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  • appeal
  • 1959-11-10
  • GLR 376-377
  • Print




On the day fixed for hearing a summons for directions the plaintiff attended Court, but the defendant did not; neither Counsel for the plaintiff nor Counsel for the defendant did so. Though the date had been fixed for only the hearing of the summons for directions, Mr. Commissioner Attoh proceeded to try the case. After hearing the evidence of the plaintiff (who, of course, had not brought his witnesses to Court), the learned Commissioner gave judgment for the defendant.An application for an order to review was supported by the plaintiff's affidavit setting out the foregoing matters. On the 5th February Mr. Commissioner Attoh ordered that the motion be struck out, recording: "On the face of the affidavit of plaintiff I do not think there are good and sufficient grounds for the application to succeed."The plaintiff appealed to Court of Appeal (Civ. App. No. 65/1959).


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.


<P>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

Plaintiff / Appellant


Defendant / Respondent


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