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May 13, 1983
HIGH COURT
GHANA
CORAM
JUDGMENT OF TWUMASI J.
The plaintiff-respondent, hereafter called the plaintiff, issued a specially indorsed writ claiming the sum of ¢12,000 against the defendant-applicant, hereafter called the defendant. Pursuant to his writ, the plaintiff by a summons filed on 2 February 1982 applied for summary judgment. The defendant filed a statement of defence, which in the view of the court, disclosed a triable issue. In the circumstances, the court granted him leave to defend the action. From that stage, rules of procedure required the plaintiff to file a reply to the statement of defence and follow it up with a summons for directions under the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), Orders 23 and 36 respectively, before the case could be tried but the [p.1142] court directed that the case be tried summarily on 12 January 1983. The submission by the defendant's counsel that non-compliance with Orders 23 and 36 vitiated the proceedings was therefore misconceived.
With regard to the trial of the case, it would be recalled that counsel for the defendant proposed and counsel for the plaintiff agreed, that the case be further adjourned for settlement at the request of the defendant. The case was adjourned to 26 January 1983 with the understanding that counsel would announce settlement on that date. On the next adjourned date, the parties were absent. And Forson for the defendant asked, and was granted leave of the court to withdraw his representation on the ground that he had lost contact with his client. Erskine for the plaintiff demanded immediate judgment for the plaintiff but the court directed that the plaintiff ought to enter the witness-box to prove his case in view of the court's earlier ruling that there was a triable issue on the pleadings. The case was adjourned to 7 February 1983 for hearing. Judgment was entered for the plaintiff on the latter date.
The record of proceedings shows that the court inadvertently omitted to serve the defendant with a hearing notice. This in my view, vitiated the proceedings of 7 February 1983. It seems to me imperative that whenever a party to a suit is absent from court and his counsel withdraws his representation, a hearing notice be sent to the absentee party. It is also the duty of counsel to communicate the withdrawal of his representation to his client.
The court concedes the fact that the defendant now coming to apply for an order to set aside the judgment after about two months of its delivery, can
AI Generated Summary
Twumasi J addressed an application by the defendant-applicant to set aside a judgment entered on 7 February 1983 in favour of the plaintiff-respondent, who had sued for 2,000 on a specially indorsed writ and sought summary judgment. After the defendant filed a statement of defence disclosing triable issues, the court granted leave to defend and directed a summary trial. The matter was adjourned for settlement, defence counsel later withdrew due to loss of contact with his client, and the plaintiffs counsel pressed for immediate judgment; the court instead required proof. Crucially, no hearing notice was served on the defendant for the adjourned hearing, which the judge held vitiated the 7 February proceedings. The court rejected arguments that non-compliance with Orders 23 and 36 nullified the process and clarified that Order 36, r. 18s fourteen-day limit does not apply to summary trials under Order 14, r. 1. The application was granted; the judgment was set aside, a fresh trial ordered, and costs of 1,500 awarded.