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JUDGMENT
MRS. JUSTICE J. BAMFORD-ADDO,
J.S.C.:
This is an appeal from the
Judgment of the Stool Lands
Boundaries Settlement Commission
Appeal Tribunal delivered at
Accra on the 21st day of May
1992. The said Judgment stemmed
from an appeal from the decision
of the Stool Lands Boundaries
Settlement Commission (Coram
E.T.C. Amorin) given on 5th
February 1988. A boundary
dispute between the Fijai stool
and Effia Stool was referred to
the Commissioner of the Stool
Lands Boundary Settlement
Commission for trial by Mr.
Justice F.T.C. Amorin.
At the hearing both stools were
ordered to file survey
instructions in addition to the
pleadings. Fijai stool complied
but Effia stool failed to file
its survey instructions and
offered no explanation. Evidence
was taken and concluded and the
trial Commissioner gave judgment
wherein he held that:
"the evidence led by Fijai stool
is more convincing and
acceptable..... I am more
impressed by the evidence of
Fijai stool and accept same."
The Commissioner then continued
to demarcate the boundary
between Fijai and Effia stools
and ordered the drawing up of a
survey plan accordingly.
The Effia Stool appealed this
decision of the Commissioner to
the Appeal Tribunal which
dismissed the appeal.
Dissatisfied the Appellant
herein filed another appeal to
this court. The original ground
of appeal was "That the judgment
is against the weight of
evidence adduced at the trial."
Additional grounds of Appeal
were later filed on 21st
December 2000 namely:
"(i) Having found and held that
the learned trial Commissioner
had erred in holding that it was
wrong for the Appellant herein,
the EFFIA STOOL, to call
different families to prove its
title and boundaries, the Appeal
Tribunal erred in nevertheless
rejecting the Appellant's appeal
on that ground and thereby
failed to realise that the said
error led the learned trial
Commissioner to commit the
serious blunder of giving little
or no consideration whatsoever
to the traditional evidence the
Appellant had adduced before
him.
(ii) The Appeal Tribunal erred
in failing to realise and to
give due weight to the fact that
the foregoing flawed and
jaundiced view of the trial
Commissioner as to the standard
of proof required of the
Appellant clearly beclouded his
evaluation of all other evidence
adduced before him by the
Appellant, the EFFIA STOOL.
(iii) The Appeal Tribunal erred
in failing to recognise and give
appropriate weight to the fact
that the cursory vague and
summary manner in which the
learned trial Commissioner
dismissed the Appellant's entire
documentary evidence on the
grounds that the "EFFIA STOOL
attempted to make up for its
defects by tendering by way of
Exhibits which amounts to
nothing more than a pile or heap
of waste papers in a dustbin"
constitutes a serious failure to
properly evaluate the entire
documentary evidence as to the
Appellant's overt acts of
ownership in respect of
significant portions of the area
in controversy by way of grants
to 3rd parties and successful
claims for compensation by the
Appellant Stool and or its
grantees in respect portions of
its lands compulsorily acquired
by Government for various
purposes."
The Appellant argued the
additional Grounds of Appeal
under the omnibus ground in the
Original Notice of Appeal that
"The judgment is against the
weight of Evidence."
Under grounds 1 and 2 of the
Additional grounds of Appeal the
Appellant argued that the Appeal
Tribunal which dismissed the
Appellants appeal, made an error
when that Tribunal itself, after
having held that the trial
Commissioner erred in its
finding that:
"Instead of Affia stool
concentrating on one stool
having one parcel of continuous
land with various features
thereon, and recent acts, it
chose to deal with different
families owning various parcels
of land with separate stools to
prove their individual
boundaries and thereby in my
view erred."
also dismissed the Appellant's
appeal. Further that the Appeal
Tribunal failed to give due
weight to the standard of proof
required of the Appellant,
because it failed to consider
all the evidence adduced by the
Appellant the Effia stool, just
as was done by the trial
Commissioner. But it is patently
clear in the judgment of the
appeal tribunal that it
considered this ground of
appeal, and dealt with it
correctly in my view, when it
stated as follows:—
"Arguing the ground, counsel
submitted and the point was
readily conceded by Mr. Ocran
for the respondent stool that it
was rather the trial
commissioner who seriously erred
in law, in that Holden. Stool
lands can be in possession of
individuals or families which
owe allegiance to the stool and
such possession by them is
possession by the stool and the
proper person to give evidence
of the ownership by the stool
are persons in possession".
This shows that the Appeal
Tribunal was aware of the error
made by the trial Commissioner
on this issue. The said Tribunal
also itself evaluated the other
relevant evidence on record and
held as follows:
"However I do not see that this
wrong view of the law by the
trial commissioner did lead him
(sic) a conclusion different
from what he would have come to
had he held other wise. The
appellate stool suffered no
injustice... It is incumbent
upon every stool to prove its
boundaries. The weakness of one
will certainly not enure to the
benefit of the other. The
evidence led by the Fijai stool
is more convincing and
acceptable..."
By this finding the Appeal
Tribunal supported the findings
of fact made by the trial
commissioner in the case after
itself considering and
evaluating the relevant
evidence. It also come to the
conclusion that the evidence of
the Fijai stool was preferable
to that of the Effia Stool
regarding the boundary between
the said two stools based on all
the available evidence.
It is for this reason that the
Appeal Tribunal held that
despite the error made by the
Commissioner, considering the
whole evidence, the Appellant
Stool suffered no injustice as a
result of the said error of the
Trial Commissioner.
This court is also entitled to
review the evidence on record to
ascertain whether there is
enough satisfactory evidence in
support of both the trial
Commissioner's conclusion which
was supported by the Appeal
Tribunal, since an appeal is by
way of a rehearsing of the case.
As held in Mamudu Wangara v
Gyato Wangara (1982 - 1983) GLR
639 Holding 1.
"An appeal was by way of
rehearsing and that meant having
a look at and taking into
consideration all the relevant
evidence on record. The
appellate court was virtually in
the same position as if the
hearing were the original
hearing and might review the
whole case and not merely the
points as to which the appeal
was brought..."
This Court of Appeal decision
has support in the Supreme Court
case of Akuffo Addo v. Catheline
(1992) 1 GLR p.377 holding 3
which held:—
"Where an appellant exercised
the right vested in him by rule
8(4) of LI 218 and appealed
against a judgment on the
general ground that "the
judgment was against the weight
of evidence" the appellate court
had the jurisdiction to examine
the totality of the evidence
before it and come to its own
decision on the admitted and
undisputed facts. Since on the
evidence the plaintiff had
dearly failed to discharge the
burden of proof on her, the
Court of Appeal could not be
legitimately chastised for
reversing the trial Judge's
finding that she had".
I have also considered the
various pieces of evidence from
both sides and studied carefully
the map Exhibit A showing the
boundaries claimed by parties
and I am of the same view as
that held by the appeal tribunal
that:
"The trial commissioner's
judgment is overwhelmingly
supported by the evidence
adduced".
The Appeal Tribunal made this
finding after careful analysis
of what went on to identify the
evidence in support of 1st
claimants' case and also
examined that of the second
claimant before coming to the
conclusion it did that Fijai
stool had proved its case
satisfactorily. Ground 3 is
that:—
"The Appeal Tribunal erred in
failing to recognise and give
appropriate weight to the fact
that the cursory vague and
summary manner in which the
learned trial commissioner
dismissed the appellant entire
documentary evidence on the
grounds that the Effia Stool
attempted to make up for its
defects by tendering by way of
exhibits which amounts to
nothing more than a "pile or
heap of waste papers in a dust
bin" constitutes a serious
failure to properly evaluate the
entire documentary evidence as
to the appellant's overt acts of
ownership in respect of
significant portions of the area
in controversy by way of grants
to 3rd parties and successful
claims for compensation by
Appellant stool and or its
grantees in respect of portions
of its lands compulsorily
acquired by Government for
various purposes".
In considering this ground of
Appeal, the Appeal Tribunal
deprecated the use of the phrase
by the trial Commissioner that
the exhibits tendered "by the
Appellant amounts to "nothing
more than a pile or heap of
waste papers in a dust bin". The
Appeal Tribunal found that the
trial Commissioner did consider
the documentary evidence
tendered by the Appellant but
instead of saying simply that
evidence did not help or advance
the Appellant's case which is
clear on the evidence, he
resorted to strong descriptive
language, to convey his meaning.
This I agree with the tribunal
is quite unjustified. The Appeal
Tribunal said on this issue as
follows:
"This could only be because of
the difference in our
temperamental make up. It is
unforensic language, yes, but it
caused no injustice to Effia
Stool ...... He did not enter
into the area of conflict nor
had his vision clouded by the
dust."
I agree with the said finding in
view of the evidence on record.
I also think that the language
used to describe the effect of
the said exhibits was
unfortunate, because it led to
the unintended creation of the
impression, that the Appellant
complains of, namely that "it
constitutes a serious failure by
the trial Commissioner to
properly evaluate the
documentary evidence tendered by
the Appellant" which view I do
not share. Surely the
documentary, evidence tendered
by Effia Stool was considered
before the Commissioner's
finding complained of was made.
However, it should be remembered
by Judges and adjudicators that
language is their working tool
from which is deduced their
intention and reason for their
findings, judgments and rulings.
For this reason it is important
to use words advisedly and to
resort to judicial language
whenever possible. Further their
choice of words must be clearly
appropriate, and non
controversial, to avoid charges
of neglect of duty to evaluate
evidence properly, as has
happened in this case, as well
as charges of unfairness and
bias which may be wrong and non
existent. The use of prudent,
temperate and judicious language
by Judges will no doubt prevent
complaints of the nature raised
in ground 3.
Nevertheless I am of the view
that on the evidence as it
stands no injustice has been
done to the Appellant by the
erroneous use of the phrase
complained of by the trial
Commissioner, in ground 3. The
Appeal Tribunal itself evaluated
the evidence on record and
correctly held that:
"I have had a look at these
Exhibits; I agree with the Trial
Commissioner that they do not
advance the case of Effia Stool
further. If at all some of them
rather support the case of Fijai
Stool."
I have also examined the
Exhibits i - x tendered by
Appellant at the trial.
Exhibit i is a letter written by
Lands Department Sekondi on 5th
June 1951 addressed to the
Commissioner of Lands Accra and
it deals with the land acquired
for Water Reservoir and the fact
that Fajai Stool has rejected
the offer of £268 offered by
Government to Fijai stool.
Exhibit ii Talks about
compensation of £9: 5/9 paid in
respect of the Water Supply
reservoir paid to Nana Petter
Esson via Nana Brempon Yaw
Exhibit iii deals with payment
of compensation to Nana Petteh
Esson
Exhibit iv deals with the
Solicitor acting for Affia Stool
written by Lands Department
Sekondi to Commissioner of Lands
Accra on 11th December 1950.
All the other Exhibits from
Exhibit v. to x were all written
between 1951 - 52 dealing with
the Sekondi-Takoradi Reservoir
site and payment of compensation
and other court cases thereon.
After considering these exhibits
my conclusion is that the
documentary evidence tendered by
Appellants did not advance their
case in any way and was
correctly discounted by the
trial Commissioner as supported
by the Appeal Tribunal.
The law is that a finding of
fact made by a trial court which
is supported by evidence, cannot
be changed by an Appeal Court
nor can that court substitute
its own findings of fact for
that of the trial court which
saw the witnesses, without good
reasons.
See the case of Bissi & Others
v. Tabire alias Asare (1987-88)
1 GLR 360 SC in Holding 1 where
the court held that:
"It was never intended that the
Court of Appeal (or any
appellate court for that matter)
should move into a new era of
regular questioning of decisions
of trial Judges on issues of
fact, as distinct from law,
which were supportable
consequently there could be no
grounds for cavilling at the
trial Judges exercise of
discretion or duty in the
selection of witnesses to
believe or in stating his
findings of fact."
The findings of fact made by the
Trial Commissioner is supported
by the evidence and the
conclusion proper. Further the
two lower Tribunals in this case
made concurrent findings of fact
which is supported by evidence
and I agree with them having
also come to a similar
conclusion. There is therefore
no reason to tamper with the
findings of the Appeal Tribunal,
as there has been no miscarriage
of justice.
See Achoro v. Akoufela (1996-97)
SC GLR 209 cited in Koglex Ltd.
(No.2) v Field (2002) SC GLR
179.
There is also no justification
for ordering a new trial
requested by the Appellant.
For the above reasons the appeal
fails and should be dismissed.
AMPIAH, J.S.C.:
I agree.
KPEGAH, J.S.C.:
I agree.
ADJABENG, J.S.C.:
I agree.
ADZOE, J.S.C.:
I also agree.
COUNSEL
Mr. Dick Anyadi for Effia Stool
Mr. S. H. Ocran for the Fijai
Stool.
NANA KWASI AFODOO II & ORS. v.
NANA KWAKU AFRAWUAH IV
[24/04/2002] C.A. NO. 3/2000
IN THE SUPERIOR COURT OF
JUDICATURE
IN THE SUPREME COURT
ACCRA AD 2001
_____________________________________
CORAM: BAMFORD-ADDO(MRS),
J.S.C. (PRESIDING)
KPEGAH, J.S.C.
ADJABENG, J.S.C.
AKOFFO(MS), J.S.C.
ADZOE, J.S.C.
CHIEFTAINCY APPEAL NO. 3/2000
24TH APRIL, 2002
NANA KWASI AFODOO II &
ORS.
} RESPONDENTS
VRS
NANA KWAKU AFRAWUAH
IV
} APPELLANT
AKYEM AKROSOHENE
_____________________________________________________________________________________
JUDGMENT
JOYCE BAMFORD ADDO, J.S.C.:
A destoolment case was brought
against the Defendant/Appellant
herein by the
Plaintiffs/Respondent at the
Judicial Committee of the Akyem
Kotoku Traditional Council. The
Plaintiffs won the case and the
said Tribunal granted all the
reliefs sought by them.
The Defendant dissatisfied with
the said decision appealed to
the Judicial Committee of the
Regional House of Chiefs. At the
settlement of the Record of
Appeal before the Senior
Traditional Council Registrar,
he imposed under Rules 19 and 20
of the Chieftaincy (National and
Regional House of Chiefs)
Procedure Rules 1972 (C.I. 27)
the following conditions
"(a) Appellant to deposit
¢450.000.00 into the court to
cover the cost of preparation
and transmission of the record
of appeal to the Regional House
of Chiefs.
(b) Appellant to enter into
bond in the sum of ¢400,000.00
with two sureties to be
justified to cover any costs
that may be awarded by the
Judicial Committee of the
Regional House of Chiefs in
favour of Respondent.
(c) Conditions to be fulfilled
within 1 month from date
hereof."
The Appellant/Appellant paid
into court the sum of
¢450,000.00 on December 10th
1996 i.e. within four days after
settlement of the record. He
however failed to meet the
second condition i.e. signing of
a bond in the sum of ¢400,000.00
with two sureties to be
justified within the stipulated
one month. He later executed the
said bond on the 19th March 1997
i.e. over three months after the
settlement of the Record and he
did this without leave of the
Judicial Committee.
At the time of hearing of the
appeal before the Regional
House, the Plaintiff/Respondent
raised a Preliminary Legal
objection to the hearing of the
appeal on the ground that the
appeal was not properly before
the said Tribunal since one of
the conditions of Appeal had not
been complied with within the
time prescribed by the
Registrar. A ruling was given on
this point by the Judicial
Committee of the Regional House
of Chiefs upholding the said
preliminary legal objection. A
further appeal to the Judicial
Committee of the National House
of Chiefs by Appellant herein on
the same point was dismissed and
the National House of Chiefs
also upheld the earlier decision
of the court below i.e. the said
Regional Tribunal. The National
House however granted the
Appellant leave to appeal to
this court and hence the Appeal
to this court.
The original grounds of appeal
were:
1. That the Judicial Committee
of the National House of Chiefs
ignored the submissions of
counsel made before it.
2. That the said committee
misdirected itself on the law
and gave an erroneous decision.
3.
.....................................
The additional Ground of Appeal
filed later is that the Judicial
Committee of the National House
of Chiefs erred in law in
failing to avert to the
implications of Rule 28 of C.I.
27 and in consequently
dismissing the appeal on the
ground that Appellant had not
fulfilled the conditions of
Appeal within the time set, even
when at the time of the hearing
of the appeal, these conditions
had been met.
The Appellant argued all three
grounds of Appeal together.
The Appellant submitted that the
National House of Chiefs erred
in relying on the decision of
the Chieftaincy Tribunal sitting
at Koforidua dated February 14th
1992 in the case of Okyeame
Kwaku Boafo v. Ebusuapanyin
Kwesi Osei JC/ERHC/A.4/ to come
to the decision they did for the
reason that the said House
failed to take account of Rule
28 of C.I. 27 in coming to their
decision, and thereby failed to
be guided by well-established
practice and procedure of the
courts, in situations such as
confronted both said Judicial
Committees.
Rule 28 of C.I. 27 provides as
follows:
"Where no provisions is
expressly made by these Rules or
by any enactment regarding the
practice and procedure to be
followed in any cause or matter
before a Judicial Committee that
Committee shall follow such
practice and Procedure as is the
opinion of the Judicial
Committee the justice of the
cause or matter may require,
regard being had to the
principles of customary law and
to the practice and procedure of
the High Court of Justice."
It would be necessary therefore
to consider the Rules of High
Court respecting this point. It
was the submission of counsel
for Appellant that the failure
to execute the bond in the
specific situation where the
appeal was already pending was a
procedural defect, a mere
technicality which did not go to
the root of the appeal,
especially when at the time the
appeal was heard the Appellant
had already executed the bond,
albeit without the necessary
leave of court.
The Respondent's counsel drew
attention to the additional
Ground of Appeal which was later
filed by Appellant but which was
not contained in the Notice of
Appeal filed on 28th June 2000.
He submitted that by Rule 6(6)
of the Supreme Court Rules C.I.
16 "the appellant shall not
without the leave of the court
argue or be heard in support of
any ground of Appeal that is not
mentioned in the Notice of
Appeal." But then according to
Rule (7) of C.I. 16.
"Rule 6(7) Notwithstanding sub
rules (1) to (6) of this rule
the court—
(a) may grant an appellant leave
to amend the ground of appeal
upon such terms as the court may
think fit; and
(b) shall not in deciding the
Appeal, confine itself to the
grounds set forth by the
appellant or be precluded from
resting its decision on a ground
not set forth by the Appellant"
Accordingly this court would be
entitled by reason of Rule
6(7)(b) of C.I. 16 to consider
the legal point raise in the
additional ground of Appeal
which was served also on
Respondent. In this way
substantial justice would be
done in to the parties in this
case. Appellant submitted
further that the non-fulfilment
of the 2nd condition of Appeal,
namely (b) to execute a bond in
the sum of ¢400,000.00 with two
sureties to be justified to
cover any costs that may be
awarded against him, within the
specified time, should be
distinguished from the situation
where the non-satisfaction of
the conditions of appeal went to
the very existence or
non-existence of the appeal in
which latter case the courts
have dismissed the purported
appeal. In the other cases the
non compliance with a procedural
condition within the stipulated
time, have been held to be only
technical and procedural, and
not fatal to the appeal itself.
In similar circumstances the
West African Court of Appeal
dismissed an appeal on appeal to
the Privy Council in the case of
Pon (Kojo) v. Attafua (1927)
A.C. 693. In delivering the
judgment of the Privy Counsel
Viscount Haldane said at p.679
as follows:
"Under these conditions their
Lordships think that to refuse
to hear the Appeal merely on the
ground of what might have been a
mere technicality about the bond
was to fail to do justice as
between the parties and they are
of opinion that the case be
remitted to the court below to
deal with it again, hear it, and
if necessary, get some formal
proof of Kwabena's authority".
The Pon case was cited with
approval in the Court of Appeal
case of Merah v. Okrah (1984-86)
1 GLR 400. In that case also the
appellant had failed to meet the
conditions of Appeal when he
appealed from the Circuit Court
to the Court of Appeal. Without
seeking leave to apply for
extension of time within which
to effect payment of deposit
ordered as a condition of appeal
within time, Appellant proceeded
and paid the sum of ¢400,000.00
and attempted to relist, the
case in an application for
relistment before the court.
Same objection as in the present
case was raised to the said
application, but Court of Appeal
however granted the application
after a review of relevant
authorities, and held at p.406
as follows:
"A study of the cases shows that
there are two classes of
breaches. In one the default is
fundamental; it goes to the root
of the appeal, and therefore
leaves the court with no
discretion but to dismiss the
appeal in limine see Moore v.
Taye (supra) and Ex Parte
Rosenthal (supra). In other
class the default is not so
fundamental; it affects the
prosecution of a properly filed
appeal and in this regard may be
referred to, for convenience, as
procedural".
The Court of Appeal then
proceeded to exercise its
discretion under Rule 64 of L.I.
218 and held at page 411 thus:
"The justice of the case
requires that the appellant be
given opportunity to be heard on
the merits on terms that she
pays a price for her misconduct.
The Respondent will be
compensated in costs."
Applying the facts of this case
to the principles enunciated in
the Merah case supra, there is
no doubt that this Appeal was
properly pending, having been
filed on 26th October 1996 and
that failure to execute the bond
within the time prescribed in
the said conditions of Appeal
was a procedural default, and
not a fundamental one, which
goes for the root of the appeal.
The appellant should in the
interest of justice be given the
opportunity to properly put his
house in order to enable him to
pursue his appeal.
This case should be remitted
back to the Regional House of
Chiefs for the appeal to be
heard out.
J.A. BAMFORD-ADDO(MRS)
JUSTICE OF THE SUPREME COURT
ADJABENG, J.S.C.:
I agree.
E.D.K. ADJABENG
JUSTICE OF THE SUPREME COURT
SOPHIA A.B. AKUFFO(MS), J.S.C.:
I am entirely in agreement that
the appeal herein ought to
succeed so that the Judicial
Committee of the Eastern
Regional House of Chiefs may
hear the appellant's appeal on
its merits. However, there are a
couple of issues upon which I
wish to express myself: —
The clear purpose of Rules 19
and 20 of the Chieftaincy
(National and Regional Houses of
Chiefs) Procedure Rules 1972
(C.I. 27) is to assure that an
appellant does not trifle with
the appeal process by filing an
appeal he has no real intention
to pursue. These sub-rules,
therefore, compel an appellant
to put his money where his mouth
is, as it were, and, for so long
as an appellant fails to fulfil
the conditions set by the
Registrar of the lower tribunal,
his appeal cannot be heard by
the appellate tribunal. This is
my understanding of the
provisions; they are purely
procedural and have nothing to
do with the jurisdiction of the
appellate tribunal and, until
the Registrar certifies that an
appellant has failed to fulfil
the conditions, thus enabling
the appellate tribunal to strike
out the appeal, these Rules only
serve to encumber the time
within which the appeal could
become ripe for hearing.
Therefore, these Rules will be
truly functional, and the time
limits more meaningful, only if
Registrars were to become more
alert and issue the certificate
of non-compliance in a more
prompt manner.
In this case, there were two
conditions set by the Registrar,
the first was that the Appellant
must deposit an amount of
¢450,000.00 to cover the cost of
production and transmission of
the record of proceedings to the
Judicial Committee of the
Eastern Regional House of
Chiefs; the second was that the
Appellant must enter into a
¢400,000.00 bond, with two
sureties to be justified, to
cover any costs that may be
awarded by the appellate
tribunal in favour of the
Respondent. There was a rider
that these conditions were to be
fulfilled within one month from
the date of the Registrar's
order. As it transpired,
although the Appellant did
fulfil the first condition
within the stipulated time, he
was grossly out of time in
fulfilling the 2nd condition,
and did not obtain leave for
extension of time. However, the
bond was executed more than a
year before the matter came
before the Regional House of
Chiefs. When the Appellant
failed to meet the deadline
initially fixed by the
Registrar, the Registrar ought
to have issued a certificate to
that effect to the Judicial
Committee so that it could,
accordingly, strike out the
appeal. He failed to do so and,
thereby, gave the Appellant the
opportunity to correct his
infraction. It is noteworthy
that the Registrar did not
refuse to execute his portion of
the bond, nor did he refuse to
accept the same for filing and,
after the late execution of the
bond, the Registrar proceeded to
transmit the Record of Appeal to
the appellate tribunal a few
months thereafter.
Thus, taking into account what I
have hereinbefore stated to be
what I consider to be the
purpose of Rules 19 and 20, it
is clear to me that, as at the
date the matter came before the
Committee, the said purpose had
been duly served and the appeal
was properly before the Regional
House of Chiefs. The fact that
the final fulfilment of all the
conditions was belated and
contrary to the time limit set
by the Registrar was de minimis
and did not affect the
jurisdiction of the Judicial
Committee to hear the appeal. In
the circumstances, therefore,
rather than striking out the
appeal for late execution of the
bond, the appropriate course for
the Judicial Committee was to
have awarded costs against the
Appellant and then proceed to
hear the appeal on its merits.
Moreover, this matter originated
as a claim filed by the
Respondents herein in the
Judicial Committee of the
Akyem-Kotoku Traditional Council
for a declaration that the
Appellant herein has so
misconducted himself that he has
disabled himself from continuing
to occupy the stool of Akroso as
the Akrosohene. Since the claim
was grounded on allegations that
amounted to destoolment charges,
its outcome is crucial to the
people of Akroso, for, without
doubt, the claim must have
caused some dissensions within
the community, which could only
be resolved by a substantive
determination of the matter,
rather than a determination on
technical grounds. In the
circumstances, I fail to see
what efficacious purpose the
preliminary objection raised by
counsel for the Respondent was
intended to serve, besides the
scoring of a technical knockout.
Certainly, that move could not
have been calculated to resolve
the issues between the Akroso
community (as represented by the
Plaintiffs) and their chief. In
matters affecting chieftaincy,
it is of paramount importance
that the core issues be
considered on their merits so as
to assure an early resumption of
peaceful coexistence within
communities. To this end, it has
been the practice of this Court
to assure that, as much as
legally possible, procedural
technicalities are not allowed
to impede the hearing of appeals
on their merits. This is a more
prudent and socially beneficial
stance, which will, I hope, be
emulated by the Judicial
Committees of the Regional and
National Houses of Chiefs.
In deciding to grant the appeal
herein, one is not unmindful of
the fact that, as is evident
from the Record of Appeal, the
Appellant has, throughout the
history of this matter, pursued
his appeals with very scant
regard for the applicable Rules
of Procedure. Thus, aside from
his failure to meet, in a timely
manner, the conditions of appeal
set by Registrars of both the
Traditional Council and Regional
House of Chiefs, he and his
counsel have also been
disrespectfully delinquent in
seeking appropriate leave to
argue additional grounds of
appeal, both in this Court and
in the lower appellate
tribunals. It appears that
counsel for the Appellant has
acquired the habit of taking the
indulgence of the court for
granted. Every single Rule of
Procedure exists to serve a
purpose and just because the
Court has discretion to forgive
certain instances of breach
cannot be taken as license to
parties to proceed as though
such Rules do not exist. For my
part, were it not for the fact
that this is a matter affecting
chieftaincy in respect of which
every lawful opportunity must be
granted to assure that it is
heard on its merits, I would
have entirely disregarded the
Appellant's additional grounds
of appeal since no prior leave
was sought for them to be
argued.
S.A.B. AKUFFO(MS)
JUSTICE OF THE SUPREME COURT
T.K. ADZOE:
This is an appeal against the
ruling of the Judicial Committee
of the National House of Chiefs
affirming the dismissal of the
appellant's appeal on the ground
that the appellant had failed to
fulfil the conditions of appeal
within time. The judicial
committee of the Eastern
Regional House of Chiefs had
earlier on dismissed the appeal
on that very ground and the
appellant appealed to the
National House.
The appellant has filed four
grounds of appeal before us -
three original grounds and one
additional ground. They are as
follows:
(a) That the judicial committee
completely ignored the
submission of counsel made
before it at the hearing of the
appeal.
(b) That the judicial committee
erroneously relied on
submissions of counsel made
before a different forum which
submission he abandoned on
appeal.
(c) That the judicial committee
misdirected itself in law and
gave erroneous decision.
(d) and this is the additional
ground: That the judicial
committee of the National House
of Chiefs erred in law in
failing to advert to the
implications of Rule 28 of C.I.
27 and in consequently
dismissing the appeal on the
ground that the appellant had
not fulfilled the conditions of
appeal within the time set, even
when at the time of the hearing
of the appeal, these conditions
had been met.
Before I proceed, let us look at
the facts of the case. The
Plaintiffs who are the
respondents herein are
sub-chiefs of Akyem Akroso and
kingmakers of the Akroso Stool.
I shall hereafter refer to them
simply as the respondents. On
March 24th, 1995, these
respondents instituted an action
in the Judicial committee of the
Akyem Kotoku Traditional Council
seeking the destoolment of the
defendant who will also be
referred to as the appellant.
The reliefs sought by the
respondents were for (a) a
declaration that by his conduct
the appellant had disabled
himself from occupying the stool
of Akroso as the Ohene of Akyem
Akroso and (b) an order
declaring the appellant
destooled as the Ohene of
Akroso. Several destoolment
charges were made against the
appellant and he denied all of
them.
The Judicial Committee of the
Traditional Council heard the
case and found the appellant
liable to the charges on 14th
October, 1996. On 26th October,
1996, the appellant filed an
appeal to the Judicial Committee
of the Eastern Regional House of
Chiefs at Koforidua. The appeal
records were settled on 6th
December, 1996, before the
Registrar of the Traditional
Council. Pursuant to rules 19
and 20 of the Chieftaincy
(National and Regional Houses of
Chiefs) Procedure Rules, 1972,
(C.I. 27) the Registrar imposed
two conditions of appeal which
the appellant was requested to
fulfil within one months from
6th December, 1996. These
conditions were that: (1) the
appellant should deposit
¢450,000.00 into court to cover
the cost of preparation and
transmission of record of appeal
to the Regional House of Chiefs
and (2) he should enter into
bond in the sum of ¢400, 000.00
with two sureties to be
justified to cover any costs
that might be awarded by the
Judicial Committee of the
Regional House of Chiefs in
favour of the Respondent.
It should be observed that even
though the Registrar minuted in
the record that he was imposing
the two conditions under rule 19
of C.I. 27, condition (2) was
actually required by rule 20.
It would appear that the
appellant, within four days,
fulfilled condition (1) by
paying the deposit of
¢450,000.00 on 10th December,
but waited until the 19th day of
March, 1997, before executing
the bond required in the second
condition. Curiously, however,
the Registrar issued a
certificate on 4th November,
1996, declaring, as at that
date, that the appellant "has
duly and punctually complied
with the conditions of Appeal
imposed on him in the
above-named case".
The Judicial Committee of the
Eastern Regional House of Chiefs
called the appeal on 14th May,
1998. Before that date, the
respondents had filed a notice
of preliminary objection to the
appeal. It was filed on 15th
April, 1998. The appellant also
filed a Notice of additional
grounds on 27th April, 1998.
When the case was called,
therefore, on 14th May, counsel
for the respondents raised his
preliminary objection arguing
that the appeal was incompetent
and not properly before the
court because the conditions of
appeal were fulfilled out of
time. Admittedly, the conditions
having been imposed on 6th
December, 1996, to be fulfilled
within one month from that date,
the appellant should not have
waited till 19th March, 1997
before fulfilling the second
condition. The one month expired
on 6th January, 1997. The
appellant was bound to furnish
the bond before the expiration
of the one month. He defaulted.
He took over three months to
execute the bond. Counsel for
the appellant did not deny the
default. He did not give any
reasons for the delay. Instead,
he appeared to be saying that
his client was not bound to
enter into the bond. This is his
argument:
"In this case the deposit was
made within time either 10th or
12th December. The Registrar was
wrong in demanding the two
conditions since the conditions
were in the alternative. Section
(20). The sin of the registrar
should not be visited on a
party. The registrar sinned
against section 20.......... I
submit that this appeal is
competent since one of the
conditions was fulfilled
timeously. The law does not
require us to satisfy all the
two conditions.
The judicial committee of the
Regional house did not accept
that argument, and therefore
dismissed the appeal on the
preliminary objection.
The appellant appealed against
that ruling to the judicial
committee of the National House
of Chiefs upon the following two
grounds, namely,
(1) That the judicial committee
never adverted to or considered
the effect of the receipt
tendered by the appellant
showing that he had fulfilled
one of the conditions of appeal
within the stipulated time, and,
(2) That the judicial committee
did not consider all submissions
made by counsel for the
appellant.
I have observed that the only
submission made by counsel for
the appellant in respect of
these two grounds of appeal
before the National House was to
the effect that the error was
technical or procedural. But he
still insisted that the
"registrar had no power to give
conditions of appeal". On the
other hand, he also contended
that since the appellant had
satisfied part of the
conditions, the appeal ought not
to have been dismissed.
The case of the appellant was a
very simple one. But his counsel
messed it up. All he had to do
was to satisfy the judicial
committees of the two lower
Houses of Chiefs that the delay
in satisfying the other
condition, though wrongful, did
not justify a summary dismissal
of the appeal as contended on
behalf of the respondents.
Instead he went for the
disgraceful lay argument that
the registrar had no power or
authority to impose the two
conditions. Quite clearly two
conditions are not the same, and
cannot be said to be in the
alternative. Rule 19 asks for a
deposit to cover the cost of
preparation and transmission of
the record of appeal to the
appellate judicial committee -
in this case to the Judicial
Committee of the Regional House
of Chiefs, while rule 20 demands
a bond in such sum of money that
would cover any costs that may
be awarded by the appellate
court in favour of the
respondent. According to rule
19(4) an "appellant shall within
such time as the proper officer
of the Judicial Committee whose
decision is appealed against
directs, deposit with him a sum
fixed to cover the estimated
cost of making up and forwarding
the record of appeal". Rule 20,
on the other hand, requires
security for the costs of the
appeal by providing that the
"appellant shall ... deposit
such sum as the proper officer
shall determine or give security
therefor by bond with one or
more sureties to his
satisfaction as such proper
officer may direct, for the due
prosecution of the appeal and
for the payment of any costs
which may be ordered to be paid
by the appellant". Counsel
obviously misconstrued or simply
confused these two rules and
apparently misadvised the
appellant that once the deposit
had been paid for the
preparation of the record of
proceedings, there was no need
for the deposit or bond against
the costs of the appeal. That
was rather unfortunate.
The registrar of the Traditional
Council is also to blame. First,
he misled the appellant to think
that the two conditions he
imposed were as required by rule
19. On the day the record was
settled he recorded as follows:
"By Registrar:- settled
accordingly.
By Registrar:- Under rule 19 sub
rules (1) - (4) of the
Chieftaincy (National and
Regional Houses of Chiefs)
Procedure Rules 1972 (C.I. 27)
the following conditions of
appeal are imposed.........."
Secondly, in a notice dated 10th
December, 1996, formally
informing the appellant of the
terms of the conditions, the
Registrar again repeated the
above statement that the
conditions were imposed under
rule 19. Counsel for the
appellant obviously took these
representations as correct
without bothering to look up the
law himself. There is also the
Registrar's Certificate dated
4th November, 1996, to the
effect that the appellant had
fully complied with all the
Conditions of appeal. That
certificate must certainly be
false having regard to the date
and the fact that the appellant
did not furnish the bond until
March, 1997.
The delay may, however, affect
the appellant and take away his
rights to prosecute the appeal
to finality if the law is not on
his side. The judicial
Committees of the Regional House
of Chiefs and the National House
of Chiefs had the discretion to
dismiss the appellant's appeal.
Now that the appellant has come
before this court our only duty
is to decide whether both
committees exercised their
discretion properly in the
matter, having regard to the
facts of the case.
Counsel for the appellant has
argued grounds (a), (c) and (d)
together submitted that although
the appellant did not obtain
extension of time within which
to fulfil the last condition of
appeal, yet the dismissal of the
appeal was erroneous in law. He
contended that the judicial
committee should have been
"guided by the well-established
practice of the courts in
situations such as confronted"
it; and for this contention he
purported to rely on rule 28 of
C.I. 27, the Chieftaincy (
National And Regional Houses of
Chiefs ) Procedure Rules, 1972,
and Order 70(1) of the High
Court Rules, LN 140A. Rule 28 of
C.I .27 reads:
Where no provision is expressly
made by these rules or by any
enactment regarding the practice
and procedure to be followed in
any cause or matter before a
judicial committee, that
committee shall follow such
practice and procedure as in the
opinion of the judicial
committee the justice of the
cause or matter may require,
regard being had to the
principles of customary law and
to the practice and procedure of
the High Court of Justice.
Order 70, rule 1 also provides:
Non-compliance with these Rules,
or with any rule of practice for
the time being in force, shall
not render any proceedings void
unless the Court or a Judge
shall so direct, but such
proceedings may be set aside
wholly or in part as irregular,
or amended, or otherwise dealt
with in such manner and upon
such terms as the Court or Judge
shall think fit.
Order 70, rule 1 certainly
confers on the High Court power
to hear a matter brought before
it in default of its rules of
court. Our case law is replete
with authorities which have
established that Order 70 is a
saving provision which gives the
High Court power to use its
discretion to validate a process
taken in default of any rule of
the court unless the breach
results in a nullity. Under the
said Order 70, non-compliance
with a rule of the High Court
does not automatically render
the proceedings void unless the
court so directs, with the
result that even though the
relevant rule may not have been
complied with, the court will,
nevertheless, not dismiss the
matter brought before it, but
hear and determine it on the
merits in order to do
substantial justice between the
parties. Counsel's argument is
that the judicial committee's
below should have applied this
Order 70 to invoke their
discretion in favour of the
appellant. I think I will accept
this argument. This Court has
recently held, applying rule 28
of C.I. 27, that the judicial
committee is governed by the
High Court Rules in the
circumstances contemplated by
the rule. The facts of this case
clearly invite the application
of Rule 28. See the judgment of
the Supreme Court delivered on
25/7/2001, in Civil Appeal No.
1/99 entitled Rep. V Judicial
Committee of the Central Region
House of Chiefs: Ex. Parte, Supi
Mark Aaba & Ors (unreported).
But going by rule 28 of C.I. 27
we must have to reckon also with
section 21(4) of the Courts Act,
1993, (Act 549). It provides:
The High Court shall not
entertain any appeal unless the
appellant has fulfilled all
conditions imposed in that
behalf by rules of court.
How does the above provision
impact on the court's discretion
to deal with the rules? The
authorities show that as regards
the rules regulating civil
appeals they can be categorised
into two groups namely, those
rules which prescribe conditions
precedent to the filing of an
appeal, and those other rules
which regulate the bringing of
the appeal to a hearing. The
first group of rules set out
preconditions that must be
satisfied in order to bring the
appeal into existence. They
include rules which prescribe
the time within which to file
the appeal, whether leave is
needed, the forum where the
notice of appeal should be
filed, as well as any mandatory
conditions set by the lower
court. The second group of rules
include such requirements as
settlement of records,
fulfilment of conditions of
appeal imposed by the Registrar,
and the filing of statements if
a party files a notice of appeal
as he is required by law to do
within the time prescribed and
in accordance with any such
preconditions as may be imposed
on him by law, the appeal is
deemed to be regular and proper,
and would normally have to be
heard and determined on the
merits. If the statutory
conditions precedent to the
filing of the appeal are not
fulfilled, there will be no
proper appeal in law. The
general view is that those
conditions are so fundamental to
the very existence of the appeal
that a failure to comply with
them automatically invalidates
the appeal and renders it
essentially void. In such a case
the appellate court will not be
seised of the appeal and will,
therefore, not be clothed with
jurisdiction to hear it. See the
case of Moore v Taye where the
appellant was granted leave to
appeal when he had not paid the
costs awarded against him by the
trial court, whereas the
Ordinance had provided that
leave to appeal "shall not be
granted unless and until the
Appellant shall have.... paid
the costs...". Both the West
African Court of Appeal (1932) 1
WACA 242 and the Privy Council
(1934) 2 WACA 43 held that the
statutory conditions not having
been fulfilled, there was no
appeal properly before the
court. As noted by the Court of
Appeal in the case of Merah v
Okrah (1984-1986) 1 GLR 400 at
409 in the judgment of Adade JSC.
defaults in connection with such
conditions affect the notice of
appeal itself, invalidate it,
and render the appeal void. They
affect, not the conditions of
appeal as fixed by the registrar
but the very existence of
appeal.
On the other hand are those
conditions or requirements which
are not regarded as so
fundamental as to render their
breach ipso facto fatal to the
appeal. These other conditions
which fall under category two
above, are regarded as merely
procedural; their breach is said
to render the appeal merely
voidable with the result that
the courts in their discretion
can allow them to be regularised
in a bid to save the appeal.
Such a situation was considered
in the case of Pon (Kojo) v.
atta Fua (1929) A.C. 639. In
that case the appellant obtained
leave to appeal conditionally
upon entering into a bond. The
agent of the appellant who had
actually conducted the
litigation, executed the bond on
the appellant's behalf, but when
the appeal came up for hearing,
the appellate court dismissed it
upon a preliminary objection
that the authority of the agent
to sign the bond was not proved.
The appellant, therefore,
appealed further to the Privy
Council which upheld the appeal
and ordered the appeal to be
heard on the merits. It was the
opinion of the Privy Council
that the dismissal of the appeal
upon that preliminary ground
amounted to a failure to do
justice. Viscount Hildane in his
judgment noted that the primary
duty of the court in any matter
is to make such orders as it
considers necessary for doing
justice, and that to refuse to
hear the appeal merely on the
ground of what might have been a
mere technicality about the bond
was to fail to do justice
between the parties. At page 696
of the report, the learned judge
made the following observation:
There may be conditions in the
local law or in the rules which
preclude the possibility of
getting round technical
obstacles and doing complete
justice. But they think that in
the case of the rules of
procedure in the Gold Coast
colony there are no such
obstacles. The court was vested
with the widest powers, and it
might have adjourned the hearing
of the appeal until a proper
bond was executed, or it might
have said that an affidavit was
sufficient.
The two categories are fully
discussed in the Merah case
(supra). See also the recent
decision of this court in
Frimpong & Anor. v Nyarko
(998-99) SCGLR 734.
Delay in fulfilling the
conditions of appeal imposed by
the registrar falls under these
minor procedural breaches. In
present times the courts are
insisting more rigorously on
prompt compliance with rules of
procedure particularly as the
public outcry against delays in
the administration of justice is
often, and most of the time
unjustifiably, directed against
the judges rather than against
the parties themselves or their
lawyers. I have used the word
"unjustifiably" because most of
the attacks on the courts are
misplaced, and are made by
critics who are themselves
ignorant of our court
procedures. With regard to civil
litigation, Diplock, L.J. once
explained the position of the
courts when he said:
"The procedure of the English
courts is based on the adversary
system. The underlying principle
of civil litigation is that the
court takes no action in it of
its own motion but only on the
application of one or other of
the parties to the litigation,
the assumption being that each
will be regardful of his own
interest and take whatever
procedural steps are necessary
to advance his cause."
[See Allen vrs . Sir Alfred
McAlpine & Sons Ltd. and & ors.
(1968) 1 All E.R. 543 at page
552.
It is the same with our courts
in Ghana. The courts are always
mindful of this fact that in the
application of the law, human
frailty and lapses can never be
totally avoided, and that
technicalities must not be
permitted to eclipse their
fundamental duty to do justice.
Accordingly, in enforcing the
rules of court we as judges look
for the golden mean between the
rigidity of the rules and the
human propensity to make default
at certain times. And we
exercise our discretion to
decide whether a default should
entitle the court to strike out
a party's action and prevent the
case being heard on the merits.
Over the years, judicial
opinions regarding the fair and
just exercise of the courts'
discretion have provided widely
accepted guidelines which the
courts generally rely on. These
include such considerations as:
(i) whether the party himself is
to blame or not; or
(ii) whether the delay is
intentional; or
(iii) whether the delay is
prolonged and inordinate and
likely to prejudice the other
party; or
(iv) whether the delay is such
as would do grave injustice to
one side or the other or to
both; or
(v) whether the delay is
inexcusable; or
(vi) whether the delay amounts
to the breach of a statutory
precondition which is
fundamental to the case.
Situations of injustice arise
mainly in cases which are to be
tried at first instance to
collate and determine disputed
facts. If there is delay, the
parties and their witnesses are
very likely to find it difficult
recalling facts and events to
the prejudice of one or both of
the parties, and a fair trial of
the issues becomes almost
impossible. As Diplock, L.J.
explained the position,
"when this stage has been
reached, the public interest in
the administration of justice
demands that the action should
not be allowed to proceed." (see
the Allen case, supra, at page
553). The central issue in such
cases, therefore, is whether or
not the delay poses a
substantial risk to the fair
trial of the issues involved in
the case between the parties.
The principle deriving from the
guidelines is that if the delay
is moderate, being comparatively
short, having regard to the
circumstances of the particular
case, and no injustice is likely
to be occasioned to the other
side, the action may not be
dismissed, more particularly
where the defaulting party has
even taken prompt steps to do
what is required of him. [see
Eaton v Storer. (1882) 22
Ch.D.91]. In the words of
Diplock, L.J. in exercising
their discretion, "the courts
can temper logic with humanity
and the prospect that an
innocent plaintiff will be left
without any effective remedy for
the loss of his cause of action
against the defendant is a
factor to be taken into
consideration in weighing, on
the one hand, the hardship to
the plaintiff if the action is
dismissed, and, on the other
hand, the hardship to the
defendant and the prejudice to
the due administration of
justice if it is allowed to
proceed".
If you substitute appellant for
the plaintiff and respondents
for the defendant in the above
passage, the dictum would apply
accurately to the instant
appeal. The judgment of the
judicial committee of the Akyem
Kotoku Traditional Council
against which the appellant
appealed to the judicial
committee of the Eastern
Regional House of Chiefs was
given on October 14, 1996. It
concluded in these words, to
wit:
"The committee having carefully
studied the evidence before it
has found the defendant liable
to all the charges preferred
against him and has accordingly
granted all the reliefs sought
by the plaintiffs"
According to the provisions of
the Chieftaincy Act, 1971, (Act
370) and Rule 13(2) of the
Chieftaincy (National And
Regional Houses of Chiefs)
Procedure Rules, 1972 C.I. 27,
the appellant had 30 days within
which to appeal after the date
of the judgment. He did not
hesitate. He filed his appeal in
the morning of October 26, just
in about 12 days. As already
indicated, the record of appeal
was also settled on December 6,
1996 upon the invitation of the
registrar. Within four days of
the settlement the appellant
paid the ¢450,000.00 required by
the registrar for the
preparation and forwarding of
the record of proceedings. It
was only the deposit of ¢400,
000.00 or the security therefore
by bond against the costs of the
appeal to the respondent in the
event of the appellant losing
the appeal that the appellant
failed to provide within the 30
days set by the registrar. The
record shows that the bond was
executed on March 19, 1997,
about two months outside the
time fixed by the registrar.
Meanwhile the same registrar had
certified as far back as
November 4, 1997, that the
"Appellant has duly and
punctually complied with the
conditions of Appeal imposed on
him in the above-named case".
The registrar got the record of
proceedings ready by May, 1997,
and dispatched copies thereof to
the parties and the Eastern
Regional House of Chiefs on May
7, 1997. Then on April 15, 1998,
counsel for the respondents
filed a Notice of Preliminary
Objection to the effect that
"The Appeal is incompetent and
not properly before the court
since the conditions of appeal
were not timeously fulfilled."
He raised the issue on May 14,
1998 when the case was called by
the appellate judicial
committee, and asked the
committee to dismiss the appeal.
Counsel for the appellant, on
his part, contended that his
client had not breached any
conditions and that the
registrar was wrong in demanding
the two conditions. At any rate,
he said, rule 20 did not impose
any sanctions for
non-compliance. And he pleaded
to be allowed to pay costs for
the delay because, according to
him, "justice demands that a
suit be determined on the merit
and not by technicalities".
As I have already pointed out,
counsel for the appellant was in
error when he took the view that
the registrar of the traditional
council was wrong in demanding
the two conditions that the
appellant was to fulfil. The
registrar was right, and the
appellant was bound to comply
with the two conditions.
It cannot be denied that the
stand of the appellant's counsel
greatly influenced the decision
reached by the two appellate
tribunals. This is clearly
reflected in the two rulings.
The judicial committee of the
Regional House said:
"We have carefully listened to
the arguments of the counsels.
Our observation is that rule 19
and 20 of C.I 27 were passed to
forestall cases where people
merely file notice of intention
to appeal and sit by without
bothering to prosecute the
appeal. We are not in agreement
with counsel for the appellant
that, you either pay the sum
under rule 19 or give security
under rule 20 of C.I. 27. The
payment under sub rule (4) of 19
is to cover the estimated cost
of making and forwarding the
record of appeal, but the
payment and or giving security
by bond with one or more
securities under rule 20 is for
the payment of any cost which
may be ordered by the appellate
court to be paid by the
appellant. This was never
fulfilled timeously. The bond
was executed out of time".
The Judicial Committee of the
National House was more
intolerant with the appellant's
counsel. It noted as follows,
referring to counsel:
"He claimed that the Registrar
was wrong in imposing two
conditions for defrayment of
expenses and costs since the
issue deals with alternatives.
In his own words at page 79 line
8 from the bottom he says:
'The Registrar was wrong in
demanding two conditions since
the conditions were in the
alternative'.
.....In any case, secs. 19 and
20 of C.I. 27 are mandatory and
separate and the Registrar as
proper officer of the Tribunal
is bound to enforce them for
specific and different reasons.
Discretion arises only as to the
amount to be demanded and if the
appellant had found himself in
difficulties which is a most
doubtful possibility the best
would have been to appeal to the
court for extension of time
within which to fulfil the
conditions, since this
[petitive] approach was not
considered but a more aggressive
one of challenging the judgment
was adopted the appellant had to
prove the panel wrong. To us
this he has failed to do and we
dismiss the preliminary appeal
and uphold the judgment of the
Eastern Regional House of
chiefs".
The appellant undoubtedly failed
to provide the security against
costs within the time fixed by
the Registrar; it true there was
some delay. The question raised
by the respondents' preliminary
objection was whether or not the
delay warranted the dismissal of
the appeal. The panel members of
both the Regional and National
Judicial Committees were
apparently not trained in the
law. As traditional rulers they
are proficient adjudicators; but
in law they are laymen. The
issue before them was a very
fine point of law which, with
due respect, even counsel who
appeared before these two
committees cannot, looking at
the record of proceedings, be
said to have properly
appreciated. Counsel for both
parties failed woefully to bring
to the attention of the Judicial
Committee members the principles
of law which have always guided
the courts in deciding whether
or not to dismiss an action in
circumstances such as the case
before them. In the instant
appeal before us, I do not think
that the delay in executing the
bond for security could be said
to be in any way likely to
prejudice the case of the
respondents or likely to cause
any injustice to them. It is for
the respondents to satisfy the
court that as a result of the
delay a fair hearing of the
appeal will no longer be
possible. They have not done
that. I believe that if counsel
had explained these issues to
the lower appellant Judicial
Committees they would not have
accepted the respondents'
objection and dismissed the
appeal. The Judicial Committee
of the Regional House
overstretched the law when it
purported to apply to this case
the reasoning that "rule 19 and
20 C.I. 27 were passed to
forestall cases where people
merely file notice of intention
to appeal and sit by without
bothering to prosecute the
appeal". The appellant had done
more than merely file a notice
of intention to appeal and the
circumstances do not justify the
harsh and draconian lesson of a
dismissal of the appeal. The
fact that counsel for the
appellant wrongly challenged the
Registrar's imposition of the
two conditions is no ground for
the Judicial Committee of the
National House also to dismiss
the appeal. I do not mean to
criticize the Regional and
National Houses of Chiefs
because as I have already
observed they had no assistance
from counsel who appeared before
them. I agree however with
counsel for the appellant that
the Judicial Committee of the
National House of Chiefs
misdirected itself on the law
and gave an erroneous decision.
The question whether or not a
court exercised its discretion
correctly in dismissing an
action for want of prosecution
is a point of law. The question
always is whether, given the
primary facts, the court
correctly exercised its
discretion. If the court below
did not give adequate or proper
consideration to the principles
applicable to the case and there
is an apparent miscarriage of
justice, an appellate court is
entitled to reverse the order
made by the lower court.
I accordingly allow the appeal.
I order that the substantive
appeal filed by the appellant
before the Judicial Committee of
the Eastern Regional House of
Chiefs, Koforidua, be sent back
to that committee to be heard
and determined on the merits.
T.K. ADZOE
JUSTICE OF THE SUPREME COURT
KPEGAH, J.S.C.:
I have had the previledge of
reading the opinion about to be
read by my learned and respected
brother Adzoe, J.S.C. I agree
with him and have nothing useful
to add. I also associate myself
with the final order contained
in the said opinion.
F.Y. KPEGAH
JUSTICE OF THE SUPREME COURT
COUNSEL
Mr. Akoto Ampau for the
appellant
Mr. E.A. Oduro for the
Respondent. |
