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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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