ATAA ASHIE NIKOI vs. CHARLES QUIST [2014]DLSC4789

Date	2014-11-14
Suit No.	CIVIL MOTION NO.J8/97/2014
Citation No.	[2014]DLSC4789

BENIN J.S.C.

BRIGHT AKWETEY ESQ. PLAINTIFF/APPELLANT/APPLICANT.

BRIGETTA OSEI OWUSU ESQ.WITH HER OBENG SEKYI FOR THE DEFENDANT /RESPONDENT/RESPONDENT.

[2014]DLSC4789
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >ATAA ASHIE NIKOI<o:p></o:p>(PLAINTIFF/APPELLANT/APPLICANT)<o:p></o:p>vs.<o:p></o:p>CHARLES QUIST<o:p></o:p>(DEFENDANT/RESPONDENT/RESPONDENT)<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.J8/97/2014&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: 14TH
NOVEMBER 2014<o:p></o:p>

</div>COUNSEL:<o:p></o:p>BRIGHT
AKWETEY ESQ.&nbsp;
PLAINTIFF/APPELLANT/APPLICANT.<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">

BRIGETTA
OSEI OWUSU ESQ.WITH HER OBENG SEKYI FOR THE DEFENDANT /RESPONDENT/RESPONDENT.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>BENIN, JSC:-&nbsp; <o:p></o:p>On
24th May 2013 the ordinary bench of this court gave judgment against the
plaintiff/appellant/applicant hereinafter called the applicant in favour of the
defendant/respondent/respondent hereinafter called the respondent. The
applicant sought a review but was out of time, so he applied for extension of
time to do so. He was granted leave by this court presided over by a single
judge, Akamba JSC. He was granted ten days from 26th June 2013, the date of the
order, in which to file the application for review. He filed the application
within time on July 5 2013. When the application came up for hearing before the
review panel, Counsel for the applicant decided to withdraw it apparently
because it was filed in disregard to the rules of practice and procedure in the
sense that no reference was made therein to the Judge who had made the order
and the date thereof. The court accordingly struck it out as withdrawn.<o:p></o:p>Thereafter
the applicant took some other steps to bring into fruition his desire to have
the court’s judgment of 24th May 2013 reviewed, but he failed at each and every
attempt made. This is the third bite at the cherry. One wonders whether the
applicant does not know what he is doing for the impression is that he is just
gambling around the rules in the hope that one will be favourable to him. One
should not lose sight of the fact that the principles against vexatious
litigation and abuse of process should equally apply to applications to the
court especially when the object sought by them is the same, as in this case.
Nonetheless in the interest of justice I have decided to consider the
application on its merits.<o:p></o:p>By
the present application filed on 29th August 2014, the applicant is asking for
two reliefs from this court, viz: (i) for an order to relist the application
for review filed on 5th July 2013, and (ii) for leave to amend the said
application. Counsel’s argument was simply that the application was withdrawn
and was not dismissed on merit so they could apply to relist same. On the other
hand counsel for the respondent cited rule 79 of the Supreme Court Rules, 1996
(C.I.16) and submitted that the applicant was barred from coming back since the
court did not waive the irregularity in the application when it struck it out.<o:p></o:p>Rule
79 of C.I.16 provides: <o:p></o:p>Where
a party to any proceedings before the court fails to comply with any provision
of these Rules or with the terms of any order or direction given or with any
rule of practice or procedure directed or determined by the Court, the failure
to comply shall be a bar to further prosecution of proceedings unless the Court
considers that the non-compliance should be waived.<o:p></o:p>Under
this provision the Court could decide to dismiss an application for non-
compliance with the terms of its order, or it could disregard the
non-compliance and admit the application, or postpone it and allow the
applicant to comply with it. In this case the applicant decided to withdraw and
the court allowed him. The Court at this stage could have barred him from
further prosecution of the application but it did not; it only struck it out.
When an application is struck out unconditionally it leaves the party with
liberty to come back. Thus the application which was struck out could be
revived upon appropriate steps being taken. <o:p></o:p>I
have taken into consideration the fact that a review process is the ultimate
step which is open to a party to seek redress from the Court; thus unless there
is no means legally permissible to salvage an application for review a party
should not be shut out from court. I am equally mindful of the hardship and
inconvenience the tardiness in bringing the application will cause the
respondent. But I think the respondent could be compensated by way of costs. I
would accordingly grant the application and restore the application filed to the
cause list. The second relief to amend is also granted. The applicant will be
allowed seven days to effect the amendment. The applicant is ordered to pay
costs of GH¢5,000.00 to the respondent. <o:p></o:p>&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;
<o:p></o:p>&nbsp;(SGD)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
A.&nbsp; A.&nbsp;&nbsp; BENIN <o:p></o:p>&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;&n</main>