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GBADEGBE J.A.
read the following
judgment of the Court:
We have carefully
scrutinized the record of appeal in the matter herein
and have come to the view that the appeal succeeds for
the following reasons.
In the first place, the
court is of the view that it was wrong for the learned
trial judge to have had the entire action determined by
resort to legal arguments. We are of the view that there
were several issues which arose on the pleadings as
indeed is borne out by the application for directions
filed on the 9th of May 1994. Most of the issues raised
in the view of the court were matters that required the
reception of evidence. In this regard we refer to issues
1, 2 and 3 as set out in the summons of directions by
way of example. Further to this, the court is of the
opinion that following the order made at the hearing of
the summons for directions on the 12th of May, 1994, if
there was any further matter or thing to be done in the
action by way of directions, then the correct procedure
was for the party who sought such an order to apply
under order 30 rule 5 of the rules of the trial court
for further directions.
We think that the
proceedings of that day which appear at page 18 of the
record of proceedings by which the learned trial judge
purported to adjourn the matter for further
consideration in the absence of anything in the record
to clearly indicate that any of the issues set out
before him required further directions was wrong. The
position, which we have taken, of the proceedings of
that day becomes clearer if the order as made by the
learned trial judge is reproduced.
"By Court: The issues
as filed by the plaintiffs are hereby set down for
trial. Case stands adjourned to 18/5/94 for further
consideration".
If it may be asked who
raised any point or objection on the issues as filed
which required further consideration? We are unable to
accept the curse of conduct of the learned trial judge,
which appears not to be reflected by the proceedings on
which his subsequent order was based. In view of this we
think that the proceedings of the 18th of May at which
the direction regarding the taking of legal arguments
was made and immediately proceeded with by the reception
of arguments was wrong. Consequently, since the
proceedings based thereon were procured following a
non-compliance with the mandatory requirements of Order
30 Rule 5 of the Rules of the trial court they are
hereby set aside. Further, we are of the thinking that
the proceedings subsequent to the taking of the summons
of directions were improperly constituted with the
result that nothing of consequence at law can be derived
there from.
But that is not all. We
also think that even if the proceedings of that day were
to be regular the record must clearly show on its face
that the learned trial judge indicated to the parties
that in his view the point in respect of which the
required legal arguments to be taken was likely to
substantially dispose of the action as required by order
25 of the rules of the trial court. The court also notes
that there was no indication by the parties acting by
their counsel that they had consented to the taking of
the preliminary legal arguments. In our view we think
that if anything the appellants whose pleadings had
raised most of the issues for trial bearing on facts
could not have given their consent to the procedure if
indeed their opinion was sought for it was quite
prejudicial to the entire case that they had set up by
way of defence to the action against them. It follows
that the learned trial judge exercised himself in a
manner not borne out by the settled practice of the
courts. Therefore on this ground also the proceedings
disclose a fundamental irregularity, which vitiates it.
Having held that the proceedings of the 18th of May are
fundamentally flawed, the court thinks that the
subsequent proceedings based thereon namely: The ruling
of the 18th of October, 1994 the subject matter of this
appeal is a nullity to which no attribute at law may be
attached.
Again, in our opinion
in the said ruling the learned trial judge made
reference to several matters of facts which were not in
evidence before him such as the letter terminating the
appointments of the respondents to this appeal and their
respective ages which he took into account in
determining their respective and entitlements to damages
for unlawful dismissal. The court notes the belated
attempt by the learned trial judge to give some
regularity to the damages that he was assessing by
purporting in the midst of the judgment to take evidence
from the respondents herein as to their respective ages.
We think that the conduct of the learned trial judge
reinforces our opinion that the assessment of damages
without legal evidence was wrong. Clearly in our view
the procedure, which he adopted, was not only wrong but
unauthorized.
We are of the view that
in the said circumstances the learned trial judge took
into accounts extraneous matters. Having thus taken
matters which were not lawfully admitted in evidence
into account in determining the action before him we
think that the judgment suffers from a defect which
renders it bad at law.
We must say that it was
for these reasons which are discernible from the record
of proceedings that in the exercise of the powers
conferred on us under rule 8(8) of C.I. 19 we called
upon learned counsel for the respondent on the last
adjournment had to satisfy us that the procedure adopted
by the learned trial judge was in accordance with the
settled practice and procedure of the court below. In
making that direction we were not unaware of the fact
that in his statement of case, learned counsel for the
appellant had raised those points in paragraph 2 and 3
thereof but did so having regarding to the fact that the
grounds of appeal as formulated in the notice of appeal
before us did not clearly bring out the points on which
our decision rest. Unfortunately, in response thereto,
learned counsel for the respondent did not answer the
point by way of reference to the record but by regard to
matters of speculation in a manner, which was not
satisfactory and did not persuade us that the course of
conduct adopted by the judge who presided over the trial
was regular.
Accordingly, we allow
the appeal herein and direct that the matter be
transmitted to the court below for a retrial to be
conducted according to law.
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N.S. GBADEGBE
JUSTICE OF APPEAL
I agree
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P.K. TWUMASI
JUSTICE OF APPEAL
I also I agree
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E. K. PEISARE
JUSTICE OF APPEAL
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