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Practice
and Procedure - Interlocutory
injunction – Order for
adjournment - Cause list -
Whether or not the judgment is
against the judgment weight of
evidence - Whether or not High
Court was seized with power to
deal with the application for
injunction - Whether or not the
case was not on the list of the
court below on 1-11-07; neither
had it been placed before the
court - Whether or not plaintiff
was present at the hearing and
therefore there could not have
been a breach of natural justice
- Order 79 rule 2(b) of the High
Court Civil Procedure Rules,
1993, CI 47
HEADNOTES
The
plaintiffs issued a writ of
summons before the High Court,
Accra, but the defendant entered
a conditional appearance to it;
subsequently, the plaintiffs
filed an application for an
order of interlocutory
injunction on 12-7-2007 to be
moved on 30-7-2007. As was to be
expected, the application was
opposed by the defendant The
application which was put before
the court presided over by
Ofori-Attah J, was adjourned to
1-11-07 for hearing. When the
application came before the
court presided over by Dzakpasu
J, he dismissed it on 1-11-2007
When the plaintiffs appealed
against the decision of the High
Court to the Court of Appeal it
dismissed the appeal resulting
in a further appeal to this
court.
HELD
The
appellants did not succeed in
our view, in showing the trial
judge committed any of these
errors or that the Court of
Appeal wrongly affirmed the
judgment of the trial court. It
is for these reasons that we
agree with and affirm the
judgment of the Court of Appeal
and dismiss the appeal.
STATUTES
REFERRED TO IN JUDGMENT
High Court
Civil Procedure Rules, 1993, CI
47,
CASES
REFERRED TO IN JUDGMENT
Shardey v
Adamtey and Shardey v Adamtey
and another (Consolidated)
[1972] 2 GLR 380, CA
Ballmoos v
Mensah [1984-86] 1 GLR 724, CA
Crentsil v
Crentsil [1962] 2 GLR 171 , SC
Blunt v Blunt
[1943] AC 517 at 518; 2 All ER
76
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ANSAH JSC.
COUNSEL
AGYABENG
AKRASI FOR THE APPELLANTS.
S. R.
BREMPONG FOR THE RESPONDANT.
________________________________________________________________
J U D G M E N
T
________________________________________________________________
ANSAH JSC.
The
plaintiffs issued a writ of
summons before the High Court,
Accra, but the defendant entered
a conditional appearance to it;
subsequently, the plaintiffs
filed an application for an
order of interlocutory
injunction on 12-7-2007 to be
moved on 30-7-2007. As was to be
expected, the application was
opposed by the defendant
who
tendered some exhibits.
The
application which was put before
the court presided over by
Ofori-Attah J, was adjourned to
1-11-07 for hearing.
When the
application came before the
court presided over by Dzakpasu
J, he dismissed it on 1-11-2007.
When the
plaintiffs appealed against the
decision of the High Court to
the Court of Appeal it dismissed
the appeal resulting in a
further appeal to this court.
The plaintiffs are the
appellants herein and the
defendant the respondent.
The grounds
of appeal were that:
“i,
The judgment is against the
judgment weight of evidence.
ii The Court
of Appeal erred by holding that
the High
Court was seized with power to
deal with the application for
injunction although it
conceded that
the case
was not on the list of the court
below on 1-11-07; neither had it
been placed before the court.
iii. The
court further erred by
restraining itself from
interfering with the decision of
the High Court which obviously
was a non-judicial act.
iv. The
Honorable Court of Appeal
further erred when it said that
from the record, the 1st
plaintiff
was present at the hearing and
therefore there could not have
been a breach of natural
justice.
v. The Court
of Appeal grievously erred in
failing to find that on the
totality of the evidence, even
if the High Court had the
jurisdiction in the matter,
(which is denied), it would have
been proper, just and convenient
for the court to have granted
Plaintiffs’ application for
injunction instead of dismissing
same, without any reason
whatsoever.
vi The costs
of GH¢300.00 awarded against
plaintiff/Appellant/Appellants
was excessive and unwarranted.”
A
consideration of the statement
of case by the appellant showed
that the crux of the submissions
by the appellant in support of
grounds one and two of appeal
which were argued together, was
that the High Court destroyed
whatever jurisdiction it had to
hear the motion when it had not
been listed before the court,
(court 15, coram:
Dzakpasu J) for hearing as shown
on the
cause list for the court for
that day. This was tendered in
evidence as ‘A’, in support of
an application to set aside the
order of the court dismissing
appellants’ notice for
injunction. The issue is could
that be of any import or effect
on the decision by the court?
The appellant
submitted that
Order 79
rule 2(b) of
the High
Court Civil Procedure Rules,
1993, CI 47, provided that:
“Motions
shall be taken in the order in
which they stand in the motion
list.”
Counsel
construed this rule to mean that
as the language used was
mandatory, there ought to be a
cause list for the day for a
particular day before the court
would be seized with
jurisdiction to hear a motion;
but the case was never on the
motion list for 1-11-07.
When the
appellant raised this issue
before Court of Appeal, it did
not receive any favorable
response from the court. The
court said in its unanimous
judgment read by Gyaesayor JA,
“Curiously,
the matter was heard before
Justice Dzakpasu on the 1st
November, 2007 when the cause
list for the day did not
indicate that the matter was to
be heard by another judge
different from the judge who
made the
order for adjournment.”
Notwithstanding this admission
by the Court, it went on to
trace the antecedents of the
application for injunction and
the relevant rules of court and
held that:
“in this case
where the parties were present,
and the statements of cases
filed, the court was seized with
power to deal with the
application on the basis of
papers filed and this cannot be
said to have been a breach of
rules of natural justice…. Once
the parties knew the forum and
made themselves available for
the hearing its absence from the
cause list cannot be the basis
for a reversal of the orders
made by the court. The plaintiff
was aware of the date and forum
and this explains why he was
present contrary to the
submission that they could not
locate the court room.”
The Court of
Appeal could not have been more
right for after all, a typical
weekly cause list is nothing
more than a notice of
information on
i)
the
list of cases for hearing on a
particular day,
ii)
the
particular court where the
hearing is going to take place,
iii)
the
time for the hearing, and
iv)
the
judge who is going to do the
hearing.
A cause list
when published is a notice to
the all parties of the listing
before the court of any cause or
matter mentioned in the list.
The dominant
issue in this appeal is does the
absence from a cause list of a
cause or matter for a particular
day render the proceedings of
the day void? The Court of
Appeal did not think so and I
agree with it.
As stated by
me, the importance of a cause
list is to give notice to the
parties of the fact that a
particular matter was coming on
for hearing at a particular
court and the time for hearing
by a particular judge. Whether
or not the appellant knew of
these facts notwithstanding the
absence of a suit on the cause
list for the week, was a matter
of fact determined by all the
circumstances surrounding the
particular case.
A perusal of
the record of appeal shows that
the second plaintiff, Agnes
Korankye, deposed in paragraphs
5 and 6 of an affidavit prepared
with the consent and authority
of the 1st and 3rd
plaintiffs, the other plaintiffs
in the suit, and filed on
25-7-2000, (at page 94), that;
“5. That on
the next adjourned date of
4/09/07, the vacation judge
adjourned hearing until 1st
November 2007, as the record was
incomplete, per the advice by
Counsel.
6. That on
1/11/, the suit was not assigned
to nor listed before any court
for hearing.
7 That
however learnt (sic) from the
Registry of the Court that a
clerk had sent the docket to
court 15, without any lawful
authority; we therefore made for
the said Court but when we
arrived there, His Lordship had
purportedly disposed of our
application.”
The parties
herein did not make any capital
as a ground of appeal of how the
matter left Ofori-Attah J’s
court and came to be put before
Dzakpasu J. The record of
proceedings showed that on
1-11-2007, the plaintiff and
defendants were present before
Dzakpasu J in respect of Suit
No. BL472/2007.
These
averments of the
plaintiffs/appellants lent ample
support to the view of the Court
of Appeal that:
“Once the
parties knew the forum and made
themselves available for the
hearing, its absence from the
cause list cannot be the basis
for a reversal of the orders
made by the court. The plaintiff
was aware of the date and forum
and this explains why he was
present contrary to the
submission that they could not
locate the court room….The main
ground on which the appeal is
built in our view is untenable
and should not be supported by
this court. Other grounds of
appeal flow from this ground and
do not contain any merit and
must also be
dismissed.”
It was made
abundantly clear that
Ofori-Attah J was only a
vacation judge when he sat to
adjourn the matter to 1- 11-07
for hearing; which would be in
term time.
The Court
held further that besides that
the parties were present, the
respective statements of case
had been filed and were before
the court and thus, the court
was seized of the matter and
could hear it in the absence of
counsel.
The Court
guided itself by considering
Order 25 rule 1, dealing with
and prescribing the procedure
for an application for an order
of injunction. Sub rule 3
required an applicant to “attach
to the Motion paper and
supporting affidavit, a
Statement of Case setting out
fully arguments, including all
relevant authorities to be
relied on…..”.
A respondent
who desires to oppose the
application shall file an
affidavit in opposition as well
as a Statement of Case
containing full arguments and
the legal authorities to be
relied on. The rules of court
provided that:
“(6) The
application may be considered on
the basis of the papers filed,
and the court may direct,
where necessary, the lawyer
address it on specific points of
law and facts” (e.s)
The above
provisions of Order 25 having
been complied with, the trial
court was in a position to deal
with the motion for injunction
as it did. The application may
be heard or considered upon viva
voce evidence or simply by
considering the merits upon the
strength or otherwise of the
respective affidavits or papers
of the parties as filed on the
record, with the court directing
addresses by counsel but then on
specific points of law or, and
facts; the court could do this
and still be held to have heard
the motion.
To clinch the
deal and hit the nail right on
the head, whether or not to hear
and decide the motion, whether
or not it was on the cause list
published for the day and as
appearing in Exhibit ‘A’, was a
matter of discretion by the
court. Upon scrutiny, that was
the cause list from Monday the
29th day of October
2007, to the 2nd day
of November, 2007, but did not
state ‘inter alia’ that
the hearing was to be before
Dzapkasu J. The first and second
plaintiffs and counsel for the
plaintiff applicants were
present in court on 4th
September 2007 when Ofori-Attah
J adjourned the application to
1-11-07, for hearing; according
to the notes in the record of
appeal. On that day, the
plaintiff was present but
without their counsel. In the
circumstances, that the motion
was not listed in Exhibit ‘A’
was not fatal for the parties
knew well beforehand and as far
back as 4 September 2007, that
it would come up for hearing
that day. Listing a motion for
hearing for a particular day was
the duty of the Registrar and
the absence from the cause list
of a motion could not reasonably
preclude a court from hearing
it, provided the parties or
their counsel had prior notice
of hearing of the motion that
day.
In other
words a cause list containing a
suit for hearing on a particular
day by a court is desirable but
not a sine qua non so that its
absence or non compliance should
render the proceedings null and
void. That was especially so
where the parties were made
aware of when the hearing would
come on. In similar
circumstances where there had
been no publication in the
Gazette so as to amount to an
appeal having been entered and
as required by the rules, the
Court of Appeal held as per the
head-note (2) of the report
that:
“The
publication of the cause list in
the Gazette is not a sine qua
non for the assumption of
jurisdiction by Court of Appeal
in considering applications
pending the hearing of the
substantive appeals. The
publication of the cause list in
the Gazette imposes a mandatory
statutory duty on the registrar,
but the absence of the
publication does not operate as
a hindrance in the path of the
court. The court has a
discretionary power to dispense
with the Gazette notice’”,
see
Shardey v
Adamtey and Shardey v Adamtey
and another (Consolidated)
[1972] 2 GLR 380, CA cited
by counsel for the respondent
herein.
Judicial
notice may be taken of the fact
that the cause list in Exhibit
‘A’ was notice for the hearing
of cases from Monday to Friday,
in this case, from Monday, the
29th day of October
2007 to Friday the 2nd
day of November, 2007, before
Dzakpasu J, sitting at court 15.
It was reasonable to hold that
an applicant who had
foreknowledge of the hearing of
his motion that day should be
proactive enough to search from
the Registrar where his motion
would be heard if he found it
was not listed on the day it had
been adjourned to earlier. If he
did not, then he exhibited a
high degree of inexcusable
indolence and should be ready to
absorb all consequences flowing
therefrom.
At any rate,
the record has it that on
1-11-07, the plaintiff was
present in court 15 before
Dzapkasu J. That fact and the
record, having not been
falsified by the appellants,
constituted an admission which
bound the appellants
herein.
This being an
interlocutory application, its
grant or refusal, is entirely
within the discretion of the
court, and in the absence of a
strong showing that the judge
overlooked or allowed his
discretion to be interfered with
by irrelevant considerations
whilst ignoring substantial
ones, an appellate court will be
loath to interfere with the
exercise of the discretion. In
Ballmoos
v Mensah [1984-86] 1 GLR 724, CA,
the court held as per Osei Hwere
JA, that:
“It was
observed by the predecessor of
this court in
Crentsil
v Crentsil [1962] 2 GLR 171 at
175, SC that:
‘as to
appeals from the exercise of the
courts discretion, it is a rule
of law deep rooted and well
established that the Court of
Appeal will not interfere with
the exercise of the courts
discretion save in exceptional
circumstances.’ ”
Some of the
exceptional circumstances were
cited in
Blunt v Blunt [1943] AC 517 at
518; 2 All ER 76 to be that:
“An appeal
against the exercise of the
courts discretion may succeed on
the ground that the discretion
was exercised on wrong or
inadequate materials if it can
be shown that the court acted
under a misapprehension of facts
in that it did in that it either
gave weight to irrelevant or
unproved matters or omitted to
take relevant matters into
account, but the appeal is not
from the discretion of the court
to the discretion of the
appellate tribunal.”
The
appellants did not succeed in
our view, in showing the trial
judge committed any of these
errors or that the Court of
Appeal wrongly affirmed the
judgment of the trial court.
It is for
these reasons that we agree with
and affirm the judgment of the
Court of Appeal and dismiss the
appeal.
J. ANSAH
JUSTICE OF THE SUPREME COURT
W.
A. ATUGUBA
JUSTICE OF THE
SUPREME COURT
DR. S. K. DATE
BAH
JUSTICE
OF THE SUPREME COURT
P. BAFFOE BONNIE
JUSTICE OF THE SUPREME COURT
V. AKOTO-BAMFO (MRS.)
JUSTICE OF THE SUPREME COURT
COUNSEL
AGYABENG
AKRASI FOR THE APPELLANTS.
S. R.
BREMPONG FOR THE RESPONDANT.
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