2015
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court quashed the High Court's order recalling a previously struck-out application for stay of execution, emphasizing the importance of due process and the need for formal applications to relist struck-out matters. The dissenting opinion argued for flexibility and substantial justice over procedural formalities.
MAJORITY OPINION
GBADEGBE (JSC):
There is before us a notice of motion praying for an order of judicial review in the nature of certiorari and prohibition on grounds contained in the supporting affidavit of the applicant. The circumstances in which the application has arisen are free from conflict and are as follows. In the course of an action brought to set aside a previous judgment between the parties to these proceedings, the Respondent herein applied by way of a motion in the cause for an order of stay of execution of the judgment in respect of which the action was mounted. It appears that on 06 May 2014 when the said application came on for hearing, learned counsel for the Respondent (Applicant therein) being absent without cause, the application was struck out for want of prosecution as borne out by exhibit APP1. On a subsequent date, 21 May 2014, the learned trial judge, notwithstanding an objection from counsel for the Applicant, received an explanation from counsel for the Applicant in regard to his absence from court and recalled his prior order of 06 May 2014 by which he had struck out the application for stay and directed that the application for stay of execution be argued on the merits. The proceedings of 21 May 2014 resulting in the order recalling the previous order that struck out the application for stay of execution is evidenced by exhibit APP2.
In arguing the application before us, learned counsel for the Applicant contended that, having had the application struck out on 06 May 2014, the court acted without jurisdiction when it received an explanation from counsel at the Bar and restored the application to the list. Our understanding of the argument pressed on us by counsel for the Applicant is that, as the High Court is a court of record, following the order previously made striking out the application, the learned trial judge should not have received an oral explanation from the Respondent and then recalled his order without an application to relist same. The Applicant’s complaint thus appears to raise the question whether before the matter was called, the Applicant would have had any reasonable notice that, at the hearing of the substantive matter, a motion in the cause that was previously struck out with costs might be restored to the list. So stated, the Applicant’s complaint speaks to the absence of due process requirement which, if established, affects jurisdiction.
On the other side of the fence, so to say, the Respondent, w