THE ESTATE OF JOSEPH K. NTRAKWA vs. BOGOSO GOLD LIMITED [2008]DLSC2464

Date	2008-03-05
Suit No.	CIVIL APPEAL NO. J4/16/2007
Citation No.	[2008]DLSC2464

MRS. WOOD C.J. (PRESIDING)

BROBBEY J.S.C.

ANINAKWAH J.S.C.

MRS. ADINYIRA J.S.C.

ASIAMAH J.S.C.

MICHAEL XATSE FOR THE APPELLANT

JOYCELYN HUGHES FOR THE RESPONDENT.

[2008]DLSC2464
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													<main id="main" class="content" style="min-height: 60rem" >THE ESTATE OF JOSEPH K. NTRAKWA<o:p></o:p>vs.<o:p></o:p>BOGOSO GOLD LIMITED<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. J4/16/2007<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: 5TH MARCH, 2008.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MICHAEL
XATSE FOR THE 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">

JOYCELYN
HUGHES FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:&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">

MRS.
WOOD C.J. (PRESIDING), BROBBEY J.S.C., ANINAKWAH J.S.C., MRS. ADINYIRA J.S.C.,
ASIAMAH&nbsp; J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>J U D G M E N T<o:p></o:p>ASIAMAH,
J.S.C.:<o:p></o:p>In
this appeal the appellant is seeking an order from this court reversing the
judgment and assessment of damages of the Court of Appeal which upheld a ruling
by a co-ordinate High Court to the effect that an earlier judgment of another
High Court in the same jurisdictional locale was amenable to a review by
another High Court Judge in view of the fact that the original judge had gone
on transfer and therefore not available to take a review of the judgment.<o:p></o:p>The
grounds of Appeal are three-fold:-<o:p></o:p>(1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Court of Appeal erred in law
in holding that the lack of service of Hearing Notice on Appellant after Summons
for Directions was taken in the absence of the representative of the Appellant
did not render the decision of the Trial Court null and void.<o:p></o:p>&nbsp;<o:p></o:p>(2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Court of Appeal erred in law
in holding that the failure of the Trial High Court to assess damages did not
nullify the award of damages made by the Trial Court.<o:p></o:p>&nbsp;<o:p></o:p>(3)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Court of Appeal erred in not
assessing or causing damages to be assessed before awarding damages of
¢3,000,000,000.00 (three billion cedis) against the Appellant.<o:p></o:p>&nbsp;In dealing with this appeal I would like to
give a synopsis of the proceedings of the trial High Court for the purpose of
revealing the rather tortuous track that this case has traversed up to this
court.<o:p></o:p>Everything
seemed going aright up to the time pleadings closed.&nbsp; At the summons for directions state, though
the defendant/appellant was duly served through one Cladstone Dzebu at Bogoso,
the defendant/appellant never showed up in court on the 24th January 2001 the
date fixed for the taking of the Summons.&nbsp;
The Plaintiff was present and the summons was taken, the court accepting
the issues set down by the Plaintiff.&nbsp; In
the court’s minutes on this day this is how the judge concluded the business
for the day:<o:p></o:p>BY
COURT:&nbsp;&nbsp; Issues accepted and set down for
trial.&nbsp; 27/2/2001 for hearing.&nbsp; The defendants be served with Hearing Notice.<o:p></o:p>It
is obvious from the court’s notes above that the defendant/appellant was to be
informed by a court process that hearing of the case would commence on 27th
February 2001 and that he should attend court.&nbsp;
There is no evidence on record that this order of the court was
executed.&nbsp; However, hearing could not
commence on the adjourned date, that is on 27/2/2001.&nbsp; Again there is no record that the case was
even called at all on that date.&nbsp; In the
judgment of the Court of Appeal at p 162 of the record of proceedings the Court
commented on this fact as follows:-<o:p></o:p>“Nothing showed that&nbsp; the order to serve the defendant with a
hearing notice was complied with.&nbsp; From
the record of appeal, there was not record of what transpired in Court on
27-2-2001 in so far as this suit was concerned.&nbsp;
We called for the record book itself and noted that even though the
court sat, it was silent on the event of 27-2-2001 in the court”.<o:p></o:p>However,
on 28-02-2001 the court sat and took the evidence of plaintiffs through the 2nd
plaintiff together with PW1, Abraham Atta Saah, an Agric Extension
Officer.&nbsp; Curiously no date was fixed for
the next hearing date yet the plaintiffs/respondent and their second witness
(PW2), Michael Sanyow Ali showed up on Court on 21/05/2001.&nbsp; PW2 gave evidence.&nbsp; The Appellant had still not been served with
any hearing notice to attend court.&nbsp; I
presume the plaintiffs/respondents closed their case with the evidence of PW2.<o:p></o:p>The
next occasion that the case was called was on 19th July 2001.&nbsp; The record on this date contains the written
judgment and nothing more.&nbsp; Again there
is no clue whatsoever if the judgment was read or not.&nbsp; The doubt is cleared with the passage of
time.<o:p></o:p>&nbsp;<o:p></o:p>Strangely
though, on 21st August 2001 in the vacation the trial court sat and the whole
minutes for the day were recorded in this terse telegraphic form:<o:p></o:p>“parties present.&nbsp; Counsel-Mercer for Huges:&nbsp; Judgment delivered.&nbsp; Cost of ¢3 million awarded to each plaintiff
against the defendant.&nbsp; Date fixed for
assessment of damages”.<o:p></o:p>