Division: IN THE COURT OF APPEAL
Date: 10TH NOVEMBER, 1959.
Before: KORSAH C.J., VAN LARE J.A. AND GRANVILLE SHARP J.A.
ARGUMENT OF COUNSEL
Ampaw for plaintiff (appellant). Upon instructions, on the 27th December, 1958 I filed summons for directions, and the hearing of that summons was fixed for the 19th January. On the latter date the Court below ordered my client to go into the witness-box to give evidence. This was in the absence of the defendant and her Counsel. I submit that it was wrong in law for the learned Commissioner to ask plaintiff to give evidence in the case on the return-date of summons for directions.
No appearance for respondent.
[p.377] of [1959] GLR 376
JUDGMENT OF KORSAH C.J.
In this matter it appears that the learned Commissioner heard the case when no hearing date had been fixed.
Upon the parties filing their pleadings, the Court below ordered the plaintiff to file a summons for directions by the 29th December, 1958. The summons was in fact filed on the 27th December, and in it the return-date fixed as the 19th January, 1959. Notice of this was accordingly given to the defendant. It is obvious that the 19th January was the date fixed for the hearing of the summons for directions, and not the hearing date generally.
On that day the plaintiff attended Court, but the defendant did not; and neither counsel for plaintiff nor counsel for defendant did so. It would seem that neither counsel could have understood that on that date the case would be heard on its merits. But the Commissioner, overlooking this fact, called upon the plaintiff on the 19th January to give evidence. With reluctance the plaintiff did so, but he could not continue the case further after his own evidence. The Court thereupon gave judgment dismissing the plaintiff s claim.
We are satisfied that this was an error, since the case was not at that stage ripe for hearing on its merits. For this reason we set aside the judgment, and remit the case to the Court below for rehearing. The appellant is to have his costs in this court fixed at £35. 1. 1d; the costs of the abortive hearing in the court below to abide the result of the re-hearing
