COURT OF APPEAL
DATE: 4 MAY 1971
AZU CRABBE JSC., LASSEY AND ARCHER JJA
CASE REFERRED TO
Adjani v. Agyeman III, Court of Appeal, 6 November 1969,unreported; digested in (1970) C.C. 14.
NATURE OF PROCEEDINGS
MOTION to relist appeal which had been struck out for want of prosecution.
COUNSEL
Quist for the applicant.
Reindorf for the respondent.
[p.138] of [1971] 2 GLR 137
JUDGMENT OF AZU CRABBE J.S.C
Azu Crabbe J.S.C. delivered the judgment of the court. On 9 November 1970 when the above appeal came on for hearing, neither the claimant- appellant (the applicant herein) nor his counsel attended the court, and the appeal was struck out for want of prosecution. The claimant-appellant has now brought this application for an order to relist the appeal for hearing, pursuant to rule 23 (2) of the Supreme Court Rules, 1962 (L.I.218).
In Adjani v. Agyeman III (Court of Appeal, 6 November 1969, unreported; digested in (1970) C. C. 14) this court said that it would not grant indulgence to a party who had not been diligent and stated the grounds upon which it would exercise its discretion under rule 23 (2) as follows:
“The granting of an application under rule 23 (2) is not a matter of course; it is entirely in the discretion of this court, a discretion which will be exercised judicially,’according to the rules of reason and justice’ (Rooke’s Case, 77 E.R. 209). In exercising this discretion the court will take into consideration all the circumstances of the case, including such question as the nature of the subject-matter of the appeal and the effect of granting the application upon the rights of the parties or third parties (that is, whether greater hardship would be caused to the applicant by granting the application than by refusing it), the promptness or the extent of delay in making the application, and whether the applicant has good prospect of success in the appeal.”
The grounds for the present application are: (i) that the applicant was ill, and (ii) that without his knowledge, counsel, whom he had instructed to appear and argue the appeal, had been disbarred from practicing.
Where an applicant comes to this court for an order under rule 23 (2) of L.I. 218 directing an appeal to be re-entered for hearing, and he alleges as a ground for the application that he was incapacitated by ill-health from appearing at the hearing of the appeal, the court would like to be satisfied (i) that the appellant was in fact afflicted by some illness, and (ii) that by reason of his illness he was unable to instruct counsel to appear on his behalf. In this application the applicant alleges that after he had filed his appeal against the decision of the Reserve Settlement Commission on 3 April 1965, he entrusted the conduct of the appeal to his counsel, Mr. Albert Asafu-Adjaye, who informed him that no date for hearing had then been fixed, and that it was likely that the appeal might be heard some time in 1970. It would appear from the medical certificate attached to the notice of motion that the applicant was admitted into hospital on 10 November 1970, for a major operation, and was discharged on 18 November 1970. Whilst in hospital the applicant developed a mild stroke, and he continued with physiotherapy treatment for some time. There is also an affidavit by one Alafaa of Atanve, near Ho in the Volta Region, who deposed that the applicant had been receiving treatment from him as an in-patient, and that at the time he swore
[p.139] of [1971] 2 GLR 137
to the affidavit, that is 23 February 1971, the applicant had only then begun to show signs of slight improvement in health.
There is further evidence that the government was officially informed that owing to the illness of the applicant he was unable to perform his duties as the President of the Akwapim Traditional Council, and that the Krontihene, Nana Boafo Ansah II, had been appointed to act as President of the Traditional Council with effect from 4 January 1970.
The application is opposed by the second claimant-respondent, Nene Padi Keteku Akrobettoe II, who does not, however, doubt that the applicant had been ill, as stated in the applicant’s affidavit. But Nene Akrobettoe II’s opposition is based on two grounds: first, that the applicant was a chief, and that someone from among his elders and councillors, who was looking after the stool affairs in his absence, could have prosecuted the appeal; and secondly, that though it is admitted that Mr. Albert Asafu-Adjaye was disbarred, the firm with which Mr. Albert Asafu-Adjaye worked could have given the applicant any information he needed about his appeal.
This application was filed three months and three weeks after the appeal had been struck out, and we do not think that there has been an excessive delay. The subject-matter of the inquiry by the Reserve Settlement Commissioner affect stool lands, and the allegation by the applicant that the Reserve Settlement Commissioner made findings in respect of lands, which both parties had agreed were not the subject of his inquiry has not been denied. Thus, the applicant has shown that he has a good prospect of success in the appeal.
It is true, as the opposer alleges, that in the absence of the applicant one of his elders or councillors should have prosecuted the appeal, and that information about the appeal could have been got from Mr. Albert Asafu-Adjaye’s firm or chambers. But this seems to imply that the applicant was in a fit condition to give proper instructions about all his stool affairs. There can be no doubt on the evidence before us that the applicant became seriously ill shortly before the hearing of the appeal, and we think that it is not fair to the applicant to expect him to remember everything affecting his stool in his critical condition. We have further noted that the applicant was admitted into hospital a day after the appeal had been struck out, and that he was operated upon four days later.
This is a case in which the rights of several subjects of the Akwapim stool are affected, and we think that it would be unjust to let these rights go by default in circumstances, which, upon the evidence, appear to us to be excusable.
The opposer will suffer no material damage by the relisting of the appeal for hearing beyond the inconvenience of travelling to court. For that inconvenience, we think that he can be adequately compensated by costs. We accordingly grant the application, and make the following orders:
(1) The applicant is to pay the costs awarded in favour of the opposers at the inquiry of the Reserve Settlement Commission and in this court on 9 November 1970,
[p.140] of [1971] 2 GLR 137
(2) The applicant is to pay the opposers’ costs on this application which is fixed at N¢100.00.
The costs in (1) and (2) above are to be paid within one month from the date of this order, and payment is hereby made conditional to the relisting of the appeal.
DECISION
Application granted.
S. A. B.
