AGANGWO AKANME (APPELLANT) vs. AKAGNE NYAABA (RESPONDENT) [2007]DLHC7427

Date	2007-05-22
Suit No.	C/A NO. E11/01/07
Citation No.	[2007]DLHC7427

HIS LORDSHIP MR. JUSTICE K.B. ANING.

[2007]DLHC7427
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													<main id="main" class="content" style="min-height: 60rem" >AGANGWO AKANME<o:p></o:p>(APPELLANT)<o:p></o:p>vs.<o:p></o:p>AKAGNE NYAABA<o:p></o:p>(RESPONDENT)<o:p></o:p>[HIGH COURT, BOLGATANGA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>CORAM:<o:p></o:p>HIS
LORDSHIP MR. JUSTICE K.B. ANING.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>The
DEFENDANT/APPELLANT (hereinafter referred to as (APPELLANT) lost a suit at the
District Court, Navrongo in which the (PLAINTIFF/RESPONDENT) (hereinafter
called the Respondent) was adjudged the father of three children whose
paternity was the main issue. The trial court gave custody of the children to
the Respondent, and awarded him cost of ¢ 1.5 million. <o:p></o:p>There
are three grounds set down in the Notice of appeal but only the first ground
namely: The learned trial Magistrate erred in hearing the suit without prior
notice of such hearing to the Defendant/Appellant, "merits my attention. <o:p></o:p>There
is, however, a pertinent issue about the Notice of Appeal which I must first
clear. The date of filing which is indicated in the registry's stamp affixed on
the Notice of Appeal on which I could rely to determine the date of filing is
not clear. In fact I have not been able to decipher what figures are stated as
the date. <o:p></o:p>At
the bottom of the Notice of Appeal the date of preparation of the document is
stated as 18-01-96, which if it was also the date of filing, would have
rendered the Notice completely out of time, given that the judgment in
contention was delivered on 18—7-05, and the right to appeal against it
subsisted thereafter for three months only by virtue of Order 51 rule 3 (1) of
CI 47. <o:p></o:p>To
determine the date of filing on the basis of the date of preparation of the
document may, in my view, be a dangerous step to take, given that it could
possibly have come about due to a topographical error. The filing date supplied
by the registry's stamp on the date of filing is without doubt the best way of
determining the issue in the absence of any other evidence in that behalf. <o:p></o:p>Even
though the parties appeared with legal counsel at the trial in the court below,
they contested the appeal by themselves thereby depriving me of the insight
counsel could have provided about such issues. <o:p></o:p>I
have carefully considered the issue and am of the view that the best option is
to gloss over the issue in order not to fall into speculation as to the date on
which the Notice of Appeal was filed. <o:p></o:p>If
I cannot read the official filing date as is the case now, I do not think it is
proper for me to speculate on the basis of the date of the preparation of the
Notice of Appeal to dismiss the appeal in Limine; when, as I have noted from
the record, the issue in contest between the parties concerns the paternity and
the future of children. <o:p></o:p>It
is a matter that ought to be decided conclusively on the merits rather than on
technicalities; and therefore if the circumstances permit the avoidance of the
application of a technicality to determinate the suit, as the present situation
dictates, I consider it a duty to presume that the appeal was filed within
time. <o:p></o:p>Now,
the record of proceedings shows that on the date PW3 testified to close the
case of plaintiff (respondent), the defendant, unlike the plaintiff, was
absent, with both counsel present. <o:p></o:p>The
next adjourned date fell on 2/02/05 when the court recorded that counsel for
the plaintiff was deceased. The next date was fixed for 23/02/05 but as the
record shows, the next appearance in court was on 23/03/05, when with the
defendant still absent, Mr. Asare Nyarko appeared for the substantive counsel
for the defendant and obtained an adjournment to 15/04/05. <o:p></o:p>The
record does not show the date of sittings thereafter until 18/07/05 when the
disputed judgment was given in favour of the respondent. <o:p></o:p>Throughout
the record of proceedings I did not find one occasion when the court ordered
hearing notice to issue to the defendant. The record is totally silent on how
the court dealt with the absence of the defendant. The record does not even
show whether the trial magistrate had solicited from his counsel information
about the absent party. <o:p></o:p>Having
regard to the matters in controversy between the parties, it was of utmost
importance for the trial court to have issued hearing notice to the absent
party anytime the case was adjourned in his absence. Perhaps if there was proof
that he had been served with a hearing notice and he refused to appear, there
would have been no qualms about the trial court going ahead to conclude the
hearing in his absence. See REPUBLIC V. CIRCUIT COURT JUDGE EX PARTE DZAKAH
(1984) IGLR 741. As I explained, from 14/07/04 when PW3 testified to close
plaintiff's case to date of judgment on 18/07/05 the defendant (appellant) was
absent and yet there is no indication whatsoever that the court notified him of
any of those hearings. In any case, the last adjournment taken by his counsel
through Mr. Asare Nyarko was to fall on 15/4/05, but there was no sitting that
day; and there was none till the date of judgment but there is no record that the
appellant was in any way notified of any hearing. One last thing to note is
that the Application for a Writ of Summons filed on 22/10/03 depicts the
parties in the suit as AKAGANE NYAABA OF KANDIGA/NKONTA- plaintiff and <o:p></o:p>1.
ADU AKANME <o:p></o:p>