MENSAH AND OTHERS vs. MENSAH AND OTHERS [1993]DLCA5044

Date	1993-02-10
Suit No.	[1992 – 93] 4 G B R 1432 - 1439 CA
Citation No.	[1993]DLCA5044

AMPIAH JA

AMUAH JA

BROBBEY JA

[1993]DLCA5044
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													<main id="main" class="content" style="min-height: 60rem" >MENSAH AND OTHERS<o:p></o:p>vs.<o:p></o:p>MENSAH 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;
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[1992
– 93] 4 G B R 1432 - 1439 CA&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 FEBRUARY 1993<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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AMPIAH
JA, AMUAH JA, BROBBEY JA<o:p></o:p>

</div>BROBBEY
JA. <o:p></o:p>A writ was issued in the
High Court. While the trial was in progress, counsel for the plaintiffs
absented himself twice; these were on 10 and 16 October 1992. On 14 October
1992, the trial judge awarded costs of ¢6,000 against each of the five
plaintiffs for bringing the proceedings to an end on 10 October 1992. On 16
October 1992, she awarded ¢120,000 against the plaintiffs for the same reason.
Against those two orders on costs, counsel for the plaintiffs filed the appeal
to this court.<o:p></o:p>The circumstances
surrounding the first award of costs were these: The trial was in progress in
court on 10 October 1992 when one of the plaintiffs announced that his lawyer
was absent and therefore he would not proceed with the trial. The judge then
ruled that the plaintiffs’ case was deemed to have been closed. On 14 October
1992, which was the adjourned date, counsel for the plaintiffs applied for the
case to be re-opened for the plaintiffs to continue their testimonies. Counsel
explained that his absence at the previous sitting was due to the fact that he
had to appear in the circuit court to take an adjournment in his personal case.
It was at that stage that the trial judge ordered each plaintiff to pay costs
of ¢6,000. As a condition for allowing the plaintiffs’ case to be re-opened,
the judge ordered that the cost should be paid before the resumption of trial.
The judge gave as her reason for the award of costs the fact that it was no
good ground for adjourning a case merely because counsel in the case had to
appear before another court. She alluded to the history of the case as a reason
for not entertaining the adjournment. On the second occasion of his absence
from court, counsel explained that he fell sick and instructed his client to
inform the court. There was no evidence that the clients so informed the court.<o:p></o:p>Arguing the appeal in this
court, counsel for the plaintiff referred to the reasons of the trial judge and
submitted that the courts of this country were established by the same statutes
and performed equally important functions and therefore no court should
denigrate the status and work of the other.<o:p></o:p>In the first place, it was
a grossly erroneous interpretation to place on the reasons assigned by the
trial judge. She never held that the circuit court or its work was not important.
It is a statement too elementary to require argument that every court is
important, otherwise it would not have been set up.<o:p></o:p>In the court below and in
this court, counsel for the appellants alluded to the exigencies at the bar and
the court registry as reasons why allowance should be made for counsel to
appear in other courts. That is a mistaken view. That more than one case may be
fixed simultaneously in different courts cannot be ruled out. But the
probability of that happening is one of the reasons why at the bar lawyers
ought to work in a team, in a set of chambers or with juniors. These are the
exigencies of the bar. If a lawyer decides to embark on sole practice and is
confronted with the situation of having to appear in two different courts at a
time, he has himself to blame. That mode of practice is not an arrangement
which will inure to his advantage in such a situation. It will always be to his
disadvantage. It was therefore wrong for counsel to have invoked the exigencies
at the bar as an excuse for his self-made dilemma of having to appear in two
courts simultaneously.<o:p></o:p>On the other hand, there
is a hierarchy of courts. The Courts Act 1972 (Act 372) divides the courts in
the country into two categories, namely, the Superior Courts of Judicature and
the inferior courts. Even under the 1992 Constitution, the same division is
retained in article 126(1) save that the term “inferior” has now been dropped
in preference to the word “lower.” The courts constituting the Superior Courts
are senior to the inferior or lower courts.<o:p></o:p>The problem sometimes
arises as to which court to attend where a lawyer has more than one case fixed
in two different courts simultaneously. It was a similar problem which gave
rise to the costs in the instant appeal. The problem is by no means uncommon.
It is therefore desirable that the principles to be applied in resolving the
problem be set straight once and for all. They are these:<o:p></o:p>Firstly there is no rule
of law or practice in our courts to the effect that when a case is called in
one court, it has to be adjourned when it is learned that counsel is appearing
before another court. This is the position whether the case is called in a
lower court while counsel appears in the highest court. No court is to
subordinate its work to another court and to make allowance for counsel’s
appearance in another court, unless it is so agreed upon in advance by the
parties or their counsel and the courts concerned.<o:p></o:p>Secondly, it is not the
mark of administrative efficiency for a lawyer to organise his affairs in such
a way that he will be required to appear in more than one court at the same
time. When that happens, the proper course of action would be to communicate
with one of the courts and opposing counsel or parties likely to be in court so
that matters would be arranged between the parties or their counsel and the
court.<o:p></o:p>Thirdly, if for nothing,
courtesy demands that a lawyer who knows that he will be absent at a sitting
should inform the opposing counsel or party and the court. Courtesy apart,
common sense should dictate whether it is prudent for a lawyer faced with
having to appear in a lower and superior court simultaneously to opt for the
lower court and expect the superior court to await his arrival from the lower
court. To suggest that preference should be given to the superior court is not
to say that the lower court is unimportant. But that suggestion accords with
sheer common sense.<o:p></o:p>It is an aberration of the
sense of priority for a lawyer faced with such a situation to appear in the
lower court. For this reason, if the trial judge refused to accept appearance
in another court or a lower court as a valid excuse and proceeded to award
costs, that decision cannot be faulted.<o:p></o:p>In any case, the record of
proceedings before us does not indicate that when the case was called on 10
October 1992 the trial judge was informed that the plaintiffs’ counsel had gone
to another court, be it superior or inferior. The record merely shows that a
plaintiff refused to continue his testimony because his counsel was absent. In
those circumstances, when the plaintiff would not testify because of the
absence of his counsel and there being no news of the whereabouts of his
counsel, the trial judge was perfectly within her rights to have ordered the
plaintiffs’ case closed for the trial to proceed.<o:p></o:p>The rules on award of
costs are contained in Order 65 of the High Court (Civil Procedure) Rules 1954
(LN 140A). That Order deals, in the main, with costs awarded at the conclusion
of the trial or proceedings. Where costs are awarded in the course of the
trial, the proper rules applicable are rules 16, 17 and 19 of Order 36 an</main>