CITY EXPRESS LTD. vs. MOHAMMED ABDULAI & ANOR [2004]DLCA6689

Date	2004-01-21
Suit No.	SUIT NO. CA 119/97
Citation No.	[2004]DLCA6689

TWUMASI (PRESIDING)

GBADEGBE JA.

PIESARE J.A.

[2004]DLCA6689
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													<main id="main" class="content" style="min-height: 60rem" >CITY EXPRESS LTD.<o:p></o:p>vs.<o:p></o:p>MOHAMMED ABDULAI &amp;
ANOR<o:p></o:p>[COURT
OF APPEAL. ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT NO. CA 119/97&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: 21ST JANUARY 2004<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENTS<o:p></o:p>

</div>GBADEGBE J.A. <o:p></o:p>read the following judgment of the
Court: <o:p></o:p>We
have carefully scrutinized the record of appeal in the matter herein and have
come to the view that the appeal succeeds for the following reasons. <o:p></o:p>In
the first place, the court is of the view that it was wrong for the learned
trial judge to have had the entire action determined by resort to legal
arguments. We are of the view that there were several issues which arose on the
pleadings as indeed is borne out by the application for directions filed on the
9th of May 1994. Most of the issues raised in the view of the court were
matters that required the reception of evidence. In this regard we refer to
issues 1, 2 and 3 as set out in the summons of directions by way of example.
Further to this, the court is of the opinion that following the order made at
the hearing of the summons for directions on the 12th of May, 1994, if there
was any further matter or thing to be done in the action by way of directions,
then the correct procedure was for the party who sought such an order to apply
under order 30 rule 5 of the rules of the trial court for further directions.<o:p></o:p>We
think that the proceedings of that day which appear at page 18 of the record of
proceedings by which the learned trial judge purported to adjourn the matter
for further consideration in the absence of anything in the record to clearly
indicate that any of the issues set out before him required further directions
was wrong. The position, which we have taken, of the proceedings of that day
becomes clearer if the order as made by the learned trial judge is reproduced. <o:p></o:p>"By Court: The issues as filed by
the plaintiffs are hereby set down for trial. Case stands adjourned to 18/5/94
for further consideration". <o:p></o:p>If
it may be asked who raised any point or objection on the issues as filed which
required further consideration? We are unable to accept the curse of conduct of
the learned trial judge, which appears not to be reflected by the proceedings
on which his subsequent order was based. In view of this we think that the
proceedings of the 18th of May at which the direction regarding the taking of
legal arguments was made and immediately proceeded with by the reception of
arguments was wrong. Consequently, since the proceedings based thereon were
procured following a non-compliance with the mandatory requirements of Order 30
Rule 5 of the Rules of the trial court they are hereby set aside. Further, we
are of the thinking that the proceedings subsequent to the taking of the
summons of directions were improperly constituted with the result that nothing
of consequence at law can be derived there from. <o:p></o:p>But
that is not all. We also think that even if the proceedings of that day were to
be regular the record must clearly show on its face that the learned trial
judge indicated to the parties that in his view the point in respect of which
the required legal arguments to be taken was likely to substantially dispose of
the action as required by order 25 of the rules of the trial court. The court
also notes that there was no indication by the parties acting by their counsel
that they had consented to the taking of the preliminary legal arguments. In
our view we think that if anything the appellants whose pleadings had raised
most of the issues for trial bearing on facts could not have given their
consent to the procedure if indeed their opinion was sought for it was quite
prejudicial to the entire case that they had set up by way of defence to the
action against them. It follows that the learned trial judge exercised himself
in a manner not borne out by the settled practice of the courts. Therefore on
this ground also the proceedings disclose a fundamental irregularity, which
vitiates it. Having held that the proceedings of the 18th of May are
fundamentally flawed, the court thinks that the subsequent proceedings based
thereon namely: The ruling of the 18th of October, 1994 the subject matter of
this appeal is a nullity to which no attribute at law may be attached. <o:p></o:p>Again,
in our opinion in the said ruling the learned trial judge made reference to
several matters of facts which were not in evidence before him such as the
letter terminating the appointments of the respondents to this appeal and their
respective ages which he took into account in determining their respective and
entitlements to damages for unlawful dismissal. The court notes the belated
attempt by the learned trial judge to give some regularity to the damages that
he was assessing by purporting in the midst of the judgment to take evidence
from the respondents herein as to their respective ages. We think that the
conduct of the learned trial judge reinforces our opinion that the assessment
of damages without legal evidence was wrong. Clearly in our view the procedure,
which he adopted, was not only wrong but unauthorized. <o:p></o:p>We
are of the view that in the said circumstances the learned trial judge took into
accounts extraneous matters. Having thus taken matters which were not lawfully
admitted in evidence into account in determining the action before him we think
that the judgment suffers from a defect which renders it bad at law.<o:p></o:p>We
must say that it was for these reasons which are discernible from the record of
proceedings that in the exercise of the powers conferred on us under rule 8(8)
of C.I. 19 we called upon learned counsel for the respondent on the last
adjournment had to satisfy us that the procedure adopted by the learned trial
judge was in accordance with the settled practice and procedure of the court
below. In making that direction we were not unaware of the fact that in his
statement of case, learned counsel for the appellant had raised those points in
paragraph 2 and 3 thereof but did so having regarding to the fact that the
grounds of appeal as formulated in the notice of appeal before us did not
clearly bring out the points on which our decision rest. Unfortunately, in
response thereto, learned counsel for the respondent did not answer the point
by way of reference to the record but by regard to matters of speculation in a
manner, which was not satisfactory and did not persuade us that the course of
conduct adopted by the judge who presided over the trial was regular. <o:p></o:p>Accordingly,
we allow the appeal herein and direct that the matter be transmitted to the
court below for a retrial to be conducted according to law. <o:p></o:p>