REPUBLIC vs. HIGH COURT, CAPE COAST; EX PARTE KORTE [1999]DLSC464

Date	1999-07-14
Suit No.
Citation No.	[1999]DLSC464

CHARLES HAYFRON-BENJAMIN JSC

AMPIAH JSC

ADJABENG JSC

ACQUAH JSC

ATUGUBA JSC

S K AMOAH FOR THE APPLICANT.

SOMUAH ASAMOAH FOR THE RESPONDENT.

[1999]DLSC464
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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, CAPE COAST; EX PARTE KORTE<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1999-2000] 1 GLR 397<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>S K AMOAH FOR THE 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">

SOMUAH ASAMOAH FOR THE
RESPONDENT. <o:p></o:p>

CHARLES HAYFRON-BENJAMIN,
AMPIAH, ADJABENG, ACQUAH AND ATUGUBA JJSC<o:p></o:p>

</div>JUDGMENT OF CHARLES HAYFRON BENJAMIN JSC.<o:p></o:p>I have had sight of the opinion of my learned and respected
brother Acquah JSC and I agree with him that the application be granted.
However, as I have a different approach to the conclusions, I have decided to
make my contribution since the matter concerns the practice and procedure of
the community tribunals vis-à-vis High Courts.<o:p></o:p>This is an application for an order of certiorari to issue to the
High court, Cape Coast to bring up to this court in order to have quashed the
ruling of that court dated 24 June 1998. The applicant states three grounds on
which he prays in aid the exercise of the supervisory jurisdiction to quash the
said ruling as:<o:p></o:p>(a) Breach of the rule of natural justice.<o:p></o:p>(b) Error of law on the face of the record.<o:p></o:p>(c) Lack of jurisdiction.<o:p></o:p>The basis of the application was that the applicant is the owner
and landlord of a block of stores No 328, Agona Swedru. On 17 October 1997 the
applicant caused a writ of summons to be issued against Benjamin Eshun, the
interested party (hereinafter referred to as the respondent) for arrears of
rent and ejectment from a store occupied by the respondent in the
above-numbered premises. It would appear that the writ of summons was filed in
the community tribunal because the same was placed on the “undefended list.” On
being served with the said writ of summons, the respondent went to the
community tribunal and paid the amount stated on the writ to the registrar,
presumably in satisfaction of the applicant’s claim. The respondent went to the
registrar before the “return date” and collected back the money he had
apparently paid in satisfaction of the applicant’s claim from the registrar. No
reason is given for the registrar’s conduct in paying the money back to the
respondent. On the “return date” the community tribunal upon the case coming on
gave judgment for the applicant and ordered the respondent to vacate the store
room on or before 5 June 1998.<o:p></o:p>The respondent promptly appealed and applied by motion for a stay
of execution pending the hearing of his appeal which had been filed in the High
Court, Cape Coast. That application was heard and dismissed on 12 June 1998. It
would appear once again that the application for stay of execution was filed
at, heard and dismissed by the Community Tribunal, Agona Swedru.<o:p></o:p>The respondent renewed his application for stay of execution; but
the application was filed in the High Court, Cape Coast. The applicant admits
he was served with this motion but that he could not attend court on the date
to which the application had been fixed. The applicant did not file an
affidavit in opposition. On that date, 24 June 1998, when the application came
up for hearing, the matter was stood down to enable the respondent to file a
supplementary affidavit. This supplementary affidavit was not served on the
applicant and the learned High Court judge proceeded to hear the motion which
was thereupon granted.<o:p></o:p>The applicant complains that he was not served with the
supplementary affidavit and was therefore denied the opportunity to react to
the contents of that affidavit before the motion was heard and granted. The
applicant further contends that the non-service of the supplementary affidavit
makes the ruling amenable to certiorari.<o:p></o:p>The respondent on his part submits that prior to the action in the
Community Tribunal, Agona Swedru in which judgment was delivered against him,
there were some legal skirmishes between the parties in the High Court, Accra
and a series of correspondences between their lawyers concerning the matter
whether the applicant had agreed to sell the store to him. In his statement of
case which largely covered the genesis of this litigation, the respondent
concluded by submitting, inter alia, that he was right in filing his appeal in
the High Court, Cape Coast rather than at Agona Swedru since both towns were in
the same region and the courts were equally vested with jurisdiction to
entertain his appeal. In his submission, in going to Cape Coast, he had merely
“elected” to approach a for</main>