THE REPUBLIC vs. FAST TRACK HIGH COURT, ACCRA EX PARTE; SIAN GOLDFIELDS LIMITED (APPLICANT) AND AUREX MANAGEMENT AND INVESTMENT (INTERESTED PARTY) [2009]DLSC4454

THE REPUBLIC vs. FAST TRACK HIGH COURT, ACCRA EX PARTE; SIAN GOLDFIELDS LIMITED... [2009]DLSC4454

Date	2009-01-29
Suit No.	CIVIL MOTION NO. J5/8/2009
Citation No.	[2009]DLSC4454

BROBBEY JSC (PRESIDING)

ANSAH JSC

ADINYIRA (MRS) JSC

DOTSE JSC

ANIN YEBOAH JSC

MAWUENA AGBENOTO FOR THE APPLICANT

NII AKWEI BRUCE THOMPSON FOR THE INTERESTED PARTY

[2009]DLSC4454
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>FAST TRACK HIGH COURT, ACCRA EX
PARTE; SIAN GOLDFIELDS LIMITED (APPLICANT) AND AUREX MANAGEMENT AND INVESTMENT
(INTERESTED PARTY)<o:p></o:p>[SUPREME COURT, 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">

CIVIL
MOTION NO. J5/8/2009&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; 29th January,
2009<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MAWUENA
AGBENOTO FOR THE APPLICANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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NII AKWEI BRUCE THOMPSON FOR THE INTERESTED PARTY<o:p></o:p>

</div>CORAM:<o:p></o:p>BROBBEY JSC (PRESIDING), ANSAH JSC, ADINYIRA (MRS)
JSC, DOTSE JSC, ANIN YEBOAH JSC<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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</div>ANIN YEBOAH, JSC:-<o:p></o:p>The
applicant herein was sued by the interested party for recovery of a sum of
money due and owing to the interested party.&nbsp;
The usual ancillary relief of interest was also endorsed on the writ.&nbsp; The facts leading to the claim is not
necessary for the determination of this application.&nbsp; It appears, however, that the interested
party was represented by its lawful attorney, one Mr. Kwaku Twumasi
Ampofo.&nbsp; The High Court, at the
application for directions set down the issue of capacity of the interested party
to be argued by the parties, as the applicant had challenged the capacity of the
plaintiffs on the grounds that the Power of Attorney was irregular.<o:p></o:p>On
6/12/2005, the High Court dismissed the application to set aside the writ on
grounds of want of capacity.&nbsp; The
applicants herein appealed to the Court of Appeal which by a majority decision
on 12/07/2007 allowed the appeal and set aside the writ of summons and made
further consequential orders as follows:<o:p></o:p>“the writ
filed by Kwaku Twumasi Ampofo and all process following in this case are null
and void for lack of authorization by Annex Management Company”<o:p></o:p>The
interested party here lodged an appeal against the majority decision to this
court but subsequently on 4/12/2007 withdrew the appeal.&nbsp; It follows that the majority decision stood
as the subsisting judgment of the court.<o:p></o:p>As
the writ had been declared a nullity, the interested party issued a fresh writ
as suit № AC 158/2007 and indorsed it as follows: AUREX MANAGEMENT AND INVESTMENT AS/SA, Acting by its lawful
Attorney Kwaku Twumasi Ampofo etc before the Fast Track High Court, Accra.<o:p></o:p>Both
parties settled pleadings and it appeared that the applicant as defendant in
the suit repeated his objection on the capacity of the interested party’s
lawful attorney.<o:p></o:p>According
to the applicant, the same power of attorney which had been rejected by the
Court of Appeal in the earlier suit at the court of Appeal was being used at
the High Court in the fresh suit. The High Court judge on 1/4/2008 dismissed
the application whereupon the applicants herein lodged an appeal to the Court
of Appeal and filed a motion to stay proceedings of the High Court.&nbsp; The learned High Court judge dismissed the
application which was subsequently repeated at the Court of Appeal.<o:p></o:p>The
learned trial judge at the application for directions stage ordered the parties
herein to file their respective documents in the case as according to him, the
suit could be disposed off by legal arguments.&nbsp;
The order was complied with by the parties.&nbsp; The learned judge in his judgment, which is
the subject of this application, entered judgment for the interested party and
held that the interested party (as plaintiff) is not estopped from instituting the
fresh action. The applicant hearing has invoked the supervisory jurisdiction of
this court to quash the judgment of the learned High Court judge.<o:p></o:p>The
applicant in his statement of case has canvassed four main grounds as the basis
for this application as follows:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The decision of the High Court violates the andi
alteram partem rule.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The trial judge acted in excess of jurisdiction or
lack of it when he purported to overrule the decision of the Court of Appeal.<o:p></o:p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;