KODJO vs. AMUYAW [1993]DLCA756

Date	1993-07-08
Suit No.
Citation No.	[1993]DLCA756

ESSIEM ADJABENG JA

LUTTERODT JA

EKOW AWOONOR FOR THE DEFENDANT-APPELLANT.

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

[1993]DLCA756
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">KODJO<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">AMUYAW<o:p></o:p>[COURT OF APPEAL. ACCRA]<o:p></o:p>[1993-94] 1 GLR 15<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>COUNSEL:<o:p></o:p>EKOW AWOONOR FOR THE DEFENDANT-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 WILLIAM ADDO) FOR THE
PLAINTIFF-RESPONDENT. <o:p></o:p>

ESSIEM ADJABENG AND LUTTERODT JJA<o:p></o:p>

</div>JUDGMENT OF 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 both had equal 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 brief facts of the case.
The writ in the case was issued in the High Court, Cape Coast and it was sealed
by the registrar of that court on 15 July 1969. The summons for directions was
taken before Wuaku J (as he then was) 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 High Court, Cape Coast.
Suffice it to say that eventually the case was called before Dove J in the High
Court, Cape Coast. It was not completed when Dove J was transferred to Accra.
Upon an application made to the then Acting Chief Justice the suit was
transferred to Accra to be dealt with “according to law by Mr Justice Dove.”<o:p></o:p>Thereafter certain steps were taken in the case culminating in an
order for substituted service of the appearance to be entered in the
transferred suit. The court notes before Dove J on 7 March 1991 reads: “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 defendant
applied to the court for it because it was not possible to effect personal service
on the plaintiff. The end result of it all 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
the plaintiff’s action or close the case for the plaintiff for the defendant to
prove his counterclaim.”<o:p></o:p>The application was brought under Order 30, r 7 (8) of the High
Court (Civil Procedure) Rules, 1954 (LN 140A) which reads:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“7. 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><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(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>(The emphasis is mine.)<o:p></o:p>After submissions by counsel, the judge ruled as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“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</main>