The Tema Circuit Court ‘B’ has overturned its previous ruling, highlighting significant procedural errors in Zebulon Okudzeto’s attempt to seize Nene Okumo Lanuer IV’s vehicle.
The Court, presided by Her Honour Klorkor Okai-Mills, overturned an earlier decision that awarded legal cost of GH¢53,600.00 against Nene Okumo Lanuer IV of Ada.
However, the court revisited the decision after discovering that the legal notices about the cost was served to Nene Okumo’s lawyer, who inexplicably failed to appear in court, including on the judgment day.
On May 16, 2024 a new lawyer for Nene Okumo Lanuer IV filed a motion to overturn the February 21, 2024 order that granted Mr Okudzeto the right to claim legal cost against him.
The defence argued that the court had made a procedural error by not serving the legal notices directly to Nene Okumo Lanuer IV, who remained unaware of the post-judgment costs, due to his lawyer’s absence.
Mr Okudzeto’s legal team argued that the court’s decision could not be changed after the judgment unless a formal review was requested, which had not been done.
Despite this, Judge Okai-Mills found the defence’s arguments compelling, emphasising that proper procedures for notifying and reviewing costs were not followed.
As a result, the court invalidated the original order awarding costs to Mr Okudzeto.
Nene Lanuer IV expressed his delight in the ruling, which he said nullified Mr Okudzeto’s previous victory.
“This highlights the judiciary’s commitment to follow established legal protocols. It serves as a reminder that justice must be pursued within the confines of procedural correctness, ensuring all parties receive proper notice and the opportunity to defend themselves adequately,” he told his sympathisers.
Below is the full detail of the ruling;
In the Circuit Court ‘B’ Tema, held on Wednesday the 17th day of July, 2024 before Her Honour Klorkor Okai-Mills, Circuit Court Judge, in Suit No. C11/207/23.
Mr Zebulon Okudzeto (Plaintiff) vs Nene Okumo Lanuer IV (Defendant)
“I have before me a Motion on Notice to set aside the order of the court granting leave to award costs filed by counsel for the Defendant/Judgment Debtor/Applicant on 16 May 2024.
The instant application arises from a Motion on Notice for leave to Award Cost on the 19th of January, 2024. The motion on notice to award cost was filed because after this court granted the interlocutory judgment and awarded compensatory damages of GHC35,000.00 the court inadvertently failed to award costs as endorsed on the Writ of Summons and Statement of Claim against the Defendant.
The applicant has filed this present Motion on Notice to set aside the order of the court granting leave to award costs after judgment.
I have determined this motion after reading all processes filed so far and the submissions made by the respective counsels.
On the date, Counsel filed this motion seeking to address two issues in one, the court was clear that counsel would move his two motions separately.
Counsel for the applicant was to move only one part of the motion, which is the Motion on Notice to set aside the order of the Court granting leave to award cost after judgment dated 21st February 2024.
Given that Counsel was ordered to move the two motions separately, today’s ruling will only address the first motion, which is the Motion to set aside the order of the court granting leave to award cost after judgment dated 21 February 2024.
Case for Applicant
It is the defendant applicant’s case that the said order ought to be set aside because at the time this Honorable Court granted the said order, it was functus officio and, therefore, lacked jurisdiction to make the said order and relied on some authorities, including AG v Faro Atlantic [2005-2006] SCGLR at page 271; Endurance Oti Boateng and Ors v Noble Dream Micro Finance Co Ltd and Ezekiel Owusu Afriyie and Daniel Okyen Aboagye; suit No. INTS 3920163 amongst others.
Counsel argued that all the authorities cited are to the effect that once a court delivers judgment, it becomes functus officio unless an application for review is placed before the court.
In the absence of such a process, the matter cannot be said to be pending.
The General and Inherent Jurisdiction of the Court
In Acheampong v Asare-Manu (1976) 1 GLR 287 @ 287-289, Osei-Hwere J (as he then was) stated the law that inherent jurisdiction is invoked by the court in areas where it is necessary to prevent wrong or injury being inflicted by its judgment.
He explained that this included the power of the court to vacate its judgments procured by fraud, and of undoing what it had no authority to do originally.
See also Omaboe v Kwame (1978) GLR 122.
In the Canadian case of Montreal Trust Co v Churchill Forest Industries (Manitobia) Ltd [1971] 21 DLR (3d) 75, [1971] 4.
WWR 542, Sir Jack Jacob speaking for the province of Manitoba Court of Appeal attempted to define the inherent jurisdiction and when it is invoked.
He postulated that: “Inherent jurisdiction is the reserve of fund of powers, a residue source of powers, which the court may draw upon as necessary, whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.”
Re-echoing the above principle, Givivura J. is credited with that statement of law that the inherent power claimed is not merely one derived from the need to make the Court’s order effective and to control its procedure but also to hold the scales of justice where no specific law provides directly for the given situation.
Ex Parte Millsite Investment Co (Pty) Ltd 1986 (2) SA 582 at 585F in confirmation of the decision in Union Government and Fisher v West 1918 AD 556 at p 572-3.
Again, in Republic v Tommy Thompson Books Limited, Quarcoo & Coomson [1996-1997] ISCGLR 804, the court held that where there are specific rules provided, one cannot go under the inherent jurisdiction.
For the avoidance of doubt, the import of the authorities stated means that where a rule of law which is also recognized as a rule of practice has the merit of doing justice and providing fairness to parties in litigation, the Court should be prepared and willing to employ it to achieve justice rather than invoking the inherent jurisdiction.
From the authorities, supra, it is evident that the inherent jurisdiction of the court could not be invoked in the circumstance as there are rules already provided to sufficiently address the issue of review of costs in this instant matter. The rules for review of costs are provided clearly under…
Case for the Plaintiff
It is the plaintiff judgment creditor respondent’s case that the defendant applicant was duly served and participated in the matter during the litigation.
Post-judgment, Counsel, by law, is no longer counsel on record for the party, and any processes should be served personally on the party. Per the foregoing, in the instant matter, the plaintiff judgment creditor respondent served the Motion on Notice for leave to award costs post-judgment on counsel for the defendant, which process should have been served personally on the defendant.
The Motion was, therefore, not served and the defendant was not on Notice and, therefore, was not given a chance to respond, if any.
Consequently, the order of costs awarded on 21st February 2024 by the court is hereby set aside.
Signed:
H.H Klorkor Okai-Mills
Circuit Court Judge
Certified True Copy
Registrar
Circuit Court, Tema
