THE REPUBLIC vs. HIGH COURT 17, ACCRA EX PARTE; KWAME EYITI [2015]DLSC3025

Date	2015-01-21
Suit No.	CIVIL APPEAL NO. JS/41/2015
Citation No.	[2015]DLSC3025

ATUGUBA JSC (PRESIDING)

AKUFFO (MS) JSC

BAFFOE-BONNIE JSC

GBADGEBE JSC

AKOTO-BAMFO (MRS) JSC

RAY AYERSEN ESQ. FOR THE APPLICANT.

GEOFFREY H. QUIST FOR THE 1ST AND 2ND INTERESTED PARTIES.

[2015]DLSC3025
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>HIGH COURT
17, ACCRA<o:p></o:p>EX PARTE;
KWAME EYITI<o:p></o:p>&nbsp; [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 APPEAL NO. JS/41/2015&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&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: 21ST
JANUARY, 2015<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>RAY
AYERSEN ESQ. FOR THE 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">

GEOFFREY
H.&nbsp; QUIST FOR THE&nbsp;&nbsp; 1ST AND 2ND INTERESTED
PARTIES.&nbsp; <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;
padding:0in 0in 1.0pt 0in">

ATUGUBA JSC (PRESIDING), AKUFFO (MS) JSC,
BAFFOE-BONNIE JSC, GBADGEBE JSC, AKOTO-BAMFO (MRS) JSC<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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JUDGEMENT<o:p></o:p>

</div>GBADEGBE
(JSC): <o:p></o:p>There is before us a notice of motion praying for
an order of judicial review in the nature of certiorari and prohibition on
grounds contained in the supporting affidavit of the applicant. The
circumstances in which the application has arisen are free from conflict and
are as follows. In the course of an action brought to set aside a previous
judgment between the parties to these proceedings, the Respondent herein
applied by way of a motion in the cause for an order of stay of execution of
the judgment in respect of which the action was mounted. It appears that on 06
May 2014 when the said application came on for hearing, learned counsel for the
Respondent (Applicant therein) being absent without cause, the application was
struck out for want of prosecution as borne out by exhibit APP1. On a
subsequent date, 21 May 2014, the learned trial judge, notwithstanding an
objection from counsel for the Applicant, received an explanation from counsel
for the Applicant in regard to his absence from court and recalled his prior
order of 06 May 2014 by which he had struck out the application for stay and
directed that the application for stay of execution be argued on the merits.
The proceedings of 21 May 2014 resulting in the order recalling the previous
order that struck out the application for stay of execution is evidenced by
exhibit APP2.<o:p></o:p>In arguing the application before us, learned
counsel for the Applicant contended that, having had the application struck out
on 06 May 2014, the court acted without jurisdiction when it received an
explanation from counsel at the Bar and restored the application to the list.
Our understanding of the argument pressed on us by counsel for the Applicant is
that, as the High Court is a court of record, following the order previously
made striking out the application, the learned trial judge should not have
received an oral explanation from the Respondent and then recalled his order
without an application to relist same.&nbsp;
The Applicant’s complaint thus appears to raise the question whether
before the matter was called, the Applicant would have had any reasonable
notice that, at the hearing of the substantive matter, a motion in the cause
that was previously struck out with costs might be restored to the list. So
stated, the Applicant’s complaint speaks to the absence of due process
requirement which, if established, affects jurisdiction.<o:p></o:p>On the other side of the fence, so to say, the
Respondent, while admitting that the application was struck out previously, said
his client was present in court on that day but he had to go to another court
to adjourn a case as the presiding judge was in chambers conducting other
proceedings. He added that&nbsp;&nbsp; no sooner
had the application been struck out than he turned up in court. In his opinion,
if the attention of the learned trial judge had been drawn to the fact that
counsel for the Applicant had earlier on come to the court, he would not have
proceeded to strike out the application on 06 May 2014.<o:p></o:p>Although the applicant also seeks from us an order
of prohibition directed at the learned trial judge, neither in the affidavit in
support of the application herein nor in the statement of case was any
reference made to the second limb of the application.&nbsp; The result is that he is deemed to have
abandoned that relief. This delivery therefore, is limited to the prayer of the
Applicant for judicial review in the nature of certiorari only. We have
examined the processes before us on which the instant application turns and
have had regard to the arguments presented to us by learned counsel in the
matter. We have come to the conclusion that as the application for stay was
previously struck out, it could only have been restored to the list by an
application based on grounds contained in a solemn deposition by the Respondent
herein.&nbsp; In our view, it was wrong for
the learned trial judge to allow counsel for the Respondent herein to utter
from the Bar matters that required proof in a case that was being contested and
on the basis of such utterance reverse his earlier decision, particularly when
the facts on which his decision was based were contrary to the record of
proceedings for that date.&nbsp; In this
regard, we do not think that&nbsp; even if on
21 May 2014&nbsp; counsel for the Applicant
herein had&nbsp; not objected to the relistment
of the application, it would have&nbsp; had
the effect of conferring jurisdiction&nbsp; on
the court&nbsp; as in point of fact there was
no such pending application on the&nbsp; docket.
The learned trial judge in our opinion ought to have directed the Respondent
herein to fi</main>