IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT(GENERAL JURISDICTION DIVISION)
ACCRA - A.D 2019
ATTIYYATUL AZIZ ABDULLAH - (Plaintiff/Respondent)
JOSEPH AMON KOTEY - (Defendant)
RICHARD HLORMADOR - (Claimant/Applicant)
DATE: 12TH JULY, 2019
SUIT NO: GJ/1088/2016
JUDGES: HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO
NELSON ATANGA AYAMDOO FOR THE PLAINTIFF/ RESPONDENT
GARY NIMAKO MARFO FOR CLAIMANT/ APPLICANT
(1) The facts of this case are free from complexity but in order to understand the reasoning behind my conclusion it is important to give the historical background of this suit and the instant application. My review of the docket shows that the Original Writ of Summons was filed on July 28, 2016. The claim was for the refund of the amount of GH¢ 538,000 and interest and cost. The writ of summons with the statement of claim was served on the Defendant through the Legal Department of Nsawam Prisons. After no appearance was entered by the Defendant, a Motion Ex Parte for Final Judgment was filed on December 20, 2016. On December 22, 2016 the application was granted and judgment was entered in favour of the Plaintiff. I note that though the Defendant was serving a prison term he was in Court with Prison Officers and did admit to the Court that he had no defence to the claim because he was owing the Plaintiff.
(2) The Plaintiff filed an Entry of Judgment on January 19, 2017 and same was again served on the Defendant through the Legal Department of the Nsawam Prisons. The Plaintiff set the execution process in motion and filed an application for Fi.fa on February 2, 2017 and attached a parcel of land at Dzorwulu among others. A Notice of Claim was filed by Richard Hlomador, the Applicant herein by his Counsel on February 20, 2017 and the address provided was: Afadjato Chambers, Graphic Road, A. Lang Building, Adabraka, Accra. A Notice of Dispute was filed by the Plaintiff on February 22, 2017.
(3) The record further shows that on March 27, 2017 this Court granted the Registrar’s application for the parties to appear before the Court so that the issue between them could be dealt with in accordance with law. Because no personal address of the Claimant was provided when the claim was filed, according to the Plaintiff/Disputant personal service of the order on the Claimant became impossible and therefore on April 26, 2017 the order was varied by the Court and the Plaintiff was granted leave to serve the order on Afadjato Chambers. The order was complied with and thereafter numerous hearing notices including the Court notes of May 12, 2017 were also served on the lawyers for the claimant but they failed and/or neglected to attend Court.
(4) On May 26, 2017 this Court finally made an order setting aside the claim after the Claimant and his Counsel failed to attend Court. The Court’ notes of May 26, 2017 and which is attached as Exhibit R5 to the affidavit in support of this application states as follows:
“A certain Richard Hlormador filed a Notice of Dispute (sic) of title in this case on 22/02/2017. On March 27, 2017 this Court made an order inviting the parties to appear in Court for the determination of the dispute.
The Court records show that the Claimant could not be personally served because the claim was filed on his behalf and Counsel’s address was provided.
On May 12, 2017 this Court therefore ordered that the process, that is the order and a hearing notice be served on Counsel who filed the Notice of Dispute. There is proof that the order has been complied with and Afadjato Chambers was served with hearing notice and the Court notes on 19th May 2017 but no appearance is made.
Consequently, the Court hold that the dispute filed is not proven and same is hereby struck out”.
(5) The Plaintiff thereafter brought a Motion for Reserve Price and that was also granted. It seems that due to other legal challenges and orders made the property was not auctioned. Now, the Claimant/Applicant has brought the instant application praying for leave to re-file the Notice of Claim under the Inherent Jurisdiction of the Court. The application was filed on June 27, 2019 and it is supported by a 20 paragraph affidavit of the Applicant and about 7 exhibits including copies of the Applicant’s Deed of Conveyance and Land Title Certificate and some of the processes filed since the striking out of the claim together with the proposed Notice of Claim.
(6) Among the depositions made by the Applicant is that he is the bona fide owner of the property attached as he obtained the property from the Defendant Joseph Amon Kotey in 2009 and in 2011 had a Deed of Conveyance executed in his favour. He says he acquired interest in the properties when the Defendant collected an amount of US$400,000.00 from him to import vehicles for his company but failed to deliver same. According to him he started construction on the land without any hindrance and no one laid adverse claim to the land.
(7) The Applicant’s explanation as to why he failed to attend Court pursuant to the Court orders is that he secured the services of a lawyer to file the necessary processes to vindicate his interest in the land after the land was attached. He also says due to his lack of knowledge of the law he depended on Counsel who it is now clear committed many errors in handling the matter. He is therefore praying the Court to grant him leave to re-file the Notice of Claim so that the matter could be determined based on the merits.
(8) The Plaintiff/Disputant has filed a 13 paragraph affidavit in opposition to vehemently oppose the application. In response to certain paragraphs of the affidavit in support (such as 4, 5, 6, 7, 8 and 9) the Plaintiff/Judgment Creditor says “the depositions are pure fabrications, an afterthought and very belated in the suit”. It is also deposed that the Applicant’s claim to title of the said property is currently pending in a different suit at the Land Division of the High Court. In response to actions or inactions of the Applicant’s Counsel it has been deposed that the Applicant was perfectly acting within his legal rights and therefore he is bound by the consequences of his lawyer’s actions.
(9) The Plaintiff has also deposed that she is advised and she believes same to be true that under the Rules of Court, “when a notice of claim is struck out as not proven, the claim has been adjudicated upon and no claim can be prosecuted again in whatever shape or form”. Based on that deposition it is further deposed that this Court “having struck out the Notice of Claim filed by the Applicant as not proven on 26 May 2017 (more than 2 years ago), the Honourable Court is functus officio”. According to the Plaintiff since there is no pending Notice of Claim, the Applicant has improperly described himself as a “Claimant”.
Argument for and Against the Application:
(10) In moving the application Counsel for the Applicant relied on all of the depositions in the supporting affidavit and the exhibits and gave a background to the application and the non-attendance of the previous Counsel to Court even though served with the processes. Counsel prayed the Court not to visit the sins of Counsel on the Applicant and that he should be given the opportunity to be heard especially as he has the onus to establish his ownership based on the balance of probabilities. Mr. Nimako Marfo further submitted that having reviewed the file he is of the opinion that an application for the re-listment of the Notice of Claim should have been filed and not a fresh writ of summons as was done. To that extent, Counsel prayed the Court to grant the instant application.
(11) Reacting to the affidavit in opposition, learned Counsel submitted that the averment by the Plaintiff that the Applicant’s depositions are fabrications and afterthought is without any basis because it is not anchored in any evidence. According to Mr. Nimako Marfo it is a basic principle of law that a person should not be condemned without being heard. Again, Counsel submitted that the contention that the Applicant must live by the consequences of his actions is not proper because the record shows that he was never in Court. Based on all of the above Counsel prayed the Court to grant the Applicant leave to re-file the Notice of Claim.
(12) Responding to the arguments of Counsel, Counsel for the Plaintiff/Judgment Creditor submitted that his client is vehemently opposed to the application on a number of grounds. Firstly, Counsel submitted that the Notice of Claim filed was struck out as not proven and the Court gave reasons for the order made. According to Counsel, the Court having struck out the Notice of Claim as unproven, it is in accordance with Order 44 Rule 13 (2) and therefore the Court is functus officio. To that extent, Counsel submitted that because it is a Court order it cannot be revisited. Mr. Ayamdoo cited the Court of Appeal case of ICB v. OSIADAN CO. LTD & OTHERS  8 MLRG 191 – Holding 1 to support the contention.
(13) The next argument made by Counsel was that since the application is based on the inherent jurisdiction of the Court, same cannot be used to consider the instant application because according to him the inherent jurisdiction does not extend to a claim not proven. Counsel cited the case of ATTOH-QUARSHIE v. OKPOTE (1973) 1 GLR 59-69. According to Counsel all the factors stated by the Court as the basis for invoking the inherent jurisdiction of the Court, the facts as presented is not one of them.
(14) Counsel further submitted that though the Applicant has complained so much of what his previous lawyers have done or not done, in his view if the Counsel chosen by the Applicant were incompetent because he chose them he is bound by the actions taken by them on his behalf. According to Counsel the Applicant recourse if any at all is to appeal and not to re-open the case.
(15) Finally, Counsel submitted that granting the instant application would mean re-opening the case. This is because according to Counsel there is another matter pending in a different court involving the same parties in respect of the same land and the trial is almost about to start and therefore there will be two matters pending at the same time. To that extent Counsel prayed the Court to dismiss the application because the matter is before another Court for determination.
The Court’s Opinion & Analysis:
(16) I start my analysis by noting that it is common knowledge that there are two (2) categories of jurisdiction in Ghanaian jurisprudence, the general and the inherent jurisdiction . The general jurisdiction of the High Court is conferred on it by the 1992 Constitution, Article 140 whereas the inherent jurisdiction is by its nature, imbedded in the power of the court to do justice. That power stems not from any particular statute or legislation but from its residual powers to control its proceedings and also meant to provide the court with the requisite agility and flexibility to do justice where there are no statutory or conventional alternatives. In my view this is exactly what Hayfron Benjamin J (as he then was) highlighted in the Attoh-Quarshie Case Supra.
(17) It is also now a settled law that the court has an inherent power to see to it that its procedures are either not abused or misapplied . It should also be noted that the court also has the power to prevent the improper use of its machinery from being used as a means of vexation and oppression in the process of litigation . The category of cases in which the court may invoke its inherent jurisdiction is at large and cannot be closed, as each case depends upon its own facts. It should be noted however that, the Court’s inherent powers cannot be exercised in direct contravention of clear provisions of a statute and/or the Constitution of the land.
(18) Now, dealing with the application, I wish to state from the outset that as a general rule, a Superior Court has an unfettered discretion under its inherent power to either grant or refuse an application for re-listment.
(19) In NYARKO AND OTHERS v. LUTTERODT [1984–86] 1 GLR 437-440, the Court of Appeal stated the rule when observing that there is no time limit for an Applicant to file a motion for re-listment stated:
“It is pertinent to observe that rule 23 of the Court of Appeal Rules, 1962 (L.I. 218) (under which an application to relist may be made) prescribes no time limits, unlike rule 25 which regulates the setting aside of an ex parte judgment. We do not think that this omission is accidental. It was deliberate, and the law makers must have taken the view that no matter how late an application to relist may be brought, the court must, so to speak, bend over backwards to accommodate an errant appellant, if it is at all possible, except in the extreme situation where the respondent may as a result, be damnified irreparably. In every case the terms upon which an appellant is let in for a second time will take account of the inconvenience to the respondent and even to the court, the conduct of the appellant before and since the striking out, the delay in bringing the application, and all other relevant factors”.
(20) Undoubtedly, from the statement of law stated above, in my respectful opinion, an Applicant applying to relist a suit/application which is struck out must provide good reason (s) for the delay that lead to the striking out. Secondly, in considering whether or not to grant the application, the Court ought to have the interest of the Respondent in mind and ask itself would the Respondent be prejudiced should the application be allowed and granted? And finally, the Applicant’s previous conduct also ought to be considered. In other words, was the Applicant diligent in prosecuting the case such that he/she deserves the Court’s sympathy and a second chance?
(21) I have considered the arguments of Counsel for the Plaintiff/Respondent and is of the view that he has misconceived the rules of court relied upon for his arguments. With respect to Counsel, Order 44 titled Writs of Execution – Generally deals with the various writs open to a Judgment Creditor in executing a judgment. In my respectful view it is not true that the Notice of Claim filed by the Applicant was pursuant to Order 44 Rule 12 and it is also not true that same was struck out as unproven pursuant to Order 44 Rule 13 as erroneously submitted. Though the Registrar’s application inviting the parties to Court was based on Order 44 Rule 12, in my respectful opinion the Notice of Claim filed was an interpleader action and same was filed pursuant to Order 48 of C.I. 47.
(22) As can be seen from Exhibit R5, the Court did not dismiss the claim but rather it was struck out for non-appearance and the Court did not bar the Claimant from ever making a claim again pursuant to Order 48 Rule 10. To that extent and with respect to Counsel it is difficult to understand the basis for the argument that the Court gave reasons for the order made and therefore same cannot be revisited. I am of the view that the arguments made are not well situated based on the facts and the law.
(23) Addressing the other arguments of Counsel for the Plaintiff, and in response to Counsel’s submission that the Applicant should live with the consequences of the actions of his Counsel and be bound by them, I wish to say that the submission is not based on law, This is because it is well established and the Supreme Court has held in many cases that it would be unfair to penalize a party such as the Applicant for the mistakes of his counsel, See such cases as DOLPHYNE (No. 2) v. SPEEDLINE STEVEDORING CO. LTD [1996-97] SCGLR 373 @ 380, FRIMPONG v. NYARKO [1998-99] SCGLR 737 and KOTEY v. KOLETEY [1999-2000] 2GLR 641.
(24) I also wish to further state that I have given serious consideration to the submission that there is a pending suit at the land division of the High Court for the determination of the same subject matter and involving the same parties and therefore granting this application would re-open the matter resulting in two matters pending at the same time. In my view the pending of that suit should not and cannot be the reason for the dismissal of the instant application if same ought to be granted based on the facts and law. To my mind, what would happen after my decision is another matter and a decision for the Applicant and his Counsel to make. I do not think it would be reasonable to dismiss the instant application duly filed and argued before me just because there is a pending suit which is not before me.
(25) Juxtaposing the interest of the Plaintiff/Respondent and the Applicant herein, I am of the view that in so far as the Respondent’s interest to the property is the debt owed to her by Mr. Amon Kotey and the Applicant on the other hand is claiming to be the owner of the property it is important that he is given the opportunity to establish his claim. In my view it would be against good conscience and equity to dismiss the claim just because a lawyer he trusted failed to do his job as required of him and then have the property sold when he is not heard. Also, I do not think that the Respondent would be prejudiced in anyway apart from the delay.
(26) It is trite that the audi alteram partem rule has assumed importance as one of the cornerstones of any civilized judicial system because no one ought to be condemned without a hearing. I am satisfied that all that is required in the present application at this stage is fairness. In REPUBLIC v. HIGH COURT, ACCRA EX PARTE: SALLOUM (SENYO COKER), INTERESTED PARTY  1 SCGLR 574, Anin Yeboah JSC stated at page 585 as follows:
“Equally so, if a party is denied his right to be heard, as in this case, it should constitute a fundamental error for the proceedings to be declared a nullity. The Courts in Ghana and elsewhere seriously frown upon breaches of the audi alteram partem rule to the extent that no matter the merits of the case, its denial is seen as a basic fundamental error which should nullify proceedings made pursuant to the denial”.
I need to reiterate that I am making reference to the statement of the law above to confirm that the need for the Applicant to be heard before the property is sold is very important. This is because to my mind justice demands that his claim to the ownership of the property ought to be determined as it would be unfair to allow the sale of the property in satisfaction of the Plaintiff’s debt just because the Applicant’s claim was struck out for his non-appearance as a result of his lawyer’s failure to act. As I understand it, Amon Kotey who owes the debt is still alive.
(27) In my considered view, whatever inconvenience it will occasion the Respondent can be compensated for in cost at this time so that the merits of the claim can be determined based on the law. Consequently, having carefully considered the application and the affidavit evidence for and against the application, I have come to the conclusion that in the interest of justice the application ought to be granted and it is GRANTED. Cost of GH¢4,000 to the Plaintiff/Respondent.
KWEKU T. ACKAAH-BOAFO
(JUSTICE OF THE HIGH COURT)
 As stated by the authors of Halsbury’s Laws of England, 5th Edition, at paragraph 533 at page 422 “…the two sources of the Court’s power continue to exist side by side and may be invoked cumulatively or alternatively” RE: WICKAM, MARONY v. TAYLOR (1887) 35 Ch. D 272, CA; BLAIR v. CORDNER (No. 2) (1887) 36 WR 64; DAVEY v. BENTICK (1893) 1 Q.B 185,CA
 R (ON THE APPLICATION OF BENNETT) V HORSEFERRY ROAD MAGISTRATE’S COURT (1994) 1 AC 42; (1993) 3 All ER 138
 The Supreme Court Practice (1995) Vol.1 @ 344 – The White Book.