10 FEBRUARY 1993

Practice and procedure — Adjournment — Grounds —Discretion — Counsel’s engagement in another court or ill-health insufficient reason for adjournment — Wrongful for counsel to seek adjournment in superior court to attend inferior court.

Practice and procedure — Costs — Discretion —Parties agreeing at hearing of summons for directions that costs to be in cause — Discretion of court to award costs in the course of hearing not hampered by agreement — High Court (Civil Procedure) Rules 1954 (LN 140A) Or 65 rr 1 and 44.

Practice and procedure — Adjournment — Grounds — Ill-health of counsel or client — Counsel to notify court and adversary with acceptable medical report — Court may grant adjournment without medical report.

Practice and procedure — Trial — Close of case — Plaintiff declining to proceed with trial in absence of his counsel — Plaintiff’s case to be deemed closed — Court may declare case closed or adjourn — High Court (Civil Procedure) Rules 1954 (LN 140A) Or 37 r 17.

Practice and procedure — Costs — Award — Party aggrieved with award of costs —Whether to apply for review or appeal.

Practice and procedure — Appeal — Interlocutory — Appeal — Award of costs interlocutory order requiring  leave to appeal — Courts Act 1971 (Act 372) s 10(5).

Practice and procedure  — Costs — Punitive — Court may award punitive costs to deter need for further adjournment of case.

During the hearing of the case in the High Court, counsel for the plaintiffs was absent twice, on 10 and 16 October 1992. On 10 October 1992, one of his clients declined to proceed with the hearing in his absence and the judge closed the plaintiffs’ case. On the adjourned date, 14 October 1992, counsel applied for the case to be re-opened. He explained that on 10 October 1992 he had to appear in the circuit court in his personal case. In her ruling the judge reviewed the history of the case, including a petition to the Chief Justice over delay in the case, and rejected the explanation. She awarded ¢6,000 costs as a condition for re-opening the case, to be paid by each plaintiff before the next hearing. Counsel explained, on his absence in court on 16 October 1992, that he fell ill and instructed one of his clients to inform the court; he produced no medical report. The judge again awarded ¢120,000 costs against the plaintiffs.

The plaintiffs appealed to the Court of Appeal against the awards. Their counsel argued that judges ought to make due allowance for counsel having to appear in other courts as the courts were established by the same statutes and performed equally important functions. He argued further that the trial judge’s order that the cost be paid by the adjourned date was wrongful as the parties had agreed on the summons for directions that costs would be in the cause. Counsel argued further that the costs were punitive.

On the competence of the appeal, the respondents’ counsel submitted that the appellants ought to have applied for review in the trial court in the first place. Counsel for the appellants replied that a party aggrieved by a decision of the High Court was not obliged to apply for review before appealing.

Held: (1) it was a principle too elementary to require argument that every court was important. Counsel’s arguments based on the alleged exigencies at the bar were misconceived. It was not uncommon that counsel’s cases might be fixed simultaneously in more than one court; but that was the more reason why lawyers at the bar ought to work in teams, in sets of chambers or with juniors. If a lawyer decided to embark on sole practice and was confronted with the situation where he had to appear in two different courts at the same time, he had himself to blame; such practice could not inure to his advantage. For, there was no rule of law or practice in our courts to the effect that a case ought to be adjourned because counsel was in another court, as in this case, in a lower court. Indeed, it was incompetent for a lawyer to organise his affairs in such manner as would require his presence in several courts at the same time. No court would countenance such situation unless the parties or their counsel and the court had so agreed. Courtesy demanded that a lawyer inform the opposing counsel or party and the court of his inability to attend court and common sense dictated the prudent course for a lawyer having to appear in a lower and superior court simultaneously. That preference ought to be given to the superior court did not mean that a lower court was unimportant. It was indeed an aberration of a lawyer’s sense of priority for him, in such situation, to appear in the lower court.

(2) Under Order 65 r 1 of High Court (Civil Procedure) Rules (1954) LN 140A costs were in the discretion of the court while Order 36 r 19 vested discretion in a trial judge to adjourn a trial upon terms. There was no authority for the proposition that the trial judge was precluded from awarding costs in the course of a trial because the parties had agreed on the summons for directions that costs be in the cause. The award was supported further under Order 65 rule 44 of LN 140A on the award of costs where a matter struck out was set down again for hearing.

(3) When the plaintiff declined to testify in the absence of his lawyer, the trial court could have ruled that the plaintiff had abandoned his case and proceeded under Order 36 rule 17. The judge exercised her discretion rightly to adjourn the case on terms and rightly considered the history of the case in awarding costs. Donald Campbell & Co v Pollak [1927] AC 732, Civil Service Co-operative Society v General Steam Navigation Co [1903] 2 KB 756, Rep v National House of Chiefs, Kumasi and another; ex parte Kusi-Apea [1984-86] 2 GLR 90, SC referred to.

(4) The court had discretion to proceed in a trial or adjourn where a party or his counsel fell ill; there was no obligation to bring proceedings to a halt. It was a matter of common sense, not the dictates of the rules of court. In practice, a counsel or party who fell sick would bring his condition to the notice of the court or counsel for the other side by the production of a proper medical report. A trial judge could also rely on the word of counsel or the party and grant an adjournment in a deserving case. In the instant case, there was no proof that counsel fell ill or that his condition was brought to the attention of the court.

(5) If counsel had applied for review in the trial court he would have had the opportunity to place facts before the court to enable the trial judge reconsider the awards. Not having done so nor filed an affidavit to dispute the accuracy of the record of proceedings, the appellants erred in appealing on matters not contained in the record of proceedings.

(6) There was no evidence that the appellants complied with the requirements for leave to appeal under the Courts Act 1971 (Act 372) s 10(5) since the award of costs was an interlocutory decision.

(7) Having regard to the history of the case, the trial judge was justified in awarding punitive costs to deter further adjournment at the instance of the plaintiffs. The awards were the doing of the plaintiffs and their counsel and having regard to the value of money, the amounts awarded could not be said to be excessive.

Cases referred to:

Civil Service Co-operative Society v General Steam Navigation Co [1903] 2 KB 756.

Donald Campbell & Co v Pollak [1927] AC 732.

Rep v National House of Chiefs, Kumasi and another;  ex parte Nana Kusi-Apea [1984-86] 2 GLR 90, SC.

APPEAL to the Court of Appeal against award of costs in the High Court.

BROBBEY JA. A writ was issued in the High Court. While the trial was in progress, counsel for the plaintiffs absented himself twice; these were on 10 and 16 October 1992. On 14 October 1992, the trial judge awarded costs of ¢6,000 against each of the five plaintiffs for bringing the proceedings to an end on 10 October 1992. On 16 October 1992, she awarded ¢120,000 against the plaintiffs for the same reason. Against those two orders on costs, counsel for the plaintiffs filed the  appeal to this court.

The circumstances surrounding the first award of costs were these: The trial was in progress in court on 10 October 1992 when one of the plaintiffs announced that his lawyer was absent and therefore he would not proceed with the trial. The judge then ruled that the plaintiffs’ case was deemed to have been closed. On 14 October 1992, which was the adjourned date, counsel for the plaintiffs applied for the case to be re-opened for the plaintiffs to continue their testimonies. Counsel explained that his absence at the previous sitting was due to the fact that he had to appear in the circuit court to take an adjournment in his personal case. It was at that stage that the trial judge ordered each plaintiff to pay costs of ¢6,000. As a condition for allowing the plaintiffs’ case to be re-opened, the judge ordered that the cost should be paid before the resumption of trial. The judge gave as her reason for the award of costs the fact that it was no good ground for adjourning a case merely because counsel in the case had to appear before another court. She alluded to the history of the case as a reason for not entertaining the adjournment. On the second occasion of his absence from court, counsel explained that he fell sick and instructed his client to inform the court. There was no evidence that the clients so informed the court.

Arguing the appeal in this court, counsel for the plaintiff referred to the reasons of the trial judge and submitted that the courts of this country were established by the same statutes and performed equally important functions and therefore no court should denigrate the status and work of the other.

In the first place, it was a grossly erroneous interpretation to place on the reasons assigned by the trial judge. She never held that the circuit court or its work was not important. It is a statement too elementary to require argument that every court is important, otherwise it would not have been set up.

In the court below and in this court, counsel for the appellants alluded to the exigencies at the bar and the court registry as reasons why allowance should be made for counsel to appear in other courts. That is a mistaken view. That more than one case may be fixed simultaneously in different courts cannot be ruled out. But the probability of that happening is one of the reasons why at the bar lawyers ought to work in a team, in a set of chambers or with juniors. These are the exigencies of the bar. If a lawyer decides to embark on sole practice and is confronted with the situation of having to appear in two different courts at a time, he has himself to blame. That mode of practice is not an arrangement which will inure to his advantage in such a situation. It will always be to his disadvantage. It was therefore wrong for counsel to have invoked the exigencies at the bar as an excuse for his self-made dilemma of having to appear in two courts simultaneously.

On the other hand, there is a hierarchy of courts. The Courts Act 1972 (Act 372) divides the courts in the country into two categories, namely, the Superior Courts of Judicature and the inferior courts. Even under the 1992 Constitution, the same division is retained in article 126(1) save that the term “inferior” has now been dropped in preference to the word “lower.” The courts constituting the Superior Courts are senior to the inferior or lower courts.

The problem sometimes arises as to which court to attend where a lawyer has more than one case fixed in two different courts simultaneously. It was a similar problem which gave rise to the costs in the instant appeal. The problem is by no means uncommon. It is therefore desirable that the principles to be applied in resolving the problem be set straight once and for all. They are these:

Firstly there is no rule of law or practice in our courts to the effect that when a case is called in one court, it has to be adjourned when it is learned that counsel is appearing before another court. This is the position whether the case is called in a lower court while counsel appears in the highest court. No court is to subordinate its work to another court and to make allowance for counsel’s appearance in another court, unless it is so agreed upon in advance by the parties or their counsel and the courts concerned.

Secondly, it is not the mark of administrative efficiency for a lawyer to organise his affairs in such a way that he will be required to appear in more than one court at the same time. When that happens, the proper course of action would be to communicate with one of the courts and opposing counsel or parties likely to be in court so that matters would be arranged between the parties or their counsel and the court.

Thirdly, if for nothing, courtesy demands that a lawyer who knows that he will be absent at a sitting should inform the opposing counsel or party and the court. Courtesy apart, common sense should dictate whether it is prudent for a lawyer faced with having to appear in a lower and superior court simultaneously to opt for the lower court and expect the superior court to await his arrival from the lower court. To suggest that preference should be given to the superior court is not to say that the lower court is unimportant. But that suggestion accords with sheer common sense.