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JUDGMENT
SOPHIA A.B. AKUFFO, J.S.C.:
By its writ herein, issued on
April 04, 2001, the Plaintiff
sought, inter alia, the
following reliefs:
"1. A declaration that the
former President of the
Republic, Flt. Lt. Jerry John
Rawlings is entitled to all the
facilities available to him as
President and such facilities
including his military security
detail shall not be varied to
his disadvantage during his
lifetime.
"2. An order directed at the
Defendant that no such variation
in the facilities available to
him as President shall be varied
without his consent during his
lifetime.
"3. An injunction restraining
the Defendant and the government
it represents, their
agents...from varying the
facilities available to the said
President Jerry John Rawlings
during his lifetime as
prescribed by the
Constitution''.
Subsequent to the issuing of
this writ, the Plaintiff, on May
25th 2001, filed a motion for an
order holding the Defendant in
contempt of this Court. However,
on June 12th 2001, when the
motion came on for a hearing,
Counsel for the Plaintiff orally
sought leave to withdraw its
application, which leave was
granted. The Court, however,
gave the following orders and
directions with regards to the
prosecution of the substantive
case:
1. The Memorandum of Issues must
be submitted on or before June
19th 2001.
2. The Plaintiff must file its
legal submissions within 7 days
from June 19th 2001.
3. The Defendant must file its
legal submissions within 7 days
upon the service of the
Plaintiff's legal submissions.
4. Judgment is to be delivered
by the court on July 11th 2001.
These orders were made pursuant
to the Court's powers under
Rules 50, 51 and 53(1) of the
Supreme Court Rules, 1996 (CI.
16), in order to assure an
expeditious disposal of the
matter. Consequently, the
Plaintiff should have filed its
legal submissions on July 26th
2001, at the latest. As at the
latter date, (and indeed as at
the date hereof) no Memorandum
of Issues had been filed by the
parties, whether jointly or
severally. The Plaintiff had
also failed to file any legal
submissions to which the
Defendant might respond and has
not sought or obtained from the
Court any extension of the
stipulated timelines. Both
parties have, therefore, failed
to comply with the said orders
and directions of the Court.
However, the more serious
non-compliance lies with the
Plaintiff which, after all, is
the one invoking the original
jurisdiction of the Court and
upon whom the onus, therefore,
lies, if it is still interested
in the prosecution of its suit,
to take the requisite steps, as
ordered and directed, to assure
the continuation of the
proceedings. Thus, even assuming
it has not been possible for the
parties to agree to the issues,
it was incumbent upon the
Plaintiff to file its own
memorandum. Moreover, without
the legal submissions of the
Plaintiff, there will be no
point in the Defendant filing
any, since it would only be
second guessing the Plaintiff on
the legal bases of its claim.
In Rule 79 of the rules of this
Court, C.I. 16, it is provided
as follows:
"Where a party to any
proceedings before the Court
fails to comply with any
provision of these Rules or with
the terms of any order or
direction given or with any rule
of practice or procedure
directed or given by the Court,
the failure shall be a bar to
further prosecution of
proceedings unless the Court
considers that the
non-compliance should be
waived." (Our emphases)
The terms of the main part of
this Rule are patent enough not
to require any further
elaboration. In the context of
this case, this Court, on June
12th 2001, gave certain orders
and directions, non of which
have been complied with. This
failure constitutes a bar to any
further prosecution of the case,
unless we choose to exercise our
discretion to waive the
non-compliance. The question,
therefore, is whether there are
any credible justifications to
back our exercising any
discretion in the matter,
bearing in mind that discretion
conferred by statute must be
exercised judiciously, and
judicially i.e., it must be
based on sound reasons and
justifications. In the case of
the Republic v. High Court,
Kumasi; Ex Parte Atumfuwa et
al., [2000] SC GLR 72, this
Court had this to say regarding
the nature of our discretion
under Rule 79:
"... in each case of
non-compliance of whatever
degree and nature, the decision
to waive or not would lie with
the court. And since this is an
exercise of the court's
discretion, it would naturally
take into consideration the
circumstances surrounding the
inability to comply..., the
nature of the non-compliance and
other relevant factors necessary
to enable a fair and judicious
exercise of that discretion.
Each non-compliance should be
decided in accordance with its
own peculiar circumstances."
The Plaintiff has not made any
approaches to this Court for a
waiver of its non-compliance
and, consequently, we are not in
any position to know the
peculiar reasons and
circumstances (if any)
surrounding its failure or
inability to comply. And
although the discretion granted
by Rule 79 may, in the proper
circumstances, be exercised by
the Court suo motu, we do not
see any objective factors or
circumstances in this instance
that would justify our doing so.
We would be merely speculating.
In any event, on the state of
the pleadings as they now stand,
we find no merit in the
Plaintiff's action.
Consequently, the Plaintiff's
action herein ought to be
dismissed.
MS. SOPHIA A.B. AKUFFO,
JUSTICE OF THE SUPREME COURT
E.K. WIREDU,
AG. CHIEF JUSTICE
MRS. J. BAMFORD-ADDO,
JUSTICE OF THE SUPREME COURT
ADJABENG
JUSTICE OF THE SUPREME COURT
ACQUAH,
JUSTICE OF THE SUPREME COURT
LAMPTEY,
JUSTICE OF THE SUPREME COURT
ADZOE,
JUSTICE OF THE SUPREME COURT
COUNSEL
Nana Akufo Addo, Attorney
General with Miss Gloria Akufo,
Deputy Attorney General and Mrs.
Quansah, Chief State Attorney
for Defendant.
Mr. Kwaku Baah for Plaintiff. |
