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Practice
and Procedure - Civil procedure
- Certiorari - An order to quash
a ruling of the High Court, -
to further restrain judge
from further hearing a suit.
HEADNOTES
Sometimes
the parties refer to an
application by the defendant to
set aside the Plaintiff’s motion
for release of auction sale
funds and at times to an
application to set aside the
ruling allowing the motion for
the release of the said funds.
Whatever the nature of the
application in issue it is clear
that the present application to
this court relating to the
Ruling of Anthony K. Yeboah
dated 29/5/2014 is overtaken by
the earlier Ruling of the said
Judge dated 17/3/2014, exhibit
JCL3 in which the learned Judge
recounts the course of
applications on both sides
relating to this matter. Inter
alia the learned Judge therein
recounts that on the 23/10/2013
he set aside Peter Odei Ofei J’s
order dated 25/7/2013 but later
reinstated the same upon
application by counsel for the
Plaintiff/interested party
herein. In the course of the
execution proceedings some
amount of money became lodged
with the Court. To have the said
amount out of the proceeds of
the judicial sale released to
the Plaintiffs, the company
filed the application for
release of funds This Court
differently presided over
granted the application and made
the order to the effect that the
amount be released as
prayed.Subsequently, the
Plaintiffs filed the application
for an order extending the time
within which to apply for a
review of the release order
However, before this application
for extension of time could be
considered, the Defendant filed
the application seeking to have
set aside ‘motion for order to
release money” filed by the
Plaintiff/Judgment – Creditor/
In fact, the thrust of the
application to set aside was
that the order made for the
release of fund was made without
jurisdiction for the reason that
the application was not served
on the Defendant/ Respondent but
was rather served on a solicitor
who was then not instructed to
act for the
Defendant/Respondent.
HELD :-
It is
quite clear that this reasoning
of the learned Judge is legally
valid and therefore with the
dismissal of his repeat
application dated 10/2/2014 for
the purpose of setting aside
motion for “order to release
money” filed by the plaintiff/
judgment-creditor/ respondent on
9/7/2013 the applicant has no
subsisting application to hinder
the listing of the interested
party’s motion for hearing per
the Ruling dated 29/5/2014 which
the applicant impugns by this
application. For the foregoing
reasons the application is
dismissed.
STATUTES REFERRED TO IN JUDGMENT
CASES REFERRED TO IN JUDGMENT
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
ATUGUBA
JSC:
COUNSEL
SAM WOODE ESQ. FOR THE APPLICANT.
PETER
ZWENNES ESQ. (WITH KINGSLEY
GURAH-SEY) FOR THE INTERESTED
PARTY.
RULING
ATUGUBA JSC:
The
applicant moves this court “for
an order for certiorari to
quash a ruling of the High
Court, 11 Accra delivered by His
Lordship, Anthony Kwadwo Yeboah
on the 29th day of
May 2014 in suit No.
C266/2000 between Janmen Co. Ltd
and Justfar Holiday Resort Ltd.
and to further restrain his
Lordship Anthony Kwadwo Yeboah
from further hearing the said
suit.”
Sometimes
the parties refer to an
application by the defendant to
set aside the Plaintiff’s motion
for release of auction sale
funds and at times to an
application to set aside the
ruling allowing the motion for
the release of the said funds.
Whatever
the nature of the application in
issue it is clear that the
present application to this
court relating to the Ruling of
Anthony K. Yeboah dated
29/5/2014 is overtaken by the
earlier Ruling of the said
Judge dated 17/3/2014, exhibit
JCL3 in which the learned Judge
recounts the course of
applications on both sides
relating to this matter.
Inter
alia the learned Judge therein
recounts that on the 23/10/2013
he set aside Peter Odei Ofei J’s
order dated 25/7/2013 but later
reinstated the same upon
application by counsel for the
Plaintiff/interested party
herein.
Consequently, as stated by the
learned trial Judge in exhibit
JCL3:
“In the
course of the execution
proceedings some amount of money
became lodged with the Court. To
have GH¢35,650.00 out of the
proceeds of the judicial sale
released to the Plaintiffs, the
company filed the application
for release of funds on
25/6/2013. This Court
differently presided over
granted the application and made
the order dated 25/7/2013 to the
effect that the amount of GH¢35,650.00
be released as prayed.
Subsequently, the Plaintiffs
filed the application of
30/8/2013 for an order
extending the time within which
to apply for a review of the
release order made on 25/7/2013.
However,
before this application for
extension of time could be
considered, the Defendant filed
the application of 10/10/2013
seeking to have set aside
‘motion for order to release
money” filed by the
Plaintiff/Judgment –
Creditor/Respondent on 9th
day of July 2013.”
In fact,
the thrust of the application to
set aside was that the order
madefor the release of fund was
made without jurisdiction for
the reason that the application
was not served on the
Defendant/Respondent but was
rather served on a solicitor who
was then not instructed to
act for the
Defendant/Respondent.
It was
evident from the affidavit in
support and the tenor of the
application for release of fund
that it was a post judgment
application. Counsel for
the Defendant contended that
after the judgment he ceased to
be the lawyer for the Defendant
and, for that reason, all
processes meant to be served on
the Defendant could not
be properly served on
him. It was clear that the
application for release of funds
was served on Sam Wood, Esq. who
at the material time had not
been appointed as solicitor of
the Defendants.
Accordingly, this court by a
ruling made on 28/10/2013
granted the
application and set aside the
order for release of funds
earlier made by this Court. The
application for release of fund
was, accordingly
restored to the Cause List and
Counsel for the Defendant was
ordered to return the process
improperly served on him to the
Registrar of the Court.
On
15/11/2013, the Plaintiff filed
an application seeking to set
aside the order of this Court
made on 28/10/2013. The thrust
of the application was that the
Court heard and granted the
application at a time
when the Plaintiff/Respondent
was short-served. The Court
heard the application when the
requisite clear days had not
elapsed.
There was
merit in the application and the
lawyer for the Defendant had
no answer to the application.
This court without hesitation
granted the application
and set aside its own order made
on 28/10/2013.
The status quo was accordingly
restored.
However, rather waiting for the
application to be heard, the
Defendant repeated the
application on 10/2/2014 for the
purpose of setting “aside motion
for “order to release money”
filed by the
Plaintiff/Judgment-Creditor/Respondent
filed on 9th day of
July 2013.” The thrust of the
application is that the motion
of 9/7/2013 was wrongly served
on him instead of personally on
the Defendant.
On the
face of the application
presently before this court,
the Defendant/Applicant is
seeking to have set
aside the application filed on
9/7/2013. What the Defendant has
failed to appreciate is that
in law that application
no longer exists to be set
aside. It effectively in law
ceased to exist the moment this
court differently presided over
made the order of 30/9/2013.
This order resulted from the
hearing of that application.
If the defendant had a problem
with the service of that
application, that was a ground
to seek to set aside the order
of 30/9/2013. One cannot go
beyond the order to set aside
the motion as the defendant
seeks to do. Setting aside a
non-existent application is an
abuse of the court’s process.
I recall explaining this
point of law to
Counsel for the Defendant in
open court on 28/2/2013. In this
regard, I noted as follows:-“
“Be that
as it may, I am inclined to
grant the application but not in
terms that the application of
9/7/2013 be set aside.” It is
therefore surprising that
counsel for the defendant has
chosen to repeat the application
in its defective form.”
The application is misconceived
and the same is dismissed.
I award cost of GH ¢500.00
against Counsel for the
Defendant personally and
for the Plaintiff. Cost is to be
paid within 14 days.” (e.s)
It is
quite clear that this reasoning
of the learned Judge is legally
valid and therefore with the
dismissal of his repeat
application dated 10/2/2014 for
the purpose of setting aside
motion for “order to release
money” filed by the plaintiff/
judgment-creditor/ respondent on
9/7/2013 the applicant has no
subsisting application to hinder
the listing of the interested
party’s motion for hearing per
the Ruling dated 29/5/2014 which
the applicant impugns by this
application.
For the
foregoing reasons the
application is dismissed.
(SGD)
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
(SGD) S. A. B.
AKUFFO (MS)
JUSTICE OF THE SUPREME COURT
(SGD) P. BAFFOE-BONNIE
JUSTICE
OF THE SUPREME COURT
(SGD) N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD) V. AKOTO BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
COUNSEL
SAM WOODE ESQ. FOR THE APPLICANT.
PETER
ZWENNES ESQ. (WITH KINGSLEY
GURAH-SEY) FOR THE INTERESTED
PARTY.
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