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Chieftaincy - Judicial Committee
of Regional House of Chiefs -
jurisdictional - Wether or not
an appeal is by way of rehearing
- Wether or not appellate court
can affirm the judgment for
different reasons. - Wether or
not the action is a cause or
matter affecting chieftaincy -
HEADNOTES
The
Plaintiff/Appellant/Appellant
(Appellant) on 18th
of October, 2012 issued a writ
of Summons with statement of
claim at the High Court against
defendant/ Respondent/
Respondent (Respondent”) for a
declaration that the judgment of
the Judicial Committee of the
Central Regional House of Chiefs
in so far as it purportedly made
a finding of fact that the High
Court and the Court of Appeal
upheld as raising issues
estoppels against the party the
issue was determined against and
privies without giving the
Ayirebi Acquahs and for that
matter the Tumpa Anona Family
members the right of hearing
breached the principles of
natural justice. and an order to
set aside the judgment of the
Judicial Committee of the
Central Regional House of Chiefs
that purported to determine
issues that directly affect the
interest of the Ayirebi Acquahs
and the Tumpa Anona Royal Family
of Winneba without giving the
family a hearing. Respondent
filed application before the
trial court to dismiss the suit
on the ground that it was a
matter affecting chieftaincy.
the learned judge dismissed the
suit on the grounds that it was
an abuse of process but not that
it was a matter affecting
chieftaincy Being aggrieved of
the ruling, Appellant filed
appeal before the Court of
Appeal the Court of Appeal
dismissed the appeal and
affirmed the ruling of the High
Court
HELD :-
So it can be said that the Court of
Appeal should not decide in
favour of an appellant on a
ground not put forward by him
unless the court is satisfied
beyond doubt, first, that it has
before it all the facts or
materials bearing upon the
contention being taken by it
suo motu; and
secondly, that the point is such
that no satisfactory or
meaningful explanation or legal
contention can be advanced by
the party against whom the point
is being taken even if an
opportunity is given him to
present an explanation or legal
argument; for example, void
matters as in this case.”Having
examined the record of
proceedings we find that the
issue that the suit was a matter
affecting chieftaincy was an
unanswerable jurisdictional
point. The judgment is supported
by the record and we find no
reason to disturb it.
The appeal is without
merit and it is therefore
dismissed.
DISSENTING OPINION
STATUTES REFERRED TO IN JUDGMENT
Supreme Court (Court of Appeal)
Rules 1962 (LI 218)
CASES REFERRED TO IN JUDGMENT
Koglex Ltd (No. 2) V Field
[2000] SCGLR 175,
Tuakwa v Bosom [2001-2002] SCGLR
61
Oblie & 2 Others v Lancaster
[2014] 73 G.M.J. 140
Tindana (No. 2) v
Chief of Defence Staff &
Attorney-General (No. 2) [2011]2
SCGLR 732,
Akufo-Addo v Catheline (1992)1
GLR 377
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
ADINYIRA
JSC:
COUNSEL
JAMES
AHENKORAH ESQ. FOR THE
PLAINTIFFS/ APPELLANTS
/APPELLANTS
REPHAEL
ALIJINA ESQ. FOR THE
DEFENDANTS/RESPONDENTS
/RESPONDENTS
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JUDGMENT
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ADINYIRA JSC:
The
Plaintiff/Appellant/Appellant
(Appellant) on 18th
of October, 2012 issued a writ
of Summons with statement of
claim at the High Court against
defendant/ Respondent/
Respondent (Respondent”) for the
following reliefs:
(a)
A declaration that the
judgment of the Judicial
Committee of the Central
Regional House of Chiefs in so
far as it purportedly made a
finding of fact that the High
Court and the Court of Appeal
upheld as raising issues
estoppels against the party the
issue was determined against and
privies without giving the
Ayirebi Acquahs and for that
matter the Tumpa Anona Family
members the right of hearing
breached the principles of
natural justice.
(b)
An order to set aside the
judgment of the Judicial
Committee of the Central
Regional House of Chiefs that
purported to determine issues
that directly affect the
interest of the Ayirebi Acquahs
and the Tumpa Anona Royal Family
of Winneba without giving the
family a hearing.
(c)
Cost.
On 9
November, 2012, Respondent filed
application before the trial
court to dismiss the suit on the
ground that it was a matter
affecting chieftaincy.
The
Appellant resisted the
application by filling affidavit
in opposition. Counsel for the
parties filed written addresses
for hearing of the application.
On the 17
June, 2013, the learned judge
dismissed the suit on the
grounds that it was an abuse of
process but not that it was a
matter affecting chieftaincy as
raised by the Defendant. Being
aggrieved of the ruling,
Appellant filed appeal before
the Court of Appeal on the 18th
day of July, 2013 against the
ruling.
On the 12
June, 2014, the Court of Appeal
dismissed the appeal and
affirmed the ruling of the High
Court dismissing the suit but on
grounds of jurisdiction that the
suit was a matter affecting
chieftaincy. The Court held:
“All the other grounds of appeal
raised by the plaintiff are
without merits and they should
fail. Jurisdiction goes to the
root of the suit and once there
is no jurisdiction we shall
affirm the conclusion by the
trial judge dismissing the suit
but with different reasons
stated in the judgment.”
On the
13th day of August,
2014, Appellant filed the
instant appeal against the
judgment of the Court of Appeal
on 3 grounds. However in his
statement of case filed on 20
October, 2014, Counsel for the
Appellant argued only the first
ground of the appeal stating he
abandoned the two grounds
because the one ground is
sufficient to dispose of the
appeal.
That
ground argued by Counsel for
Appellant was couched thus:
“The Court of Appeal misdirected
itself when it invoked the
principle that an appeal is by
way of rehearing to raise a
point by itself and dismiss the
appeal without giving the
parties opportunity to be heard
on that ground.”
The
Appellant submits in dismissing
the appeal for the reason that
the suit was a matter affecting
chieftaincy, the Court of Appeal
failed to hear the parties or
their counsel on that issue. He
contends that the Court of
Appeal wrongly invoked and
misapplied the principle that
appeal is by way of rehearing in
dismissing the appeal.
His Counsel referred to the Court of
Appeal Rules, 1977, C.I. 19,
rule 8. sub-rules 1, 2, 5, 7
and 8 that states:
(1)
Any appeal to the Court
shall be by way of rehearing
and shall be brought by a notice
referred to these Rules as ‘the
notice of appeal’,
(2)
The notice of appeal shall
be filed at the Registry of the
Court below and shall
(a)
set out the grounds of
appeal;
(5) The grounds of appeal
shall set out concisely and
under distinct heads the ground
upon which the appellant intends
to rely at the hearing of the
appeal.
(7) The appellant shall
not, without leave of the Court,
urge or be heard in support of
any ground of objection not
mentioned in the notice of
appeal, but the Court may allow
the appellant to amend the
grounds of appeal upon such
terms as the Court may think
just.
(8) Notwithstanding
sub-rules (4) to (7) of this
rule, the Court in deciding the
appeal shall not be confined to
the grounds set out by the
appellant but the Court shall
not rest its decision on any
ground not set out by the
appellant unless the respondent
has had sufficient opportunity
of contesting the case on that
ground.
Counsel
in addressing the above rule
submitted that:
“The rehearing occurs when the
appeal court is listening to
arguments by counsel for the
parties. That is supposed to be
the rehearing because the
parties are expected to argue
appeal points of fact or law
which arise on the face of the
record and leave them for the
court’s determination, whether
or not that point was argued at
the court below. Besides that,
the appellate court itself may
raise any point of law or fact
arising on the record for the
parties to argue though not
raised by the parties. Having
heard the parties on the points
so raised by the parties and the
appellate court itself, the
court will then proceed to
consider the points argued and
give judgment. In this way, in
the days when appeals were heard
by oral argument, the bench
would intercede to draw
attention to relevant points of
fact or law appealing on the
record and necessary for
determination of the appeal not
raised by the parties and
invited the parties to address
it. That is the process of
rehearing.”
Counsel
complained that: The Court of
Appeal did not follow the above
rules and that:
“[I]n its judgment the Court of
Appeal based itself on some
other points to dismiss the
appeal without giving the
parties any opportunity to be
heard. It did that under the
pretext that the appeal was by
way of rehearing. It is this
that provoked the plaintiff to
appeal to the Supreme Court“
With due
respect to learned Counsel for
the Appellant, we think
Counsel’s understanding of the
principle that an ‘appeal is by
way of rehearing’ is completely
misconceived.
Counsel
for the Respondent rather
correctly explained what it
means by ‘an appeal is by way of
rehearing’. He said:
“[I]t is clear that Counsel for
Appellant misapplied the
principle. He failed to draw a
distinction between the process
of hearing the appeal itself
where the bench may invite
parties or their counsel to
address the court on points
raised by the parties, by
counsel, or by the court, on one
hand, and the principle that
appeal is by way of rehearing.
The principle simply means that
the appellate court in coming to
its judgment examines relevant
piece of evidence on the record
including the exhibits, oral or
written submissions of counsel,
to ascertain whether the trial
court below or the first
appellate court below was
justified in arriving at a
finding of fact or law in the
judgment.”
There is
a host of jurisprudence on point
that an appeal at whatever stage
is by way of rehearing as every
appellate court has a duty to
examine the record of proceeding
by scrutinizing pieces of
evidence on record and ascertain
whether the decision is
supported by the evidence. In
that respect the appellate court
can draw its own inferences from
the established facts and in
arriving at its judgment, the
appellate court can affirm the
judgment for different reasons
or vary it.
In the
case of Koglex Ltd (No. 2) V
Field [2000] SCGLR 175, at
185 of the Supreme Court held
that:
“The very fact that the first
appellate court had confirmed
the judgment of the trial court
does not relieve the second
appellate court of its duty to
satisfy itself that the first
appellate court’s judgment is,
like the trial court’s, also
justified by the evidence on
record. For, an appeal, at
whatever stage, is by way of
rehearing; and every appellate
court has a duty to make its own
independent examination of the
record of proceedings”
In the
case of Tuakwa v Bosom
[2001-2002] SCGLR 61, this court
held that appeal is by way of
re-hearing and the appellate
court has power to review the
evidence and ascertain whether
the decision of the trial court
is supported by the evidence on
record.
It is
also the law that after
scrutinizing pieces of evidence
on record and in arriving at its
judgment, appellate court can
affirm the judgment for
different reasons. In Oblie
& 2 Others v Lancaster
[2014] 73 G.M.J. 140, it was
held that where a trial judge
arrived at the right decision
but gave wrong reasons, an
appellate court can substitute
its own right reasons to support
the decision reached by the
trial judge. The reason is that
appeal is by way of rehearing.
In the
Koglex (No. 2) Case (supra),
the Supreme Court held at page
184 of the report as follows:
“On the other hand, where the
findings are based on
established facts, then the
appellate court is in the same
position as the trial court and
can draw its inferences from the
established facts.”
In the
instant appeal the Court of
Appeal examined the record and
came to the conclusion that the
suit was a matter affecting
chieftaincy. We hold that the
Court of Appeal correctly
applied the principle that
appeal is by way of rehearing in
arriving at its judgment.
On the
complaint that the Court of
Appeal failed to hear the
parties on the issue of whether
the suit was a matter affecting
chieftaincy, we can see from the
record that the jurisdictional
point was first raised in the
High Court by the Respondent,
then defendant by way of a
motion and supporting affidavit
and some exhibits. Counsel for
the Appellant also filed an
affidavit in opposition with
relevant documents. At the
instance of the Court, Counsel
for the parties then filed
written submissions in support
of their respective positions on
the Respondent’s contention that
the High Court had no
jurisdiction to entertain the
appellant’s action because it
was a cause or matter affecting
chieftaincy. All these documents
formed part of the record that
was scrutinized by the Court of
Appeal in arriving at the
judgment.
Counsel
for the appellant further
submitted, thus:
“If the Court of Appeal was of
the view that what the High
Court decided was wrong, it had
every opportunity, since the
appeal was by way of rehearing,
to raise the point suo motu
at the hearing stage and invite
the parties to re-argue the
point so that the point could be
reconsidered in its judgment to
decide that in law the action is
a cause or matter affecting
chieftaincy”
By these
submissions it is apparent
Counsel merely wants a chance to
reargue this same point that had
been thoroughly argued before
the High Court. We do not think
the trial at the High Court is a
dress rehearsal to be repeated
at the Court of Appeal. We are
of the view that the Appellant
is merely showing his
dissatisfaction with the
judgment without raising
anything germane.
In any
event, in the case of Tindana
(No. 2) v Chief of Defence Staff
& Attorney-General (No. 2)
[2011]2 SCGLR 732, which was
cited by both the Court of
Appeal and Counsel for
Respondent in his statement of
case, this Court held at page
743 of the report as follows:
“It is trite learning that a
court adjudicating any matter
might raise a point of law on
its own motion. In these
proceedings, the point of law
raised was jurisdictional. In as
much as we agree with learned
counsel that the court ought to
have offered the parties the
opportunity to address it on the
point raised… the point raised
was clearly unanswerable to
admit of any legal argument.
Under the circumstances, it
would therefore have been an
exercise in futility for counsel
on both sides to address the
court on the point raised.”
Also, in
Akufo-Addo v Catheline
(1992)1 GLR 377, this court held
at page 392 of the report as
follows:
“Therefore in applying the
proviso to rule 8(6) of L.I 218
care must be taken that we do
not in the process give an
interpretation which will
inhibit or stultify the rule
that an appeal before the Court
of Appeal “shall be by way of
rehearing.” The proviso cannot,
in my view, be said to imply an
absolute prohibition. In
certain special or exceptional
circumstances, the proviso will
not apply. So it can be said
that the Court of Appeal should
not decide in favour of an
appellant on a ground not put
forward by him unless the court
is satisfied beyond doubt,
first, that it has before it all
the facts or materials bearing
upon the contention being taken
by it suo motu;
and secondly, that the point is
such that no satisfactory or
meaningful explanation or legal
contention can be advanced by
the party against whom the point
is being taken even if an
opportunity is given him to
present an explanation or legal
argument; for example, void
matters as in this case.”
Having
examined the record of
proceedings we find that the
issue that the suit was a matter
affecting chieftaincy was an
unanswerable jurisdictional
point. The judgment is supported
by the record and we find no
reason to disturb it.
The
appeal is without merit and it
is therefore dismissed.
The
judgment of the Court of Appeal
is affirmed.
(SGD) S. O. A.
ADINYIRA (MRS)
JUSTICE OF THE
SUPREME COURT
(SGD) V. J.
M. DOTSE
JUSTICE OF THE SUPREME
COURT
(SGD) P. BAFFOE BONNIE
JUSTICE OF THE SUPREME
COURT
(SGD) N. S.
GBADEGBE
JUSTICE OF THE
SUPREME COURT
(SGD) J. B. AKAMBA
JUSTICE OF THE
SUPREME COURT
COUNSEL
JAMES
AHENKORAH ESQ. FOR THE
PLAINTIFFS/ APPELLANTS
/APPELLANTS
REPHAEL
ALIJINA ESQ. FOR THE
DEFENDANTS/RESPONDENTS
/RESPONDENTS
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