Duah Atuahene v The Manager Bemkoff Hotel (C12/03/2022) [2025] GHAHC 178 (4 June 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE HELD AT KIBI ON 4TH DAY OF JUNE, 2025 BEFORE HER LADYSHIP RUBY NAAADJELEY QUAISON(MRS), HIGH COURT JUDGE. SUITNO: C12/03/2022 DR. MARGARET DUAHATUAHENE ….. PLAINTIFFS VRS: THEMANAGER, BEMKOFFHOTEL …… DEFENDANTS =========================================================== Parties: Plaintiff -Absent Defendant –Represented by Akunnor Collin (Manager)–present Counsel: Muda Lawalfor thePlaintiff –present BernardBediakofor theDefendant -Present =========================================================== RULING =========================================================== I have heard the parties. Counsel for Plaintiff/Applicant has filed this application to set aside the order of the court made on 20/3/2025 and to re-call plaintiff’s witness pursuant tothe inherent jurisdiction ofthe court. In sum, the gravamen of this instant application is that the plaintiff witness (PW1) was for continuation of cross examination but failed /and or neglected to attend court despite several adjournments. The counsel for Plaintiff on one such adjournment informed the court the witness is gone out of jurisdiction to his brother in Nigeria. Though the witness (PW1) had not been discharged from the witness 1of7 box he had been absent from court since the 10th of July 2024 and despite several adjournments had failed and or neglected to attend court to complete the cross- examination. In the circumstance the evidence of PW1 was expunged from the records on 20th March 2025. The Counsel for plaintiff then informed the court he wishes to close plaintiff’s case. The case was adjourned for the defendant to open his defence. Subsequently, the plaintiff has brought this instant application to set aside the order of the court dated 20/3/2025 and to re-call plaintiff’s witness pursuant to theinherent jurisdiction ofthecourt. The court heardbothparties. The parties opined as follows: Counsel forPlaintiff –We have amotion onnotice toset aside the orderofthe court and to re-call plaintiff’s witness pursuant to the inherent jurisdiction of the court. I move in terms of the motion paper, the supporting affidavit and the annexure attached. The ruling of the court on the 20/3/2025, the court expunged the witness statement of the witness of plaintiff because the witness had failed to come to court to continue with his evidence. The witness by the frantic effort of the plaintiff is willing to come and continue his evidence and therefore we are seeking the court order to set aside its earlier ruling and for the plaintiff’s witness to be recalled and forthe defendant also to end his cross examination. We prayaccordingly. Counsel for Defendant - We are opposed to this application not on the fact of the application but on the grounds of law. We do not know which inherent authority this court is allowed to hear this application as counsel concedes and has attached. There was a ruling on this matter by the Honourable Court. It is trite that where there is a ruling of a particular case in the High court, the court does not have the inherent jurisdiction to review or set aside that decision or ruling. Also the foundational doctrine is that once the high court has made a final ruling in a matter, the decision typically represent the end of the litigation on that issue and the court becomes functus officio with respect to that specific case of matter. It is therefore trite that the avenue for a party who want a variation of such an order or same set 2of7 aside is to appeal or file other processes at the higher court which process could include Judicial Review. We are of the view that this court lacks jurisdiction with regard to this particular application especially as counsel has not been able to show to this court any exceptional circumstance to warrant such an exception in the general rule that the high court cannot review its own decision. See: the case of POMAA VRS FOSUHENE [1987-88]1GLR. Counsel for Plaintiff- On point of law; Order 10 r 8 of C.I 47 grants the court the power to set aside its own judgment where it becomes necessary. This instant application has nothing to do with a review, it has to do with a court to set aside its ruling in the interest of justice so that a witness who was unavailable to continue his evidence and who is now available to continue can do so. Especially where the plaintiff hasshown thatthe evidence is crucialtoher case. BYCOURT: Order 42of the High Court(Civil Procedure) Rules, 2004C.I. 47provides: “…Applicationfor review 1.(1)A personwhois aggrieved (a) by a judgment or order from which an appeal is allowed, but from which noappealhasbeen preferred; or (b)by ajudgment ororder fromwhich noappeal isallowed, may upon the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within that person's knowledge or could not be produced by that person at the time when thejudgment was given or theorder made, 3of7 or on account of some mistake or error apparent on the face of the record, or for any othersufficient reason,apply for areview ofthejudgment ororder. (2) A party who is not appealing against a judgment or order may apply for a review of that judgment or order notwithstanding the pendency of an appeal by any other party, except where the ground of the appeal is common to the applicant and the appellant, or where, being the respondent, he can present to the Court of Appeal thecaseon which heapplies for thereview…” Article 140 & 141 OF THE 1992 CONSTITUTION sets out the general jurisdiction ofthe HighCourtand provides asfollows: “…(1) The High Courtshall, subjectto the provisions of this Constitution, have jurisdiction in all matters and in particular, in civil and criminal matters and such original, appellate and other jurisdictionas may be conferredon itbythis Constitution or any other law. (2) The High Court shall have jurisdiction to enforce the Fundamental Human Rights and Freedomsguaranteed by this Constitution. (3) The High Court shall have no power, in a trial for the offence of high treason or treason, to convictany person for an offenceother than treason or treason. (4) A Justice of the High Court may, in accordance with rules of court, exercise in court or in chambers, all or any of the jurisdiction vested in the High Court by this Constitution or any other law. (5) For the purposes of hearing and determining an appeal within its jurisdiction and the amendment, execution or the enforcement of a judgment or order made on any appeal, and for the purposes of any other authority, expressly or by necessary implication given to the High Court by this Constitution or any other law, the High Court shall have all the powers, authority and jurisdiction vested inthe Court fromwhich the appeal isbrought. 4of7 141. The High Court shall have supervisory jurisdiction over all lower courts and any lower adjudicating authority; and may, in the exercise of that jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory powers…” In THE REPUBLIC VRS, HIGH COURT (COMM. DIV. A) TAMALE EXPARTE:- DAKPEM ZOBOGUNAA HENRY KALEEM (SUBSTITUTED BY ALHAJI ALHASSAN I. DAKPEMA) NO.J5/6/2015, 4TH JUNE 2015 the honouable court stated thus: “…From even a cursory reading of Article 140(1) and (4) it is clear that the jurisdiction of the High Court is conferred upon it only by the Constitution or any other law, which is meant a law duly enacted by Parliament, as distinct from the rules of practice and procedure enacted by the Rules of Court Committee. By a combined reading of Articles 140(2) and 157(2) of the Constitution, the Rules of Court Committee is required to formulate rules to guide the High Court, among other courts, in the exercise of its jurisdiction conferred by the Constitution or an Act of Parliament. Article 157(2) provides that: The Rules of Court Committee shall, by constitutional instrument, make rules and regulations for regulating the practice and procedure of all courts in Ghana. Since the cominginto force of the 1992Constitution, Parliamenthas passed some substantive laws granting differenttypes of jurisdiction tovarious courts inthe country Sections 15 and 16 do reiterate Articles 140 and 141 of the Constitution respectively. Sections 17 to 20 of Act 459 have granted jurisdiction to the High Court over piracy matters, infants, persons of unsound mind and maritime matters respectively. And section 21 deals with the High Court’s jurisdictioninappeals from the lower courts.… It is clear that in neither the Constitution nor Act 459 and subsequent amendments thereto namely Act 464, Act 620 and Act 674 was the High Court granted the review jurisdiction…” 5of7 Generally, the High Court cannot review its own judgments. The High Court may however review its own orders under certain circumstances pursuant to its inherent jurisdiction. Its inherent jurisdiction allows the court to rectify its own errors, particularly those made without jurisdiction, omissions or clerical mistakes or if the order is irregular or void. The court may also vary interim or interlocutory orders as the circumstances and justice of the moment dictates especially in cases concerning irregular orvoid orders. The principle that the court is clothed with that inherent jurisdiction to control its proceedings and interlocutory orders with the power to vary them where necessary. The inherent jurisdiction to vary its interim or interlocutory orders is vested in every court during the pendency of the substantive case. It can do so in order to make the meaning and intention clear; it may also do so if the circumstances that led to the order being made have since changed and is having a negative effect; or if it is working unexpected or unintended hardship or injustice. The only limitation is that the order must not be the subject of a pending appeal. See: THE DAKPEM ZOBOGUNAA HENRY KALEEM (SUBSTITUTED BY ALHAJI ALHASSAN I. DAKPEMA) perBenin JSC BeninJSC (SUPRA). The review jurisdiction of the High Court has been taken out by statute. By the decision of the Supreme Court in R V DARKO; EXPARTE LUFUS OWUSU, SUIT NO. J4/48 OF 2019 [2021] GHASC 9 (03 FEBRUARY 2021) in which case the apex court ruled: “…It is worth noting, however, that the said review jurisdiction previously granted the High Court hasbeen deleted by operation ofthe provisions of High Court(CivilProcedure)(Amendment Rule), 2020C.I133...” Reviewing a court decision means re-examining a court's earlier judgment, while varying a decision means altering it. A review application can be used when a party believes there's an error, while a variation application seeks to change the original decision based on new circumstances or information. See Also: REPUBLIC VRS 6of7 HIGH COURT, GENERAL JURISDICTION, ACCRA [2020] GHASC 9 (14 JANUARY2020). In SWISS WATCH CO. LTD VRS ANNIE LARNYO ARYITEY (Subst’d) H2/209/2022 , 9TH MARCH 2023 states and I quote “…The courts exist to do substantial justice and would not gag or prevent parties from prosecuting their case as best as they can provided they do so in accordance with due process of law and procedure. See: Obeng & ors v Assemblies of God Church, Ghana [2010] SCGLR 300 Holding 5. See also: GPHA v Issoufou [1993-94] 1 GLR 24 Holding 1. In Amoah v R [1966] GLR 373 @ 739 Ollenu JA propounded that it was the duty of a courtto do justice and not to shutits eyes at obvious injustice…” The order of this court to expunge the evidence does not fall within the exceptions stated above. Again especially as the honourable court gave the witness several opportunities but neglected and or refused to attend court. The witness has been absent from court since the 10th of July 2024 and despite several adjournments has failed and or neglected to attend court to complete the cross-examination until the court expunged his evidence when he resurfaced immediately without a valid proof thatindeed he had beenout ofthejurisdiction. The application torecallPW1 is refused. Noorderasto cost. H/L. RUBY NAAADJELEY QUAISON(MRS.) (J.) (JUSTICEOF THEHIGH COURT) 7of7