AMUYAW vs. KODJO [1993]DLCA5038

Date	1993-07-08
Suit No.	[1992 – 1993] 4 G B R 1542 - 1545 C.A
Citation No.	[1993]DLCA5038

ESSIEM JA

ADJABENG JA

LUTTERODT JA

EKOW AWOONOR FOR THE APPELLANT.

PETER ADJETEY (WITH HIM WILLIAM ADDO) FOR THE RESPONDENT.

[1993]DLCA5038
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													<main id="main" class="content" style="min-height: 60rem" >AMUYAW<o:p></o:p>vs.<o:p></o:p>KODJO<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] 4 G B R 1542 - 1545
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; &nbsp; DATE: 8 JULY 1993<o:p></o:p>

PETER
ADJETEY (WITH HIM WILLIAM ADDO) 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">

ESSIEM
JA, ADJABENG JA, LUTTERODT JA<o:p></o:p>

</div>ESSIEM JA. <o:p></o:p>This
is an appeal from the ruling of Sampson J sitting at the High Court Accra by
which he set aside the judgment of Dove J in this case. I should mention at the
very beginning that at the time the application to set aside the judgment was
brought before the court, Dove J had retired from the judiciary.<o:p></o:p>It
was argued by the appellant that Sampson J had no jurisdiction to set aside the
judgment of Dove J because they had co-ordinate jurisdiction and that the way
open to the respondent was to have appealed. In sum this was the main point
canvassed by the appellant in this case while the respondent by his counsel
contended that Sampson J had jurisdiction to deal with the application since
Dove J had retired from the service at the time the application was made to the
court.<o:p></o:p>Before
dealing with the points raised in support of the appeal as well as the points
raised against it, I want to give the brief facts of the case. The writ in the
case was issued in the Cape Coast High Court and was sealed by the registrar of
that court on 15 July 1969. Summons for directions were taken before Wuaku J on
14 October 1982 and about ten issues were agreed upon for determination by the
court. It will serve no useful purpose to detail the many applications made to
the Cape Coast High Court. Suffice to say that eventually the case was called
before Dove J in the Cape Coast High Court. It was not completed when Dove J
was transferred to Accra. Upon application to the then Acting Chief Justice the
suit was transferred to Accra to be dealt with by Justice Dove. Thereafter certain
steps were taken in the case culminating in an order for substituted service of
the entry of appearance. The court notes before Dove J on 7 March 1991 read:<o:p></o:p>“By Court - Time is extended to 5
March 1991 when appearance was entered. Adjourned to 13, 14 and 15 March 1991
for hearing. Hearing notice to be served on the plaintiff”.<o:p></o:p>It
is significant to observe that the appearance by the defendant was served on
the plaintiff by substituted service upon an order of the High Court, Accra
made on 13 March 1991. That order was made because it was not possible to
effect personal service on the plaintiff. The result was that the defendant on
25 March 1991 at 1.10 pm filed a motion on notice “for an order of the court to
dismiss plaintiff's action or close the plaintiff’s case for the defendant to
prove his counterclaim.” The application was brought under Order 30 r 7, which
reads:<o:p></o:p>“Where an order has been made for the
transfer of proceedings from any Court to the Supreme Court, the following
provisions shall apply:<o:p></o:p>(8) If the plaintiff fails to take out
a summons for directions or to apply for summary judgment within the time
limited by paragraph (6) of this Rule, the defendant shall be at liberty to
apply for an order to dismiss the action and upon such application the Court or
a Judge may either dismiss the action upon such terms as may be just or may
deal with such application in all respects as if it were a summons for
directions under this Rule.”<o:p></o:p>After
submission by counsel, the judge ruled as follows:<o:p></o:p>“By Court: The plaintiff's conduct
shows that he is no longer interested in prosecuting his case and I hereby
declare it closed. The defendant is at liberty to prove his counterclaim.”<o:p></o:p>Thereafter
the defendant gave evidence and in due course, the judge gave judgment
upholding his counterclaim. It was after this judgment that the defendant
successfully applied to the High Court to set aside the said judgment. Hence
this appeal.<o:p></o:p>Several
issues were raised in support of the appeal and equally a number of reasons
were advanced against the appeal. Reading through the various submissions the
central issue to me is whether or not Sampson J had jurisdiction to set aside
the decision of Dove J in this case. There is no denial of the fact that at the
time the judgment of Dove J was set aside the said judge was no more in the
service; he had retired. In such a situation it is my view that since the
jurisdiction to set aside a judgment is given to the court, another judge of
the court can, if there is need for it, set aside the judgment concerned.<o:p></o:p>Since
the jurisdiction to set aside a judgment is not limited to the judge who
pronounced it but vested in the court as well, the High Court, differently
constituted, had jurisdiction to set aside the judgment of Dove J. Order 36
rule 18 of the High Court rules is in my view quite clear on this.<o:p></o:p>Learned
counsel for the appellant had argued before us that the proper course open to the
respondent was to appeal to the Court of Appeal and not to go to the court
below to set aside the judgment. He relies on Omaboe v Kwame [1978] 1 GLR 122.
My reading of that judgment does not lead me to that conclusion or to the
conclusion that in the absence of the judge who pronounced the judgment another
judge of the same court cannot set aside the judgment concerned if there is
reason to do so. In any case in the case of Omaboe v Kwame the appellant was in
court but declined to take part in the proceedings in the absence of his
counsel. It is distinguishable from this case in which the respondent was
absent.<o:p></o:p>It
is relevant to repeat that the court below exercised its discretion. It has not
been demonstrated to this court that the court below did not exercise its
discretion judicially. It is only then that this court can justifiably
interfere with the exercise of such discretion.<o:p></o:p>