APONSAH vs. OKAILEY AND OTHERS [1992]DLCA4228

Date	1992-12-10
Suit No.
Citation No.	[1992]DLCA4228

LAMPTEY JA

OFORI-BOATENG JA

ADJABENG JA

BEN ANNAN FOR THE APPELLANT.

PETER ADJETEY (WITH HIM W ADDO) FOR THE 1ST RESPONDENT.

[1992]DLCA4228
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													<main id="main" class="content" style="min-height: 60rem" >APONSAH<o:p></o:p>vs.<o:p></o:p>OKAILEY AND OTHERS<o:p></o:p>[COURT
OF APPEAL]<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">

[1993 - 4] 1 GBR 86 - 90&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE:
10 DECEMBER 1992<o:p></o:p>

</div>COUNSEL:<o:p></o:p>BEN
ANNAN FOR THE APPELLANT.<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">

PETER
ADJETEY (WITH HIM W ADDO) FOR THE 1ST 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 1.0pt 0in">

LAMPTEY
JA, OFORI-BOATENG JA, ADJABENG JA<o:p></o:p>

</div>LAMPTEY
JA. David Nii Aponsah, a legal practitioner, (hereinafter referred to as the
appellant) took action on 30 January 1984 against Elizabeth Okailey and 2
others and claimed the reliefs set out in the writ of summons. The matters that
led to the action were, briefly, that the National Defence Committee (NDC) made
an order ejecting the appellant from premises which he occupied as a tenant of
Elizabeth Okailey. The gravamen of the complaint made by the appellant was that
the NDC had no jurisdiction to make that order. The court was invited to set
aside that order. After summons for directions had been taken the hearing on
the merits was adjourned from time to time until it was definitely fixed for
hearing on 2 May 1989, that is to say, some five years after the writ of
summons was sealed. On that date, the appellant did not attend court in person.
Elizabeth Okailey was in court with her counsel, S M Asante. The court notes
for that day read in part as follows:<o:p></o:p>“By Court: There is a letter from the
plaintiff saying that he is in a part-heard before Armah J and therefore wants
an adjournment to 28th November 1989 for mention.”<o:p></o:p>The
reaction of the trial judge to the application for an adjournment was expressed
by him as follows:<o:p></o:p>“This case was adjourned to today for
hearing. Parties were served with hearing notices as far back as 24th April
1989 to appear in court today. If the plaintiff is anxious for this case to be
heard he should have taken alternative steps to be represented, he being the
plaintiff. The application for adjournment by the plaintiff to 28th November
1989 is not seen by the court to be genuine or serious.”<o:p></o:p>It
was clear that the hearing of the case on 2 May 1989 had been frustrated by the
non-appearance in court of the appellant. The judge adjourned the hearing to
the following day, 3 May 1989. In the meantime the appellant was ordered to pay
¢1,000 costs to Elizabeth Okailey.<o:p></o:p>On
the following day, 3 May 1989 when the case was called the appellant was again
not in court. He was not represented by counsel. He had not written to the
court to explain his absence. Elizabeth Okailey was present in court with her
counsel, P A Adjetey and S M Asante. Mr Adjetey therefore applied to the court that
the action of the appellant be dismissed. He gave reasons to support his
application. The trial judge acceded to the invitation and accordingly
dismissed the action of the appellant. He again awarded ¢50,000 costs against
the appellant. The appellant was aggrieved by the dismissal of his action and
applied to the court “for an order vacating the judgment given by Wuaku J on 3
May 1989 striking out plaintiff’s case for want of prosecution”. In support of
this application, the appellant annexed an affidavit which ran into 15
paragraphs. The application was heard on the merits and was dismissed. In his
ruling dated 28 July 1989 dismissing the application the learned judge observed
as follows:<o:p></o:p>“I think the plaintiff’s failure to
attend court was a ploy to delay the hearing of the case as long as possible.
The courts exist to do justice to all and sundry. I have not been persuaded
that discretion in dismissing the plaintiff’s suit was not properly exercised.”<o:p></o:p>The
appellant was aggrieved by the ruling of the court and appealed to this court.<o:p></o:p>The
first ground of appeal argued by learned counsel for the appellant was that the
judgment was not supported by the facts in evidence before the court. He
contended that the reasons given by the appellant for his absence in court were
“good enough”. He disagreed with the view of the trial judge that the failure
of appellant to be present in court on the adjourned date was a ploy to delay
the hearing of the case on the merits. In reply, learned counsel for respondent
pointed out that the appellant was a legal practitioner who was deemed to be
familiar and conversant with the rules of court. He stated that the request for
adjournment was contained in a letter addressed to the court. The letter gave
the reason for the request for the adjournment. He stated that the judge
considered the reason and granted the adjournment. On the adjourned date the
appellant failed to turn up. In those circumstances, he submitted, the judge
was right in dismissing the action of the appellant.<o:p></o:p>It
seems to me that the issue before the lower court was a fairly simple one. The
issue was whether or not the court should vacate its order dismissing the
appellant’s action and to re-list it for hearing on the merits in the light of
the affidavits before the court. The trial judge gave due consideration to all
the evidence and refused to vacate his earlier order. Before us, it had been
argued that the affidavit evidence sufficiently explained the absence of the
appellant from court to have persuaded the trial judge to grant the
application. To be able to appreciate the position in which the trial judge
found himself on the material date, that is on the 3rd May 1989 when he
dismissed the action of the appellant, the information placed before him, is in
my view, the only relevant material that should guide and influence him. What
was the information which the appellant had communicated to the court to
explain his absence; first on the 2 May 1989 and secondly, on the adjourned
date, 3 May 1989?<o:p></o:p>On
the 2 May 1989 when the case was called the reason given to explain the absence
of the appellant was that “the appellant was appearing as counsel in two
part-heard cases before Armah J”. In that letter, the appellant suggested to
the trial judge that the case in which he was plaintiff be adjourned to 28
November 1989 for mention. The appellant did not state any other reason for
this request for long adjournment. Again the request was that on the adjourned
date, 28 November 1989 the case should be mentioned, meaning that actual
hearing on the merits be further adjourned on that date. In all the
circumstances the trial judge adjourned hearing to 3 May 1989. In the opinion
of the learned trial judge the request for the long adjournment was some
evidence that “the appellant was not serious and anxious to prosecute his
claim”. It seems to me that this observation of the learned trial judge was
sufficient to provoke and stir up the appellant to rea</main>