GH - FORI II v. AKROBETTOE II AND OTHERS

JUDGMENT OF AZU CRABBE J.S.C

Azu Crabbe J.S.C. delivered the judgment of the court. On 9 November 1970 when the above appeal came on for hearing, neither the claimant- appellant (the applicant herein) nor his counsel attended the court, and the appeal was struck out for want of prosecution. The claimant-appellant has now brought this application for an order to relist the appeal for hearing, pursuant to rule 23 (2) of the Supreme Court Rules, 1962 (L.I.218).

In Adjani v. Agyeman III (Court of Appeal, 6 November 1969, unreported; digested in (1970) C. C. 14) this court said that it would not grant indulgence to a party who had not been diligent and stated the grounds upon which it would exercise its discretion under rule 23 (2) as follows:

“The granting of an application under rule 23 (2) is not a matter of course; it is entirely in the discretion of this court, a discretion which will be exercised judicially,‘according to the rules of reason and justice’ (Rooke's Case, 77 E.R. 209). In exercising this discretion the court will take into consideration all the circumstances of the case, including such question as the nature of the subject-matter of the appeal and the effect of granting the application upon the rights of the parties or third parties (that is, whether greater hardship would be caused to the applicant by granting the application than by refusing it), the promptness or the extent of delay in making the application, and whether the applicant has good prospect of success in the appeal."

The grounds for the present application are: (i) that the applicant was ill, and (ii) that without his knowledge, counsel, whom he had instructed to appear and argue the appeal, had been disbarred from practicing.

Where an applicant comes to this court for an order under rule 23 (2) of L.I. 218 directing an appeal to be re-entered for hearing, and he alleges as a ground for the application that he was incapacitated by ill-health from appearing at the hearing of the appeal, the court would like to be satisfied (i) that the appellant was in fact afflicted by some illness, and (ii) that by reason of his illness he was unable to instruct counsel to appear on his behalf. In this application the applicant alleges that after he had filed his appeal against the decision of the Reserve Settlement Commission on 3 April 1965, he entrusted the conduct of the appeal to his counsel, Mr. Albert Asafu-Adjaye, who informed him that no date for hearing had then been fixed, and

JUDGMENT OF AZU CRABBE J.S.C

FORI II v. AKROBETTOE II AND OTHERS

Areas of Law

JUDGMENT