|
Land - Registration of -
Mandamus - Judicial Review -
Contempt of court
- Land Registry Act, 1962 (Act
122) - Out of Court
Settlement. - Terms of
Settlement. - Whether a new
Legislative Instrument, LI 232,
which required local publication
of applications before
registration applicable to
defendants’ application -
Whether or not Regional Lands
Officer for contempt of court
for not fully complying with the
order of mandamus - Whether or
not the order the Cape Coast
High Court was obtained by fraud
- Whether or not a person
aggrieved by a failure on the
part of the High Court to serve
him notice of proceedings in
which he is interested, go
before another High Court of
co-ordinate jurisdiction to seek
to nullify what has been done by
the earlier High Court
HEADNOTES
.On
7th April 2005
defendants/ respondents/
respondents (herein referred to
as defendants) filed a motion on
Notice for Judicial Review in
the form of mandamus against the
Central Regional Lands Officer
in the High Court, Cape Coast,
praying for an order compelling
the Regional Lands Officer to
register a number of land
instruments in the names of the
defendants. The instruments were
in respect of lands at Kasoa and
Nyanyano in the Central Region.
Defendants stated in the
affidavit in support of the
application for mandamus that
they submitted their documents
to the Central Regional Lands
Commission in March 2000 and
since then the Lands Commission
registered some to their
documents but were refusing to
register the others on grounds
which the defendant considered
were not justifiable When
the Lands Commission was served
with defendants’ application for
mandamus, they opposed it on the
basis that they had a number of
concerns about defendants’
documents in respect of unpaid
rents, absence of consents from
defendant’s grantors and
apparent errors and
discrepancies contained in their
documents -
HELD -
As far as
this appeal is concerned, our
judgment is that the High Court
was not competent to determine
the grounds other than the
allegation of fraud on which
plaintiff prayed it to declare
the orders of 30th
July,2008 null and void Since we
have already held that the
evidence on record does not
establish fraud, we do not
consider it necessary to decide
ground C of the appeal. The
appeal in its entirety is
dismissed.
STATUTES REFERRED TO
IN JUDGMENT
1992 Constitution.
High Court (Civil Procedure)
Rules, 2004 (C.I.47)
Evidence Act, 1975 (NRCD 323).
Land Registry Act, 1962 (Act
122)
CASES REFERRED TO IN JUDGMENT
Achoro and Anor v. Akanfela
[1996-97] SCGLR 209;
Koglex Ltd (No.2) v. Field
[2000] SCGLR 175;
Gregory v. Tandoh & Hanson
[2010] SCGLR 971.
Nkrumah v Ataa [1972] 2 GLR 13,
Tuakwa v Bosom [2001-2002] SCGLR
61.
Dzotope v. Hahomene 1984-86 1
GLR 289 CA.
Derry v. Peak (1889) 14 AC 337
Oakes v. Turquand (1867) LR 2HL
325.
Kwofie V Kakrabe [1966] GLR 229,
Botchway V Okine [1987-88] 1 GLR
1.
Republic v. Lands Commission, Ex
Parte Vanderpuye Orgle Estates
Ltd [1998-99] SCGLR 677
In Re Ashalley Botwe Lands;
Adjetey Agbosu & Ors v Kotey &
Ors [2003-2004] SCGLR 420
Punjabi Brothers v. Namih [1962]
2GLR 48
Kojo Pon v. Atta Fua, (sic)
(1929) F.C ’26-29’ 552
Flower v. Lloyd (1877) 6 Ch D
297 C.A
Brutuw v Aferiba [1984-86] 1GLR
25.
Duncome v Davey (1887), 3 TLR
359:
Re
Securities Insurance Co [1894] 2
Ch 410;
Re
Markham; Markham v Markham
(1880) 16 CH. D, 1
Crawcour v Salter (1882), 30 W.
R. 329.
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
PWAMANG, JSC.
COUNSEL
FOSU GYEABOUR ESQ. FOR THE
PLAINTIFF/APPELLANT/ APPELLANT.
DICK ANYADI ESQ. WITH HIM EDWARD
BRAKU BOADU AND VICTOR HACKMAN.
FOR THE DEFENDANTS/RESPONDENTS/
RESPONDENTS EXCEPT THE 7TH
DEFENDANT
-----------------------------------------------------------------------------------------------------------------
J U D G E M E N T
---------------------------------------------------------------------------------------------------------------------
PWAMANG, JSC.
BACKGROUND AND FACTS
On
7th April 2005
defendants/respondents/respondents
(herein referred to as
defendants) filed a motion on
Notice for Judicial Review in
the form of mandamus against the
Central Regional Lands Officer
in the High Court, Cape Coast,
praying for an order compelling
the Regional Lands Officer to
register a number of land
instruments in the names of the
defendants. The instruments were
in respect of lands at Kasoa and
Nyanyano in the Central Region.
Defendants stated in the
affidavit in support of the
application for mandamus that
they submitted their documents
to the Central Regional Lands
Commission in March 2000 and
since then the Lands Commission
registered some to their
documents but were refusing to
register the others on grounds
which the defendant considered
were not justifiable.
When the Lands Commission was
served with defendants’
application for mandamus, they
opposed it on the basis that
they had a number of concerns
about defendants’ documents in
respect of unpaid rents, absence
of consents from defendant’s
grantors and apparent errors and
discrepancies contained in their
documents.
From the record it appears both
parties filed statements of case
as required by Or 55 of the
High Court (Civil Procedure)
Rules, 2004 (C.I.47) and the
application was placed before
His Lordship Justice K. K.
Acquaye (of blessed memory) for
determination.
However, before K. K. Acquaye J.
could determine the application
for mandamus the defendants and
the Regional Lands Commission
settled almost all the issues
arising on the application and
filed Terms of Settlement. By
the settlement, the Regional
Lands Officer agreed to accept
and plot defendants documents
provided consents by their
grantors were obtained.
Nonetheless the parties agreed
to abide by any directives the
court would give in respect of
the refusal of defendants’
grantors to give consent. There
was also an issue of whether a
new Legislative Instrument, LI
232, which required local
publication of applications
before registration, was
applicable to defendants’
applications for registration.
K.
K. Acquaye J. gave a ruling on
the application on 19th
September 2005 granting the
order of mandamus. He held that
defendants’ grantors were
unreasonably withholding their
consent so the Lands Commission
should go ahead with the
plotting and registration
without the consents. He also
held that the defendants’
applications for registration of
their instruments were lodged
before the passage of LI 232 so
they were not caught by the
requirement for local
publication.
Despite this decision of the
court the defendants were still
facing problems with the
plotting and registration of
some of their documents so they
filed a motion for committal
against the Regional Lands
Officer for contempt of court
for not fully complying with the
order of mandamus. This motion
for committal for contempt
against the Regional Lands
Officer too was settled and
terms of settlement dated 28th
December, 2006 were filed in
court.
The motion for contempt was
called on 31st July,
2008 before His Lordship Justice
Ayimeh, and from the record of
proceedings it would appear that
the Regional Lands officer
raised the issue of the
registration of third party
documents that conflicted with
the defendants’ documents. From
the record the Lands Officer
himself was taking steps to
reverse the third party
registrations so the court made
an order for him to expunge
those registrations. The
Regional Lands Officer expunged
the document of the
plaintiff/appellant/appellant,
hereafter referred to as
plaintiff, which conflicted with
defendants’ documents, from the
records of the Central Regional
Lands Commission and notified
him by letter dated 17th
September 2008.
IN THE HIGH COURT
Plaintiff after eleven months of
the letter deleting his
registration filed a writ of
summons in the High Court, Cape
Coast on 29th August,
2009 against the defendants
praying for;
a)
An order setting aside the
order of the Cape Coast High
Court dated 31st July
2008 on the grounds of fraud.
b)
An order declaring null
and void the order dated 31st
July 2008 for having been
obtained without notice or
hearing of plaintiff.
c)
An order setting aside the
order dated 31st of
July, 2008 as not the order
sought for in the contempt
application.
d)
An order expunging the
records of the 1st to
6th defendants and
their grantees based on the
order dated the 31st
July, 2008.
e)
An order compelling the 7th
defendant to reinstate
plaintiff’s document No. 543A/98
at the Lands Commission, Cape
Coast.
f)
Perpetual injunction
restraining the defendants
herein, their servants, assigns,
grantees etc. from interfering
in any way with the plaintiff
recorded interest at the Lands
Commission, Cape Coast.
The main grounds for plaintiff’s
charge of fraud against the
defendants was that when they
applied for the order of
mandamus to compel the Regional
Lands Officer to plot their
documents, they failed to
disclose to the court that the
plaintiff was counterclaiming
for the land covered by their
documents and that they were in
court over ownership of the
land. Plaintiff also stated in
his statement of claim that he
was not served with any process
by the court before the order
for his documents to be expunged
was made and that the order is
void.
In their defence defendants
denied the allegation of fraud
against them and contended that
they proceeded against the
Regional Lands Officer for
mandamus because he had a public
duty to discharge towards them
under the Land Registry Act,
1962 (Act 122) and they
could not have joined plaintiff
who had no such duty to
discharge. Defendants also
stated that plaintiff’s title
deeds were null and void ab
initio so there was no
obligation to join him.
Defendants pleaded extensively
about their root of title to the
lands covered by their documents
and plaintiff’s root of title
and contended that plaintiff’s
title to the land is void.
After a full trial the High
Court presided over by Justice
J. K. Dorgu gave judgment on 27th
March 2012. He dismissed all
the reliefs claimed by plaintiff
except relief (f), which was a
claim for perpetual injunction.
The trial judge held that
although he would not set aside
the orders for the plotting of
defendants’ documents as same
were not obtained by fraud,
plaintiff demonstrated that he
had equitable title whereas
defendants proved legal title to
the land. He therefore granted
the injunction prayed for by
plaintiff pending a
determination of the respective
titles of the parties by a court
of law.
IN THE COURT OF APPEAL
The plaintiff was dissatisfied
with the judgment and appealed
against it to the Court of
Appeal. Defendants too felt
aggrieved by the findings in
respect of plaintiff’s equitable
title and the grant of
interlocutory injunction so they
also cross-appealed.
The Court of Appeal in its
unanimous judgment dated 21st
March, 2013 dismissed
plaintiff’s appeal except to set
aside the injunction and the
findings of the High Court
regarding the respective
interests of the parties in the
land. The reason the Court of
Appeal gave for setting aside
those findings of the trial High
Court, which we fully endorse,
is that the case that was before
the trial High Court was not
about ownership of land so the
judge had no legal basis to
determine whether a party had
equitable or legal interest in
the land. Plaintiff has further
appealed to this court, being
dissatisfied with the decision
of the Court of Appeal.
IN THE SUPREME COURT
In the
appeal before this court the
plaintiff has stated three
grounds of appeal as follows:
“(a) The Court of Appeal erred
in holding that the appellant
could not prove fraud against
defendant (respondent) in
procuring orders pursuant to
which appellant’s recorded
transaction with the 7th
defendant/respondent was
expunged.
(b) The Court of Appeal erred in
failing to set aside orders
procured without notice to
plaintiff/appellant based on
which plaintiff/appellant
recorded transaction with the 7th
defendant/respondent was
expunged.
(c) The judgment is against the
weight of the evidence.”
Plaintiff indicated in his
notice of Appeal that additional
grounds of appeal shall be filed
upon receipt of the record but
none has been filed.
It is well settled that where a
second appellate court is called
upon to reverse concurrent
findings and conclusions on
evidence by two lower courts,
the second appellate court has
to be slow in coming to a
decision to reverse those
findings and conclusions.
However, the rule does not bar
the second appellate court from
reversing concurrent findings
and conclusions where there is a
reason to do so. The grounds
upon which a second appellate
court may reverse concurrent
findings and conclusions have
been stated in several cases
decided by this court including
the following; Achoro and
Anor v. Akanfela [1996-97] SCGLR
209; Koglex Ltd (No.2) v. Field
[2000] SCGLR 175; and Gregory v.
Tandoh & Hanson [2010] SCGLR
971.
These cases lay down the grounds
upon which a second appellate
court may interfere and set
aside concurrent findings as
follows;
(i)
Where the said
findings are not supported by
the evidence on record or where
the reasons in support of the
findings are unsatisfactory.
(ii)
Where the findings are
based on a wrong proposition of
law or principle of evidence,
such that if that wrong
proposition is corrected the
findings will cease to exist.
(iii)
Where the findings are
inconsistent with a crucial
document or other undisputed
evidence on the record.
(iv)
Where the findings are
otherwise substantially or
seriously perverse and
unjustified so as to occasion a
grave miscarriage of justice.
It is trite learning that an
appeal is by way of rehearing
and especially where an appeal
is against findings and
conclusions based on evidence,
it is the duty of the appellate
court to peruse the whole record
and review the evidence to
determine if the findings and
conclusions in the judgment
appealed against are justified
having regard to the evidence
and the applicable law. See
Nkrumah v Ataa [1972] 2 GLR 13,
Tuakwa v Bosom [2001-2002] SCGLR
61. We shall now consider
the grounds of appeal in the
order in which plaintiff filed
them.
GROUND (A)
The Court of Appeal erred in
holding that the appellant could
not prove fraud against
defendant (respondent) in
procuring orders pursuant to
which appellant’s recorded
transaction with the 7th
defendant/respondent was
expunged.
In
respect of Ground (a) of the
appeal plaintiff in his
statement of case before this
court basically repeated his
case before the High Court to
the effect that defendants were
aware of his claim to the land
and the registration of his
document but when they applied
for mandamus against the
Regional Lands Officer they did
not disclose those facts in
their affidavit in support of
their application. He has also
stated that in the course of the
trial of this case in the High
Court it was shown that the
documents defendants applied to
be registered at the lands
commission contained forgeries.
The defendants in their
statement of case have
maintained their position that
their conduct in not joining the
plaintiff in the mandamus
application is not tantamount to
fraud. They have urged this
court to associate itself with
the findings on the issue of
fraud by the High Court and the
justices of the Court of Appeal.
The question that needs to be
answered is; did plaintiff
adduce evidence to establish
that the order of mandamus was
obtained by fraud? The well
known rule of evidence is that
when fraud is alleged even in
civil proceedings it must be
proved beyond reasonable doubt.
See. S. 13(1) of the Evidence
Act, 1975 (NRCD 323). The
position of the law is that for
a judgment or an order of a
court to be impeached on grounds
of fraud, it must be shown that
the alleged fraud related to the
central issue for determination
before the court and that it was
the main ground for the
judgment. Put in another way,
the party impugning a judgment
on grounds of fraud must first
prove the alleged fraud and
further demonstrate that if the
fraud is taken out, the judgment
cannot stand. See Dzotope v.
Hahomene 1984-86 1 GLR 289 CA.
The widely acknowledged
definition of fraud, which
plaintiff referred to and which
was relied on by the High Court
and the Court of Appeal in their
judgments, is Lord Hershell’s
definition of fraud in Derry
v. Peak (1889) 14 AC 337 at 374
where he said:
“fraud is proved when it is
shown that a false
representation has been made (1)
knowingly, (2) without belief in
its truth or (3) recklessly,
careless whether it be true or
false. To prevent a false
statement being fraudulent there
must I think always be, an
honest belief in the truth and
this probably covers the whole
ground, for one who knowingly
alleges that which is false has
obviously no such honest belief.
Going by this definition the
plaintiff has not pointed to
anything in the legal processes
filed in the High Court leading
to the orders he complains of,
in which the defendants
knowingly alleged falsehood
which they knew to be false or
which they had no honest belief
in its truth. What it appears
plaintiff is relying on is the
principle in contract law which
is that, in certain
circumstances concealment may
give the truth which is told the
character of falsehood. See the
case of Oakes v. Turquand
(1867) LR 2HL 325. That
principle mostly applies where
the person accused of non
disclosure is required to make a
disclosure of what he has
concealed and his failure to
make the disclosure is borne out
of an intention to deceive the
other party. But that is not the
situation in this case.
In
the circumstances of this case
the defendants’ application for
mandamus was targeted at having
their document registered in the
records of the Lands
Commission. The record shows
that prior to going to court,
there had been several meetings
between the defendants and Lands
Commission of the Central Region
concerning their applications.
The settled law is that
registration of instruments
affecting land under the Land
Registry Act, 1962 (Act 122)
is not a guarantee of title to
the land where the person who is
registered is not the true owner
of the land. See Kwofie V
Kakrabe [1966] GLR 229, Botchway
V Okine [1987-88] 1 GLR 1.
We do not find any evidence of
fraud by the defendant on the
record and the failure to join
plaintiff to the application
does not amount to fraud.
Plaintiff in his statement of
case has drawn our attention to
what he says are forgeries in
some of the defendants documents
that came up during the trial of
this case in the High Court and
has argued that they amount to
fraud by the defendants. May we
remind the plaintiff that we
have fully endorsed the holding
of the Court of Appeal that the
High Court was not seized with
jurisdiction to try the merits
of the respective titles of the
parties to the land but was only
to determine whether the orders
that plaintiff complained of
were procured by fraud. These
matters that plaintiff is
raising, though serious, were
not in issue when the High Court
considered and ruled on the
application for mandamus. Those
issues can only be effectively
determined by a court properly
seized with jurisdiction to
determine the ownership of the
land and it will be
inappropriate for us to comment
on them in this judgment.
We
are inclined to agree with the
Court of Appeal that if counsel
for plaintiff in this case had
exercised a dispassionate
professional judgment he would
have realized that the facts
that he was relying on did not
meet the requirements of the law
for impeaching a judgment or
order of a court on ground of
fraud. The finding of the High
Court and the Court of Appeal
that fraud was not proved by
plaintiff is supported by the
record so we affirm that finding
and accordingly dismiss Ground
(a) of the appeal as being
without merit.
GROUNDS (B)
The Court of Appeal erred in
failing to set aside orders
procured without notice to
plaintiff/appellant based on
which plaintiff/appellant
recorded transaction with the 7th
defendant/respondent was
expunged.
Under this ground of appeal the
plaintiff stated in his
statement of case that the High
Court judge was made aware of 3rd
parties’ interest in the subject
matter before him. Consequently
the court was required to either
order that the third parties be
joined to the proceedings or
served with notice and the
failure to do so renders the
order for expunging plaintiff’s
document null and void.
Plaintiff referred to the cases
of Republic v. Lands
Commission, Ex Parte Vanderpuye
Orgle Estates Ltd [1998-99]
SCGLR 677 and In Re Ashalley
Botwe Lands; Adjetey Agbosu &
Ors v Kotey & Ors [2003-2004]
SCGLR 420. He has submitted
that the order for his document
to be expunged without hearing
him is a violation of the Rule
of Natural justice and his right
to hearing guaranteed under
Article 19 of the 1992
Constitution.
In answer to the plaintiff’s
submissions, defendants have
argued that if even the courts
that considered the applications
for mandamus and contempt
committed any errors, those
errors do not entitle the
plaintiff to issue a writ if
summons to have the orders
declared null and void.
Defendants quoted the following
statement of the trial judge at
page 447 of vol 2 of the record;
“It is trite law that if a court
has jurisdiction to enter into a
matter, then that court could
either get it right or wrong. If
it gets it wrong, that does not
negate the jurisdiction but such
wrong orders or judgments are
appealable or could be subject
to judicial review in the nature
of certiorari. It cannot be
fraudulent or void, neither can
it qualify as a breach of the
rules of natural justice.”
Without intending to lower the
great importance of the right to
a hearing in civil proceedings
in a court or before any quasi
judicial body, it must be
pointed out that the right to
fair hearing that has been
guaranteed by the Constitution
is in respect of criminal trials
only. Article 19 of the 19992
Constitution, which is headed;
Fair Trials, contains elaborate
provisions for criminal trials
and at paragraph (1) thereof
provides as follows;
“A person charged with a
criminal offence shall be given
a fair hearing within a
reasonable time by a court”.
In our understanding, the
substance of plaintiffs
complaint under this ground of
appeal is a submission that the
High Court court in hearing the
application for mandamus did not
comply with the requirements of
the rules of this court on
applications for judicial review
particularly Or 55 R 5(1) &
(2) of the High Court (Civil
Procedure) Rules, 2004 (CI. 47)
which provides as follows;
“Notice of
Application
5(1) Notice of the application
shall be served on all parties
named in the applicant’s
affidavit as being directly
affected by it.
(2) The court may order that
notice of the application shall
be served on any person not
named as being directly affected
by the application if in its
opinion it is desirable that the
person should be given notice.”
The legal point which the trial
judge raised and defendants have
relied on in this appeal before
us is that the fact that the
judges in the mandamus and
contempt applications did not
fully comply with the rules of
court does not entitle the
plaintiff to bring a fresh
action seeking to have the
orders declared null and void.
By the provision of Or 55
R5(2) of C.I. 47 it is clear
that, as far as judicial review
applications are concerned, the
court is given a discretion,
where it gets to know of the
interest of a non party in a
matter before it, to order that
he be given notice or not. What
this means is that Or 55 R5
(2) of C.I. 47 envisaged
that in certain situations a
court may make an order that has
the potential of affecting a
person without hearing that
person. Of course as with all
discretions in law, that
discretion has to be exercised
judicially. However the question
that arises here is; can a
person aggrieved by a failure on
the part of the High Court to
serve him notice of proceedings
in which he is interested, go
before another High Court of
co-ordinate jurisdiction to seek
to nullify what has been done by
the earlier High Court?
In the case of Punjabi
Brothers v. Namih [1962] 2GLR
48, the Supreme Court per
Adumua-Bossman JSC stated as
follows at page 50 of the
report;
“I apprehend that although it is
open to a party against whom
judgment has been given to
institute a fresh action to
claim the setting aside of that
judgment on the ground of fraud
and/or misrepresentation (see
Kojo Pon v. Atta Fua, (sic)
(1929) F.C ’26-29’ 552. in which
the leading English cases on the
subject are discussed) it does
not appear to be open to him,
without first getting the
judgment set aside, and while it
is still subsisting, of full
force and effect, to ask another
court of co-ordinate
jurisdiction in another case in
which other issues are raised,
to pronounce a judgment of a
superior court, which has not
been set aside, to be null and
void. The law seems to be
clearly enough settled that so
long as a judgment of a superior
court remains undischarged and
of full force and effect, it is
not competent to another court
of co-ordinate jurisdiction to
pronounce against its validity,
however palpably erroneous it
may appear to be….. If,
therefore, there are features
about a judgment as to render it
liable to be set aside, clearly
the proper step to take is to
get it set aside first.”
Adumua-Bossman JSC made
reference to the case of
Flower v. Lloyd (1877) 6 Ch D
297 C.A in which
James LJ said as follows at
pages 301 to 302;
“I agree with what has been said
by the Master of the Rolls, that
in the case of a decree (or
judgment as we call it now)
being obtained by fraud there
always was power, and there
still is power, in the Courts of
Law in this country to give
adequate relief. But that must
be done by a proceeding putting
in issue that fraud, and that
fraud only. You cannot go to
your adversary and say, “You
obtained the judgment by fraud,
and I will have a rehearing of
the whole case” until that fraud
is established. The thing must
be tried as a distinct and
positive issue; “you” the
Defendants or “you” the
Plaintiff “obtained that
judgment or decree in your
favour by fraud; you bribed the
witnesses, you bribed my
solicitor, you bribed my
counsel, you committed some
fraud or other of that kind, and
I ask to have the judgment set
aside on the ground of fraud.”
That would be tried like
anything else by evidence
properly taken directed to that
issue, and wholly free from and
unembarrassed by any of the
matters originally tried. That
was the old course of the law,
and there seems to be no reason
why that should not be now
followed;”
See also the case of Brutuw v
Aferiba [1984-86] 1GLR 25.
Plaintiff was therefore within
his rights to institute this
suit seeking to set the judgment
aside on grounds of fraud, but
then it is only the fraud that
could be relied upon and no
other ground. There is a
tendency by litigants to use the
cover of allegation of fraud
against a judgment to get a
court of co-ordinate
jurisdiction to question the
validity of a judgment of a
sister court but the courts have
to be firm in disallowing that
course of proceeding. The policy
rationale is not difficult to
see for, if the validity of
judgments and orders of superior
courts can easily be questioned
in a court of co-ordinate
jurisdiction next door, except
on grave grounds such as fraud,
litigation will be unnecessarily
protracted and the effectiveness
of judgments of the superior
courts will suffer.
Plaintiff in this case was not
without remedy when the Lands
Officer wrote to inform him of
the cancellation of his
document. He could have filed
the appropriate processes before
the same High Court in the same
suit and asked it to set aside
its orders or he could have
applied for prerogative orders
from this court within the time
allowed by the rules of this
court. From the record we do not
find any explanation by
plaintiff for failing to take
any step to seek relief until
about eleven months had passed.
But even now he still has a
pending substantive case to
determine ownership of the land
and that should address his
grievance in a more fundamental
manner.
As far as this appeal is
concerned, our judgment is that
the High Court was not competent
to determine the grounds other
than the allegation of fraud on
which plaintiff prayed it to
declare the orders of 30th
July,2008 null and void. The
circumstances in the cases of
Ex parte Orgle Estate Ltd and In
Re Ashalley Botwe Lands are
different from this case as the
trial courts in those cases were
competent to hear the claims
filed before them. Plaintiff’s
claims apart from the fraud
placed before the High Court in
this case were misconceived and
ought not to have been
entertained by the trial court.
We accordingly dismiss ground B
of the appeal.
Since we have already held that
the evidence on record does not
establish fraud, we do not
consider it necessary to decide
ground C of the appeal. The
appeal in its entirety is
dismissed.
(SGD) G. PWAMANG
JUSTICE OF THE SUPREME
COURT
CONCURRING OPINION
GBADEGBE JSC:
I
wish by way of a few words to
commenton some of the reliefs
claimed by the plaintiff in the
trial High Court, which in my
view raise issues of
considerable importance to civil
procedural law. A careful
examination of reliefs (b) to
(e) of the endorsement to the
writ of summons and referred to
in extensor by the learned
justice of the Court of Appeal
whose judgment we are concerned
with in these proceedings
reveals that the plaintiff
though not a party to the action
that resulted in the order of
July 31, 2008 must have felt
aggrieved by the orders made as
they affected him and indeed,
affected his interest. Reference
is made in this regard to the
statement of claim filed on his
behalf in the trial court at
pages 2- 4 of the record of
appeal. In paragraphs 8, 9 and
10 it was asserted on his behalf
as follows:
“8. Sometime in October 2008 the
plaintiff received a letter
dated 17th day of
September, 2008 informing him
that he had been ordered by the
Cape Coast High Court to expunge
the recorded transaction of
plaintiff document No 543A/98 at
his Commission and had already
complied.
9.
Upon receipt of said letter from
the 7th defendant the
plaintiff found that the Cape
Coast High Court in Suit No
E9/33/06 has made an order dated
31st day of July 2008
to the effect that any recorded
transaction of plaintiff at the
Lands Commission Cape Coast
among others be expunged upon
application by 1stto
6thdefendants.
10. The plaintiff says that he
was never served with any of the
processes with or heard in Suit
No E9/39/06 which resulted in
the order expunging plaintiff
recorded transactions at the
Lands Commission (i.e. the order
that negatively affect
plaintiff).”
Quite frankly, from the above
pleadings, the plaintiff felt
affected adversely and or
aggrieved by the orders made by
the trial court on 31 July 20008
in an action to which he was not
made a party. It being so, in my
opinion he ought to have applied
to the Court of Appeal in its
inherent jurisdiction alleging
the facts alluded to in the
paragraphs referred to in his
statement of claim for leave to
be enabled to appeal from the
said judgment. The practice of
the court in such situations in
which a person not being a party
to an action is faced with a
judgment that affects his
interest and or from which he is
aggrieved is not to appeal as of
right but subject to the leave
of the appellate court to be
obtained upon an ex parte
application. See: (1)
Duncome v Davey
(1887), 3 TLR 359: (2) Re
Securities Insurance Co
[1894] 2 Ch 410; (3) Re
Markham; Markham v
Markham (1880) 16
CH. D, 1. In his judgment in Re
Securities Insce Co (supra),
Lindley, LJ observed as follows:
“… I understand the practice to
be perfectly well settled that a
person who is a party can appeal
(of course within the proper
time) without any leave, and
that a person who is either
bound by the order or is
aggrieved or prejudicially
affected by it cannot appeal
without leave. It does not
require much to obtain leave. If
a person alleging himself to be
aggrieved by an order can make
out even a prima facie case why
he should have leave he will get
it; but without leave he is not
entitled to appeal.”
It
seems to me that such an
aggrieved party may also apply
under Rule 7 of the Court of
Appeal Rules for directions as
the situation that confronts him
by virtue of the judgment of 31
July 2008 is not expressly
provided for by the Court of
Appeal Rules. It does not appear
that the mere fact that by the
judgment which was entered in
the action on which his claim is
based, some orders were made
affecting him are sufficient to
create a cause of action in him
to seek redress in the manner
that he chose to as evinced by
the issue of the writ of summons
herein. The overriding principle
in instances of non-joinder is
that the action is not thereby
defeated as contained in rule
5(1) of order 4 of the High
Court (Civil Procedure) Rules,
2004, CI 47 in the following
words:
“No proceedings shall be
defeated by reason of misjoinder
or non- joinder of any party;
and the Court may in any
proceeding determine the issues
or questions in dispute so far
as they affect the rights and
interests of the persons who are
parties to the proceedings”
I
think that he could in the
absence of an appeal have
pursued the matter by means of
public law redress in the nature
of judicial review.
Where a person not being a party
to an action seeks leave from
the appellate court to appeal,
the standard required to be
satisfied by the court is
whether the interest of the
party who seeks leave is such
that he might have been made a
party to the action. Indeed, in
the case of Re Markham,
(supra), the question
that arose for determination was
whether the assignee of the
interest of a beneficiary under
a residuary estate who was not
made a party to a judgment in an
administration action can appeal
from the decision. See also: (1)
Crawcour v
Salter (1882), 30 W. R.
329.
In
my view, the said reliefs were
improperly filed and I am
surprised that neither the
learned trial judge nor trial
court nor the learned justices
of the Court of Appeal adverted
their minds to this obvious
lapse in procedure. I venture to
say that in particular as regard
appellate justices, their
jurisdiction is corrective in
nature and they must in the
proper discharge of their
function interrogate processes
before them beyond that of the
court qua quo. It also seems to
me that in view of the first
relief which sought an order
setting aside the judgment of 31
July, 2008 on grounds of fraud,
if the facts on which the
allegation of fraud was raised
was well within the strict
requirements of the practice
relating to its pleading were to
be established in the action,
the result would be the
avoidance of the said judgment
together with the orders made
thereunder and consequently
there will be nothing to cause
the plaintiff to be aggrieved in
respect of the said orders as
they will sequentially crumble.
The learned justices of Court of
Appeal correctly expounded the
law on the matter at page 663 of
the record of appeal on which
this re-hearing is based.
It was for these reasons that I
thought it fit to express these
comments by way of future
guidance and they are not
intended in the least to
diminish the effect of the lead
judgment of my esteemed brother
Pwamang JSC with which I am in
agreement.
(SGD) N. S. GBADEGBE
JUSTICE OF THE SUPREME
COURT
(SGD) V. J. M. DOTSE
JUSTICE OF THE SUPREME
COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME
COURT
(SGD) V. AKOTO – BAMFO (MRS)
JUSTICE OF THE SUPREME
COURT
COUNSEL
FOSU GYEABOUR ESQ. FOR
THE PLAINTIFF/APPELLANT/
APPELLANT.
DICK ANYADI ESQ. WITH HIM EDWARD
BRAKU BOADU AND VICTOR HACKMAN.
FOR THE DEFENDANTS/RESPONDENTS/
RESPONDENTS EXCEPT THE 7TH
DEFENDANT |
