REPUBLIC v HIGH COURT, KOFORIDUA; EX PARTE OTU

JUDGMENT OF CHARLES HAYFRON-BENJAMIN JSC.

The applicant herein, Samuel Yaw Otu, was the plaintiff in a land case which was commenced in the District Court Grade I, Nsawam in the Eastern Region. It appears that the original defendant, Agnes Yaa Kwafi was at all times represented by Rev S Odei Asare who claimed first as an administrator and subsequently as the defendant's "lawful attorney." Rev Odei Asare by his sworn affidavit in opposition to the present application averred that he was the son of the defendant, his mother, who died in the course of the hearing of the suit in the district court and that he had thereafter applied to be substituted for the mother. By his affidavit the court had so substituted him for his late mother. He was therefore the interested party.

Judgment in the case was delivered in favour of the present applicant on 18 January 1994. On 25 January 1994 the defendant appealed from that decision to the High Court, Koforidua. Having fulfilled the conditions subsequent, the appellant filed the record of proceedings. The interested party—the defendant-appellant perused the record and "detected that a number of things had been wrongly attributed to [me] in my evidence and which had been used against [me] in the judgment, which to the best of [my] knowledge and recollection, [I] did not say." The interested party by a series of affidavits and the clever use of the court's processes managed to bring his objections to the supposed errors and omissions in the record to the notice of the High Court judge, Koforidua.

It appears that subsequently when the appeal was called in the High Court, Koforidua, the learned judge's attention was drawn to the absence of the case docket from the material before him. In the words of the interested party, the case docket is "the recorded lower court proceedings which should have accompanied the certified true copy and the exhibits." The court was informed that the case docket had not been transmitted to the High Court, Koforidua along with the certified true copy of the record. The interested party put his reaction to the absence of the case docket and the revelation by the applicant of certain exhibits tersely when in paragraph (11) of his affidavit of 17 November 1995 he swore that:

"(11) . . . my counsel formally challenged the reliability of the 'certified true copy' on the basis of the said exhibits A, B, C and D attached to the applicant's application in court and requested