DIVISION: IN THE SUPREME COURT
DATE: 11TH MARCH, 1963
BEFORE: VAN LARE, MILLS-ODOI AND AKUFO-ADDO JJ.S.C.
CASES REFERRED TO
(1) Maxwell v. Keun [1928] 1 K.B. 645; [1927] All E.R. Rep. 335: 138 L.T. 310, C.A.
(2) Airport Restaurants Ltd. v. Southend Corporation [1960] 1 W.L.R. 880, C.A.
(3) Gardner v. Jay (1885) 29 Ch.D. 50; 54 L.J.Ch. 762; 52 L.T. 395, C.A.
NATURE OF PROCEEDINGS
APPEAL against an order of Charles J. striking out the appellant’s action for want of prosecution.
COUNSEL
E. K. Akyea-Djamson for the appellant.
E. B. Gaisie for the respondents.
[p.277] of [1963] 1 GLR 276
JUDGMENT OF VAN LARE J.S.C.
This is an appeal from an order of Charles J. made in the High Court, Sekondi, on the 2nd May, 1961,
striking out the appellant’s action against the respondent firm, according to the notes, “for want of
prosecution.” This followed an application on behalf of the appellant for an adjournment for stated
reasons including particularly that the court had not yet made an order for delivery and inspection of
documents as asked for in the summons for directions filed. Counsel for the respondents before us asked
the court to strike out the case for want of prosecution alleging that most of the adjournments had been at
the instance of the appellant in this court. This allegation does not appear to be borne out by the record
which shows that in respect of the application for directions in the court below there was only one
adjournment which was rather at the instance of counsel for the respondent. However, be that as it may,
the learned judge, without specifically refusing the application for adjournments, although impliedly
doing so, and without calling upon the plaintiff to proceed with the case, struck it out.
It is true that the case had been fixed for trial on the day it was struck out. The trial date was fixed on the
27th February, 1961, when the court dealt with the summons for directions. The plaintiff’s request for
her evidence to be taken on commission in the United Kingdom where she had been resident even at the
date of filing the writ of summons was in my view properly refused as no good reasons were shown, but
without dealing with the other matters appearing on the summons such as directions for discovery and
inspection of documents, the judge fixed a trial date. However when the case came on for hearing on the
appointed day that part of the summons for directions for the defendant firm to deliver a list of all
correspondence between the parties and for an order for inspection of documents had not been dealt with
and should have been deemed still pending before the court.
In view of the absence of the plaintiff in the United Kingdom the interest of justice required the
application on her behalf for discovery and inspection of documents for the purpose of the trial to be
entertained as the issues might well be settled and narrowed. As the issues had not then been settled the
learned judge should have taken such matter into consideration to grant an adjournment for the purpose. I
venture to say that a case is not ripe for hearing when summons for directions have not been fully dealt
with, and setting down the trial date in the instant case was therefore not in order. The judge could
therefore not proceed with the trial on the date fixed; he should have in the interest of justice adjourned
the trial for the position to be regularised.
A refusal for an adjournment is a matter which prima facie is entirely within the discretion of the judge,
and a court of appeal ought to be very slow to interfere with the discretion vested in a judge by the
Supreme [High] Court (Civil Procedure) Rules, Order 36, r. 19 which plainly states that “the judge may,
if he think it expedient for the interests of justice, postpone or adjourn a trial for such time, and to such
place. . . and upon such terms, if any, as he shall think fit”; but the position of the law is
[p.278] of [1963] 1 GLR 276
clear to the effect that if it appears that the result of an order refusing an adjournment will be to defeat the
rights of the applicant altogether, and would be an injustice to one or other of the parties, the appeal court
has power to review the order, and it is its duty to do so; see Maxwell v. Keun.1
It is apparent on the face of the record before us that the judge of the court below struck out the case not really for want of prosecution but because an application for adjournment was made which he refused to
entertain. He still had another step to go. He could not possibly call upon the plaintiff to proceed because
the issues were not settled and could only be conveniently settled upon discovery and inspection of
documents. In refusing the application for adjournment at that stage the judge erred as he must have
failed to take into consideration the position that the case was not then ripe for hearing in view of the fact
that the application appearing on the summons for directions as to discovery and inspection of documents
had not been dealt with. Following Harman L.J. in Airport Restaurants Ltd. v. Southend Corporation,2 I
say that although the order appealed from was primarily in the judge’s discretion, as I have come to the
clear conclusion that he wrongly exercised that discretion—that is to say, that he did not take the right
matters into account or give them the right weight—it is the duty of this court to exercise its discretion in
the case. “Discretion, like other judicial discretions, must be exercised according to common sense and
according to justice, and if there is a miscarriage of justice the decision will be reviewed”—per Bowen
L.J. in Gardner v. Jay3 in discussing the discretion of a judge as regards mode of trial.
I find it hard to say that justice resulted in the circumstances in which the judge refused an adjournment
which led him to strike out the plaintiff’s action in this case, and I think that he failed to see that such
would be the effect of his order appealed from. I would therefore allow the appeal and set aside the order
striking out the case together with the order as to costs. I would accordingly restore the case to the list
and remit it to the court below to take its normal course.
JUDGMENT OF MILLS-ODOI J.S.C.
I agree.
JUDGMENT OF AKUFO-ADDO J.S.C.
I also agree.
DECISION
Appeal allowed.
Case remitted for trial in the High Court.
