ERIC SAGOE vs. NANCY DADZIE & ANOR [2007]DLCA7008

Date	2007-02-23
Suit No.	CIVIL APPEAL NO. H1/189/06
Citation No.	[2007]DLCA7008

ARYEETEY J. A. PRESIDING

ANIN-YEBOAH J.

A .MARFUL-SAU J. A

MR. EBOW QUASHIE FOR THE PLAINTIFF/APPELLANT

MR. KNOOD WINNEY FOR THE DEFENDANTS/RESPONDENTS

[2007]DLCA7008
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													<main id="main" class="content" style="min-height: 60rem" >ERIC SAGOE<o:p></o:p>(PLAINTIFF/RESPONDENT)<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">NANCY DADZIE &amp; ANOR<o:p></o:p>(DEFENDANTS /
APPELLANTS)<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;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL
APPEAL NO. H1/189/06 &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: 23RD
FEBRUARY, 2007<o:p></o:p>

</div>COUNSEL: <o:p></o:p>MR.
EBOW QUASHIE FOR THE PLAINTIFF/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">

MR. KNOOD WINNEY FOR THE
DEFENDANTS/RESPONDENTS.<o:p></o:p>

ARYEETEY J. A. PRESIDING, ANIN-YEBOAH
J., A .MARFUL-SAU J. A<o:p></o:p>

</div>MARFUL-SAU,
J.A.<o:p></o:p>This
appeal poses legal questions, which renders the substantive matters in
controversy irrelevant for now. The legal questions relates to the procedural
steps indulged in at the High Court before the trial of this suit commenced.<o:p></o:p>&nbsp;The action before the High Court, Sekondi was
for a declaration of title to one room on the ground floor of House No. 5\6,
New John Sarbah Road, Takoradi. After the service of the writ and statement of
claim, the Defendant/Respondent hereinafter called Defendant filed her
Statement of Defence on the 11th of July 2003. The record of appeal reveals
that no summons for directions was filed and taken before hearing commenced on
the 23rd November 2005. <o:p></o:p>The
Plaintiff closed his case and the Defendant opened her case on the 28th
November 2005. The Plaintiff then on the 11th of January 2006, filed summons
for directions to be heard on the 23rd of January 2006. The trial court heard
the summons for directions on the 2nd of February 2006, ordered Counsel to file
their addresses and adjourned the suit to 7th March 2006 for judgment. The above
is a chronicle of events that took place in the proceedings of this suit at the
trial High Court. <o:p></o:p>Clearly
since the statement of Defence was filed on the 11th July 2003, summons of
Directions should have been filed latest before the end of July 2003.
Strangely, however this was not done and the trial commenced without the
formulation of any issues. The Statement of Defence was filed in July 2003 and
as such the Rule of Procedure Application to the suit was the High Court Civil
Procedure Rules of 1954 LN 140A. <o:p></o:p>Order
30 Rule 1 of LN 140A provided as follows:<o:p></o:p>&nbsp;"Within seven days from the time when
pleadings shall be deemed to be closed, the Plaintiff shall take out a Summons
for Directions returnable in not less than seven days."<o:p></o:p>&nbsp;What happened in this case is a clear
violation of the above rule, which meant that the suit was not ripe for hearing
at the time the court commenced the trial. The trial court therefore had no
jurisdiction in conducting the trial since the parties to the suit had not
agreed upon any issues for which they wanted the court to determine. Order 30
of LN 140A, made summons for direction a mandatory statutory procedure for the
formulation of issues for trial in all actions founded on pleadings and where
there was a failure, the trial becomes a nullity. <o:p></o:p>In
this suit summons for directions was not filed until after the trial. The trial
was therefore held without issues. The Court below sought to remedy the
situation in the following order, which was recorded on 2nd February 2006 at
page 43 of the record of appeal. <o:p></o:p>By Court: "The issues filed
adopted as issues for trial and application by Plaintiff's counsel agreed to by
Counsel for Defendant, the evidence led so far adopted as evidence on which the
issues to be determined. The Plaintiff's address to be filed within two weeks
and a further one-week given Defendants to filed address. Adjourned to 7th
March 2006 for judgment."<o:p></o:p>&nbsp;In this suit, failure to file summons for
directions was a fundamental defect and it rendered the trial a nullity. The
above order by the trial court could not cure or save the proceedings. What is
void is void and you cannot build something on nothing. Indeed the procedure
adopted by the trial court is a demonstration of the old adage "putting
the cart before the horse".<o:p></o:p>&nbsp;This Court in the often-cited case of Amoakoh
V. Hansen 1987 -88 2GLR 26 CA held as follows among others:<o:p></o:p>&nbsp;"Since the High Court failed to hear the
summons for directions and thereby failed in its duty of ascertaining before
the trial the issues on which the settlement of the matters in controversy
between the parties depended, the hearing of the case was premature and
consequently the judgm</main>