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March 17, 1976
HIGH COURT
GHANA
CORAM
The plaintiffs-appellants (hereafter referred to as the plaintiffs) appeal against the judgment of the District Court Grade II, Suhum, in which they lost to the defendants-respondents (hereafter referred to as the defendants) on their claim for (a) declaration of title to land situate at Mankrong near Asuboi and defined as to its boundaries in the writ of summons, (b) recovery of possession, (c) damages for trespass (d) perpetual injunction and (e) account.
The appeal was heard and allowed on 17 January 1975 by my order, setting aside the judgment of the lower court dated 9 August 1973 together with its order for costs and awarding the plaintiffs ¢40.00 costs in this court, and reserving my reasons therefor. I now give the reasons for allowing the appeal.
The brief background of the judgment complained of is that on 23 November 1972 the plaintiffs opened their case in the lower court, the second plaintiff giving evidence for himself and on behalf of the first plaintiff. He was cross-examined by the first defendant on behalf of himself and the second defendant and duly re-examined by counsel for the plaintiffs. The case was then adjourned to 27 November 1972 for further hearing, on which date no further hearing took place. It was therefore adjourned to 14 December 1972 still for further hearing. On 14 December 1972, the first plaintiff also gave evidence even though the proceedings on the first hearing showed that the second plaintiff was giving evidence on behalf of both plaintiffs. He was also cross-examined by the first defendant and further hearing adjourned to 16 January 1973 on which date there was no hearing but the court adjourned to 1 February 1973 for [p.299] continuation. On 1 February 1973 the plaintiffs' first witness gave evidence, was cross-examined by the first defendant and further hearing was adjourned to 15 February 1973 on which date the court adjourned to 8 March 1973 for continuation. On 8 March 1973, the court adjourned further hearing to 29 March 1973 then to 17 May 1973, then to 31 May 1973, then to 18 June 1973. On all these dates there was no further hearing.
Before 18 June 1973, the plaintiffs by their solicitor filed notice of discontinuance on 14 June 1973, discontinuing against the defendants and on 18 June 1973, the trial court made the following order: "Upon notice to discontinue case filed by the plaintiffs' counsel this case is struck out with costs for defendants assessed at ¢44.00."
A month later, on 19 July 1973,
AI Generated Summary
Two plaintiffs sought title to land at Mankrong near Asuboi, recovery of possession, trespass damages, a perpetual injunction, and an account in the District Court Grade II, Suhum. The second plaintiff testified on behalf of both, then the first plaintiff testified, and a witness was called, but the case remained part-heard amid repeated adjournments. Before the plaintiffs closed their case, they filed a notice of discontinuance on 14 June 1973, prompting the trial court to strike out the action with costs on 18 June. On 19 July, the court, purporting to act under Order 42, rr. 1 and 2, gave suo motu notice to review that order and, on 9 August 1973, rescinded the strike-out and entered judgment for the defendants with costs. On appeal, plaintiffs argued the court was functus officio and acted ultra vires; defendants’ counsel conceded. The appellate court held that discontinuance ended the trial court’s powers beyond costs, that the suo motu review and judgment were improper, set aside the 9 August judgment and costs, and allowed the appeal, awarding ¢40.00 costs.