YAW SORO vs. JULIANA FRANS [2005]DLSC2416

Date	2005-05-11
Suit No.	CIVIL APPEAL NO. J4/1/2005
Citation No.	[2005]DLSC2416

WOOD (MRS) J.S.C. (PRESIDING)

DR. TWUM J.S.C

PROF. OCRAN J.S.C

LARTEY J.S.C

ANSAH J.S.C.

MR. W. Y. OPPONG FOR APPELLANT.

MR. YAW BOAFO FOR RESPONDENT.

[2005]DLSC2416
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													<main id="main" class="content" style="min-height: 60rem" >YAW SORO<o:p></o:p>vs.<o:p></o:p>JULIANA FRANS<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. J4/1/2005<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 MAY, 2005.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
W. Y. OPPONG FOR APPELLANT.<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">

&nbsp;MR. YAW BOAFO FOR RESPONDENT.<o:p></o:p>

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

WOOD
(MRS), J.S.C. (PRESIDING), DR. TWUM, J.S.C., PROF. OCRAN, J.S.C., LARTEY,
J.S.C., ANSAH, J.S.C.<o:p></o:p>

</div>J U D G M E N T<o:p></o:p>WOOD (MRS)<o:p></o:p>&nbsp;On the 20th of July 1989, the
Plaintiff/Appellant/Appellant instituted proceedings&nbsp;&nbsp; against the Defendant/Respondent/Respondent
in the Kumasi High Court for,&nbsp; a number
of reliefs including, (a) a declaration that property No. 10, Block X has been
sold on conditional basis to him, (b) an order compelling her to execute an
assignment in respect of the property in his favour and (c) an order of
perpetual injunction restraining her and all persons claiming through her from
laying any claim or exercising any exclusive rights over the said property. <o:p></o:p>This
case, like many civil disputes in our jurisdiction, has had a rather chequered
past. In the course of the trial, the respondent lost his counsel.&nbsp; Other major setbacks suffered include; a
four- time change of solicitors, several adjournments before the two different
judges who had handled it at one time or the other, and a seven year lull in
the proceedings during which period it lay fallow in the registry.<o:p></o:p>Seven
years after summons for directions, the case was on the 27th of March 1997,
finally placed before Abada J who proceeded to take evidence from the
parties.&nbsp; The appellant successfully
closed his case and the Respondent opened her defence by giving evidence and
proceeding to call three witnesses. However, on the 24th of May 2000, Mr. F. A.
Jantuah filed a notice of change of Solicitors, announcing his intention to
appear as the new counsel for the respondent.&nbsp;
Surprisingly, however, neither the new solicitor nor the respondent
appeared in court the following day, that is, on&nbsp; the 25th of May 2000, the date on which the
case had been scheduled for further hearing.&nbsp;
Neither did they make an appearance on any of those subsequent days the
court set aside the matter&nbsp; for the
hearing to continue.<o:p></o:p>&nbsp;Indeed, although on one occasion, i.e. the
24th of July 2000, the learned trial judge, I believe out of exasperation,
threatened to close the Respondent’s case and to proceed to give judgment if
they failed to attend court on the next adjourned date, he refrained from
carrying out the threat. The record does not show why.&nbsp; I believe he was prompted by an innate desire
to do substantial justice to the parties and so give the erring Respondent
another chance. Be that as it may, the case went through two other subsequent
adjournments, with the reason assigned for the latter adjournment being that: <o:p></o:p>“…..&nbsp; the proceedings are not ready”.<o:p></o:p>This
implies an admission that Mr. Jantuah, the new counsel had sought and been
graciously granted an adjournment, on the all too familiar ground, but sadly,
one of the major causes of unnecessary delay in civil litigation that, as new
counsel, he needed to be furnished with a certified true copy of the
proceedings. The case was then rescheduled on three other occasions, until
finally on the 12th of November, 2001, the trial judge adjourned it sine die.
He did not assign any reasons for this sine die adjornment seeing that on all
other occasions that he had been compelled to postponement the matter, he had
always invariably adjourned it to a specific date. But, an order of transfer,
which was subsequently tendered at the appeal hearing as exhibit JF 1 clearly
shows why he proceeded in this direction. Apparently, while the case was part
heard, the learned trial judge was transferred to Ashanti/ Manpong, following
which, under the hand and seal of the then acting Chief Justice,&nbsp; by an order of transfer dated the 8th of
November 2001, His Lordship the Chief Justice “entirely transferred from the
list of Mr. Justice A.K. Abada”, the case of Yaw Soro v Juliana France to
another High Court Judge”. The order read in part:<o:p></o:p>&nbsp;“Now therefore in exercise of the powers
vested in me by s.104 of the Courts Act 1993, [Act 459], I, Edward Kwame Wiredu
acting Chief Justice of Ghana do hereby order that the said case be entirely
transferred from the list of Mr. Justice A. K. Abada who is now transferred to
Manpong /Ashanti to another High Court Judge in Kumasi to be dealt with
according to law.<o:p></o:p>&nbsp;<o:p></o:p>And I further order the Registrar of
the High Court of Justice Kumasi/Ashanti to cause the parties to be notified of
this transfer generally and of hearing date of any matter or proceeding pending
in the said Court.”<o:p></o:p>Rduly
complied with all the orders contained therein, including the order to notify
the parties of the transfer.<o:p></o:p>It
does therefore come as a surprise that notwithstanding these plain facts,
namely, (1) the petition by the new counsel that the recorded evidence be made
available for his study to enable him represent his client effectively, which
said prayer was graciously granted, the fact of the original transfer with no
order for a retransfer, the sine die adjournment, and coupled with the fact
that without notice to the Respondent who had then not completed his case, the
learned trial judge nevertheless proceeded to deliver his judgment on the 18th
of December, 2001, prompting the aggrieved Respondent to appeal the decision on
a number of grounds, including the rather grave charge that he was denied a
hearing.<o:p></o:p>After
hearing arguments from both sides, the Court of Appeal declared the judgment a
complete nullity and ordered a retrial. Dissatisfied with this turn of events,
the Appellant is, by this appeal, calling for a reversal of the said decision.
Paradoxically, the rather long “historical” background of this case, does not
match the content of the appeal. It is being fought on only one point, a
narrow, albeit important jurisdictional ground. That sole issue which is
contained in the self explanatory ground reads:<o:p></o:p></sp</main>