AMOAKOH v.

HANSEN
[1987-88] 2 GLR 26

Division: COURT OF APPEAL, ACCRA

Date: 10 APRIL 1986
Before: TAYLOR J.S.C, ABBAN AND AMPIAH JJ.A.

Practice and procedure—Adjournment—Summons for directions—Non-compliance with rules—Failure

to take summons because of non-service on defendant—Whether ground for adjournment—Omission by
counsel and other parties on application to inform court of non-service on defendant—Refusal to adjourn
per incuriam —Case to be remitted to High Court for adjournment for defendant to be served.

Practice and procedure—Summons for directions—Non-compliance with rules—Failure by court to hear

summons for directions—Rationale of concept of summons for directions—Whether failure to hear
summons vitiating judgment —High Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 30, r. 2 (1).

Practice and procedure—Execution—Stay pending appeal—Award of ¢300,000 made against defendant

in libel suit—Application for stay granted on condition that defendant is to (i) pay ¢150,000 into court
within thirteen days and (ii) get record of appeal transmitted to Court of Appeal within three months
otherwise plaintiff at liberty to go into execution for other ¢150,000—Whether application can be said to
have been granted.

[p.27] of [1987-88] 2 GLR 26

Practice and procedure—Trial—Notice, length of—Order 36, r. 9 requiring ten days’ notice of trial to be
given—Whether trial judge empowered to abridge time—L.N. 140A, Order 36, r. 9.

Practice and procedure—Summons for directions—Non-compliance with rules—Nullity or mere

irregularity—Failure to serve summons on defendant—Consequences of non-service—Whether
proceedings validated by act of parties in taking part in it—Whether proceedings can be saved under
Order 70, r. 1—L.N. 140A, Orders 9, r. 19 (1) and (2), 54, r. 7 and 70, r. 1.

Practice and procedure—Irregularity—Effect of —Plaintiff (H) filing amendments to writ and statement
of claim after reply without leave—H also filing notice of discontinuance against some defendants
without leave—None of notices served on first defendant A—Whether A entitled to have proceedings set
aside as void—L.N. 140A, Order 70, r. 1.

HEADNOTES
The plaintiff brought an action for libel against the appellant as the first defendant, and three others. All
the defendants entered appearance. A joint statement of defence was filed for the other defendants. The
appellant also filed his defences. The plaintiff then filed a composite reply to all the defencs.
Subsequently he applied to join a fifth defendant to the suit. That application was served on the fifth
defendant but not on the appellant. The application was granted and the suit was adjourned sine die. On
23 March 1983 the plaintiff filed a notice of discontinuance against the third and fourth defendants and
also a notice amending the writ and his pleadings. Although that writ was served on all the other
defendants, the appellant was again not served. Summons for directions taken by the plaintiff was duly
served on the solicitor for all the other defendants but not on the appellant or his solicitor. The summons
came up for hearing on 23 May 1983 but was adjourned by the trial judge for the notice of
discontinuance, the notice of amendment and the summons for directions to be served on the appellant.
When the court resumed on 7 June 1983 the judge noticed that the appellant had again not been served
and therefore adjourned the case to 23 June for him to be served. But again, that was not done. No further
proceedings were taken before the legal vacation. On 2 August 1983 the solicitor for the plaintiff wrote to
the senior registrar to set an early date for the summons for directions to be taken. The summons was then
fixed for mention on 26 October 1983. It came before the Chief Justice sitting as an additional judge of
the High Court. The plaintiff and the second and third defendants appeared by their solicitors but neither
the appellant nor his solicitor or appeared. The Chief Justice then adjourned the case to 9 November for
hearing. On that date all the other parties appeared but not the appellant or his solicitor. An application by
counsel for the second and third defendants for adjournment was refused. The plaintiff then gave
evidence and was cross-examined by counsel for the second and third defendants. A witness he called
was also cross-examined. The second defendant then gave evidence for himself and the third defendant
and was cross-examined by counsel for the plaintiff. The case was then adjourned to the next day. On that
day counsel for the appellant announced himself and asked for a short adjournment because they had not
been served on “the summons for directions.” That application was granted and the case was adjourned to
17 November 1983. On that day counsel for the appellant applied successfully for the plaintiff and his
witness to be recalled for cross-examination and he also called two witnesses in the appellant’s defence.
On 30 November 1983 the appellant gave evidence and called one more witness before counsel addressed
the court. On 22 December 1983 the trial judge gave judgment in favour of the plaintiff, awarded
damages of ¢300,000, which he described as “undoubtedly large” and costs of

[p.28] of [1987-88] 2 GLR 26

¢5,000 against the appellant. Aggrieved by the judgment, the appellant appealed to the Court of Appeal
on the grounds, inter alia, that the trial judge erred in law in allowing the trial to commence when (a)
pleadings had not closed and (b) the case was not ripe by reason of the fact that the appellant had not had
the requisite notice of hearing under Order 36, r. 9 of the High Court (Civil Procedure) Rules, 1954 (L.N.
140A) and consequently the hearing amounted to a miscarriage of justice. Pending the hearing of the
appeal, the appellant applied to the trial High Court for stay of execution. The judge observed, inter alia,
that the High Court could abridge the time for notice under Order 36, r. 9 in suitable cases and that since
the instant case had been adjourned eight times before it was put before him, he justifiably did so. He
however granted the application on condition that (i) the appellant should pay half of the award, i.e.
¢150,000 into court within thirteen days and the plaintiff was at liberty to collect that amount on entering
into a bond to refund same to the appellant if his appeal succeeded, and (ii) if the appellant had not had
the record of appeal transmitted to the Court of Appeal by 2 May 1984, the plaintiff was at liberty to go
into execution in respect of the other half. At the hearing of the appeal counsel for the plaintiff submitted,
inter alia, that the failure to serve the pleadings on A was a mere irregularity which the court could cure
under Order 70, r. 1 of L.N. 140A. He further submitted that since the plaintiff appeared in court and took
part in the subsequent proceedings he had acquiesced in the prior irregularity.
Held, allowing the appeal:
(1) the fact that the summons for directions had not been taken because the first defendant, i.e. the
appellant, and his solicitor had not been served was an inevitable ground for granting an
adjournment. And if the trial Chief Justice’s attention had been drawn to it, with his experience he
 would have found it well-nigh impossible to refuse the adjournment. The decision to refuse the
adjournment was clearly per incuriam and the court had no option but to set it aside and remit the
case to the High Court for adjournment to be granted for the first defendant to be served so that the
case could take its normal course. Concession Enquiry No. 446 (Axim) (1903) Ren 261 at 262;
Nsame v. Ashanti Gold Coast Acquisition Co. Ltd. (1905) P.C. ‘74-’28, 9 and Aryeh v. Thompson
(1929) F.C. ‘26-’29, 354 cited.
(2) Before the enactment of the High Court (Civil Procedure) Rules 1954 (L.N. 140A), Order 30, the
courts in the country, even in the absence of pleadings, faithful to the adversary common law
system of jurisprudence, had always insisted on a process of identifying the issues in a suit before
the commencement of trial and where there had been a failure to do that, the trial had been set
aside. Order 30 had made the summons for directions concept a mandatory statutory procedure for
formulating issues for trial in an action founded on pleadings. It was clear from the language of
Order 30, r. 2 (1) that quite independent of the duties or views of the parties in the suit a statutory
duty was clearly cast on the court to consider all matters raised on the summons and the stages at
which the said matters were to be dealt with. Since the High Court failed to hear the summons for
directions and thereby failed in its duty of ascertaining before the trial the issues on which the
settlement of the matters in controversy between the parties depended, the hearing of the case was
premature and consequently the judgment would be set aside. Duke v. Henshaw (1940) 6
W.A.C.A. 200 at 201 applied. Allotey v. Quarcoo [1981] G.L.R. 208, C.A. cited.
(3) Although on the surface and having regard to its wording the application for stay would appear to
have been granted, it was in substance a refusal that wore the transparent visage of a dubious grant.

[p.29] of [1987-88] 2 GLR 26

(4) A close reading of Order 36, r. 9 of L.N. 140A which required that ten days’ notice of trial should
be given showed that no judge had jurisdiction under the said rule to abridge the time required
without giving the party affected notice of the original time or at least notice of the abridged time.
The trial judge therefore erred in purporting to have exercised that jurisdiction.
(5) The failure to serve the summons for directions on the appellant or his solicitor was not a mere
irregularity or a bare technicality but an irregularity that went to the root of the trial and fouled the
springs of the judicial process and thereby disabled the machinery of the law from advancing the
course of justice. The whole proceedings was therefore void and a nullity on the grounds that (a)
the failure was in breach of both Order 54, r. 7 requiring such service and (b) Order 9, r. 19 (1) and
(2) which provided that such service be effected either on the appellant or his solicitor. The
non-service was therefore in breach of the conditions required by the law as conditions precedent
for the validity of the proceedings. Furthermore, the non-service on the appellant who was to be
affected by the proceedings when all the other parties in the suit had been served constituted
“unfairness in action” and amounted to a breach of the audi alteram partem principle of natural
justice and that also rendered the proceedings invalid. Besides, the failure also denied counsel for
the appellant the opportunity to perform his duties and discharge his responsibilities to his client.
Consequently the proceedings could not be validated by the subsequent act of the parties in taking
part in the proceedings. Neither could the proceedings be saved under Order 70, r. 1 of L.N. 140A.
(6) Since the notice of amendment to the writ and statement of claim was filed under Order 28 of L.N.
140A after the reply when no leave to amend had been obtained, and furthermore, the notice of
discontinuance against the second and third defendants was also filed under Order 26 after the
plaintiff had replied to the defence of the second and third defendants, and, yet, neither of those
notices was served on the first defendant, the appellant, he was left with the impression throughout
 the trial that the second and third defendants jointly liable with him if the plaintiff were to succeed
in his action, were still parties to the suit. The cumulative effect of those irregularities rendered the
trial wholly unsatisfactory and therefore entitled the appellant ex debito justitiae to have the whole
proceedings set aside as void under Order 70, r. 1 of L.N. 140A.

CASES REFERRED TO
(1) Concession Enquiries No. 446 (Axim) (1903) Ren 261.
(2) Nsame v. Ashanti Gold Coast Acquisition Co. Ltd. (1905) P.C. ‘74-’28, 9.
(3) Aryeh v. Thompson (1929) F.C. ‘26-’29, 354.
(4) Duke v. Henshaw (1940) 6 W.A.C.A. 200.
(5) Allotey v. Quarcoo [1981] G.L.R. 208, C.A.
(6) Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C.
(7) Ukejianya v. Uchendu (1950) 13 W.A.C.A. 45.
(8) Sackey v. Okantah (1917) D. & F. ‘11-’16, 93
(9) Pepe Concession Inquiry No. 30 (1902) Sar F.L.R. 127.
(10) Abiew v. Ewusie (1913) Ren 764.
(11) Ridge v. Baldwin [1964] A.C. 40; [1963] 2 W.L.R. 935; [1963] 2 All E.R. 66, H.L.; reversing
[1963] 1 Q.B. 539; affirming [1961] 2 All E.R. 523.

[p.30] of [1987-88] 2 GLR 26

(12) Aidoo v. Commissioner of police [1964] G.L.R. 354, S.C.

(13) R. v. Dyer (1703) 6 Mod Rep 41.
(14) R. v. Benn and Church (1795) 6 T.R. 198.
(15) R. v. Venables (1725) Ld Rymd 1405.
(16) R v. Arlington (1726) 2 Str. 678.
(17) Craig v. Kanssen [1943] 1 K.B. 256; [1943] 1 All E.R. 108, C.A.
(18) Bossom v. Attonie (1897) Red 199.
(19) Vasquez v. Quarshie [1968] G.L.R. 62.
(20) Konadu v. Ntoah [1971] 1 G.L.R. 318.
(21) Wadad Haddad Fisheries v. State Insurance Corporation [1973] 1 G.L.R. 501.
(22) Acheampong v. Asare-Manu [1976] 1 G.L.R. 287.
(23) Biney v. Bartholomew (1926) D. Ct. ‘26-’29, 51.
(24) Benn v. Hagan and Nelson (1922) D. Ct. ‘21-’25, 16.
(25) Parson v. Lloyd (1772) E.R. 1091.
(26) King v. Davies (1959) 16 W.A.C.A. 66.
(27) Odoi v. Hammond [1971] 1 G.L.R. 375, C.A.
(28) MacFoy v. United Africa Co. Ltd. [1962] A.C.152; [1961] 3 W.L.R. 1405; All E.R. 1169, [1961] 3,
P.C.
(29) Asantekramo alias Kumah v. Attorney-General [1975] 1 G.L.R. 319

NATURE OF PROCEEDINGS
APPEAL by the first defendant-appellant from the judgment of Apaloo C.J. sitting as an additional judge
of the High Court in favour of the plaintiff-respondent in an action for libel. The facts are sufficiently
stated in the judgment of Taylor J.S.C.

COUNSEL
J. K. Agyeman for the appellant.
Nii Odoi-Annan (G. W. Mensah with him) for the respondent.

JUDGMENT OF TAYLOR J.S.C.

This is an appeal lodged by a defendant in a High Court action from the judgment of the then Chief
Justice, sitting on 22 December 1983 as an additional judge of the High Court, Accra. The facts of the
case and the rival averments of the parties at the trial pertaining to the substantive matters in controversy
in the suit are quite irrelevant as far as the legal questions posed by this appeal are concerned. It is
actually the procedural steps indulged in at the High Court from the institution of the proceedings to its
commencement in the absence of the appellant right through to judgment and after trial that are rather the
gravamen of the complaints of the appellant. These steps in the proceedings have been subjected to
devastating criticism by learned counsel for the appellant in arguments which in my opinion

[p.31] of [1987-88] 2 GLR 26

deserve the utmost consideration in view of the fact that the trial was conducted before an unquestionably
experienced and able legal personage as the then Chief Justice of the Republic.
The strictures of learned counsel, understandably advanced in a commendably respectful and persuasive
manner in the best tradition of the legal profession, were transparently severe and trenchant and with the
statutory authorities quoted in support so overwhelmingly impressive that quite frankly to save ourselves
the unpleasantness of having to make embarrassing pronouncements and in order to pre-empt duplicity of
suits were we to find them valid, we took the unprecedented step, some days long after we had heard the
arguments, of inviting counsel on both sides to a sitting in chambers in an effort to try politely to effect
settlement. We did this deliberately on the authority of section 67 of the Courts Act, 1971 (Act 372) and
we did so without touching on the respective merits of the substantive claims of the parties. Regretfully,
our endeavours woefully failed and therefore we cannot in the circumstances avoid any longer the
responsibility which our judicial office imposes on us of handing down our own decision, untramelled by
any settlement.
A resume in chronological order of the relevant statutory and non-statutory but hardly innocuous
procedural steps taken by the parties and the High Court from the date of the inception of the writ to the
date of the commencement of the said trial is in the circumstances essential for an understanding of the
complaints of the appellant and the cause of our own apparent discomfiture.
In this libel action the writ accompanied by a statement of claim was taken on 2 December 1982 on behalf
of the plaintiff who at all material times was the Provisional National Defence Council Secretary for the
Interior. It was against the appellant as the first defendant and three other defendants (hereinafter referred
to as the second, third and fourth defendants). Appearance was entered by the solicitor for the second,
third and fourth defendants on 9 December 1982. On 4 January 1983 a joint statement of defence was
filed for the second, third and fourth defendants and on 11 January 1983 the first defendant had his
statement of defence also filed.
On 3 February 1983 the plaintiff by his solicitor filed one composite reply to the statement of defence of
all the four defendants and on 11 February 1983 an application to join a fifth defendant to the suit was
also filed on his behalf the application for joinder was not served on the first defendant but it was served
on the fifth defendant. On 18 March 1983 the application was granted by Mrs Justice Striggner-Scott, and
the suit was on that date adjourned sine die.
There is no indication whatsoever on the record that the party joined as the fifth defendant entered
appearance and a perusal of the

[p.32] of [1987-88] 2 GLR 26

High Court docket in the case reveals no appearance, nevertheless on 13 June 1983, about three months
after the summons for directions has been filed, the fifth defendant filed a statement of defence which was
never served on the first defendant. It stands to reason therefore that the fifth defendant was a party to the
suit.
Meanwhile on 23 March 1983, the plaintiff filed a notice of discontinuance against the third and fourth
defendants and also a notice amending the writ of summons and his pleadings, and the said two notices
were on 13 April 1983 duly served on the second, third and fourth defendants but for some inexplicable
reason they were not served on the first defendant although he had entered appearance by solicitor and
under the rules of court service could be effected on his solicitor who had given the statutory notice that
his address for service was: “Twere Nyame Chambers. House No. L 153, Ashanti New Town, Kumasi.”
On the said 13 April 1983, after the said service of the notices, the plaintiff by his solicitors took out the
usual summons for directions pursuant to the provisions of Order 30 of the High Court (Civil Procedure)
Rules, 1954 (L.N. 140A) and this was served on the solicitor for the second, third, fourth and fifth
defendants on 18 May 1983. The said summons was for hearing on 23 May 1983 but on that day, the
learned judge of the High Court, Mrs Justice Striggner-Scott, noted that the notice of discontinuance, the
notice of amendment and the summons for directions had all not been served on the first defendant and
accordingly she rightly adjourned the hearing of the summons, the first such adjournment, for these
documents to be served. On the adjourned date, 7 June 1983, however, she noted that leaving out the
notice of discontinuance the second, third, fourth and fifth defendants had been served with the notice of
amendment and the summons for directions, but that the first defendant had still not been served with any
of the three documents she had directed should be served and she ordered that service of the said
documents should be effected “with all possible speed” and in the circumstance she rightly adjourned the
hearing of the summons for directions a second time, not sine die but to 23 June 1983). As later events are
to illustrate, counsel for the plaintiff was under the impression that the adjournment was sine die and this
may very well explain the subsequent course the case took.
In the meantime on 13 June 1983, the fifth defendant filed his statement of defence. It should be noted at
this stage that the amendment contemplated by the plaintiff’s notice was calculated to substitute one only
defendant as third defendant for the third, fourth and fifth defendants. There is no indication as to what
happened on 23 June 1983. The parties presumably did not go to court and the case
[p.33] of [1987-88] 2 GLR 26

thereafter did not come before any High Court judge before the legal vacation. The High Court docket
reveals, however, that on 2 August 1983 the solicitor for the plaintiff wrote to the senior registrar about
the summons for directions as follows: “I shall be grateful for an early date to be fixed for the hearing of
the above summons which was adjourned sine die on 7 June 1983.” On receipt of this letter, the senior
High Court registrar on 11 August 1983 gave instructions that the summons for directions should be fixed
for mention on 26 October 1983 and it was accordingly so fixed; clearly therefore when the summons
came before the Chief Justice sitting as an additional judge of the High Court on 26 October 1983, it had
only come before the High Court presided by Mrs Justice Striggner-Scott twice, on 23 May 1983 and 7
June 1983. It had therefore suffered only two adjournments.
On that significant date, 26 October 1983, the plaintiff appeared by his solicitors and the second and third
defendants were also represented but the first defendant did not appear nor was he represented by counsel
because he and his solicitor had not been served. The Chief Justice thereupon adjourned the hearing to 9
November 1983; his cryptic order however reads. “Case adjourned to 9 November 1983 for hearing.”
Quite obviously since the summons for directions had not been taken and was what was before him, “case
adjourned to 9 November 1983 for hearing” can only lawfully mean that the hearing of the summons for
directions had been so adjourned. However on 9 November 1983 when the case was called, the plaintiff
was in court and was represented and, indeed, all the other parties, except the first defendant, appeared by
their counsel. The first defendant did not appear by counsel and was absent because neither he nor his
accredited solicitor had been then or was ever served with the summons for directions. In fact, they were
not served with any of the documents which the High Court judge, Mrs Justice Striggner-Scott, had
ordered should be served on them. In the circumstance counsel for the second and third defendants rightly
in my view asked for an adjournment which is the only proper and normal course to take in the
circumstance. The starting response of the court however in a short rejoinder not easy to understand is as
follows: “I see no good ground for granting adjournment. The case must proceed.”
This reaction and the consequential order must be regrettable indeed because the most casual of inquiries
as to why counsel and his client the first defendant were not in court, the usual recourse of all courts in
such situations, would have revealed that the first defendant could not possibly come to court when no
process had been served on him or his solicitor notifying them of the hearing of the summons. All the
counsel in the case were aware of this or ought to have been aware of this since they were in charge of
their cases and must be presumed

[p.34] of [1987-88] 2 GLR 26

as responsible professional men to know the interlocutory stage the case had reached. Moreover, it was
counsel for the plaintiff who by letter to the registrar had asked for the summons for directions to be fixed
for hearing and that was precisely what the registrar had done in compliance with his request. I shall later
on in this judgment examine briefly the significance of this clearly unlawful order that the case must
proceed, as well as the equally unlawful ruling refusing the adjournment.
Speaking for myself and without meaning any disrespect, I must say that I am a little disturbed by the
stance of counsel in this case in not resisting these unlawful decisions. The role of counsel at a trial, as I
see it, is to assist the presiding judge politely but firmly to proceed at all the stages of the case within the
spirit and letter of the law and in accordance with the normal practice and procedure of the court. The
Chief Justice had obviously only got himself very casually acquainted with the case for apparently a short
period. He must have been under the erroneous impression descending, so to speak, as he had done from
the Supreme Court to the High Court to give a helping hand in order, no doubt, to clear the High Court
lists that the summons for directions, which he no doubt saw on the docket, had been taken. In such a
situation counsel’s assistance becomes more than essential. Admittedly, a close study of the docket would
have set the learned Chief Justice right, and his failure to recognise the actual stage the case had reached
was, perhaps, not all that easy to excuse and it certainly was unfortunate, nonetheless, it is worth
appreciating that extreme pressure on an officer in his position with such heavy work load in other areas
of responsibility can all too often lead to situations demonstrative of the fallible nature of men and the
poignancy of the oft quoted aphorism, “To err is human” and I should have thought that in the
circumstances counsel for the other defendants with more intimate acquaintance of the case had a
professional responsibility to draw the Chief Justice’s attention in his application for adjournment to the
fact that the summons which was what was before him had not been taken because the first defendant and
his solicitor had not been served.
This would surely be a very good ground and, indeed, an inevitable ground for granting an adjournment
and if his attention had been thus drawn to it, I have no doubt at all in my mind that with his experience
he would have found it well nigh impossible to refuse the adjournment and for reasons difficult to
understand he proceeded with the acquiescence of counsel for the other parties present to hear not the
summons for directions which was what was before him but rather the substantive suit which was not ripe
for hearing.
The decision to refuse the adjournment being clearly per incuriam, this court on the authority of the
decision of the Full Court in Con

[p.35] of [1987-88] 2 GLR 26

cession Enquiries No 446 (Axim) (1903) Ren. 261 at 262, confirmed by the Privy Council in Nsame v.
Ashanti Gold Coast Acquisition Co. Ltd. (1905) P.C. ‘74-’28, 9 has, it would seem, no option but to set
aside the decision and remit the case to the High Court for adjournment to be granted for the first
defendant to be served so that the case could take its normal course. See also Aryee v. Thompson (1929)
F.C. ‘26-’29, 354.
Prima facie this decision refusing adjournment appears to me, with the greatest respect, to be a very
serious and disturbing error of judgment, but in these proceedings contrary to the submission of the
appellant’s counsel, the respondent by his counsel has sought solace in the provisions of Order 70, r. 1 of
L.N. 140A as follows:
“1. Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not
render any proceedings void unless the Court or a Judge shall so direct, but such proceedings may be set
aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such
terms as the Court or Judge shall think fit.”

I propose to examine this contention later on in this judgment in the light of some decided cases, but
before that, I think it is important not to lose sight of the obvious fact that since the summons had not
been taken, it means no issues had been agreed upon between the parties. This was therefore a trial that
was to be held with no issues; a truly precarious trial which the learned Chief Justice had inadvertently
embarked upon.
In regard to this, it must be remembered that even before L.N. 140A made the Order 30 summons for
directions concept a mandatory statutory procedure for formulating issues for trial in an action founded on
pleadings, the courts in this country even in the absence of pleadings, faithful to the adversary common
law system of jurisprudence, had always insisted on a process for identifying the issues in a suit before
the commencement of trial, and, where there was failure to do this, the trial would be set aside. Thus in
Duke v. Henshaw (1940) 6 W.A.C.A. 200, the West African Court of Appeal constituted strongly of
Kingdom; Petrides and Graham-Paul, the three Chief Justices from the then Gold Coast, Nigeria and
Sierra Leone, in allowing the appeal in the case, non-suited the plaintiff and set aside the judgment. This
was in an action in which a fundamental issue was not articulated and identified before the
commencement of the trial. The court in a joint judgment held at 201 that:
“ . . . it is well established that in this country, where there are no pleadings ordered, it is the duty of the
Court at the outset of the hearing of the case to ascertain the real points in issue

[p.36] of [1987-88] 2 GLR 26

between the parties and it is the duty of both parties to state clearly the points upon which they rely. Both the
Court and Defendant failed in this duty in the present case . . .
The appeal is allowed, the judgment of the Court below, including the Order as to costs, is set aside . . .”

(The emphasis is mine.)

In this case there were no issues at all. I am of the opinion that since L.N. 140A came into force, this duty
adverted to by the West African Court of Appeal has now been given a statutory foundation. Consider
Order 30, r. 2 (1) of L.N. 140A which provides:
“2. (1) Upon the hearing of the summons or at any later time before judgment, the Court or a Judge
shall have power to give any such directions as to the proceedings to be taken in the action and
as to the costs thereof as the Court or Judge thinks proper.”

(The emphasis is mine.)

It seems to me that the language of this sub-rule within the context of L.N. 140A, quite independent of the
duties or views of the parties in the suit, clearly casts a statutory duty on the court to consider all matters
raised on the summons and the stages at which the said matters are to be dealt with. This is reminiscent of
the pre-1954 practice position so ably canvassed by the West African Court of Appeal in the said Duke v.
Henshaw (supra) and it is consistent with the recent decision of this court in Allotey v. Quarcoo [1981]
G.L.R. 208, C.A. I cannot therefore see how any judgment in this case can be sustained, if the ratio
decided in Duke v. Henshaw (supra) is right because like the court in Duke v. Henshaw (supra), the High
Court in this case, with all due respect, failed in its duty of ascertaining before the trial the issues on
which the settlement of the matters in controversy between the parties depended. Upon this ground alone,
I am inclined to set aside the judgment.
I will go back now to the events of 9 November 1983, for it seems to me that they need further close
examination. On that day, in the inevitable absence of the first defendant and his counsel, the case of the
plaintiff was virtually heard to a completion with such expedition as to be highly commendable indeed, if
nothing was amiss but sadly regrettable if all was not well, for on that day the plaintiff gave evidence and
was cross-examined by counsel for apparently the second and third defendants; he called one witness who
was cross-examined and he adroitly closed his case without much ado. Counsel for the other defendants
called the second defendant who gave evidence for himself and apparently for the third defendant and
after he had been cross-examined the counsel also hurriedly closed the case for apparently the

[p.37] of [1987-88] 2 GLR 26

second and third defendants. I have persistently used the word: “apparently” in relation to the second and
third defendants because strictly speaking the original third, fourth and fifth defendants were still legally
parties to the suit for the attempted amendment had been without leave, contrary to Order 28 of L.N.
140A. All these proceedings were conducted in one single day in the absence of the first defendant who
was understandably absent because, as I have already pointed out, he and his solicitor had not been served
with any process to appear in court for any proceeding whatsoever. After this clearly unsatisfactory
proceeding the further hearing of the substantive case was adjourned to the next day and the hearing of
the summons ignored. On the next day, 10 November 1983, Lawyer Asiama Sampong holding brief for
Kodua, counsel for the first defendant, appeared in court; he announced himself and with apparent
defidence he made a curt protest: “We are asking for a short adjournment. We have not been served on
the summons for directions.” If the court had inadvertently proceeded previously under a
misapprehension it certainly now had its attention drawn to it that the summons for directions could not
possibly have been taken prior to the previous day’s purported trial since, as the court has now been
informed, the first defendant and his solicitor had not been served to appear on the summons. Of course
the application for adjournment was in the circumstances granted and the matter was adjourned to 17
November 1983, but the appellant’s protest that he had not received notice of the summons for directions
was passed over in chilly silence.
In my well considered opinion, if this patently erroneous procedure that is delineated here can be properly
described as a mere irregularity, then by taking part in the subsequent proceedings the first defendant
must be presumed to have waived the irregularity and, no doubt, Order 70 of L.N. 140A could be prayed
in aid to validate the proceedings as has been contended before us. If, however, it is an irregularity that
goes to the root of the trial and fouls the springs of the judicial process and thus disabling the machinery
of the law from advancing the course of justice, then, with the greatest respect, the whole proceeding is
void and a nullity and the first defendant cannot by any subsequent unilateral or consensual act validate a
nullity. In such a situation, I should think, the duty of the trial judge on becoming aware that the summons
had not been taken, should have been to suo motu set aside the clearly defective proceedings of 9
November 1983 as null and void, on the authority of either Order 70, r. 1 or the excellent statement of an
alternative applicable principle by that pillar of legality, Akufo Addo J.S.C. (as he then was) in Mosi v.
Bagyina [1963] 1 G.L.R. 337 at 342 where he said:
“ . . . where a court or a judge gives a judgment or makes an order which it has no jurisdiction to give or
make or which is

[p.38] of [1987-88] 2 GLR 26

irregular because it is not warranted by any enactment or rule of procedure, such a judgment or an order is
void, and the court has an inherent jurisdiction, either suo motu or on the application of the party affected, to
set aside the judgment or the order.”

I shall give further consideration to this aspect of the matter later on in this judgment when I consider
whether such a defect in the proceedings as is disclosed here can be castigated “bare technicality” or mere
irregularity.
Be that as it may, on 17 November 1983, the adjourned date, the first defendant by his counsel applied
successfully for the plaintiff and his witness to be recalled for cross-examination and he also called two
witnesses of his own before the hearing was again adjourned to 30 November 1983. On that day the first
defendant gave evidence before further adjournment was made to 8 December, on which date he called
his last witness and the parties by their counsel addressed the court. At the end of his address counsel for
the plaintiff announced to the court: “We have settled with the second and third defendants and we wish
to withdraw against them. We do not ask for any order against them.”
The court did not react to this announcement of a settlement nor to the application for withdrawal, but it
adjourned to 22 December 1983 for judgment. And on the judgment day, the learned Chief Justice gave a
well considered and brilliant analysis of the respective cases put forward by the plaintiff and the first
defendant and made findings of fact in a characteristically scholarly and erudite manner with which
practitioners in our courts are only too familiar, and he proceeded in a masterly fashion, hard to fault, to
expound the substantive law of libel in its application to the facts so found, and he ended up by giving
judgment in favour of the plaintiff and he mulcted the first defendant in damages of ¢300,000 which he
himself subsequently was to call an “undoubtedly large” sum, with costs which he assessed at ¢5,000.
The sum is certainly unprecedented in the history of the damages awarded in this type of tort in our
country, but we must in fairness appreciate that the spiral of uncontrollable inflation with its
unpredictable level has been truly unprecedented in the economic life of this country within the past five
years.
The first defendant aggrieved by the decision appealed to this court against the judgment and the damages
awarded and applied to the High Court for a stay of execution pending the hearing of his appeal. On 2
February 1984 the application for stay was heard by the Chief Justice. In support of the application for
stay many grounds of appeal against the judgment were referred to in the affidavit in support and the
notice of appeal in an effort to show that the appeal had reasonable chance of

[p.39] of [1987-88] 2 GLR 26

success. Most of the said grounds deal with the merits which I do not think it is necessary to deal with in
this judgment. Two grounds however which are pertinent to the procedural aspect of the matter were also
alluded to in the application for stay but the Chief Justice would seem to have brushed them aside: They
are (a) in the notice of appeal:
“(a) That the learned judge was wrong in allowing commencement of the trial when the records showed
the pleadings had not closed in accordance with the rules of court or procedure.”

And (b) in the affidavit of the applicant:

“(b) That the learned trial judge erred in law when he commenced the hearing of his action which was then
not ripe for hearing by reason of the fact that, the defendant had not had the requisite notice of hearing
as provided for under Order 36, r. 9 of L.N. 140A—and therefore the whole hearing of the matter or
suit in the teeth of the opposition of the defendant was wrong and amounted to a miscarriage of
justice.”

He however in my opinion proceeded to grant the application for stay in a fashion that must be considered
with utmost respect to have embarrassed and puzzled the applicant. It was a pyrrhic victory for the
applicant because the Chief Justice ordered a stay only in respect of one half of the sum awarded, namely
¢150,000, on condition that the appellant fulfilled all conditions of appeal and in addition should use his
best endeavours to procure an expeditious completion and transmission of the record to the Court of
Appeal on or before 2 May 1984 with the proviso that if on the said date the record were not transmitted
to the Court of Appeal, a process which I must remark is under the control of the registry, then the stay
would be deemed revoked and the respondent could then go into execution. With regard to the other half
of the damages awarded the appellant was ordered to lodge the sum into court within thirteen days, ie on
or before 15 February 1984, and the respondent was to be at liberty to withdraw it on entering into a bond
with one surety in the sum of ¢160,000 to refund this sum to the appellant if the appeal succeeded. The
surety was to be a citizen of Ghana known to the registrar and who is a man of substance owning
immovable property in the Greater Accra Region.
The appellant has complained bitterly in this appeal against the quantum of damages so awarded and the
manner the application for stay was dealt with. As he put it in this appeal. “The damages of ¢300,000 and
costs of ¢5,000 awarded are unreasonably excessive and out of proportion to the circumstances of this
case in which the plaintiff proved no damage whatsoever.” Having regard to the fact that a

[p.40] of [1987-88] 2 GLR 26

decision on the procedural grounds, if successful, would render otiose this ground, I do not think it is
worthwhile to decide whether ground succeeds. The award however and the order made on the
application for stay deserve a few comments.
In this regard it seems to me with respect that although on the surface and having regard to its wording
the application for stay would appear to have been granted, it was in substance a refusal that wears the
transparent visage, if I may say so, of a dubious grant. In treating the application for a stay in this manner,
the learned Chief Justice did not lose sight of the serious procedural defect alleged to infect his judgment.
His reason for ignoring it however, which is demonstrably erroneous in law and a classic caveat that the
latin maxim nemo judex in causa sua is not an idle rule, is reflected in his refrain:
“The nearest thing to specifying an error of law was the allegation in ground (b) that as the applicant was not
given notice of hearing in accordance with Order 36, r. 9 of L.N. 140A, therein was a miscarriage of justice.
This rule required that ten days’ notice of trial should be given but time could, in suitable cases, be abridged
by the judge. The factual position was that after this suit suffered eight adjournments, it was put on my list
for mention on 26 October 1983. I fixed it for hearing on 9 November.
On that day, all the parties were in court except the first defendant and his counsel. An application was made
to me to grant adjournment. I saw no reason to accede to this and I ordered the hearing to proceed.”

I must remark here with the greatest respect that the Chief Justice’s interpretation of Order 36, r. 9 is
certainly faulty. A close reading of the rule shows that there can be no question of any judge having
jurisdiction under the said rule to abridge the time required, without giving the party affected notice of the
original time or at least notice of the abridged time; and with regard to the number of adjournments in the
case, it is clear that the learned Chief Justice was, with respect, quite obviously under an inexplicable and
unfortunate misapprehension; the record of proceedings and the High Court docket indicate plainly as I
have already demonstrated, that the suit suffered only two and not eight adjournments. Furthermore, the
order of the Chief Justice that the hearing should proceed cannot obviously be enforced against the first
defendant since he was unaware that the summons or the trial had been listed for hearing and it is with
respect trite learning that “a Court of law will not issue an order which is unenforceable” as is made so
clear in the case of Ukejianya v. Uchendu (1950) 13 W.A.C.A. 45 at 46. Be that as it may, the Chief
Justice then gave in chronological order the procedural listing of the case before him from 9 November
1983 to 8

[p.41] of [1987-88] 2 GLR 26

December 1983, as I have already given in this judgment, and he then said:
“Counsel then addressed the court on the evidence and invited me to dismiss the action. Yet it is this very
counsel who now says justice was miscarried because he was not given ten days’ notice of the trial. It is not
for me to say whether or not their complaint is a bare technicality.”

The pregnant view so casually dropped by the Chief Justice that failure to give notice is a bare
technicality had been very forcefully pressed on us in these proceedings by counsel for the respondent in
answer to the contrary submission of counsel for the appellant. It is therefore necessary to examine the
position very closely to find out whether castigating failure to serve notice on a party to be affected by
proceedings a technicality is legally justifiable. In this case It was the summons for directions under Order
30 that was admittedly not served on the first defendant and indeed, no order at all was made on the
summons for the simple reason that it was never taken. Under Order 54, r. 7 of L.N. 140A it is provided
as follows:
“7. Every summons, not being an originating summons to which an appearance is required to be entered,
shall be served two clear days before the return thereof, unless in any case it shall be otherwise
ordered.”

(The emphasis is mine.)

In the entry of appearance for the first defendant, his own address in Accra was given and as I have
already indicated, the address in Kumasi of his solicitor was also specifically given for service. The
manner in which documents are to be served with the exception of substituted service is statutorily
provided for in Order 9, r. 19 (1) and (2) as follows:
“19. (1) Service of a notice, summons, order or other document, shall wherever it is practicable, be
effected personally on the person to be served and service thereof shall be completely effected
by the delivery of a duplicate or attested copy of any such notice, summons, order or document
without the exhibition of any original . . .
(2) Service on the solicitor or recognised agent of the person to be served shall be deemed to be
effective service on such person.”

Clearly by the rules, it is laid down without any equivocation the type of documents to be served, whom
to serve and how to serve them. I should think these directives must be complied with in accordance with
the rules.

[p.42] of [1987-88] 2 GLR 26

In Sackey v. Okantah (1917) D. & F. ‘11-’16, 93 a preliminary objection was taken to the hearing of an
appeal before the Full Court on the ground that the notice required by law had not been given to the
respondent. The relevant law provided that: “notice of the appeal shall be given.” In the appeal before the
Full Court, the notice of appeal was addressed to the registrar instead of the respondent but it was
delivered to the respondent. In holding that the provisions of the law had been satisfied King-Farlow J.
reading the judgment of the Full Court said at 96:
“The Respondent . . . is admittedly an educated person, of some position, who understands English well as a
written and spoken language. When this notice was handed to him a moment’s glance must have informed
him that it was a notice of appeal from a decision in his favour in the case before us, in which his name
appeared as a party. It could and did mean nothing else to him. In other words he was clearly put upon notice
that an appeal had been lodged in this case, and to suggest that any element of surprise is present in these
circumstances would be absurd.
In certain cases the law lays it down that service of a specific document in a certain form is necessary, and
that it shall be personal.
In the present circumstances all that the law says is that ‘notice of the appeal shall be given.’
The rule I have cited lays down no positive conditions as to the manner in which the notice should be given
or what form it should take. This Court does not favour objections of a purely technical character, unless the
law be peremptory on the point in question. Here it is wide, and must be construed liberally in the broad
interest of justice . . .
In my view, on the facts in this case, the notice of appeal given by Appellant to Respondent . . . must be held
good.”

(The emphasis is mine.) It seems to me that King-Farlow J. was here undoubtedly dealing with a classic
case of what might be described as “bare technicality.”
Contrast this with two cases: Pepe Concession Inquiry No. 30 (1902) Sar F.L.R. 127 which was an appeal
from the judgment of Smith J. dated 26 June 1902 discussing the opposition of the Tacquah and Abosso
Co. to a concession inquiry, and Abiew v. Ewusie (1913) Ren. 764 both decided by the Full Court. In
each case the notice was not served on or handed over to the respondent, but was merely given to an adult
inmate of the house. The unanimous decision of the Full Court in each of the two cases was to strike out
the appeal. They were held in
[p.43] of [1987-88] 2 GLR 26

effect to be cases of non-service which were not considered to be instances of “technicalities.” For
instance in Abiew v. Ewusie (supra) the Full Court following its 1902 decision in the Pepe Concession
appeal said at 764:
“. . . the notice not being addressed to the claimants, was not duly served on them and that they did not have
the notice required by law ... The conditions required by law, not having been complied with, the Court is
bound to order the appeal to be struck out.”

In the Okantah case (supra) and the two cases I have just mentioned there was service of a sort; in the
instant case, there was, admittedly, no service of any description at all and a fortiori the principle
invalidating the proceedings in the two Full Court cases apply with greater force in this case.
In fact, I am inclined to believe that this may also very well be a case of non-service amounting to a
breach of the audi alteram partem principle which is a fundamental counterpart of the famous rules of
natural justice; what Harman L.J. in Ridge v. Baldwin [1963] 1 Q.B. 530 at 578 called “fair play in
action.” This natural justice principle of “fair play in action” is deeply ingrained in the customary
jurisprudence of our heterogeneous tribes and the predecessor of this court speaking through Ollennu
J.S.C. in Aidoo v. Commissioner of Police (No. 3) [1964] G.L.R. 354, S.C. in a decision in which the
Chief Justice, Apaloo J.S.C. (as he then was) participated fully, articulated the position in a case in which
the then Chief Justice had neglected to send notice to a person to be affected by his order in the said
proceedings. In quashing the offensive order Ollennu J.S.C. said at 359:
“It is a well settled rule of ... our customary law, that no person shall be condemned without being given the
opportunity to answer any complaints made against him. The customary law principle in this regard is
embodied in the Akan adage, Tieni mienu, meaning hear both sides; the Ga affirmation ke anuu mo
gbeianshishi le agbee le, meaning never condemn any one to death whose explanation you have not heard;
and the Ewe adage, Ela manotsia awede menuneo, meaning literally, an animal is never killed without being
offered water to drink.”

(The emphasis is mine.) Can the procedure adopted in this case be justifiably described safely as “fair
play in action?” The other defendants in this case and the plaintiff by their counsel were all aware that the
summons for directions was listed for hearing and the court’s attention was drawn to it that it had not
been taken but in spite of this they all acquiesced in the extraordinary decision of the court refusing an
adjournment and ordering not the summons for directions to

[p.44] of [1987-88] 2 GLR 26

proceed, but rather the actual trial, although the first defendant had not been served to attend the summons
or the trial. As far as the first defendant is concerned, it is my view that this is a gross irregularity and a
clear instance of “unfairness in action.”
This situation is certainly not new to the law: The old English cases of R. v. Dyer (1703) 6 Mod. Rep. 41
and R. v. Benn & Church (1795) 6 T.R. 198 show very clearly that centuries ago the English courts had
held that service of summons upon a party to be affected by the proceedings in which the summons is
issued is a condition precedent to the validity of the proceedings. And indeed at one time in English legal
history justices of the inferior courts who adjudicated summarily without issuing or causing to be issued
any summons or process to the party or parties to be affected by the proceedings, as would seem to have
happened in this case, were punishable in the court of the Kings Bench for misdemeanour as is illustrated
by the decisions in R. v. Venables (1725) 2 Ld Rymd 1405 and R. v. Alington (1726) 2 Str. 678.
Counsel for the respondent however has argued quite forcefully that this is a mere irregularity which in
his view is curable by the court. It seems to me that that argument has been effectively answered by the
Court of Appeal in Craig v. Kanssen [1943] 1 All E.R. 108 at 113 by Lord Green M.R. when the English
High Court was faced with a somewhat similar non-service of summons situation:
“The question we have to deal with is whether the admitted failure to serve the summons . . . was a mere
irregularity, or whether it was something worse ... In my opinion, it is beyond question that failure to serve
process where service of process is required, is a failure which goes to the root of our conception of the
proper procedure in litigation. Apart from proper ex parte proceedings, the idea that an order can validly be
made against a man who has had no notification of any intention to apply for it is one which has never been
adopted in England. To say that an order of that kind is to be treated as a mere irregularity, and not
something which is affected by a fundamental vice, is an argument which, in my opinion, cannot be
sustained.”

(The emphasis is mine)

Our High Court for almost 100 years has been singularly alive to the need for service in all cases where
service is required by law as a condition precedent to the validity of the proceedings. The judgment of
Hayes Redwar J. in the case of Bossom v. Attonie (1897) Red 199 and in modem times of Amissah J.A.
sitting as an additional judge of the High Court in Vasquez v. Quarshie [1968] G.L.R. 62 at 65; of Baidoo
J. in Konadu v. Ntoah [1971] 1 G.L.R. 318 at 321; of Abban J. (as he then

[p.45] of [1987-88] 2 GLR 26

was in Wadad Haddad Fisheries v. State Insurance Corporation [1973] 1 G.L.R. 501 at 507 and quite
recently of Osei-Hwere J. (as he then was) in Acheampong v. Asare-Manu [1976] 1 G.L.R. 287 at 289,
are all learned decisions supporting the invalidity of proceedings in cases where there had been no
service. Amissah J.A. in his usually able way in the Vasquez case (supra) was quite explicit in canvassing
with prophetic insight a situation not unlike the position in this case when he remonstrated at 65:
“... [N]o court is, to my mind, entitled to call upon a plaintiff to proceed with the proof of his claim if it is
aware that the defendant has not been notified of the hearing…. [A] court which allows this to happen ... will
be offending against the elementary principle of justice which obliges it to hear both parties ... A court
making a decision in a case where a party does not appear because he has not been notified is doing an act
which is a nullity on the ground of absence of jurisdiction.”

Counsel for the respondent however would seem to have an answer to this apparently impeccable
statement of the law. The submission he put forward to meet this seemingly tight legal position in the
Amissah dictum is to the effect that after the plaintiff had led evidence in the absence of the first
defendant in proof of his case the first defendant did appear the next day and took part in the subsequent
proceedings and so, the argument proceeds, he acquiesced in the prior irregularity. It seems to me that in
Konadu v. Ntoah (supra) at 321 Baidoo J. did answer this contention very neatly when he said: “…where
a process that requires service on the other side or party is not in fact served, such process and all
subsequent proceedings are null and void.” I think Sampson Baidoo J. is perfectly right and was only
stating the law as is exemplified in Biney v. Bartholomew (1926) D.Ct. ‘26-’29, 51 to the effect that an
irregular process is an absolute nullity ab initio. A nullity indeed in contrast to a merely irregular act,
cannot in my opinion on the authorities be validated by the subsequent act of any person. In fact long ago
before the 1926 Bartholomew case (supra), in Benn v. Hagan and Nelson (1922) D. Ct. ‘21 -’25, 16 it 19,
Hall J. sitting in the special Divisional Court at Winneba in drawing the line between an erroneous or
irregular process and a void process quoted with approval the classic distinction sponsored by De Grey
L.C.J. over two centuries ago in Parson v. Lloyd (1772) 95 E.R. 1089 at 1092 in these terms:
“There is a great difference between erroneous process, and irregular (that is to say void) process, the first
stands valid and good until it is reversed, the latter is an absolute nullity from the beginning; the party may
justify under the first until it be
[p.46] of [1987-88] 2 GLR 26
reversed; but he cannot justify under the latter, because it was his own fault that it was irregular and void at
first.”

I shall return to this issue of validating a nullity later on in this judgment.

The final submission of counsel for the respondent is that Order 70, r. 1 of L.N. 140A, already quoted
herein, can be prayed in aid to validate the proceedings. In Craig v. Kanssen (supra), Lord Green rejected
this contention as virtually an illegitimate use of the provision when considering the corresponding
English rule, in a case of non-service of summons, and in the Waddad Haddad case (supra) Abban J. (as
he then was) in effect categorically rejected this resort to Order 70, r. 1, in similar circumstances when he
pointed out at 507:
“It seems to me that Order 70, r. 1 applies only to the situation where the non-compliance with any of the
rules of court merely makes the proceedings irregular and not where it renders them null and void. In the
former case, the proceedings are valid, though irregular, and the court has unlimited discretion, under the
said rule, as to what order it will make in the circumstances ... But the court cannot exercise its discretion
under Order 70, r. 1 to save the proceedings, if the failure to comply with the rules makes the said
proceedings null and void. . .”

I think the rule as to service of notice is a fundamental principle for the fair administration of an adversary
system of justice and to daub failure to comply with it as a mere irregularity or bare technicality as we
have had pressed on us in this appeal is to misconceive the nature of that procedural machinery and its
essential significance in the Ghana legal system.
Let us examine the rule a little more closely, particularly in cases where a party in a suit has engaged the
services of a solicitor. Surely such a solicitor who in the circumstance has given his address for service as
we have in this case, is entitled to be notified of the date of trial and indeed the date for any proceedings
in the suit so that he can prepare for court and in appropriate circumstances decide whether to conduct the
case himself or brief another learned counsel for his client if he cannot himself be available at court. If
one considers the bundle of duties which a solicitor must address himself to before trial, then his
unquestionable entitlement to notice will be thrown into proper perspective indeed. In this respect I find
assistance in a case from the Supreme Court of Sierra Leone on appeal to the West African Court of
Appeal which throws the problem into sharp relief. Sierra Leone I should point out, operates an analogous
system of law like ours. And in the said case, Milton King v. Leo Davies (1959) 16 W.A.C.A. 66,

[p.47] of [1987-88] 2 GLR 26

Watkin-Williams J. quoting with apparent approval Butterworth’s Costs (1951) Vol. 2 at 1261, indicated
the nature of the work which a solicitor operating in a superior court like ours, is likely to undertake in
“preparing for trial.” He said at 69:
“Considering facts, evidence and law, preparation of notes of facts or argument, interviewing witnesses and
taking proofs of their evidence, preparing and serving notices to produce and admit documents, perusing
correspondence and notices to produce and admit documents and, where counsel is instructed, instructions
for and drawing brief, attending counsel therewith and appointing and attending conference.”

I believe any person with any pretensions to knowledge of our legal order, whether under a civilian or
military regime, will not fail to recognise the echoes here of the sort of duties which a Ghanaian solicitor
must perform for his client in preparation for the trial of a suit. If a solicitor entering appearance for a
defendant undertakes impliedly these onerous professional duties for his fee, then I cannot see how failure
to notify him of the trial date so that he can perform his duties and discharge his responsibility to his
client can be termed “bare technicality” nor can I understand how he can acquiesce in a procedure the
effect of which is to compromise adversely his obligations to his client and in effect deny his services to a
person who in theory or at any rate in the contemplation of the law is obliged to pay and may have
already paid for the said services.
In my well considered opinion the decision of the High Court on 9 November 1983 to proceed with the
trial is void and a complete nullity as far as the first defendant who is the appellant herein is concerned.
The case was not ripe for hearing because, as I have repeatedly pointed out, the summons for directions
had not been taken and the first defendant or his counsel had not been notified to attend the summons or
any trial.
The appellant was incapable of validating subsequently a nullity as Azu Crabbe J.A. (as he then was) held
so clearly in Odoi v. Hammond [1971] 1 G.L.R. 375 at 390, C.A. where he clinched his reasoning in his
usually inimitable and thorough manner by referring so aptly to the latin maxim ex nihilo nihil fit; an
illuminating illustration of the oft quoted observation of Lord Denning MacFoy v. United African Co.
Ltd. [1962] A.C. 152 at 160, where he said: “You cannot put something on nothing and expect it to stay
there. It will collapse.”
In my opinion, the contention on behalf of the respondent that non-compliance with the rule as to service
can be waived by the appellant in order to legalise an illegality is with respect fallacious, It was clearly
impossible for him to waive non-compliance with the rule, because

[p.48] of [1987-88] 2 GLR 26

non-compliance meant that in law the case was not ripe for hearing and I cannot see how in the
circumstances this can be waived so that what in law was no hearing by the act of waiving defy the law
and metamorphose into a hearing. The law, I fear, is that there was no hearing upon which a lawful
judgment can be founded and none of the parties in the suit can overrule this irrebuttable presumption of
law.
What happened in this case is procedurally unacceptable and legally vacuous. Every practitioner in our
courts is aware that in civil proceedings by writ in the High Court, after the pleadings are closed summons
for directions are mandatorily taken under Order 30. It is when this summons is heard that normally
directions are given and invariably a date is either actually fixed for trial or the modality for fixing the
date is indicated by the trial judge in exercise of a mandatory statutory duty. In most cases the suit is
adjourned sine die and the registrar is enjoined by the order of the court to fix a hearing date. In this case
the learned Chief Justice did not carry out this mandatory statutory function and has indicated why he
heard the case on 9 November 1983. As he put it: “The factual position was that after this suit suffered
eight adjournments, it was put on list for mention on 26 October 1983. I fixed it for hearing on 9
November 1983.”
With all due respect to the learned Chief Justice, it was necessary to find out the reasons for all those
alleged eight adjournments before fixing the case for hearing and indeed it was essential to indicate what
was being fixed for hearing. The inquiries would have disclosed that the factual position was that the
adjournments were only two and not eight and that they had become legally inevitable and unavoidable
because the first defendant had not been served and that what was lawfully put before him was not the
trial of the suit but the summons for directions. He had, with respect, no jurisdiction to attempt a
volte-face and fix the case for trial as Amissah J.A. so ably points out in Vasquez v. Quarshie (supra). It is
clearly the anxiety of the learned Chief Justice for a speedy trial that has with respect led to this
unfortunate error of judgment. But as I remarked in Asante Kramo alias Kumah v. Attorney-General
[1975] 1 G.L.R. 319 at 344, remarks vindicated so vividly by what happened in this case: “. . . any system
of jurisprudence which gives priority to expedition at the expense of justice is not useful to the society it
is meant to serve.”
There were also other irregularities in the trial. I shall touch briefly on only two. In the first place, the
notice of amendment to the writ of summons and the statement of claim was filed under Order 28 of L.N.
140A after the reply, at a time when no leave to amend had been obtained. This notice of amendment like
the summons for directions was also never served on the first defendant before the so-called trial;

[p.49] of [1987-88] 2 GLR 26

Secondly, the notice of discontinuance against the second and third defendants was also filed without
leave under Order 26 of L.N. 140A. The notice was filed after the plaintiff had replied to the defence of
the second and third defendants. This notice was also not served on the first defendant and he was thus
given the impression throughout the so-called trial that the second and third defendants, jointly liable with
him if the plaintiff were to succeed in his action, were still parties to the suit.
In my view, quite apart from the non-service of the summons, the cumulative effect of these other
irregularities which were conceded by counsel for the respondent is to make the trial wholly
unsatisfactory and rather entitle the first defendant, the appellant herein, ex debito justitiae to have the
whole proceedings set aside as void under the provisions of Order 70, r. 1 of the L.N. 140A contrary to
the submission of counsel for the respondent that the said Order 70, r. 1 can be prayed in aid to validate
the abortive trial.
For this and the other reasons I have been at great pains to canvass in this judgment, I hold that in law the
case against the first defendant must be considered as not having been tried by the High Court because the
so-called trial is in my respectful opinion, as I hope I have demonstrated herein, null and void. The case is
therefore still pending in the High Court for the summons for directions to be taken. I will in the result
allow the appeal with costs against the respondent in this court and in the court below. I will remit the
case to the High Court from which it came for the proceedings which were interrupted by the void order
of 9 November 1983 to resume its lawful course in accordance with the rules of court. I will order the
“undoubtedly large” damages awarded to the respondent following this patently abortive trial to be
refunded to the appellant forthwith or at least within one week from today’s date.
The court below to carry out.

JUDGMENT OF ABBAN J.A.

I agree.

JUDGMENT OF AMPIAH J.A.

I also agree.

DECISION
Appeal allowed with costs.
Case remitted to the High Court.
D. R. K. S.