REPUBLIC vs. HIGH COURT, KOFORIDUA; EX PARTE OTU [1996]DLSC609

Date	1996-04-02
Suit No.
Citation No.	[1996]DLSC609

AMUA-SEKYI JSC

AIKINS JSC

CHARLES HAYFRON-BENJAMIN JSC

AMUAH JSC

AKUFFO JSC

AWERE AWUKU FOR THE PLAINTIFF-APPLICANT.

ANSA OTU FOR THE DEFENDANT-INTERESTED PARTY.

[1996]DLSC609
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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">REPUBLIC<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">HIGH COURT, KOFORIDUA; EX PARTE OTU<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1995-96] 1 GLR 177<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 2 APRIL
1996<o:p></o:p>

</div>COUNSEL:<o:p></o:p>AWERE AWUKU FOR THE PLAINTIFF-APPLICANT.<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">

ANSA OTU FOR THE
DEFENDANT-INTERESTED PARTY. <o:p></o:p>

AMUA-SEKYI, AIKINS, CHARLES HAYFRON-BENJAMIN,
AMUAH AND AKUFFO JJSC<o:p></o:p>

</div>JUDGMENT OF CHARLES HAYFRON-BENJAMIN JSC.<o:p></o:p>The applicant herein, Samuel Yaw Otu, was the plaintiff in a land
case which was commenced in the District Court Grade I, Nsawam in the Eastern
Region. It appears that the original defendant, Agnes Yaa Kwaafi was at all
times represented by Rev S Odei Asare who claimed first as an administrator and
subsequently as the defendant’s “lawful attorney.” Rev Odei Asare by his sworn
affidavit in opposition to the present application averred that he was the son
of the defendant, his mother, who died in the course of the hearing of the suit
in the district court and that he had thereafter applied to be substituted for
the mother. By his affidavit the court had so substituted him for his late
mother. He was therefore the interested party.<o:p></o:p>Judgment in the case was delivered in favour of the present
applicant on 18 January 1994. On 25 January 1994 the defendant appealed from
that decision to the High Court, Koforidua. Having fulfilled the conditions of
appeal, he received a certified true copy of the record of proceedings. The
interested party—then the defendant-appellant perused the record and “detected
that a number of things had been wrongly attributed to [me] in my evidence and
which had been used against [me] in the judgment, which to the best of [my]
knowledge and recollection, [I] did not say.” The interested party by a series
of affidavits and the clever use of the court’s processes managed to bring his
objections to the supposed errors and omissions in the record to the notice of
the High Court judge, Koforidua.<o:p></o:p>It appears that subsequently when the appeal was called in the
High Court, Koforidua, the learned judge’s attention was drawn to the absence
of the case docket from the material before him. In the words of the interested
party, the case docket is “the recorded lower court proceedings which should
have accompanied the certified true copy and the exhibits.” The court was
informed that the case docket had not been transmitted to the High Court,
Koforidua along with the certified true copy of the record. The interested
party put his reaction to the absence of the case docket and the revelation by
the applicant of certain exhibits tersely when in paragraph (11) of his
affidavit of 17 November 1995 he swore that:<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">&nbsp;“(11) . . . my counsel
formally challenged the reliability of the ‘certified true copy’ on the basis
of the said exhibits A, B, C and D attached to the applicant’s application in
court and requested that the recorded proceedings at the court below be
produced for verification and asked the court to order a retrial on the grounds
that I could not prosecute the appeal on the basis of the ‘certified true copy’
of the proceedings reliability of which was challenged.”<o:p></o:p>Upon this supplication, the learned High Court judge decided to
embark upon an inquiry to determine how the registrar of the court below
“compiled the record of proceedings and why he failed to bring the case docket
and its contents to the appellate court.” On 11 July 1995 after due inquiry,
the learned High Court judge gave what he termed judgment by the court.<o:p></o:p>The applicant takes issue on this “judgment” and prays:<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">“This honourable court for an order of certiorari to quash the
judgment the respondent delivered in civil appeal misc 4/95 entitled Otu v
Asare, High Court, Koforidua, 11 July 1995, unreported and to prohibit the
trial High Court judge from hearing the appeal. . .”<o:p></o:p>The applicant bases his prayer on four grounds which are:<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">“(i) The procedure adopted by the respondent in ordering the
appeal before him to be heard de novo is wrong in law and is not warranted by a
rule of procedure. <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">