GH - AMOAKOH v. HANSEN

JUDGMENT OF TAYLOR J.S.C.

This is an appeal lodged by a defendant in a High Court action from the judgment of the then Chief Justice, sitting on 22 December 1983 as an additional judge of the High Court, Accra. The facts of the case and the rival averments of the parties at the trial pertaining to the substantive matters in controversy in the suit are quite irrelevant as far as the legal questions posed by this appeal are concerned. It is actually the procedural steps indulged in at the High Court from the institution of the proceedings to its commencement in the absence of the appellant right through to judgment and after trial that are rather the gravamen of the complaints of the appellant. These steps in the proceedings have been subjected to devastating criticism by learned counsel for the appellant in arguments which in my opinion [p.31] deserve the utmost consideration in view of the fact that the trial was conducted before an unquestionably experienced and able legal personage as the then Chief Justice of the Republic.

The strictures of learned counsel, understandably advanced in a commendably respectful and persuasive manner in the best tradition of the legal profession, were transparently severe and trenchant and with the statutory authorities quoted in support so overwhelmingly impressive that quite frankly to save ourselves the unpleasantness of having to make embarrassing pronouncements and in order to pre-empt duplicity of suits were we to find them valid, we took the unprecedented step, some days long after we had heard the arguments, of inviting counsel on both sides to a sitting in chambers in an effort to try politely to effect settlement. We did this deliberately on the authority of section 67 of the Courts Act, 1971 (Act 372) and we did so without touching on the respective merits of the substantive claims of the parties. Regretfully, our endeavours woefully failed and therefore we cannot in the circumstances avoid any longer the responsibility which our judicial office imposes on us of handing down our own decision, untramelled by any settlement.

A resume in chronological order of the relevant statutory and non-statutory but hardly innocuous procedural steps taken by the parties and the High Court from the date of the inception of the writ to the date of the commencement of the said trial is in the circumstances essential for an understanding of the complaints of the appellant and the cause of our own apparent discomfiture.

In thi

AI Generated Summary

This appeal arose from a libel action brought by the Provisional National Defence Council Secretary for the Interior against the appellant (first defendant) and other defendants. The Chief Justice, sitting as an additional judge of the High Court, Accra, proceeded to hear the substantive case on 9 November 1983 in the absence of the first defendant, who had not been served with the summons for directions or any notice of trial. The Chief Justice refused an adjournment application and ordered the case to proceed, ultimately awarding damages of ¢300,000 and costs of ¢5,000 against the first defendant. The Court of Appeal, in a unanimous decision delivered by Taylor J.S.C. with Abban J.A. and Ampiah J.A. concurring, allowed the appeal and held that the trial was null and void. The court held that failure to serve process where service is required goes to the root of proper procedure in litigation and is not a mere irregularity that can be cured or waived. The court emphasized that the audi alteram partem principle is a fundamental rule of natural justice deeply ingrained in Ghanaian customary jurisprudence. The court further held that since the summons for directions had not been taken, no issues had been formulated for trial, making the proceedings fundamentally defective. The court rejected the argument that Order 70, r. 1 of L.N. 140A could validate the proceedings, holding that this rule applies only to irregularities, not nullities. The case was remitted to the High Court for the summons for directions to be taken and for proceedings to resume their lawful course, and the damages awarded were ordered to be refunded to the appellant.

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AMOAKOH v. HANSEN

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