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Company law –
Shareholder -Transfer of
account - Order of freezing
specified accounts – Summary
judgment - Judgment on
admissions - Whether or not the
action herein was improperly
constituted - Whether or not
the writ as issued disclosed no
cause of action and further that
as it contained no substantive
claim or remedy - Whether or not
the summary judgment was made
and determined without
jurisdiction - Whether or not
the the claim was based on fraud
and therefore the court Order 11
rule 15(2) - Order 23 rule 5
High Court Civil Procedure
Rules 2004 CI 47
HEADNOTES
The
respondent commenced the action
herein in the court below
seeking certain orders directed
at specified bank accounts
alleged to be operated by the
1st appellant with proceeds that
had been transferred from a
business account held by the
respondent company of which the
1st appellant herein was a 50%
shareholder. Following the issue
of the writ of summons herein,
certain interlocutory
applications were made to the
court below and granted
including an
order
freezing the specified accounts
and an order for the
managers of Ecobank and Barclays
Bank, Tema to furnish the court
with statements of accounts
relating to the said accounts
from January 2003 to January
2007. On 14 March 2007, the
respondent applied to the court
below for summary judgment
against the defendants in the
sum of US$3, 042, 000.00. At the
hearing of the application to
sign summary judgment, learned
counsel for the defendants made
an admission owing the plaintiff
the sum of $1,475,330.00 (one
million four hundred and
seventy-five thousand three
hundred and thirty United States
dollars. Based on the
processes before me as well as
learned counsel’s submissions,
summary judgment is entered for
the plaintiff for the recovery
of the said sum. The appellants
unsuccessfully appealed to the
Court of Appeal from the summary
judgment and have now appealed
to this court.
HELD
From the
processes before us in the
appeal herein, there appears to
be no merit in the urgings that
have been made to us attacking
the ruling of the court on the
summary judgment. One matter of
significance that ought to be
mentioned is that the decision
in the matter herein was one by
which the learned trial judge
gave effect to the admission of
a party regarding part of the
subject matter of an application
for summary judgment. In such a
situation, I think, it lies foul
in the mouth of the appellants
to invite us to avoid the
effects of their unequivocal
admission. Such a conduct sounds
sour having regard to the
requirements of justice
particularly when even before us
in this appeal there has not
been the slightest indication
that the admission on which the
judgment was entered by the
trial court was made in error or
mistakenly.
There is the
point made that
the claim
was based on fraud and therefore
the court erred in entering
summary judgment in the matter.
Unfortunately for the appellant,
a careful reading and
consideration of the writ and
statement of claim is not
supportive of this assertion. I
think the appellants must have
misapprehended the difference
between an allegation that a
party has acted fraudulently in
the sense of dishonourably or
without conscience which sounds
in equity and fraud at common
law. The latter, which is a term
of art that refers to certain
types of conduct which by their
cumulative effect, are such as
to constitute facts on which a
party to an action may rely
either to sustain an action or
defend it, it is unmeritorious
and like the others before it
crumbles. For the above reasons,
the appeal herein fails and must
be dismissed.
Any
irregularity in the writ of
summons has been cured by the
statement of claim delivered by
the plaintiff in the action. The
appellants have also fully, with
admissions, participated in the
trial of the action. For all
these reasons, I agree that the
appeal be dismissed.
STATUTES
REFERRED TO IN JUDGMENT
High Court
(Civil Procedure) Rules 2004 CI
47
High Court
(Civil Procedure) Rules, 1954,
LN 140A
CASES
REFERRED TO IN JUDGMENT
Opoku &
Others v Axes Co Ltd. [2011]
SCGLR 50
Brickfield
Properties Ltd v Newton
[1971] 3 All ER 328
Hill v Luton
Corporation [1951] 1 All ER 1028
Ex parte
Essco Spirit [2003-2004] 2 SCGLR
689.
Ellis v Allen
[1914] 1 Ch. 904 at 909;
Adjavon v
Ghana Industrial Holding
Corporation [1980] GLR 135
Technistudy
Ltd v Kelland [1976] 3 All ER
632 at 634
Hollis v
Burton [1892] 3 Ch. 226
Satoshi
Kojima v HSBC Bank PLC [2011] 3
All ER 359
H. Clark
(Doncaster) Ltd v Wilkinson
[1965] 1 All ER 934
Republic v.
High Court, Tema, Ex parte
Owners of MV Esso Spirit
[2003-2004] SCGLR 689
Rockson v.
Ilios Shipping Co. S.A. & Wiltex
Ltd [2010] SCGLR 341
Sterman v. E.
W. and W.J. Moore (A Firm) 1970
2 WLR 386 C.A. at 390 thus
Boakye v.
Tutuyehene [2007-2008] SCGLR 970
Mosi v.
Bagyina (1963) 1 GLR 337, SC
Halle & Sons
SA v. Bank of Ghana (2011) 2
SCGLR 378,
Republic v.
Court of Appeal & Thomford; Ex
parte Ghana Chartered Institute
of Bankers [2011] 2 SCGLR 941
Republic v.
High Court, Accra; Ex parte
Osafo (2011) SCGLR 966
BOOKS
REFERRED TO IN JUDGMENT
Civil
Procedure: A Practical Approach
by Mr. S. Kwami Tetteh
DELIVERING
THE LEADING JUDGMENT
GBADEGBE
JSC:
COUNSEL
KWAME AKUFFO
BOAFO ( WITH HIM AUGUSTUS ABEIKU
BREW) FOR THE
DEFENDANTS/APPELLANTS/APPELLANTS.
JAMES AGALGA FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.
________________________________________________________________
J U D G M E N T
_________________________________________________________________
GBADEGBE JSC:
This is an
appeal from the decision of the
Court of Appeal dated 31 July
2008, that dismissed an appeal
from the previous decision of
the High Court, Accra entered on
14 March 2007. In outline, the
respondent commenced the action
herein in the court below
seeking certain orders directed
at specified bank accounts
alleged to be operated by the
1st appellant with proceeds that
had been transferred from a
business account held by the
respondent company of which the
1st appellant herein was a 50%
shareholder.
Following
the issue of the writ of summons
herein, certain interlocutory
applications were made to the
court below and granted
including an order freezing the
specified accounts and an order
for the managers of Ecobank
and Barclays Bank, Tema to
furnish the court with
statements of accounts relating
to the said accounts from
January 2003 to January 2007. On
14 March 2007, the respondent
applied to the court below for
summary judgment against the
defendants in the sum of US$3,
042, 000.00. At the hearing of
the application to sign summary
judgment, learned counsel for
the defendants made a
statement that appears in the
record of appeal at page 140 as
follows:
“My Lord, we
admit owing the plaintiff the
sum of $1,475,330.00 (one
million four hundred and seventy
five thousand three hundred and
thirty United States dollars) as
contained in our affidavit in
opposition.”
As a result,
the learned trial judge of the
court below made the following
order that appears at pages 140-
141 of the record of appeal:
“Based on the
processes before me as well as
learned counsel’s submissions,
summary judgment is entered for
the plaintiff for the recovery
of the sum of one million four
hundred and seventy five
thousand three hundred and
thirty United States dollars
against the defendants…………The
outstanding balance of
$1,467,000.00 (one million four
hundred and sixty seven thousand
United States dollars) is set
down for hearing. Suit to take
its normal course”.
The
appellants unsuccessfully
appealed to the Court of Appeal
from the summary judgment and
have now appealed to this court.
In the notice of appeal by which
these proceedings were
initiated, the following grounds
were formulated:
(1)
“The judgment is not warranted
by law.
(2)
The judgment is against the
weight of the evidence.”
An aspect of
the appeal herein has been the
subject of a previous
determination of a point of law
touching the nature of the
summary judgment that was
delivered by the trial court and
the time frame for appealing
there from, which is reported in
[2011] SCGLR 50 bearing the
title herein - Opoku & Others
v Axes Co Ltd. The parties
having submitted their
respective statements to us, in
compliance with the rules of the
Court, we adjourned the matter
for our consideration on the
merits of the appeal. At the
heart of the appellants’
submissions in this appeal is
the question whether the action
herein was improperly
constituted. In connection with
this issue, we have been
strenuously urged by learned
counsel for the appellants in
both the original and
supplementary statements of case
to set aside the order of
summary judgment and indeed the
writ. The appellants in this
regard contended that the writ
as issued disclosed no cause of
action and further that as it
contained no substantive claim
or remedy; the summary judgment
was made and determined without
jurisdiction. The appellants
also took exception to the form
of the application for summary
judgment.
If these
submissions are correct as the
appellants contended, then there
was no jurisdiction in the trial
High Court to have proceeded
with the action at all and
consequently the decision on
appeal to us must be set aside
together with the writ on which
it was founded. The respondent
contended to the contrary and
has urged us to affirm the
decision of the Court of Appeal
in the matter.
As the issue
of jurisdiction when sustained
brings an end to our
determination of the proceedings
herein, it is useful to open the
consideration of the issues
turning on the appeal herein
with the competency of the writ.
In such cases, the writ of
summons ought to be read
together with the statement of
claim in order to determine if
there was any cause of action
before the court. This is so
because a statement of claim may
in appropriate cases as provided
for in Order 11 rule 15(2) of CI
47, the High Court Rules,
amplify or diminish the scope of
the writ on which it is founded.
The cause of action on which the
claim was founded for this
purpose must be determined by
looking only at the writ and the
accompanying statement of claim,
without any other extrinsic
document. When so considered,
there appears to be a claim of
accounts between the respondent
company and the appellants in
regard to moneys that are
alleged to have been siphoned
from the business operations of
the respondent by its 50%
shareholder, the 1st
appellant into the accounts of
the 2nd and 3rd
defendants while the other
shareholder was outside the
jurisdiction having left the
conduct and management of the
business of the respondent
company to the first appellant.
Since the
objection of the appellants is
not that the facts or claims
contained in the statement of
claim are different from those
contained in the writ, we are
enabled to have regard to the
said pleadings in determining
the question of the competency
of the action. See:
Brickfield Properties Ltd
v Newton [1971] 3 All
ER 328. I observe of this case
that it was decided on RSC Order
18 rule 15 (2) of the rules then
applicable in England, that is
expressed in the same words as
Order 11 rule 15 (2) of CI 47.
In order to appreciate the point
being made here, I refer to page
333 of the judgment in the
Brickfield case wherein
reference is made to the then
English equivalent of our
current rules as follows:
“A statement
of claim must not contain any
allegation or claim in respect
of a cause of action unless the
cause of action is mentioned in
the writ or arises from facts
which are the same as, or
include or form part of, facts
giving rise to a cause of action
so mentioned; but subject to
that a plaintiff may in his
statement of claim alter, modify
or extend any claim made by him
in the indorsement to the writ
without amending the
indorsement.”
Order 11 rule
15 (2) of CI 47 provides thus:
“A statement
of claim shall not contain any
allegation or claim in respect
of a cause of action unless that
cause of action is mentioned in
the writ or arises from the
facts which are the same as or
include or form part of, facts
giving rise to a cause of action
so mentioned; but, subject to
that, a plaintiff may in the
plaintiff’s statement of claim
alter, modify or extend any
claim made by the plaintiff in
the endorsement of the writ
without amending the
indorsement.”
Reading the
two provisions side by side, it
is clear that although they are
not expressed in the same
words, the words by which the
rules are formulated are
substantially the same and it
being so, there is authority for
our courts to apply the same
interpretation to the scope and
extent of Order 11 rule 15 (2).
In the case of Hill v
Luton Corporation [1951] 1
All ER 1028 at 1031, Devlin J in
considering the same objection
as raised by the appellants to
the writ herein observed as
follows:
“There
remains the fact that the writ
was initially irregular. Ought
it on that ground to be set
aside? I gravely doubt that
there is power to set aside a
writ on the ground of a
defective indorsement once that
has been cured by the delivery
of a proper statement of claim.
If there is, it is hardly
possible to conceive any
ordinary case - that is where no
time bar is involved - where
there could be any justification
for its exercise. Especially
when the two documents are
delivered together, it would be
the height of technicality to
pick holes in the one in order
to fill them from material in
the other.”
The above
pronouncement is consistent with
the requirements of Order 1 rule
2 of the Rules of the High
Court, CI 47, which provides as
follows:
“These Rules
shall be interpreted and applied
so as to achieve speedy and
effective justice, avoid delays
and unnecessary expense and
ensure that as far as possible,
all matters in dispute between
parties may be completely and
effectively and finally
determined and multiplicity of
proceedings concerning any of
such matters avoided.”
In my
thinking, the statement of claim
that was delivered together with
the writ raised a claim for the
determination of the High Court.
Reference is made to paragraph
14 of the statement of claim by
which it was averred as follows:
“The bank
statement of the plaintiff
company revealed the various
monies that had been lodged into
the plaintiff’s company’s
account, and the 1st
defendant without the consent of
the other directors had
withdrawn over 20 billion cedis
from the plaintiff’s company’s
account and transferred same
into the accounts of the
defendant company and his own
self.”
The plaintiff
followed this averment with
paragraphs 15 and 16 which
alleged that the 1st
appellant herein was unable to
explain the transfers to the
company resulting in his removal
as a director. In my thinking,
these averments raised serious
charges against the defendants.
These charges raised facts on
which the respondent’s action
was based that the court below
in the interest of justice was
obliged to inquire into. As said
earlier, as the issue of the
competency of the action is one
of an objection in limine to the
writ and the statement of claim,
in determining it we must look
only at the writ and the
accompanying statement of claim.
Although, I confess that the
indorsement to the writ was
expressed in an unusual form, I
am of the view that a careful
consideration of the writ
together with the accompanying
statement of claim disclosed a
cause of action before the trial
court. The learned justices of
the Court of Appeal were
therefore right in reaching the
same conclusion. In the
circumstances, contrary to the
contention of the appellants
there was before the court a
substantive claim. In my
opinion, the circumstances of
the action herein are
distinguishable from the
situation that confronted the
learned justices of this court
in the case entitled Ex parte
Essco Spirit [2003-2004] 2
SCGLR 689. Although, I have
great difficulty in accepting
the scope and extent of the said
decision, I desire not to
proceed with any further
consideration of it in this
delivery as that would be dealt
with in some detail by my worthy
brother, Atuguba JSC in his
supporting opinion. Having
determined the primary question
raised in the submissions of the
appellants, I now turn my
attention to the ruling of the
trial High Court on the summary
judgment that has provoked the
appeal herein.
After giving
much consideration to the
proceedings at pages 140 – 141
of the record of proceedings, I
have arrived at the conclusion
that it was based both on the
affidavit sworn on behalf of the
respondent and the oral
submission of learned counsel
for the appellant. As they were
both unequivocal admissions of
liability, the learned trial
judge of the court below was
right in accepting them and
basing his decision thereon. The
decision of the court is one
commonly referred to as
“judgment on admissions”, that
our courts are authorised to
enter in appropriate cases,
under the rules of court.
Indeed, Order 23 rule 6 of the
High Court (Civil Procedure)
Rules, CI 47 explicitly provides
for the exercise of this
jurisdiction. The rule is
expressed thus:
“Where an
admission of the truth of a fact
or the authenticity of a
document is made
(a)
In an affidavit filed by a
party,
(b)
In the examination for
discovery of a party or a person
examined for discovery on behalf
of a party; or
(c)
by a party on any other
examination under oath or
affirmation in or out of court
any party may
apply to the court or judge in
the same or another cause or
matter for such order as the
party may be entitled to on the
admission without waiting for
the determination of any other
question between the parties,
and the court or judge may make
such order as is just.”
The admission
made in the affidavit that was
sworn to by the law clerk, as
well as the oral submissions
made by counsel in open court,
in my thinking were in their
nature clear admissions of part
of the claim contained in the
application for summary
judgment, and as they were made
in the course of proceedings
before a judge seized with
jurisdiction to determine the
cause in which they were made,
there can be no legitimate
complaint against the learned
trial judge acting on them
within the intendment of the
rules. See: (1) Ellis v
Allen [1914] 1 Ch. 904 at
909; (2) Adjavon v Ghana
Industrial Holding Corporation
[1980] GLR 135 at 140; (3)
Technistudy Ltd v Kelland
[1976] 3 All ER 632 at 634.
The judge
before whom an application for
summary judgment is made is
entitled under rule 5(1) of
Order 14 to give such judgment
to a plaintiff on the claim
partly or wholly as may be just
having regard to the remedy or
relief sought except the
defendant shows that there is an
issue to be tried or for some
other reason there ought to be a
trial. From the record of
proceedings before us regarding
the hearing of the application
for summary judgment, there does
not appear to be any reason why
the learned trial judge can be
faulted for his ruling on the
application. This is a
jurisdiction that our courts
have exercised on several
occasions and is intended to
bring matters in respect of
which the defendant does not
appear to have any answer to a
speedy end. Once there has been
such an unequivocal admission
before a court in respect of a
claim or part thereof as was
done in the case before us and
not withdrawn there cannot in
principle be any objection to a
decision based thereon. In the
instant case since the said
admission was the foundation of
the judgment, it subsists until
it is discharged by an order of
the court. See: (1) Order 23
rule 5 of CI 47; (2)
Hollis v Burton [1892] 3 Ch.
226; Satoshi Kojima v
HSBC Bank PLC [2011] 3 All
ER 359 ;( 3) H. Clark
(Doncaster) Ltd v Wilkinson
[1965] 1 All ER 934.
From the
processes before us in the
appeal herein, there appears to
be no merit in the urgings that
have been made to us attacking
the ruling of the court on the
summary judgment. One matter of
significance that ought to be
mentioned is that the decision
in the matter herein was one by
which the learned trial judge
gave effect to the admission of
a party regarding part of the
subject matter of an application
for summary judgment. In such a
situation, I think, it lies foul
in the mouth of the appellants
to invite us to avoid the
effects of their unequivocal
admission. Such a conduct sounds
sour having regard to the
requirements of justice
particularly when even before us
in this appeal there has not
been the slightest indication
that the admission on which the
judgment was entered by the
trial court was made in error or
mistakenly.
Closely
linked with the appellants
complaint, submitted in these
proceedings to us on the summary
judgment is the obvious fact
that the claim does not reveal
any demand for a specific sum of
money in respect of which the
application for summary judgment
could lawfully have been made.
But a careful reading of the
writ and the statement of claim
particularly paragraph 14
compels me to a different
opinion. In my view, the
provisions of Order 81 also
render the arguments touching
the absence of a monetary claim
in the writ and the form of the
application for summary judgment
devoid of much substance as the
appellants participated in the
proceedings and, admitted
liability to the respondent in
respect of a specific amount;
indeed, they subsequently made
payments under the judgment.
There is also a personal
undertaking by the first
appellant to pay up the entire
judgment debt by instalments
commencing from 31 May 2007,
which is contained at page 263
of the record of appeal.
Lastly, there
is the point made that the claim
was based on fraud and therefore
the court erred in entering
summary judgment in the matter.
Unfortunately for the appellant,
a careful reading and
consideration of the writ and
statement of claim is not
supportive of this assertion. I
think the appellants must have
misapprehended the difference
between an allegation that a
party has acted fraudulently in
the sense of dishonourably or
without conscience which sounds
in equity and fraud at common
law. The latter, which is a term
of art that refers to certain
types of conduct which by their
cumulative effect, are such as
to constitute facts on which a
party to an action may rely
either to sustain an action or
defend it. Regarding this latter
category, the requirements of
practice and procedure demand
particulars of the alleged fraud
to be provided by the party who
relies on it as provided for in
Order 11 rule 8 of CI 47. There
is no such pleading before us
and accordingly the point sought
to be made on it is
unmeritorious and like the
others before it crumbles.
The point
made by the appellant touching
the non-payment of filing fees
for the monetary award is
unanswerable. It is hereby
ordered that the
respondent-judgment creditor
makes the appropriate payment in
respect of the amount of US
$3,042,000.00 claimed in the
application for summary judgment
was filed on 2007. The said fees
should be levied at the
prevailing rate at the date of
the filing of the application
for summary judgment in the
court below. It is further
ordered that the payment of the
filing fees herein ordered be a
condition precedent to
enforcement or execution the
summary judgment entered by the
trial High Court on 14 March
2007.
For the above
reasons, the appeal herein fails
and must be dismissed.
[SGD] N. S. GBADEGBE
JUSTICE OF
THE SUPREME COURT
ATUGUBA
J.S.C.
I have had
the advantage of reading the
well reasoned judgment of my
brother Gbadegbe J.S.C. However,
much anxiety has been felt on
this panel over the decision of
this court in Republic v. High
Court, Tema, Ex parte Owners of
MV Esso Spirit [2003-2004] SCGLR
689 to the effect that a writ
which does not disclose any
cause of action is a nullity
upon which no trial can ensue.
This decision was followed by
this court in Rockson v. Ilios
Shipping Co. S.A. & Wiltex Ltd
[2010] SCGLR 341. This position
has been endorsed by Mr. S.
Kwami Tetteh in his
record-shattering and ultra
monumental work Civil Procedure:
A Practical Approach, otherwise
known as the Black Book at
183-188. It is however to be
noticed that the aforementioned
decisions turned on the old
High Court (Civil Procedure)
Rules, 1954, LN 140A, the
judicial construction of Order
70 of which drew a sharp
distinction between mere non
compliance which earned an
irregularity as opposed to a
fundamental error which earned
nullity. Even under this old
regime of civil procedure in the
High Court there were some, at
least, persuasive decisions that
a writ which did not disclose a
cause of action could be cured
by amendment.
The present
writ was however issued in
December 2006 when the new High
Court (Civil Procedure) Rules
2004, C.I. 47 had long come into
force. The provisions concerning
the indorsement of a cause of
action on the issue of a writ,
are, as far as relevant:
“ORDER 2
2.
Commencement of proceedings
Subject to
any existing enactment to the
contrary civil proceedings shall
be commenced by the filing of a
writ of summons.
3. Contents
of writ
(1) Every
writ shall be as in Form 1 in
the Schedule and shall be
indorsed with a statement of the
nature of the claim, relief or
remedy sought in the action.”
This question
of indorsement of a cause of
action under the new High Court
Civil Procedure Rules has been
dealt with by Lord Denning M.R.
(Salmon and Cross L.JJ
concurring) with his
characteristic contempt for
procedural niceties in Sterman
v. E. W. and W.J. Moore (A Firm)
1970 2 WLR 386 C.A. at 390 thus:
“The first
question is whether the
indorsement on the writ was
defective or not. Order 6, r 2
(1) says that the writ must be
endorsed
“with a
concise statement of the nature
of the claim made or the relief
or remedy required in the action
begun thereby.” (e.s.)
The old rule
was in the same terms. But the
old rules contained forms which
showed that the indorsement had
to state the cause of action,
for example, damages for
negligence or breach of duty.
The new rules do not contain
forms; but I am inclined to
think that it is still necessary
to state the cause of action.
The indorsement should state the
nature of the claim made and the
relief or remedy required. The
word “or” should be read as
“and.” At any rate, even if it
is not necessary to state the
cause of action, it is very
desirable to do so. I am
prepared, therefore, to approach
this case on the footing that
the writ did not comply with the
rule. It was defective in that
it said simply: “damages and for
loss of earnings” without
stating the cause of action,
viz., negligence and breach of
statutory duty. That defect did
not render the writ a nullity.
It was at most an irregularity,
and the irregularity was waived
when the defendants entered an
unconditional appearance to that
writ.” (e.s.)
I
agree with this reasoning and
the appellants here are caught
by it since they have also
entered unconditional appearance
to the writ herein and since the
relevant Rules under C.I. 47 are
substantially the same as those
dealt with by Lord Denning M.R.
in that case.
For the avoidance of doubt
however I would emphasise that
Order 81 of C.I. 47 is truly a
comprehensive insurance policy
covering all procedural defects
arising from the provisions of
C.I. 47 except where the same
also have a constitutional
pedestal. This Rule with all its
explicitness states as follows:
“ORDER 81
Effect of
Non-Compliance with Rules
1.
Non-compliance with rules not to
render proceedings void
(1)Where , in
beginning or purporting to begin
any proceedings or at any stage
in the course of or in
connection with any proceedings,
there has, by reason of anything
done or left undone, been a
failure to comply with the
requirements of these Rules,
whether in respect of time,
place, manner, form or content
or in any other respect, the
failure shall be treated as an
irregularity and shall not
nullify the proceedings, any
step taken in the proceedings,
or any document, judgment or
order in it.” (e.s.)
I
believe that the effect of this
rule is not different from Rule
97(3) of the Magistrates’ Courts
Rules 1981 which fell to be
construed in R v. Oldham
Justices and another, Ex parte
Cawley (1996) 1 All ER 464 or
the indemnity provisions in
Kwakye v. Attorney-General
(1981) GLR 944, except that
Order 81 gives the court a
discretionary power to set aside
flawed proceedings as irregular.
The facts and decision of the
Oldham Justices case, supra, as
far as relevant are as follows:
“The cases of
the three applicants were
selected as test cases to
represent several young
offenders who had been committed
to custody by justices for
wilful refusal or culpable
neglect in their non-payment of
fines. In each case the warrant
of commitment under which the
applicant was detained did not
comply with the provisions of s
88(5) of the Magistrates Courts
Act 1980 which required that
where a person under 21 was
committed to detention the
warrant should state the grounds
on which the court was satisfied
that it was undesirable or
impracticable to place the
defaulter under supervision. The
justices had also failed to
comply with the requirements of
s 1(5A) of the Criminal Justice
Act 1982 that the justices
should specify both in the
warrant and the register their
reasons for concluding that
detention was the only
appropriate method of dealing
with the defaulter. The
applicants sought habeas corpus
to secure their release on the
grounds (i) that by reason of
the patent defects in the
warrants they were invalid and
the prison governors
consequently lacked the proper
authority to detain the
applicants, alternatively (ii)
if the defects in the warrants
were not sufficient to
invalidate the detentions they
nevertheless raised a prima
facie case of unlawful
commitment such as to justify
challenging the process by way
of proceedings for habeas corpus
rather than by judicial review.
Held – (1)
Where justices failed to
discharge their statutory
obligations to state the
reasons for detention in a
warrant of commitment the
legality of the detention was
not thereby vitiated, since r
97(3) of the Magistrates’ Courts
Rules 1981 provided that any
defect in the warrant would not
render it void. …” (e.s.)
This is also the effect of this
court’s decisions such as Boakye
v. Tutuyehene [2007-2008] SCGLR
970 at 980 per Dr. Twum JSC that
“ … the new Order 81 has made it
clear that perhaps apart from
lack of jurisdiction in its true
and strict sense, any other
wrong step taken in any legal
suit should not have the effect
of nullifying the judgment or
the proceedings. This means that
the principle stated in Mosi v.
Bagyina (1963) 1 GLR 337, SC has
been rendered otiose”, Halle &
Sons SA v. Bank of Ghana (2011)
2 SCGLR 378, Republic v. Court
of Appeal & Thomford; Ex parte
Ghana Chartered Institute of
Bankers [2011] 2 SCGLR 941 and
Republic v. High Court, Accra;
Ex parte Osafo (2011) SCGLR
966.
Even, as is
well known, substantive
statutory provisions have, in
the interest of substantive
justice, been categorised as
mandatory or directory.
In any case
as rightly held by my brother
Gbadegbe J.S.C. any irregularity
in the writ of summons has been
cured by the statement of claim
delivered by the plaintiff in
the action. The appellants have
also fully, with admissions,
participated in the trial of the
action.
For all these
reasons, I agree that the appeal
be dismissed.
[SGD]
W. A. ATUGUBA
ACTING CHIEF JUSTICE
[SGD] S. A. B. AKUFFO
[MS.]
JUSTICE OF THE SUPREME COURT
[SGD] R. C. OWUSU
[MS.]
JUSTICE OF THE SUPREME COURT
[SGD] J. V. M.
DOTSE
JUSTICE OF THE SUPREME COURT
COUNSEL;
KWAME AKUFFO
BOAFO ( WITH HIM AUGUSTUS ABEIKU
BREW) FOR THE
DEFENDANTS/APPELLANTS/APPELLANTS.
JAMES
AGALGA FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.
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