing of this case. It was then that it was brought
to my notice that the defendant’s solicitor had since 1985 left the
jurisdiction altogether, but without withdrawing his representation for the
defendant. It became clear from the verbal exchanges in court that the
defendant, who appears a total illiterate, did not understand or appreciate all
that was going on notwithstanding all the effort put in by the court to explain
matters to him. The court therefore advised him to engage counsel if he could
afford it and he agreed. By the next adjourned date instead of the contempt
proceedings being replied to, the defendant’s new solicitor filed two motions,
one to set aside a void judgment and the other to stay execution. It was
decided that since the entire judgment on which the attachment for contempt
proceedings had been instituted was being challenged as a nullity, in the
interest of justice and fairplay this motion to set aside the judgment should
be disposed of, to begin with.<o:p></o:p><o:p>&nbsp;</o:p>