Practice and procedure - Trial - Adjournment - Plaintiff not appearing at trial on adjourned dates - Trial judge exercising discretion to strike out action - Plaintiff’s application to relist case dismissed by trial judge - Whether wrongful exercise of discretion - High Court (Civil Procedure) Rules 1954 LN 140A, Order 36 r 17.

The plaintiff, a legal practitioner, instituted an action on 30 January 1984 against the defendant to set aside an order by the National Defence Committee ejecting him from premises which he occupied as a tenant of the defendant. Hearing of the matter was adjourned from time to time for five years until it was fixed for definite hearing on 2 May 1989. On that date the plaintiff did not attend court but sent a letter for an adjournment to 28 November 1989 for mention because he was engaged in another court. The judge reluctantly adjourned the hearing to the following day, 3 May 1989 with costs against the plaintiff. On the adjourned date the plaintiff was again not in court. The defendant’s counsel applied that the action be struck out for want of prosecution and the judge granted the application with costs. The plaintiff applied to the court to vacate the order dated 3 May 1989. In the affidavit in support of the application he deposed that on 2 May 1989 he was afflicted by a “strong” toothache that took him home for medicine that he had left behind. He disclosed, for the first time, that the reason for seeking a long adjournment on 2 May 1989 for mention was because he had planned to take a rest which had not been possible since he was called to the Bar 19 years ago, a situation that, according to him, was beginning to take a toll on his health. The trial judge declined the application and the plaintiff appealed to the Court of Appeal.

Held - Under Order 36 r 17 of the High Court (Civil Procedure) Rules 1954, LN 140A when a case was called for trial and the defendant appeared but the plaintiff did not appear, the defendant, if he had no counterclaim, was entitled to judgment dismissing the action. The rule authorised a trial judge in the appropriate case to dismiss the plaintiff’s action. In the instant case the plaintiff’s request for adjournment on the ground that he needed a rest which had not been possible for 19 years was rejected by the trial judge and it had not been shown that the trial judge did not exercise his discretion judicially. Accordingly the order of the trial judge would be affirmed and the appeal dismissed.

APPEAL from the decision of the High Court.

Ben Annan for the appellant.

Peter Adjetey (with him W Addo) for the 1st respondent.

LAMPTEY JA. David Nii Aponsah, a legal practitioner, (hereinafter referred to as the appellant) took action on 30 January 1984 against Elizabeth Okailey and 2 others and claimed the reliefs set out in the writ of summons. The matters that led to the action were, briefly, that the National Defence Committee (NDC) made an order ejecting the appellant from premises which he occupied as a tenant of Elizabeth Okailey. The gravamen of the complaint made by the appellant was that the NDC had no jurisdiction to make that order. The court was invited to set aside that order. After summons for directions had been taken the hearing on the merits was adjourned from time to time until it was definitely fixed for hearing on 2 May 1989, that is to say, some five years after the writ of summons was sealed. On that date, the appellant did not attend court in person. Elizabeth Okailey was in court with her counsel, S M Asante. The court notes for that day read in part as follows:

“By Court: There is a letter from the plaintiff saying that he is in a part-heard before Armah J and therefore wants an adjournment to 28th November 1989 for mention.”

The reaction of the trial judge to the application for an adjournment was expressed by him as follows:

“This case was adjourned to today for hearing. Parties were served with hearing notices as far back as 24th April 1989 to appear in court today. If the plaintiff is anxious for this case to be heard he should have taken alternative steps to be represented, he being the plaintiff. The application for adjournment by the plaintiff to 28th November 1989 is not seen by the court to be genuine or serious.”

It was clear that the hearing of the case on 2 May 1989 had been frustrated by the non-appearance in court of the appellant. The judge adjourned the hearing to the following day, 3 May 1989. In the meantime the appellant was ordered to pay ¢1,000 costs to Elizabeth Okailey.

On the following day, 3 May 1989 when the case was called the appellant was again not in court. He was not represented by counsel. He had not written to the court to explain his absence. Elizabeth Okailey was present in court with her counsel, P A Adjetey and S M Asante. Mr Adjetey therefore applied to the court that the action of the appellant be dismissed. He gave reasons to support his application. The trial judge acceded to the invitation and accordingly dismissed the action of the appellant. He again awarded ¢50,000 costs against the appellant. The appellant was aggrieved by the dismissal of his action and applied to the court “for an order vacating the judgment given by Wuaku J on 3 May 1989 striking out plaintiff’s case for want of prosecution”. In support of this application, the appellant annexed an affidavit which ran into 15 paragraphs. The application was heard on the merits and was dismissed. In his ruling dated 28 July 1989 dismissing the application the learned judge observed as follows:

“I think the plaintiff’s failure to attend court was a ploy to delay the hearing of the case as long as possible. The courts exist to do justice to all and sundry. I have not been persuaded that discretion in dismissing the plaintiff’s suit was not properly exercised.”

The appellant was aggrieved by the ruling of the court and appealed to this court.

The first ground of appeal argued by learned counsel for the appellant was that the judgment was not supported by the facts in evidence before the court. He contended that the reasons given by the appellant for his absence in court were “good enough”. He disagreed with the view of the trial judge that the failure of appellant to be present in court on the adjourned date was a ploy to delay the hearing of the case on the merits. In reply, learned counsel for respondent pointed out that the appellant was a legal practitioner who was deemed to be familiar and conversant with the rules of court. He stated that the request for adjournment was contained in a letter addressed to the court. The letter gave the reason for the request for the adjournment. He stated that the judge considered the reason and granted the adjournment. On the adjourned date the appellant failed to turn up. In those circumstances, he submitted, the judge was right in dismissing the action of the appellant.

It seems to me that the issue before the lower court was a fairly simple one. The issue was whether or not the court should vacate its order dismissing the appellant’s action and to re-list it for hearing on the merits in the light of the affidavits before the court. The trial judge gave due consideration to all the evidence and refused to vacate his earlier order. Before us, it had been argued that the affidavit evidence sufficiently explained the absence of the appellant from court to have persuaded the trial judge to grant the application. To be able to appreciate the position in which the trial judge found himself on the material date, that is on the 3rd May 1989 when he dismissed the action of the appellant, the information placed before him, is in my view, the only relevant material that should guide and influence him. What was the information which the appellant had communicated to the court to explain his absence; first on the 2 May 1989 and secondly, on the adjourned date, 3 May 1989?

On the 2 May 1989 when the case was called the reason given to explain the absence of the appellant was that “the appellant was appearing as counsel in two part-heard cases before Armah J”. In that letter, the appellant suggested to the trial judge that the case in which he was plaintiff be adjourned to 28 November 1989 for mention. The appellant did not state any other reason for this request for long adjournment. Again the request was that on the adjourned date, 28 November 1989 the case should be mentioned, meaning that actual hearing on the merits be further adjourned on that date. In all the circumstances the trial judge adjourned hearing to 3 May 1989. In the opinion of the learned trial judge the request for the long adjournment was some evidence that “the appellant was not serious and anxious to prosecute his claim”. It seems to me that this observation of the learned trial judge was sufficient to provoke and stir up the appellant to react to it in his affidavit. The appellant did not react to this serious charge made against him by the learned trial judge. What should a serious, anxious and a prudent plaintiff, who is also a legal practitioner and an officer of the court do in a case in which he had written to a court and sought an adjournment of a case that was fixed for definite hearing? I have no doubt that in that situation a prudent and serious plaintiff would check on the fate of his application for adjournment and advise himself accordingly. In the instant case the appellant explained what he did as follows:

“9. After doing one of the part-heards before Mr Justice Armah I left court with intent to check up the fate of my application, but a strong tooth ache took me home to look for medicine left behind.

10. The next day 3rd May 1989, I had to leave home late to come to court to find out the adjournment date.”

The learned trial judge was not impressed with the excuses given by the appellant. He saw the conduct of the appellant “as a ploy to unreasonably delay the hearing of his case”. In his affidavit in support of his application to re-list and for stay of execution the appellant for the first time gave the true reason for his failure to be present in court on 2 May 1989 and his suggestion for a long adjournment to 28 November 1989 for mention. He deposed as follows:

“I had to ask for a long date because I had planned to take a rest which had not been possible for me to have since I was called to the Bar 19 years ago, and this is beginning to take a toll on my health.”

If this was the true reason for the request for the long adjournment “for mention” it may well be asked why the appellant failed and omitted to state it in so many words in his letter to the court. It is clear that the appellant was not candid and truthful in his letter of 2 May 1989, because he did not disclose the true reason for the request for the long adjournment for mention. The opinion expressed by the judge, to wit, that the request for the adjournment was a ploy to delay the hearing of the action was in the circumstances justified.

The learned judge gave another reason to justify his conclusion. He stated that in the circumstances in which the appellant found himself “he should have taken alternative steps to be represented, he being the plaintiff”. The appellant did not comment and did not assail this observation of the learned judge in his affidavit in support of his application to re-list and stay of execution. Before us the appellant has not questioned this reason given by the learned judge. I find that this is further justification for the conclusion reached by the trial judge.

I must now turn to the relevant rule of court as it is stated in Or 36 r 17 of the High Court (Civil Procedure) Rules 1954 LN 140A.

“17. If, when a trial is called on, the defendant appears, and the plaintiff does not appear, the defendant, if he has no counterclaim, shall be entitled to judgment dismissing the action, but if he has a counterclaim, then he may prove such counterclaim so far as the burden of proof lies upon him.”

The rule authorises a trial judge in the appropriate case to dismiss the action of a plaintiff. In the instant case the appellant had in his affidavit in support of the application to re-list and stay of execution showed beyond doubt that the case which was fixed for definite hearing on 2nd May 1989 “be adjourned to 28th November 1989 for mention” on the ground that “he needed a rest which had not been possible for 19 years”. The learned judge rejected this excuse. Before us, it had not been shown that the trial judge did not exercise his discretion judicially. I cannot fault the reason and the conclusion reached by the trial judge. I find that the appeal has no merit. I accordingly dismiss it. I affirm the decision of the lower court.

OFORI-BOATENG JA. I agree.

ADJABENG JA. I also agree.

Appeal dismissed.

S Kwami Tetteh, Legal Practitioner.