SAFO-ADU v. BOAMPONG

JUDGMENT OF SOWAH J.A.

Sowah J.A. delivered the judgment of the court. On 19 November 1975, we reversed the ruling of the High Court, Kumasi, in which it dismissed the application of the appellant (hereafter called the defendant) to set aside a ruling that a trial should proceed in his absence and the judgment obtained in his absence at the trial where he did not appear and ordered that the case be heard de novo and that the defendant should pay the costs of the abortive trial.

We now proceed to give our reasons for so doing. On 26 February 1970 the respondent (hereafter called the plaintiff) took out a writ of summons claiming:

(1) The cost for repairs of house No. O.O. 32, Odum Street, Kumasi, estimated to be N¢1,250.00 as under the agreement made between the plaintiff and the defendant on 1 April 1968.

(2) The rent for the said premises from May 1969 to February [1973], both dates inclusive at N¢326.00 per month as under the said agreement.

(3) Mesne profits."

[p.323]

The defendant entered appearance by his solicitor; thereafter the usual processes followed. The defendant denied any breaches of the lease and contended that he gave a valid notice before vacating the premises. Issues were accordingly joined on the pleadings and in particular, the validity of the notice and, whether or not the defendant gave vacant possession. After several adjournments mainly through the default of the defendant and his solicitor, the case was set down for hearing on 11 October 1972. It could not be heard but there was this significant note on the judge's record:

"The defendant is in protective custody and no attempt has been made to serve him. There is no return of service on his solicitor either. I shall adjourn the matter for mention on 15 November 1972. The solicitor for defendant to be notified. The plaintiff may direct service."

Eventually on 7 June 1973, there appears the following notes in the judge's record:

"Mr. Obeng for the plaintiff.

The defendant absent. No appearance.

Court: The last hearing was 27 March 1973. The record shows that Mr. Pobee held brief for Mr. Gyimah. No reason is given for the absence of counsel for the defendant. I propose to proceed with the hearing as the plaintiff's counsel is anxious to go on.

Mr. Obeng: Applied to amend the original statement of claim in terms of notice of amendment filed on 27 February 1973.

Court: There is return of service on defence counsel. The application to amend in terms of notice filed on 2