VERY REV. (RTD) A.K. MENSAH vs. SUSSANA EDITH FERGUSON MENSAH & ANOR [2018]DLHC3749

Date	2018-06-21
Suit No.	SUIT NO.TOCC/2/16 AND TOCC/3/16
Citation No.	[2018]DLHC3749

ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT

E.N. POKU FOR PLAINTIFFS

NANA KWASI BOATEY FOR DEFENDANTS

[2018]DLHC3749
																																						<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" >VERY REV. (RTD) A.K.
MENSAH<o:p></o:p>vs.<o:p></o:p>SUSSANA EDITH FERGUSON
MENSAH &amp; ANOR<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL
DIVISION), KUMASI]<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">

SUIT
NO.TOCC/2/16 AND TOCC/3/16&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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 JUNE, 2018<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>E.N. POKU FOR PLAINTIFFS <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">

NANA
KWASI BOATEY FOR DEFENDANTS&nbsp; <o:p></o:p>

ANGELINA
MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT<o:p></o:p>

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

</div>The
business for the day is for Mrs Sussana Edith Ferguson Mensah to be
cross-examined. However, Nana Kwasi Boatey Esq. who was to conduct the
cross-examination has filed a “NOTICE OF WITHDRAWAL OF REPRESENTATION”, it is
dated 20/06/2018.<o:p></o:p>E.N.
Poku, Esq., counsel on the other side, has taken a serious objection to the
said notice. His argument is that on the basis of order 75 rules 1, 2, 3 and 6
of C.I. 47, only parties to the suit can change their lawyer at any time.
However, if counsel decides nor to act for a party, then under rule 6, he has
to apply to the court. In his view, merely filing a notice of withdrawal of
representation” does not meet the requirements of the law.<o:p></o:p>In
response to the submissions made by E. N. Poku, Esq, Nana Kwasi Boatey, Esq
referred the court to the case of Oppong v. Attorney general (2000) SCGLR 275
wherein the Supreme Court stated that courts of this country are guided by
three yard sticks in dispensing justice: Statutes Case Law and well established
practices of the court. He argued, inter alia, that the practice whereby
counsel files notice to the court and other parties to confirm his withdrawal
of representation is long crystallized in the court hence, the filing of this
application. He ended his submission by saying that if per a recent Court of
Appeal Dorechver, leave is a requirement, then he submits that an oral
application for leave under the circumstances of this case, be granted.<o:p></o:p>It
is provided under Order 1 rule 1(2) of C. I. 47 that:<o:p></o:p>“These
rules shall be interpreted and applied so as to achieve speedy and effective
justice, avoid delays and unnecessary expenses and ensure that as far as
possible, all matters in dispute between parties may be completely, effectively
and finally determined and multiplicity of proceedings concerning any of such
matters avoided.<o:p></o:p>It
is also provided under order 81 rule 1 (1) of C. I. 47 that:<o:p></o:p>“Where,
in beginning or purporting to begin any proceedings or at any stage in the
course of or in connection with any proceedings, there has, by reason of
anything done or left undone, been a failure to comply with the requirements of
these Rules, whether in respect of time, place, manner, form or content or in
any other respect, the failure shall be treated as an irregularity and shall
not nullify the proceedings, any step taken in the proceedings, or any
document, judgment or order in it:.<o:p></o:p>Under
order 81 rule 2 (b), the court may exercise its powers under these Rules to
allow such amendments to be made and to make such order dealing with the
proceedings generally as it considered just.<o:p></o:p>It
is further provided under order 75 rule 6 (1) of&nbsp; C. I. 47 that:<o:p></o:p>“Where
a lawyer who acts for a party in a cause or matter ceases to so act and the
party does not give notice of change of lawyer, or notice of intention to act
in person, in accordance with rule 3, the lawyer may apply to the court to make
an order accordingly. Sub Rules (2) to (5) of rule 6 provide for how the notice
of the application is to be made and handled by the court and the Registrar of
the court.<o:p></o:p>It
is time, that per order 19 rule 1 (1) of C. I.&nbsp;
47, every application in pending proceedings shall be made by motion.<o:p></o:p>The
situation in which Nana Kwasi Boatey Esq. finds himself in can be brought under
order&nbsp; 75 rule&nbsp; 6 (1) of C. I.&nbsp; 47.<o:p></o:p>However,
the court, having adverted its minds to order 1 rule 1 (2) and order&nbsp; 81 rule (1) of&nbsp; C. I. 47, will treat the failure to file a
formal application to withdraw from the case as an irregularity which can be
waived so as to avoid further delays in the proceedings which commenced as far
back as the year&nbsp; 2003.<o:p></o:p>