THE REPUBLIC vs. THE DISTRICT MAGISTRATE - KANESHIE KWABENA ADU EX-PARTE: KWAME OWUSU [2009]DLCA6626

THE REPUBLIC vs. THE DISTRICT MAGISTRATE - KANESHIE KWABENA ADU EX-PARTE: KWAME... [2009]DLCA6626

Date	2009-05-07
Suit No.	CIVIL APPEAL SUIT NO. HI/78/09
Citation No.	[2009]DLCA6626

GBADEGBE JA (PRESIDING)

R. K. APALOO JA

I. DUOSE JA

MR. L. AWERE AWUKU FOR THE APPELLANT

MR. A. G. BOADU ESQ FOR THE RESPONDENTS

[2009]DLCA6626
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>THE DISTRICT
MAGISTRATE - KANESHIE KWABENA ADU<o:p></o:p>(RESPONDENT/RESPONDENT)<o:p></o:p>EX-PARTE:
KWAME OWUSU<o:p></o:p>(APPLICANT/APPELLANT)<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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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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APPEAL SUIT NO. HI/78/09 &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: 7TH MAY, 2009.<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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THE RESPONDENTS <o:p></o:p>

GBADEGBE JA (PRESIDING), R. K. APALOO
JA, I. DUOSE JA<o:p></o:p>

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</div>APALOO
JA<o:p></o:p>This
is an appeal from the ruling of the High Court Accra dated 14 November, 2007.
The Applicant in the court below now Appellant before us has attacked the
ruling of the High Court on five grounds of appeal. The main reason for the
attack on the decision appears to be the refusal of the High Court to quash the
ruling of the District Magistrate Kaneshie and secondly the failure to prohibit
the Magistrate from hearing the substantive suit between the 2nd Respondent and
the applicant. <o:p></o:p>The
applicant had brought a motion before the High Court to quash the District
Court’s ruling dated 10th August 2007. In the same application the applicant
had sought an order of prohibition directed at the District Court to prohibit
the Court from hearing the suit between the parties. After hearing Counsel for
both parties the High Court Judge in a terse manner delivered himself as
follows; <o:p></o:p>“I am convinced that the judgment
sought to be quashed does not lend itself to a certiorari application. I refuse
the application.” <o:p></o:p>Mr.
Awere Awuku Counsel for the Appellant had invited us to strike down the High
Court’s decision because the Supreme Court had in Apeah Vrs Asamoah [2003-2004]
SCGLR 226 deprecated and frowned on judgments in the form as above. Indeed the
Supreme Court was of the view that; <o:p></o:p>“Where parties appearing before the
appellate Court had filed arguments, cited cases, made submissions, and stated
their differing submissions, the parties would reasonably expect that the
appellate court would give indications of reasons as to which of the
conflicting positions of the parties had been accepted by the Court as the
right one. It might not be best of practices (as the Court of Appeal did in the
instant case) to resort to judgment in the form of memorandum which did not
spell out detailed reason for the stance taken by the appellate Court.” <o:p></o:p>Indeed
the High Court’s ruling on the matter appears to be a memorandum that did not
spell out detailed reasons for the position taken by the Court. In this appeal
we shall also without any reservations frown on that mode of judgment writing.
But we shall nevertheless proceed to examine whether or not the opinion of the
High Court as expressed is in tandem with the law. <o:p></o:p>An
appeal, it has been stated over and over again that, it is in the nature of a
rehearing. It is our duty therefore to examine all the processes filed in order
to arrive at our conclusion. The law is also clear that; <o:p></o:p>“……….. where the findings were based
on established facts then the appellate court was in the same position as the
trial Court and may draw its own conclusions from the established facts” See Koglex LTD[No2] Vrs Field [2000] SCGLR at
176. <o:p></o:p>The
established facts are not complex in the least. The Applicant/Appellant had
issued a writ at the District Court Kaneshie claiming certain reliefs. The
District Magistrate upon proof of service on the Defendant entered a default
judgment against him. The Defendant quickly filed a motion to set aside the
default judgment but absented himself from court which led the Court to strike
out the motion for want of prosecution. Applicant/Appellant then Plaintiff,
applied for formal decree to issue as well as a writ of possession. In the
meantime Defendant continued to file motions to relist the previous ones which
were struck out. Subsequently upon one such motion to relist, the Magistrate
having struck out that motion ordered the Plaintiff to go into execution
forthwith. Thereafter the Defendant filed another motion to set aside the
judgment which was granted. The Court’s notes reflected that the judgment was
set aside for the suit to be tried on its merits. It is noted also </main>