THE REPUBLIC v. THE COURT OF APPEAL EX PARTE: EASTERN ALLOY COMPANY LTD

J U D G M E N T

ATUGUBA J.S.C.

This is an application invoking our supervisory jurisdiction for the orders of certiorari and mandamus to issue to the Court of Appeal.

As stated on the motion paper: “The grounds for the application are as follows:

That the Court of Appeal acted in breach of the rules of natural justice in dismissing the Applicant’s Motion for Stay of Execution on the merits without hearing the Applicant.

The Court of Appeal lacked jurisdiction to dismiss the Applicant’s Motion for Stay of Execution on the merits when the Motion had not been moved.”

As to the first ground it is quite dear from Exhibit “MT3” of the applicant itself, the Ruling of the Court of Appeal, that on the return day of the motion the parties were absent but the respondents were represented by a long chain of lawyers who called upon the court to dismiss the motion on the affidavits filed. They then made brief submissions thereon.

It is difficult to understand the applicant’s plaint that it was denied a hearing in breach of the rules of natural justice. It is trite law that the rules of natural justice can be waived, see BILSON V. APALOO (1981) GLR 24 SC. There is no suggestion that the applicant was unaware of the hearing date of the motion, yet it absented itself without even representation by counsel. A clearer case of waiver of the right to a hearing could not be imagined. The second ground is based on the barest technicality, i.e., that the motion was dismissed on the merits even though it had not been moved by the applicant. It is difficult to see how this plaint can be outside the clutches of the principle of waiver either. Certainly the right to move a motion is the same as the right of the applicant to be heard on the motion and if the right to be heard is waived it must follow that the right to move it is also waived.

It is the established practice however that in such a situation the motion is normally struck out for want of prosecution.

But there is no rule of law that a court cannot in such circumstances elect to hear and decide the motion on its merits, unless it is moved by the applicant who chooses to be absent on the hearing day of the motion. Every judge, subject to particular rules, has the right to control the proceedings of his court. Therefore how a motion should be dealt with is within the judge’s discretion, whether a party be present or absent. See PICTOGRAPH LTD VS. LEE-SMITH PHOTOMECHANICS (1964) 1 WLR 402, P.N. CT. GHANPATHY CHETTIAR