BIZZACO LTD. vs. ACCRA METROPOLITAN ASSEMBLY [2016]DLHC3580

Date	2016-01-25
Suit No.	SUIT NO.RPC/365/2014
Citation No.	[2016]DLHC3580

HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT

FELIX QUARTEY ESQ. FOR PLAINTIFF/RESPONDENT

SAMUEL MENSAH AKRONG ESQ. FOR DEFENDANT/APPLICANT

[2016]DLHC3580
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">BIZZACO LTD.<o:p></o:p></a>vs.<o:p></o:p>ACCRA METROPOLITAN ASSEMBLY<o:p></o:p>[HIGH COURT (COMMERCIAL DIVISION), 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.RPC/365/2014&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 25TH JANUARY, 2016 <o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>FELIX QUARTEY, ESQ., FOR PLAINTIFF/RESPONDENT <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SAMUEL MENSAH
AKRONG, ESQ., FOR DEFENDANT/APPLICANT <o:p></o:p>

HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT<o:p></o:p>

RULING<o:p></o:p>

</div>The suit was slated before the court for trial after
the pre trial conference failed to settle the matter between the parties. The
court as part of the measures for expeditious trial of the action and in
pursuance of Order 32 Rule 7A of the High Court (Civil Procedure) Rules, C. I.
47 as amended by the High Court (Civil Procedure) Amendment Rules, C. I. 87,
ordered the Plaintiff to first file witness statements of all its witnesses and
accompany same with the documents it intends to rely on at the trial. There was
also a further order that upon service of the Plaintiff’s documents and witness
statements on defendant, Accra Metropolitan Assembly (AMA), it also had
fourteen days to file its own documents.<o:p></o:p><o:p>&nbsp;</o:p>The plaintiff duly complied with the orders of the
court whiles the Defendant failed to comply. Various hearing notices were
served on the defendant for it to appear for case management conference which
said notices were spurned. The court accordingly invoked its powers under Rule
7A (3) of order 32 of C. I. 47 as inserted by C. I. 87 and struck out the Statement
of Defence of the defendant and as Plaintiff’s claim partly consist of special
damages, the court adjourned in order for the Plaintiff’s witnesses to go into
the witness box to prove their claim. It was only at the tail end of this
judicial exercise that learned counsel for defendant appeared before the court.<o:p></o:p><o:p>&nbsp;</o:p>In the instant application, defendant prays the court
to restore its statement of defence and a further order to be allowed to file
its witness statements and documents it intends to rely. To allow or not to
allow the present application depends on the content of the affidavit deposed
to, the supplementary affidavits and the affidavits in opposition to the
application as well as a holistic appraisal of the rules on case management
that will help the court in the exercise of its discretion.<o:p></o:p><o:p>&nbsp;</o:p>The first bases for seeking to restore defendant’s
statement of defence is that it was not served with a hearing notice to appear
before the court for a case management conference. Is that the case? The court
on the 24th of November, 2015 even though served to appear before the court,
the defendant failed to appear leading to an award of cost against the
defendant and the court scheduling a case management conference for 10/12/15.
The defendant was duly served with a hearing notice but failed to appear before
the court on that date. On the 10/12/15 the matter was adjourned sine leading
to another hearing notice for service on defendant for the case management
conference on the 18/12/15. It was on 18/12/15 that the case management
conference commenced and continued on the 21/12/15 which said date, the
defendant again was notified.<o:p></o:p>It is therefore not correct that defendant was not
notified of any case management conference. The first ground of defendant in
seeking to restore its statement of defence on the basis of non service of
hearing notice fails.<o:p></o:p><o:p>&nbsp;</o:p>Counsel for defendant in moving the motion made the
court aware of the exit of the lawyer for AMA at the time the hearing notices
were being served, and without any substantive lawyer, the defendant could not
put in any representation. As this application is an invitation to the court
for the exercise of its discretion, the court will allow the application only
if it considers it just to do so. If indeed it was the desire of the defendant
establishment to defend the action and the door has been shut against it due to
the misconduct or negligence of its lawyer, will it be fair, even at this late
hour, if it genuinely seeks to be given an opportunity to fight this matter,
and the court refuses same?<o:p></o:p><o:p>&nbsp;</o:p>