PHC MOTORS (PLAINTIFFS/RESPONDENTS) vs. PILLBOX CHEMIST & MS. SEDINA TAMAKLOE (DEFENDANTS/APPELLANTS) [2003]DLCA7465

PHC MOTORS (PLAINTIFFS/RESPONDENTS) vs. PILLBOX CHEMIST & MS. SEDINA TAMAKLOE (D... [2003]DLCA7465

Date	2003-12-18
Suit No.	CIVIL MOTION NO. 288/2003
Citation No.	[2003]DLCA7465

ARYEETEY J. A. (PRESIDING)

ASARE-KORANG J.A.

PIESARE J.A

YONNY KULENDI FOR APPLICANTS

JOHN KLU FOR THE RESPONDENTS

[2003]DLCA7465
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													<main id="main" class="content" style="min-height: 60rem" >PHC MOTORS<o:p></o:p>(PLAINTIFFS/RESPONDENTS)<o:p></o:p>vs.<o:p></o:p>PILLBOX CHEMIST &amp; MS. SEDINA TAMAKLOE<o:p></o:p>(DEFENDANTS/APPELLANTS)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>CIVIL
MOTION NO. 288/2003 &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; &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: 18TH DECEMBER, 2003<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;line-height:
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solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">COUNSEL: <o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;line-height:
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KULENDI FOR APPLICANTS <o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;line-height:
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KLU FOR THE RESPONDENTS<o:p></o:p>

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border-bottom:1.5pt solid windowtext;mso-border-bottom-alt:1.5pt solid windowtext">CORAM:&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; &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; ARYEETEY J. A. (PRESIDING), ASARE-KORANG
J.A., PIESARE J.A<o:p></o:p>

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
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mso-padding-between:1.0pt;padding-top:1.0pt;mso-padding-top-alt:0cm">JUDGMENT<o:p></o:p>

</div>ARYEETEY,
J. A.<o:p></o:p>&nbsp;A brief background to this application for
stay of proceedings pending appeal is as follows: On 12th June, 2002 the
plaintiffs/respondents issued a Writ of Summons in the circuit court, Accra for
a liquidated sum of ¢10,295,000.00. At the time of the issue of the Writ of
Summons the jurisdiction of the Circuit Court was limited by section 41(1) (a)
(i) of Courts Act, 1963, (Act 459) to ¢10,000,000.00. On 30th April 2003 while
hearing of the case was still pending the defendants/applicants filed an application
before the circuit court to strike out the suit for want of jurisdiction. The
Circuit court dismissed the application and ruled that it had jurisdiction to
entertain the action on the basis that by their pleading and their conduct the
defendants/applicants had agreed that the circuit court should assume
jurisdiction as required by section 41(3) of Courts Act, 1993 (Act 459). That
subsection reads: “Where the amount claimed or the value of any land or
property exceeds the amount or value specified in subsection (1) of this
section the Circuit Court shall, not withstanding that section, proceed to hear
the case if the parties agree it should do so”. Also, the circuit court’s other
reason for assuming jurisdiction in the matter was that at the time the plaintiff’s
witness testified in court on 1st April 2003 its jurisdiction had been enhanced
from ¢10,000,000 to ¢100,000,000. The applicant appealed against the ruling of
the circuit court and applied to this court for stay of proceedings in respect
of the substantive suit before that court. The application is brought under
rule 27A of Court of Appeal Rules, 1977 (C.I. 19) as amended by Court of Appeal
(Amendment) Rules, 1998 (C.I. 21) (l) which reads: “The Court may in any interlocutory appeal, civil or criminal before
it, grant stay of proceedings pending the determination of the interlocutory
appeal subject to such terms as the Court considers fit.” <o:p></o:p>As
pointed out by the submission of learned counsel for the applicants, at the
time the writ was issued, in terms of section 41 (1) (a) (i) of the Court’s
Act, the circuit court had no jurisdiction to hear the case since the amount
claimed by the respondents exceeded the jurisdiction of the circuit court and
the applicants did not agree to the hearing of the case by that court as
required by section 41(3) of Act 459. The two main reasons which the circuit
court gave for its ruling dismissing the motion to strike out the writ for want
of jurisdiction before it appear at page 2 of its ruling, exhibit ST as
follows:<o:p></o:p>&nbsp;“It is a cardinal rule of pleadings that a
party is bound by his pleadings. He cannot plead one set of facts and at the
trial base his case on different facts. Every allegation of facts in any
pleadings, which a party does not admit, must be denied expressly or by
necessary implication. A failure to deny will be deemed to be an admission
except against a person with a disability. Section 41(3) of Act 459 does not
provide that the parties should expressly in writing or by oral submission
confer jurisdiction, so I had that the defendants agreed by conduct and by
implication of law to confer jurisdiction on this court. Nothing had been a
nullity up to this stage.<o:p></o:p>&nbsp;I also rule that on the 1st of April, 2003,
when the plaintiff gave his evidence-in-chief, and counsel for the defendants
cross-examined him, this court’s jurisdiction has been enhanced by Act 620, to
¢100 million.” <o:p></o:p>Counsel
for the applicants referred the court to the Supreme Court case of Ababio II
and Another v. Akro &amp; Co., and others, [1963] 1 G.L.R. 195. In that case,
after Mr. Pullen had retired as Court of the Reserve Settlement Commissioner in
the course of an enquiry, Mr. P. M. Riley was appointed to continue with the
enquiry. Even though the law permitted continuation of the enquiry from where
the previous Commissioner left off provided that the parties gave their
consent, Mr. Riley did not wait for their consent but assumed that they had
given their consent for him to continue with the enquiry and this was what the
Supreme Court had to say at page 199 of the report per Ollennu, J.S.C.:<o:p></o:p>&nbsp;“What is the legal effect of this? Since Mr.
Riley did not begin the enquiry, but was appointed under </main>