Gagba Vrs Kabila And 3 Others (E1/25/2021) [2023] GHAHC 654 (2 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE, DENU HELD THIS THURSDAY 2 NOV. 2023 BEFORE JUSTICE GEORGE BUADI, J MANAVI GAGBA (Per her Lawful Attorney Gloria Agbaglo of Apeyeme-Dzodze } } …… PLAINTIFF SUIT NO. E1/25/2021 Versus 2 JOSEPH MENSAH KODZO KABILA } KWASHIE MENSAH DOGBEDA MENSAH (ALL OF KPOGLU) } } } …… --DEFENDANTS RULING ON A REQUEST FOR JUDGMENT On 31 October 2023, this suit was called before me after I assumed duty over this court on 9 October 2023. Plaintiff informed the court that on 18 July 2023, the court presided over by my predecessor, delivered an oral judgment in the suit in her favour. I find no copy of the judgment on the docket. I promised to deliver the judgment today, but having perused the proceedings I have identified some critical procedural irregularities which I find very difficult to overlook to deliver the judgment on these irregularities. Firstly, I find that hearing of the suit continued on the death of the 1st Defendant who claimed to be the family head without any record of his substitution or notice of intention not to substitute him. Besides, I find what amounts to a fresh testimony of the plaintiff and her two witnesses after her earlier testimony and cross-examination by 1st Defendant. The fact of the matter is that the hearing of the suit commenced on 2 February 2022 with the testimony of the Plaintiff’s lawful attorney. Defendants, who had been represented in court by 1st Defendant commenced cross-examining Plaintiff’s lawful attorney. The court adjourned proceedings for the continuation of cross-examination to 22 March 2022. None of the defendants, particularly the 1st Defendant was in court on 22 March to continue the cross-examination of Plaintiff. I find that the court on 22 March 2022 recorded the death of the 1st Defendant. Hearing continued and variously adjourned; first to 5 May 2022, and to 27 October 2022 where the court struck out the Defendants’ case (statement of defense and counterclaim) for default of appearance in court, and adjourned the suit to 2 November 2022 for judgment. The judgment was not delivered as earlier scheduled. The suit was variously adjourned until the court upon application granted an order for substituted service of notices on the defendants. I repeat here that I find no record of the substitution of 1st Defendant nor any notice of intent not to substitute him (1st Defendant). Beyond these, the court on 6 June 2022 without any reference to the fate of the earlier hearing and cross-examination of the plaintiff by 1st Defendant commenced a fresh hearing of the suit by leading the plaintiff’s attorney and her two witnesses to give their testimonies “to prove her title to the case”. Defendants were recorded absent. After the testimonies of the Plaintiff and her two witnesses, the court adjourned the suit to 18 July 2023 for judgment. Plaintiff claim that the court delivered judgment in her favour orally in court, but as I stated earlier, I find no record or copy of the said judgment. It is for these procedural hiccups that I find it quite challenging to deliver a judgment based on facts and proceedings I have recited here. Justice delayed is justice denied is a good aphorism but the fact also is that justice hurried is justice miscarried! I will err on the side of caution and refuse to adopt such proceedings as I have recounted here to found a judgment. I make an order to embark a fresh trial of the suit. Ordered accordingly. George Buadi, J High Court, Denu