KOFI III vs. AKRASI II AND ANOTHER (NO 2) [1993]DLCA4908

Date	1993-12-23
Suit No.	[1992 – 1993] 3 G B R 1017 – 1021 C.A
Citation No.	[1993]DLCA4908

ESSIEM JA

ADJABENG JA

BROBBEY JA

JAMES AHENKORAH FOR THE APPLICANT.

ODURO FOR THE RESPONDENT.

[1993]DLCA4908
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													<main id="main" class="content" style="min-height: 60rem" >KOFI III<o:p></o:p>vs.<o:p></o:p>AKRASI II AND ANOTHER
(NO 2)<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">

[1992 – 1993] 3 G B R 1017 – 1021 C.A&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: 23 DECEMBER 1993<o:p></o:p>

ODURO
FOR THE 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">

</div>BROBBEY JA. <o:p></o:p>The
plaintiff instituted an action against the defendants in the High Court. The
plaintiff lost the action. He appealed against the judgment to the Court of
Appeal. The appeal was heard in this court and judgment entered in favour of
the plaintiff-appellant. The defendants-respondents applied to set aside that
judgment. Indeed, the judgment was set aside on 17 November 1993. Costs of
50,000 cedis were awarded to the defendants-respondents. The
plaintiff-appellant then applied to this court to have the costs set aside. In
this ruling, the plaintiff-appellant will be referred to as the applicant the
defendants-respondents will be referred to as the respondents.<o:p></o:p>The
main complaint of the applicant was that the judgment in his favour in this
court was set aside because the case was heard in the absence of the
respondents; they were not served with hearing notice, neither was a hearing
notice published in the Gazette. He argued that none of these defaults was
attributable to the applicant to have been mulcted in the costs of ¢50,000. He
prayed that the costs be set aside because, to quote from paragraph 10(ii) of
his supporting affidavit: “The award of costs of 50,000 cedis against me was
manifestly wrong, unjust, purposeless, baseless, illogical and unsupportable.”<o:p></o:p>The
law is now well settled that the award of costs is in the discretion of the
judge or court. See Afeke v Agble [1987-88] 2 GLR 572 and Eid v Eid [1979] GLR
290, CA. In those cases, it was also held that the discretion should be
exercised judicially, i.e. according to reason and justice and not sentiment
and sensibility: Guardian Assurance Co Ltd v Agbemasu [1972] 2 GLR 337, CA. The
award of costs would be interfered with only where it is shown that it was
illegitimate or violated some principle of substantive law: See Asibey III v
Ayisi [1973] 1 GLR 102.<o:p></o:p>The
facts which led to the award of costs were as follows: The respondents filed
their motion to set aside the judgment of this court on 29 July 1993. The
motion was fixed for hearing on 25 October 1993. The hearing date was later
altered to 15 November 1993. Mr James Ahenkorah who argued the instant
application to set aside the costs was personally served with a hearing notice
for that motion on 8 November 1993 at 11.40 a.m. In the affidavit supporting
the motion to set aside the judgment of this court, the respondents deposed
that:<o:p></o:p>“(i) The cause list of this court for
the week when the appeal was heard was not displayed on the notice board of the
circuit court in Akim Oda where the defendant was resident.<o:p></o:p>(ii) Searches or enquiries in the Akim
Oda Traditional Council office and the registry of this court revealed that
that cause list was not gazetted as required by LI 218 of 1962, rule 3.”<o:p></o:p>In
his affidavit in opposition filed on 22 October 1993, the applicant failed to
answer the specific question whether or not to his knowledge the hearing notice
was gazetted. Indeed, he was evasive, in paragraph 3 of that affidavit, as to
whether or not the cause list was even posted on the notice board of in Akim
Oda Circuit Court. He however conceded that the appeal was heard in the absence
of the respondents and their counsel.<o:p></o:p>The
law and practice are well settled now, that if the hearing notice were published
in the Gazette, that would constitute notice to the whole world. The applicant
could have verified whether or not the hearing notice was gazetted and this he
could have done long before the hearing of the respondents’ motion to set aside
the judgment was called. He took no such course of action. While that motion
was being argued, the respondents’ stand was categorically that the hearing
notice was not gazetted. Counsel for the applicant, Mr Ahenkorah, would make no
such concession. Instead, he insisted on the case being adjourned to enable the
parties to verify from the Appeal Court registry whether or not the hearing
notice was gazetted. In view of the stand taken by the respondents, their
counsel, Mr Oduro, refused to be a party to any search in the Court of Appeal
registry because he had already conducted a search. In the result, the
adjournment was granted at the exclusive request, and for the convenience, of
Mr Ahenkorah and his client. At the risk of repetition, that adjournment was
granted for them to enquire about a state of facts which should have been
verified and deposed to in the affidavit in opposition. Since the respondents
deposed that the hearing notice was not gazetted in their affidavit and the
applicant failed to react to the averment, the motion could have been granted
on the applicant’s failure to answer the point at issue. The adjournment was
granted by the court for the convenience of the applicant, to do what he should
have done earlier.<o:p></o:p>On
the next return date, Mr Ahenkorah did not appear in court. Mr Yeboah held his
brief. Mr Yeboah then informed the court that their researches at the registry
revealed that the hearing notice was not gazetted. The motion was at that point
granted for the simple reason that the applicant could not controvert the
averment that the hearing notice was not gazetted and that rendered improper
the hearing of the appeal in the absence of the respondents and their counsel.<o:p></o:p>When
this court considered the award of costs the operative matters taken into
account were obviously the following: <o:p></o:p>(1)
The applicant had one whole week to research on the factual issue whether the
hearing notice was gazetted. He failed to do that. The case was adjourned at
his instance for him to do what he should have done before coming to court. In
other words, the applicant was squarely to blame for the adjournment which was
occasioned on the first day the motion was called and could have been disposed
of if he had done what was required of him timeously. <o:p></o:p>(2)
The applicant knew very well that the respondents were resident in Akim Oda and
neither he nor his counsel co</main>