THE NATIONAL DEMOCRATIC CONGRESS vs. THE ATTORNEY-GENERAL [2001]DLSC2372

Date	2001-07-11
Suit No.	WRIT NO. 9/2001
Citation No.	[2001]DLSC2372

E. K. WIREDU AG. C.J.

MRS. J. BAMFORD-ADDO J.S.C

ADJABENG J.S.C.

ACQUAH J.S.C

MS. AKUFFO J.S.C

LAMPTEY J.S.C.

ADZOE J.S.C.

NANA AKUFO ADDO ATTORNEY GENERAL WITH MISS GLORIA AKUFO

DEPUTY ATTORNEY GENERAL AND MRS. QUANSAH CHIEF STATE ATTORNEY FOR DEFENDANT.

MR. KWAKU BAAH FOR PLAINTIFF.

[2001]DLSC2372
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													<main id="main" class="content" style="min-height: 60rem" >THE NATIONAL DEMOCRATIC CONGRESS<o:p></o:p>vs.<o:p></o:p>THE ATTORNEY-GENERAL<o:p></o:p>[SUPREME
COURT]<o:p></o:p>WRIT
NO. 9/2001<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">

DATE:
11th July 2001<o:p></o:p>

</div>COUNSEL<o:p></o:p>NANA
AKUFO ADDO, ATTORNEY GENERAL WITH MISS GLORIA AKUFO, DEPUTY ATTORNEY GENERAL
AND MRS. QUANSAH, CHIEF STATE ATTORNEY FOR DEFENDANT.<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">

MR. KWAKU BAAH FOR PLAINTIFF.<o:p></o:p>

</div>CORAM:&nbsp; <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">

E.
K. WIREDU, AG. C.J., MRS. J. BAMFORD-ADDO, J.S.C., ADJABENG, J.S.C., ACQUAH,
J.S.C., MS. AKUFFO, J.S.C., LAMPTEY, J.S.C., ADZOE, J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>SOPHIA
A.B. AKUFFO, J.S.C.:<o:p></o:p>By
its writ herein, issued on April 04, 2001, the Plaintiff sought, inter alia,
the following reliefs:<o:p></o:p>"1. A declaration that the former
President of the Republic, Flt. Lt. Jerry John Rawlings is entitled to all the
facilities available to him as President and such facilities including his
military security detail shall not be varied to his disadvantage during his
lifetime.<o:p></o:p>"2. An order directed at the
Defendant that no such variation in the facilities available to him as
President shall be varied without his consent during his lifetime.<o:p></o:p>"3. An injunction restraining the
Defendant and the government it represents, their agents...from varying the
facilities available to the said President Jerry John Rawlings during his
lifetime as prescribed by the Constitution''.<o:p></o:p>Subsequent
to the issuing of this writ, the Plaintiff, on May 25th 2001, filed a motion
for an order holding the Defendant in contempt of this Court. However, on June
12th 2001, when the motion came on for a hearing, Counsel for the Plaintiff
orally sought leave to withdraw its application, which leave was granted. The
Court, however, gave the following orders and directions with regards to the
prosecution of the substantive case:<o:p></o:p>1. The Memorandum of Issues must be
submitted on or before June 19th 2001.<o:p></o:p>2. The Plaintiff must file its legal
submissions within 7 days from June 19th 2001.<o:p></o:p>3. The Defendant must file its legal
submissions within 7 days upon the&nbsp;
service of the Plaintiff's legal submissions.<o:p></o:p>4. Judgment is to be delivered by the
court on July 11th 2001.<o:p></o:p>These
orders were made pursuant to the Court's powers under Rules 50, 51 and 53(1) of
the Supreme Court Rules, 1996 (CI. 16), in order to assure an expeditious
disposal of the matter. Consequently, the Plaintiff should have filed its legal
submissions on July 26th 2001, at the latest. As at the latter date, (and
indeed as at the date hereof) no Memorandum of Issues had been filed by the
parties, whether jointly or severally. The Plaintiff had also failed to file
any legal submissions to which the Defendant might respond and has not sought
or obtained from the Court any extension of the stipulated timelines. Both
parties have, therefore, failed to comply with the said orders and directions
of the Court. However, the more serious non-compliance lies with the Plaintiff
which, after all, is the one invoking the original jurisdiction of the Court
and upon whom the onus, therefore, lies, if it is still interested in the
prosecution of its suit, to take the requisite steps, as ordered and directed,
to assure the continuation of the proceedings. Thus, even assuming it has not
been possible for the parties to agree to the issues, it was incumbent upon the
Plaintiff to file its own memorandum. Moreover, without the legal submissions
of the Plaintiff, there will be no point in the Defendant filing any, since it
would only be second guessing the Plaintiff on the legal bases of its claim.<o:p></o:p>In
Rule 79 of the rules of this Court, C.I. 16, it is provided as follows:<o:p></o:p>"Where a party to any proceedings
before the Court fails to comply with any provision of these Rules or with the
terms of any order or direction given or with any rule of practice or procedure
directed or given by the Court, the failure shall be a bar to further
prosecution of proceedings unless the Court considers that the non-compliance should
be waived." <o:p></o:p>(Our
emphases)<o:p></o:p>The
terms of the main part of this Rule are patent enough not to require any
further elaboration. In the context of this case, this Court, on June 12th
2001, gave certain orders and directions, non of which have been complied with.
This failure constitutes a bar to any further prosecution of the case, unless
we choose to exercise our discretion to waive the non-compliance. The question,
therefore, is whether there are any credible justifications to back our
exercising any discretion in the matter, bearing in mind that discretion
conferred by statute must be exercised judiciously, and judicially i.e., it
must be based on sound reasons and justifications. In the case of the Republic
v. High Court, Kumasi; Ex Parte Atumfuwa et al., [2000] SC GLR 72, this Court
had this to say regarding the nature of our discretion under Rule 79:<o:p></o:p>"... in each case of
non-compliance of whatever degree and nature, the decision to waive or not
would lie with the court. And since </main>