GH - DIPLOMAT BEACH RESORT LTD v. CYNTHIA GOLDEN MOORE & ANOTHER

Baffour J.A:

Introduction:

We have been called upon to make a determination in quite a narrow scope regarding the exercise of the power of a trial court to not relist a suit that had earlier been struck out for what the trial court deemed to be the exercise of its power under Order 37 Rule 4 of the High Court (Civil Procedure) Rules, 2004, C. I. 47. As to whether or not the exercise of the discretion not to relist the suit was properly grounded on the law and procedure confronts this court for determination. The parties would simply be referred to by the designations they bore at the court below.

Background

The Plaintiff commenced an action on the 21st of March, 2014 against the defendants for what he deemed to be a wrongful execution and auction sale of its H/No 19, Beach Crescent, Coco Beach at Nungua. The suit did not see much activities until the 24th of July, 2018 when Yaw Oppong, Esq filed a change of solicitor process as having been appointed in the stead of Egbert Faibille Jnr., Esq as the new lawyer for the plaintiff. This notice was followed with an application for interlocutory injunction even though a similar one had earlier been filed and same dismissed by Atto Mills-Graves J. On the day the motion for the interlocutory injunction was to be moved by counsel for the plaintiff on the 18th of February, 2019, the learned trial Judge refused to entertain the application and rather indicated to the parties that the suit had long been struck out for failure of the plaintiff to prosecute the suit. Armed with this information, plaintiff proceeded to file a motion for relistment of the suit. This application was strongly opposed by the 2nd defendant.

In a ruling by the learned trial Judge on the 18th of February, 2019, she declined to accede to the invitation to relist the suit for trial on a number of grounds, including inter alia, that the suit was struck out by means of Registrar’s Summons under Order 37 Rule 4 of C. I. 47 and the plaintiff had delayed for too long in bringing the application to relist the suit. Aggrieved by this ruling of the learned trial Judge, the plaintiff has mounted his appeal and challenges the correctness of the appeal on a number of grounds as stated under the grounds of appeal as follows:

(i) The ruling of the court dated the 18th February, 2019 is against the weight of the affidavit evidence on record.

(ii) The honourable High Court erred when it failed to give adequate consideration to the law that a court lacks j

Baffour J.A:

Introduction:

Background

(i) The ruling of the court dated the 18th February, 2019 is against the weight of the affidavit evidence on record.

(ii) The honourable High Court erred when it failed to give adequate consideration to the law that a court lacks j

DIPLOMAT BEACH RESORT LTD v. CYNTHIA GOLDEN MOORE & ANOTHER

Areas of Law

JUDGMENT