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J U D G M E N T
DOTSE , J.S.C:
This is an appeal by the
Defendant/Respondent /Appellant,
hereinafter referred to as the
Defendant, against the judgment
of the Court of Appeal dated
November 26, 2006 wherein
judgment was given in favour of
the
Plaintiff/Appellant/Respondent,
hereinafter referred to as the
Plaintiff. The Plaintiff
instituted action in the High
Court, Accra on May 26, 2000
against the Defendant, claiming
the following reliefs:-
1. A declaration of her
title to a piece of land situate
at Tesano in Accra in the
Greater Accra, Region of the
Republic of Ghana described as
parcel No. 376 Block 1,
section 050 as delineated
on Land Registry Map No.
004/050/88 in the Land Title
Registry Victoriaborg, Accra and
edged with pink colour on
plan No. 281/98 annexed to
Land Certificate No. GA 13477
issued by the land Title
Registry on January 22, 1999.
2. Damages for trespass
committed by the defendant, her
servants, workmen, agents and or
privies on the said land.
3. An order of perpetual
injunction restraining the
defendant, her servants,
workmen, agents and or privies
from trespassing on the said
land.
After service of the writ of
summons and statement of claim
on the Defendant, she entered
appearance and filed her Defence
personally.
Thereafter she engaged the
services of Counsel, James
Ahenkora Esq. who subsequently
filed NOTICE OF APPOINTMENT
of Solicitor on her behalf and
has remained her Solicitor to
date.
Learned Counsel for the
Plaintiff filed a reply to which
Counsel for the Defendant filed
objections to the following
effect:-
1. That the Plaintiff had
used the reply to plead new
matters which the Defendant
would ordinarily not have the
opportunity to react to because
of the stage at which it had
been introduced in the reply,
which is the last pleading
before summons for Directions.
2. The Defendant argued
that the offending pleadings be
removed from the Reply and
instead form part of amendment
so that the Defendant can also
reply to same by filing an
amended Defence.
The objections raised by Counsel
for Defendant therefore sought
to introduce amendments by the
Plaintiff to enable the
defendant also amend her
Statement of Defence. Reference
pages 20 and 21 of the appeal
record.
From the appeal record, it is
clear that both Counsel for the
parties briefly argued this case
on the objections raised by
learned Counsel for the
Defendant.
Thereafter, the learned trial
Judge at the time Ofoe J as he
then was, adjourned the suit to
the 9th day of
November, 2000 for Ruling. See
page 23 of the appeal record.
We have perused the entire
record of appeal spanning some
444 pages but there is no record
of any such Ruling. We have also
requested for the original case
docket from the Registry of the
Supreme Court for perusal. We
have not been able to get any
assistance from that either, as
there is a complete blank on
what happened on November 9,
2000 the date the Ruling was
supposed to have been given.
Despite the absence of this
Ruling in the appeal record,
there is a process that had been
filed on December 18, 2000 by
the Defendant titled, “FURTHER
DEFENCE TO REPLY AND COUNTER
CLAIM” – Pages 30 –
32 of the appeal record.
A study of the appeal record
indicates that the Plaintiff
changed her Counsel shortly
after the filing of the above
process in rapid succession.
One of the plaintiff’s Counsel
filed an application to wholly
discontinue the Plaintiff’s
suit. As a result, the court,
this time presided over by
Georgina Kusi-Appouh J, as she
then was, on June 29, 2001
granted the Plaintiffs
application in the following
terms:-
“ The suit is wholly
discontinued with liberty to
apply, the injunction and
counterclaim should proceed,
till then, both parties, agents
etc. are hereby restrained from
dealing in anyway (sic) the
property the subject matter suit
is adjourned to July 6, 2001.”
After the discontinuance of the
Plaintiffs suit, the case
proceeded apace in rapid
succession as follows:-
1. The Defendants
application for interlocutory
injunction which was pending at
the time of the discontinuance
was granted.
2. Learned Counsel for the
Plaintiff Mr. F. K. Quartey then
filed a search to determine the
legitimacy of the process titled
“Further Defence to Reply and
Counterclaim”.
3. The search result
indicated that “there was
no evidence on the docket
concerning the grant of leave to
file the “Further Defence to
Reply and Counterclaim”.
4. With this search
result, learned Counsel for the
Defendant filed a motion before
the court seeking to strike out
the defendants’ pleading i.e.”
Further Defence to Reply and
Counterclaim. The basis
of the motion was that the said
pleading was alien to the rules
of court and leave had not been
granted before same was filed.
5. The application to
strike out this offending
pleading was opposed by Counsel
for Defendant.
6. On December 4, 2001
Kusi-Appouh J, as she then was
gave a ruling in the matter in
which she decided that,
“the process filed on
December 18 was sanctioned by
“court otherwise it could not
have been filed or better still
the first two Counsels for the
Plaintiff would have objected to
it”.
The learned trial Judge as she
then was further invoked
Order 70 rule 1 of the
High Court Civil Procedure
Rules, 1954, LN 140A (which
was then applicable) to cure
whatever defect was apparent
therein
7. Learned Counsel for the
Plaintiff did not appeal against
this Ruling but instead
participated in the trial, filed
a defence to the said offending
process. Some proceedings then
took place before Ebiasa J, as
he then was in respect of the
Defendants counterclaim.
8. Further proceedings on
the counterclaim were held
before Agnes Dordzie J, and yet
again Counsel for the Plaintiff
changed hands with Mr. Charles
Tettey taking over from Mr.
Quartey.
9. After PWI and PW2 had
all testified, the case went
before Cecilia Sowah J, and with
the consent of the parties, the
proceedings so far held in the
matter were adopted. See page
168 for order of adoption of
proceedings. As a result,
Cecilia Sowah J, on June 8, 2004
made the following orders:-
“The proceedings are hereby
adopted as proceedings in this
suit.”
10. The trial then proceeded
before Cecilia Sowah J, who
delivered judgment on February
3, 2005 and gave judgment in
favour of the Defendant upon her
counterclaim, the Plaintiffs
case having been discontinued.
11. Aggrieved and
dissatisfied with the decision
of Cecilia Sowah J, in the case,
the Plaintiff successfully
appealed against it to the Court
of Appeal. The Court of Appeal
accordingly allowed the appeal
on the grounds that the process
filed on December 18, 2000 as
“FURTHER DEFENCE TO REPLY AND
COUNTERCLAIM “was filed without
leave.
12. The appeal to this court
has been filed by the Defendant
against the Court of Appeal
decision with the following as
the grounds of appeal:
i. In view of the
decision which was given by
Justice Kusi Appouh J as she
then was on December 4, 2001 to
the effect that the process
termed “FURTHER DEFENCE TO REPLY
AND COUNTERCLAIM was properly
before the court because it was
filed with leave of the court,
the Court of Appeal erred in law
in nullifying that process on
the ground that it was filed
without leave of the court
below. When that issue had
become res judicata by reason of
the decision of Kusi Appouh J.
ii. In view of the fact
that the process was said by
counsel who filed it to have
been filed in pursuance of the
leave granted by Ofoe J, when he
ruled on November 9, 2000 on the
objection by that Counsel to
certain portions of the reply
which had been filed by the
Plaintiff, the Court of Appeal
was wrong in castigating the
process as filed without leave
when it did not see or read
Ofoe J’s ruling.
iii. In view of the fact
after Kusi-Appouh had held that
the process was not filed
without (sic) of the court the
Plaintiff accepted that decision
and filed a defence to the
counterclaim contained in the
process, a summons for further
directions was filed and taken
in respect of the counterclaim
before the counter claim went to
trial. The Court of Appeal erred
in striking out the process and
nullifying the entire trial of
the counterclaim.
iv. The Court of Appeal in
holding that if indeed the
process was filed without leave,
it created an irregularity by
non-compliance with the rules
which was cured by the failure
of Counsel then acting for the
Plaintiff to object when that
process was served on him and
Counsel who immediately followed
him for the Plaintiff also did
not object.
v. The Court of Appeal in
failing to appreciate the import
of what Kusi-Appouh J said when
she said that Peter Adjetey with
all his experience did not
object to that process when it
was served on him.
From these grounds of appeal,
only one issue stands out clear
for determination, and that is:
Whether the process filed by the
Defendant on December 18, 2000
termed as “FURTHER DEFENCE TO
REPLY AND COUNTERCLAIM” is a
process allowed by and under the
Rules of Procedure prevailing at
the material time and should be
countenanced by the Court.
The formulation of the above
issue is critical because, so
far as we are concerned, whether
or not leave was granted by the
Court before the process was
filed is immaterial. If the
process is not warranted by the
rules of procedure of the High
Court, grant of leave cannot
validate it.
The position is further worsened
by the fact that there is no
record of the said Ruling
purported to have been delivered
or was to be delivered by the
Court on November 9, 2000. What
must be noted is that, the High
Court, just like all the other
Superior Courts is a Court of
record. What this means is that
there must be a record of
everything that is done and or
directed by the Court. This will
therefore encompass not only all
processes filed before the
court, but also a record of
arguments, submissions, evidence
led by the parties and witnesses
and the decisions, or orders and
judgments of the Courts.
Whenever the record of any such
process or event that is deemed
to have taken place in the court
is not available to be referred
to, then the record of such an
event cannot be accepted as
having taken place.
We are therefore surprised that
learned Counsel for the
Defendant is inviting this court
to draw inferences from certain
acts of omission and commission
of Counsel, the parties and of
the Court itself to conclude
that leave was infact granted by
the court before the process was
filed.
At page 105 of the appeal
record, the learned trial Judge
Kusi Appouh J as she then was,
delivered herself thus in the
ruling when an objection was
taken to the offending process
of court termed “FURTHER DEFENCE
TO REPLY AND COUNTERCLAIM” as
follows:-
“It is not disputed that the
present Counsel is the 3rd
Counsel for the Plaintiff herein.
It seems a bit strange to me
that Mr. Ala Adjetey would have
kept quiet for a process to be
filed without a leave of the
court.”
Continuing further, the learned
Judge held that,
“I therefore hold that the
process filed on December 18 was
sanctioned by the Court
otherwise it could not have been
filed or better still the first
two Counsel for the Plaintiff
would have objected to it”
The fact that Counsel for the
Plaintiff at the material time,
Mr. Peter Ala Adjetey is a
competent and seasoned Legal
Practitioner does not mean that
whatever he does or condones in
the court is the correct
practice that must be followed
and accepted.
A Court of law cannot, and must
not be seen to have abdicated
its role in adjudicating
disputes according to well
established rules of civil
procedure by making references
to experience and competence of
Counsel as a guide. This is
unacceptable.
Another point raised by learned
Counsel for the Defendant,
subsumed under the issue
formulated above is the
submission that having failed to
appeal against the interlocutory
Ruling on the validity of the
offending court process, the
Plaintiff is estopped from
re-opening the matter being a
decision on a question of fact.
The law is certain that,
appellate courts are slow in
setting aside or departing from
the findings of fact made by
trial courts.
As a matter of fact, an
appellate court will depart from
a finding of fact if the said
finding is perverse or is not
warranted or supported by the
record of appeal. See cases like
Achoro vrs. Akanfela
[1996-97] SCGLR 207
where the Supreme Court per
Acquah JSC stated the principle
in part as follows:-
“In an appeal against findings
of facts to a second appellate
court…. this court would not
interfere with the concurrent
findings of the two lower courts
unless it was established
with absolute clearness that
some blunder or error resulting
in a miscarriage of justice was
apparent in the way in which the
lower tribunals had dealt with
the facts”
See also cases like Thomas
vrs. Thomas [1947]A.E.R. 582.,
Akufo Addo vrs. Cathline
[1992] IGLR 377per Osei Hwere
JSC and Ntiri &
ANR v. Essien & ANR [2001-2002]
SCGLR 451.
In the instant appeal, we are of
the considered opinion that
there is sufficient evidence on
record which the first appellate
Court, the Court of Appeal could
have used to come to the
conclusion they came to. That is
by setting aside the decision of
the trial courts in this case.
What must be noted is that, an
appellate court must feel
emboldened to interfere whenever
a finding of fact by the trial
court is so perverse that it
cannot be supported having
regard to the evidence on
record.
In the instant appeal, care must
be taken to ensure that the
Court does not condone a
nullity. The question which one
has to ask and answer is whether
the process filed on December
18, 2000 termed “FURTHER DEFENCE
TO REPLY AND COUNTERCLAIM” is
warranted by the prevailing
rules of civil procedure at the
time? If the answer is NO then
it means that any process
embarked upon after that void
process is itself a nullity and
cannot stand the test of time.
Under the circumstances, the
answer must be No. this is
because, civil Procedure in the
High Court at all times material
to the cause of this action was
regulated by the High Court,
Civil Procedure Rules, (1954) LN
140A.
As we have earlier on stated in
this judgment, there is no
process known by the term
“FURTHER DEFENCE TO REPLY AND
COUNTERCLAIM” under the Civil
Procedure Rules.
A perusal of the High Court,
Civil Procedure Rules (1954) LN
140 A reveals that, whilst the
following processes have been
adequately provided for under
the then prevailing rules there
is absolutely no provision for
the process “FURTHER DEFENCE TO
REPLY AND COUNTERCLAIM”:
1. Order 2 for Writ of
Summons
2. Order 12 Entry of
Appearance
3. Order 20 Statement of
claim
4. Order 21 Defence &
Counterclaim
5 Order 23 Reply
6 Order 30 Summons for
Directions
We are therefore of the view
that once the Civil Procedure
Rules in operation at the time
of the instant suit in the High
Court do not permit and
authorize the filing of the
above process, our understanding
is that, no Court could have
validly granted leave to
legitimize the filing of the
said process. Since the process
is alien and unknown to our
rules of Civil Procedure, our
conclusion is that even if the
ruling purporting to have
granted leave to file the
process had been on record, this
Court would still have struck
out the said process as a
nullity and not warranted by the
rules of Court.
The processes a Court can grant
leave to file are those
processes that are legitimately
provided for under the
prevailing rules of Civil
Procedure. It is when a party is
unable for one reason or the
other to file the said
legitimate process within time
provided under the rules that
leave is granted extending time.
A Court
may also grant leave to a party
to file a process in order to do
substantial justice depending
upon the circumstances of each
case.
There is absolutely no
justification to grant leave for
the filing of the said process
in this case. The Rules do not
permit Courts to invent new
Rules of Procedure to take care
of situations like happened in
this case.
Since the procedure adopted in
the trial Court is not
warranted by any rule of Civil
Procedure and is definitely
unknown in our civil procedure
nomenclature, no Court can give
legitimacy by granting leave to
validate it. Under the principle
of law enunciated by the Supreme
Court in Mosi vrs BAGYIHA
[1963] 1 GLR 337 the said
conduct amounts to a nullity and
must be set aside.
This brings to the fore the
often cited decision of
Lord Denning in Macfoy vrs. UAC
[1961]3 A. E. R. 11 69PC
wherein he stated in unequivocal
language that “you cannot
put something on nothing and
expect it to stay there. It will
collapse”
See also Mosi vrs BAGYIHA,
[1963] I GLR 337 where
Akuffo –Addo JSC expanded
this principle by stating as
follows:-
“The law as I have always
understood it is that where a
court or a Judge gives a
judgment or makes an order which
it has no jurisdiction to give
or make or which is irregular
because it is not warranted
by any enactment or rule of
procedure, such a judgment or
order is void and the court
has an inherent jurisdiction,
either suo motu or on the
application of the party
affected, to set aside the
judgment or the order. The law
does not limit the exercise of
this inherent jurisdiction, as
it does in the case of review to
the Judge who actually gave the
Judgment or made the order”
Once it has been settled that
under the High Court, Civil
Procedure Rules 1954 LN 140A,
which was the applicable Civil
Procedure Rules in application
at the time, the process filed
on December 18, 2000 headed
“Further Defence to Reply and
Counterclaim” is unknown to the
Rules of Civil Procedure, it
means the said process is void
ab initio and all processes
emanating thereafter or based
upon the said process are a
nullity.
Similarly, we cannot but agree
with the Court of Appeal that
Order 70 of the repealed
rules of Civil Procedure cannot
be used to cure any voidness
therein contained. This is
because once the entire process
is void, it lacks legitimacy and
no rule of practice can bring it
back to life.
Once the procedural lapses are
so fundamental, they go to the
root of the case and for those
reasons, the appeal must fail.
For the above reasons, we will
dismiss the appeal herein filed
against the judgment of the
Court of Appeal dated November
24, 2006. By this judgment, the
Court of Appeal judgment of even
date is hereby affirmed .
The appeal is accordingly
dismissed
J. V. M. DOTSE
( JUSTICE OF THE SUPREME COURT)
I agree
S. K. DATE-BAH (DR)
( JUSTICE OF THE SUPREME COURT)
I
agree
J. ANSAH
( JUSTICE OF THE SUPREME COURT)
I
agree
S. O. A. ADINYIRA (MRS)
( JUSTICE OF THE SUPREME COURT)
I
agree
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
COUNSEL:
JAMES AHENKORAH FOR THE
APPLICANT.
CHARLES TETTEY FOR THE
RESPONDENT.
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