HIGH COURT, KOFORIDUA
Date: 26 NOVEMBER 1973
QUASHIE-SAM J
NATURE OF PROCEEDINGS
APPEAL from the ruling of a district court refusing to review its own decision on the appellants’ application for relistment. The facts are sufficiently stated in the judgment.
COUNSEL
K. Amofa for the appellants.
K. Asare for the respondent.
JUDGMENT OF QUASHIE-SAM J
The plaintiff obtained judgment ex parte against the defendants on 4 October 1972 in the District Court Grade I, Nkawkaw.
On 20 December 1972, the defendants applied to have the said judgment set aside on the ground that they had no notice of the date of hearing and that they only got to know that the case had been disposed of when formal decree was served on them. They also on the same date filed another motion for stay of execution on precisely the same grounds. When the two applications came on for hearing on 22 January 1973, the defendants failed to appear and the two motions were struck out for want of appearance. The defendants then filed an application to relist these motions. In his order, the magistrate was of the opinion that no sufficient cause had been shown for relistment and he dismissed the application. The defendants then filed a motion for a review of the order refusing relistment and on 19 March 1973, the court refused to review its order, observing that there was no merit in the application. It is from this order that the defendants have appealed.
The original ground of appeal was that the learned trial magistrate failed to exercise his discretion judiciously. Other additional grounds are:
“(1) The learned trial magistrate erred in law by accepting and acting upon the submissions of the plaintiff-respondent’s counsel based on Order 39 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A).
(2) The learned trial magistrate erred in law by failing to consider the appellant’s application under Order 42 of the Courts Ordinance, Cap. 4 (1951 Rev.).”
These grounds were argued together by counsel. The main approach in his argument was to attempt to draw a fine distinction between Order 39 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), and Order 42, r. 1 of Cap. 4, Sched. II. He submitted that it was the latter rule which was applicable to an application for a review in the lower court and not Order 39 which was applicable to the High Court. He argued that if the magistrate had applied the test in Order 42, r. 1 of Cap. 4 instead of Order 39 as above, he would have granted the review; that his failure to do so amounted to judicious indiscretion.
[p.33] of [1974] 1 GLR 31
Rule 1 of Order 39 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), reads:
“(1) Any person considering himself aggrieved—
(a) by a judgment or order from which an appeal is allowed, but from which no appeal has been preferred;
or
(b) by a judgment or order from which no appeal is allowed;
and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the judgment was given or the order made, or an account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the judgment given or order made against him, may apply for a review of the judgment or order to the Judge who gave judgment or made the order.”
Rule 1 of Order 42 of the Courts Ordinance, Cap. 4 (1951 Rev.), Sched. II reads:
“Any judge, Magistrate, or other judicial officer, may, upon such grounds as he shall consider sufficient, review any judgment or decision given by him (except where either party shall have obtained leave to appeal, or a reference shall have been made upon a special case, and such appeal or reference is not withdrawn), and upon such review it shall be lawful for him to open and re-hear the case wholly or in part, and to take fresh evidence, and to reverse, vary, or confirm his previous judgment or decision, or to order a non-suit.”
It is clear from Order 39, r. 1 of L.N. 140A that the grounds for review are specifically mentioned, yet by the phrase “or for any other sufficient reason” the matters for consideration are not closed when dealing with such applications. In Order 42, r. 1 of Cap. 4 on the other hand, the operative phrase is “upon such grounds as he shall consider sufficient.”
In my view, the test in Order 42, r. 1 of Cap. 4 even unlimitedly embraces all those mentioned in Order 39, r. 1 of L.N. 140A as quoted above, and I find it no argument to say that because the submissions of both counsel centred around Order 39 of L.N. 140A (which submissions the magistrate considered relevant) therefore he exercised his discretion injudiciously. In other words any person coming for a review before a district court under Order 42, r. 1 of Cap. 4 may, without the mention of Order 39, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), ground his application on any of the grounds specifically mentioned in the latter order and the court is bound to consider them.
[p.34] of [1974] 1 GLR 31
In this appeal, the record of appeal is made up of only the proceedings in the applications for setting aside the judgment obtained ex parte, the motions for relistment and stay of execution, and the motion for review. In my function to find out whether the magistrate had exercised his discretion properly, I have had to look at the docket of the lower court which accompanied the appeal record as required under Order 58, r. 6 (d) of the Supreme [High] Court (Civil Procedure) Rules, 1954, as applicable to such appeals.
I am satisfied from the docket and notice therein affecting the matter before me that the learned magistrate had every good reason for ruling as he did and for refusing to review his decision. The appeal therefore fails and is dismissed accordingly with 050.00 costs to respondent.
DECISION
Appeal dismissed.
S. O.
