NUMO NARH KPORSU vs. NENE TETTEH MEH III [2015]DLHC8316

Date	2015-03-09
Suit No.	SUIT NO. E1/29/2005
Citation No.	[2015]DLHC8316

HIS LORDSHIP MR. JUSTICE F.G. KORBIEH J.A. (SITTING AS AN ADDITIONAL HIGH COURT JUDGE)

[2015]DLHC8316
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													<main id="main" class="content" style="min-height: 60rem" >NUMO
NARH KPORSU<o:p></o:p>vs.<o:p></o:p>NENE
TETTEH MEH III<o:p></o:p><o:p>&nbsp;</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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SUIT NO. E1/29/2005&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 9TH MARCH, 2015<o:p></o:p>

</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 MR.
JUSTICE F.G. KORBIEH J.A. (SITTING AS AN ADDITIONAL HIGH COURT JUDGE)&nbsp;&nbsp; <o:p></o:p>

</div>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&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;
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RULING&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;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
<o:p></o:p>

</div>&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;&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>On the 7/4/2014 the
defendant herein filed an application by way of a motion on notice seeking that
this Court orders that the evidence given by the plaintiff per his guardian ad
litem be expunged from the record on grounds that were contained in the
accompanying affidavit. I shall return to that shortly. For now I want to
remark that the motion on notice reads as follows:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp; “TAKE NOTICE that this Honourable Court
shall be moved by Lawyer for and behalf of Plaintiff/Applicant
EKOW EGYIR DADSON for… (Signed) LAWYER
FOR DEFENDANT”.
(Emphasis supplied)<o:p></o:p>It is very obvious to even
the casual reader of this passage that there is a mistake in it. Ekow Egyir
Dadson, Esq. cannot be the lawyer for the
Plaintiff/Applicant and lawyer for the DEFENDANT at the same time. I
put the mistake down to a typographical error and will treat it as such. The
reason for pointing out what is, after all an innocuous mistake, will become
apparent in the course of this ruling.<o:p></o:p><o:p>&nbsp;</o:p>The reasons advanced by the
defendant/applicant in his affidavit in support of the application are, among
others, that the defendant/applicant only got to know of certain facts after he
had filed his address. These facts were that the plaintiff was under a
disability at the time he filed his writ of summons and was therefore not
compos mentis; that the motion filed for the appointment of a guardian ad litem
was not served on the defendant before it was moved and the order for the
appointment of a guardian ad litem made; that the plaintiff passed away during
the hearing of the suit and so any authority he might have given the guardian
ad litem was terminated by operation of law; that the plaintiff died and was
buried in the course of the trial; that all evidence given by the guardian ad
litem ought be expunged from the record. In the affidavit in opposition, the
lawyer for the plaintiff deposed as follows, among others: that the application
has been brought in utter bad faith as it had taken the defendant over two
years after the defendant had filed his address&nbsp;
and seven years of legal battle to raise this issue; that since all
parties are indigenes of Old Ningo, the defendant ought to have known of the
fact of the demise of the plaintiff much earlier than now; that the appointment
of a guardian ad litem cannot be hidden from anyone; that all processes for the
appointment of a guardian ad litem were duly followed; that the court satisfied
itself that the motion had been duly served before granting the application for
the appointment of the guardian ad litem; that cross-examination of the
guardian ad litem ended on the 29/5/2006; that the defendant is estopped from
raising the matter he had participated in the proceedings and is deemed to have
waived the right to raise the issue at this point in time.<o:p></o:p><o:p>&nbsp;</o:p>After the motion was
briefly moved and responded to by counsel for the respondent, I invited the two
lawyers to file written submissions to further convince me of their respective
positions. In his written submission, one of the arguments of counsel for the
defendant/applicant was that the plaintiff had failed to serve the motion for
the appointment of a guardian ad litem on the defendant before moving his
motion which was in breach of Order 19 of C.I. 47. But this assertion that the
plaintiff’s motion was not served on the defendant is palpably false. The court
notes for the 29/11/2005 (when the motion was moved) read, inter alia, as
follows: “Counsel for the defendant has been served”. The mere fact that it
appears on the motion paper that service was to be effected on the plaintiff is
not itself prove that service was not effected on the defendant. By parity of
counsel’s reasoning, the present application ought to be dismissed on the basis
that counsel for the defendant cannot also be the lawyer for the
“plaintiff/applicant” which is merely a typographical error. Counsel for the
defendant is merely clutching unto a technicality to try to set aside an order
that I will demonstrate was correctly given. It is this kind of approach that
the Supreme Court condemned in the case of Halle
&amp; Sonns Enterprise Ltd. v. Bank of Ghana and Warm Weather Enterprise Ltd.
[2011] SCGLR 378. In that case the Supreme Court held that it was not
possible for an honest litigant in the courts of Ghana to be defeated by any
mere technicality, any slip and any mistaken step in litigation in view of rule
79 of the Supreme Court Rules, 1996 (CI 16), rule 63 of the Court of Appeal
Rules, 1997 (CI 19) AND Order 81 of the High Court (Civil Procedure) Rules,
2004 (CI 47). This first argument therefore holds no water. <o:p></o:p>&nbsp;<o:p></o:p>