ADUM ACHEAMPONG & ANOTHER vs. MRS. BROWN & ANOTHER [2012]DLHC7086

Date	2012-05-14
Suit No.	SUIT NO. BL 664/2005
Citation No.	[2012]DLHC7086

HIS LORDSHIP JUSTICE PETER DEN OFEI

[2012]DLHC7086
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													<main id="main" class="content" style="min-height: 60rem" >ADUM ACHEAMPONG &amp; ANOTHER<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>MRS. BROWN &amp; ANOTHER<o:p></o:p>[HIGH COURT, ACCRA]<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><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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HIS LORDSHIP JUSTICE PETER DEN OFEI<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>This
case which was originally before Court 11 was struck out on a Registrar's
Summons at the High Court (Commercial Division), Accra on 14-5-2008.
Ordinarily, cases which had become dormant for a long time invariably over one
year and above are advertised on the High Court Notice Board with fixed dates
for the parties to show cause why the action should not be struck out for want
of prosecution. Where the parties appear or any of the parties appear to show
sufficient cause, the action is restored to the cause list for further
proceedings. However, where the parties or their Lawyers do not appear, then
the action is struck out for want of prosecution. <o:p></o:p>It
is the prevogative of the Chief Justice to have actions which had become
dormant for some time, as explained above, to be placed before any Judge to
deal with them. That is the usual prevailing practice and there is nothing
untowed about this case which became dormant since the last entry in the Court
Notes was made on 28/7/06 before it was put before His Lordship Justice Tanko
Amadu on 14-3-08 and it was struck out for want of prosecution. <o:p></o:p>This
provides the background to this instant application before the Court for
relisting of the case struck out for want of prosecution on 14-3-08. <o:p></o:p>It
is therefore not surprising that the Applicant stated in his affidavit in
support filed on 26-10-11 at paragraph 11 that; <o:p></o:p>"11. That we were totally unaware
the matter had even been sent to the High Court Fast Truck and also that the
docket had been found, hence my inability to pursue my claim." <o:p></o:p>This
same fact is repeated almost verbatim at paragraph 11 of the Supplementary
affidavit in Support filed on 25-11-2011. <o:p></o:p>What
is essential in the above deposition and many others in the affidavit in
support is stated at paragraph 4. <o:p></o:p>"4. That at the application for
direction stage, the case docket could not be found inspite of all attempts
made by my counsel to have the matter listed and heard." <o:p></o:p>The
applicant continues his depositions in the affidavit in support as follows: <o:p></o:p>"5.
That we subsequently caused a duplicate to be built but after hearing notices
were issued it also got missing. <o:p></o:p>6.
That the 1st defendant at this stage approached me for settlement which took
quite some time till I realised she was just buying time to stall the case. <o:p></o:p>These
depositions at paragraphs 4, 5 and 6 as quoted above have not been expressly or
impliedly denied by the Respondents in their affidavit in opposition. Respondents
through their Lawyer only stated at paragraph 3 of their affidavit in
opposition that the plaintiff's application is an abuse of the Court's process.
<o:p></o:p>In
a further proof of the Court Docket having got missing several times, the
Applicant has attached to his supplementary affidavit in support that he had
attached the letters written by his Counsel to the Registrar of this Court to
demonstrate the history of the case docket in this case. These are marked as
Exhibits "AA2" and "AA3".<o:p></o:p>&nbsp;These letters were both written to the
Registrar of the Court for a duplicate docket to be established and for a
Hearing Notice to be served on the Respondents. <o:p></o:p>As
these depositions have not been denied by the Respondents, the presumption then
that the missing docket mysteriously resurfaced only among the dockets compiled
for the Registrar's summon's exercise very probable. <o:p></o:p>In
their affidavit in opposition, Counsel for the Respondents who deposed to the
affidavit stated that plaintiff's voluntarily discontinued with their claim as
far back as 8/5/2008 presumably before the action was struck out for want of
prosecution on 14-3-2008. Copies of the two notices of discontinuance had been
attached to the affidavit in opposition without being exhibited contrary to
Order 20 rule 14 which provides that; <o:p></o:p>"14(1) any document to be used in
conjunction with an affidavit shall be exhibited and not merely annexed or
attached to the affidavit. <o:p></o:p>(2) Any exhibit to an affidavit shall
be identified by a certificate of the person before whom the affidavit in sworn
<o:p></o:p>(3) The Certificate shall be titled in
the same manner as the affidavit and rule 3 sub rules (1)(2) and (3) shall
apply accordingly." <o:p></o:p></main>