THE REPUBLIC vs. HIGH COURT 17, ACCRA EX-PARTE: KWAME EYITI AKAN PRINTING PRESS AND VICKRAM RAJWANI [2015]DLSC5621

THE REPUBLIC vs. HIGH COURT 17, ACCRA EX-PARTE: KWAME EYITI AKAN PRINTING PRESS... [2015]DLSC5621

Date	2015-01-21
Suit No.	CIVIL MOTION NO: JS/41/2014
Citation No.	[2015]DLSC5621

ATUGUBA JSC (PRESIDING)

AKUFFO (MS) JSC

BAFFOE-BONNIE JSC

GBADEGBE JSC

AKOTO-BAMFO (MRS) JSC

RAY AYERSEN ESQ. FOR THE APPLICANT.

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

[2015]DLSC5621
																																						<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" >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>(APPLICANT)<o:p></o:p>AKAN
PRINTING PRESS AND VICKRAM RAJWANI<o:p></o:p>(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: JS/41/2014&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 21ST
JANUARY, 2015<o:p></o:p>

</div>COUNSEL:<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. QUIST FOR THE 1ST AND 2ND INTERESTED PARTIES. <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, GBADEGBE 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;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">RULING<o:p></o:p>

</div>MAJORITY
OPINION<o:p></o:p>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><o:p>&nbsp;</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. 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 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 seco</main>