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J U D G
M E N T
ASIAMAH,
J.S.C.:
In this
appeal the appellant is seeking
an order from this court
reversing the judgment and
assessment of damages of the
Court of Appeal which upheld a
ruling by a co-ordinate High
Court to the effect that an
earlier judgment of another High
Court in the same jurisdictional
locale was amenable to a review
by another High Court Judge in
view of the fact that the
original judge had gone on
transfer and therefore not
available to take a review of
the judgment.
The grounds
of Appeal are three-fold:-
(1)
The
Court of Appeal erred in law in
holding that the lack of service
of Hearing Notice on Appellant
after Summons for Directions was
taken in the absence of the
representative of the Appellant
did not render the decision of
the Trial Court null and void.
(2)
The
Court of Appeal erred in law in
holding that the failure of the
Trial High Court to assess
damages did not nullify the
award of damages made by the
Trial Court.
(3)
The
Court of Appeal erred in not
assessing or causing damages to
be assessed before awarding
damages of ¢3,000,000,000.00
(three billion cedis) against
the Appellant.
In dealing
with this appeal I would like to
give a synopsis of the
proceedings of the trial High
Court for the purpose of
revealing the rather tortuous
track that this case has
traversed up to this court.
Everything
seemed going aright up to the
time pleadings closed. At the
summons for directions state,
though the defendant/appellant
was duly served through one
Cladstone Dzebu at Bogoso, the
defendant/appellant never showed
up in court on the 24th
January 2001 the date fixed for
the taking of the Summons. The
Plaintiff was present and the
summons was taken, the court
accepting the issues set down by
the Plaintiff. In the court’s
minutes on this day this is how
the judge concluded the business
for the day:
BY COURT:
Issues accepted and set down for
trial. 27/2/2001 for hearing.
The defendants be served with
Hearing Notice.
It is obvious
from the court’s notes above
that the defendant/appellant was
to be informed by a court
process that hearing of the case
would commence on 27th
February 2001 and that he should
attend court. There is no
evidence on record that this
order of the court was
executed. However, hearing
could not commence on the
adjourned date, that is on
27/2/2001. Again there is no
record that the case was even
called at all on that date. In
the judgment of the Court of
Appeal at p 162 of the record of
proceedings the Court commented
on this fact as follows:-
“Nothing
showed that the order to serve
the defendant with a hearing
notice was complied with. From
the record of appeal, there was
not record of what transpired in
Court on 27-2-2001 in so far as
this suit was concerned. We
called for the record book
itself and noted that even
though the court sat, it was
silent on the event of 27-2-2001
in the court”.
However, on
28-02-2001 the court sat and
took the evidence of plaintiffs
through the 2nd
plaintiff together with PW1,
Abraham Atta Saah, an Agric
Extension Officer. Curiously no
date was fixed for the next
hearing date yet the
plaintiffs/respondent and their
second witness (PW2), Michael
Sanyow Ali showed up on Court on
21/05/2001. PW2 gave evidence.
The Appellant had still not been
served with any hearing notice
to attend court. I presume the
plaintiffs/respondents closed
their case with the evidence of
PW2.
The next
occasion that the case was
called was on 19th
July 2001. The record on this
date contains the written
judgment and nothing more.
Again there is no clue
whatsoever if the judgment was
read or not. The doubt is
cleared with the passage of
time.
Strangely
though, on 21st
August 2001 in the vacation the
trial court sat and the whole
minutes for the day were
recorded in this terse
telegraphic form:
“parties
present. Counsel-Mercer for
Huges: Judgment delivered.
Cost of ¢3 million awarded to
each plaintiff against the
defendant. Date fixed for
assessment of damages”.
Furthermore
during the same legal vacation
period on 18th
September 2001 another curious
thing occurred. The court sat
and purportedly did what it
termed assessment of damages in
the absence of, this time not
only the defendant/appellants,
but also in the absence of the
plaintiffs/respondents. It must
be mentioned that the judgment
that the court read on 21st
August 2001 aforementioned was
not interlocutory one. It was a
final judgment. The court was
therefore functus officio once
the judgment was delivered.
The award of
¢3,833,280,000 and
¢958,320,000.00 damages in
favour of 1st and 2nd
plaintiffs/respondents
respectively on 18th
September 2001 was an act in
futility as the court had no
jurisdiction in the matter any
longer.
The law is
undisputedly certain and clear
that where a court issues a
hearing notice or a process to
be served on a litigating party
giving him an advance
notification of a future hearing
date in relation to a matter of
which it is seized with
jurisdiction to hear or
determine until that order is
effectually executed on the
party for whom the order is
issued no further hearing of the
matter can be entertained. If
the court goes ahead in the
intervening period of
non-service and does anything by
way of taking further
proceedings in the matter that
act of the court would be
palpably null and void.
The
obligatory nature of court
orders requiring an unquestioned
obedience thereto until the
order is revoked was succinctly
stated in the case of Rusfell
v. East Anglia Rly ER 201
at p 206. The principle was
adopted by this court in
Republic v. High Court,
Accra ex parte Afoda
[2001-2002] SC GLR 768 as
follows per Truro, LC:
“It is an
established rule of this court
that it is not open to any party
to question the orders of this
court or to question any process
issued under the authority of
this court by disobedience. I
know of no act of this court
which may not be questioned in a
proper forum or on a proper
application but I think it is
not competent for any one … to
disobey any orders of the court…
I consider the rule to be of
such importance to the interest
and safety of the public, and to
the administration of justice,
that it ought on all occasions
to be inflexibly maintained”.
It can be
gleaned from the record of the
proceedings that the Judge in a
matrix of contrivances either
purposely or inadvertently
appeared in the exercise of his
judicial power to have given
free rein to his personal Will.
Marshall in Osborne v.
United States, 9 Wheat.
738 at 866 has given a clear
direction as to how a court or a
judge is expected to manage
judicial proceedings and has
stated it thus:
“Judicial
power is never exercised for the
purpose of giving effect to the
Will of the judge; always for
the purpose of given effect… to
the Will of the law”.
The trial
judge did not see to it that his
own orders were obeyed. A
fortiori, the judge himself
disobeyed his own order when he
proceeded to take evidence from
the plaintiffs without
satisfying himself that his
previous order had been
executed.
The whole
trial was nothing less than a
muddled and farce trial. The
entire proceedings together with
the resultant judgment should
not be made to stand, and same
is set aside together with the
subsequent appeal proceedings.
Appeal is allowed. A new trial
is ordered and the matter is
hereby remitted to the High
Court, Sekondi to be tried de
novo on day to day basis.
S. K. ASIAMAH
JUSTICE OF
THE SUPREME COURT
G. T. WOOD
(MRS)
CHIEF JUSTICE
S. A.
BROBBEY
JUSTICE OF
THE SUPREME COURT
R. T.
ANINAKWAH
JUSTICE OF
THE SUPREME COURT
S. O.
ADINYIRA (MRS)
JUSTICE OF
THE SUPREME COURT
COUNSEL:
Michael Xatse
for the Appellant
Joycelyn
Hughes for the Respondent.
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