Closing a party’s case without calling on him to open his defence
The trial court deprived the defendants the opportunity to open their defence by closing their case for them, after discharging the plaintiff’s representative without recording whether the plaintiffs themselves had closed their case to warrant the calling of the defendants to open their defence that day. This is because the discharge of the plaintiff’s representative was in no way an indication that the plaintiffs had closed their case. 3. Further, there was nothing on record showing the defendants were called upon to open their defence by the court, so closing their case for them amounted to breaching the audi alteram partem principle and that this “not only occasioned a miscarriage of justice but also resulted in a nullity as the defendant was driven away from the judgment seat by the learned trial judge”
The position of the law on this point was settled about forty years ago in the case of BARCLAYS BANK D.C.O v. HEWARD-MILLS [1969] CC 132 CA. It was held as follows: “When a judgment is set aside on the grounds that it was obtained by fraud, the nullity does not affect the writ of summons. similarly, when proceedings are set aside by an appellate court as a nullity, the writ which commenced the proceedings remains unaffected, unless the grounds of nullity is that the trial court has no jurisdiction to issue the writ. The legal effect of declaring proceedings null and void is that there has been no adjudication upon the claim, and so the writ or claim automatically goes back to the trial court there to be properly adjudicated upon”
Order for a hearing de novo where a party was denied a hearing
We have gone through the record of proceedings and are satisfied that these findings are borne out by the record and accordingly find that the grounds of appeal against the judgment of the Court of Appeal are without merit. The appeal is accordingly dismissed. The order of the Court of Appeal setting aside the judgment of the High Court including all consequential orders etc. and remitting the matter to the High Court differently constituted for hearing de no vo is hereby affirmed.
Setting aside a void decision on the court’s own motion
This Court in its decision rendered in Republic v High Court, Accra, Ex Parte Afoda [2001-2002] SCGLR 786, stated in clear language that a court of competent jurisdiction may set aside a void or a decision which is void on its own initiative whenever it comes into contact with it, notwithstanding that the matter is not before it. The essence is to ensure that a void decision does not spread its tentacles through judicial precedent, to become entrenched through its poisoned fruits.
