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Land - Property - Terms of
settlement - Whether
parties submitted themselves to
an amicable out of court
arbitration and arrived at a
settlement - Whether or not the
registrar of the High can issued
a hearing notice to the parties
to attend court for a hearing
when there was no pending
proceedings in the court when no
motion had been filed and do not
find a letter applying for the
hearing notice to issue. -
whether appellant was indeed
the head of the Gyandodey Anona
family
HEADNOTES
The
facts relevant for the
determination of this appeal are
not in dispute. By a writ of
summons filed in the High Court,
Agona Swedru on 31st December,
2002 the
plaintiff/respondent/respondent,
to be called the respondent,
sued Opanyin Kwadwo Ababio of
Awutu claiming that a parcel of
land at Aboansa in the Central
Region is the property of Anona
Chochoe family of Awutu and for
perpetual injunction. The
Defendant filed a defence and
counterclaimed for a declaration
that the land was the property
of Gyandodey Anona family of
Awutu. Though the two families
have a common origin, they each
claimed exclusive ownership of
the disputed land.-
HELD :-
In conclusion, we allow the appeal and
set aside the ruling of the High
Court dated 27th October, 2015
and the judgment of the Court of
Appeal dated 27th June, 2016. We
restore the judgment of Senyo
Dzamefe J dated 22/12/04. The
appellant in his amended notice
of appeal prayed the court to
make orders in relation to the
substitution of the original
defendant in this case but we
decline that prayer. Those
orders were not made as part of
the application that is on
appeal before us. Similarly we
decline to make changes in the
terms of settlement filed on
20/12/04 since the court has no
authority to change the
agreement of the parties,
without going through the
appropriate legal processes
STATUTES REFERRED TO IN JUDGMENT
High Court (Civil
Procedure) Rules, 2004 (C.I.
47). Order 19 Rules 1 and 2
CASES REFERRED TO IN JUDGMENT
Lamptey v Hammond
[1987-88] 1 GLR 327
Bozson v Altrincham Urban
Council [1903] 1 K.B. 547
Ababio v. Turkson (1950)
13 W.A.C.A. 35
Mosi v Bagyina [1963] 1
GLR 337
Craig v. Kanseen [1943] 1
K.B. 256, C.A.;
Forfie v. Seifah [1958]
A.C. 59, P.C.;
Amoabimaa v. Badu (1957) 2
W.A.L.R. 214,
W.A.C.A.; Concession
Enquiry No. 471 (Ashanti) [1962]
2 G.L.R. 24, S.C.,
Ghassoub v. Dizengoff
[1962] 2 G.L.R. 133, S.C.
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
PWAMANG, JSC:-
COUNSEL.
SAMUEL KOJO ANDREW FOR THE
DEFENDANTS/APPELLANTS/APELLANTS.
PAA KOJO ANAN FOR THE
RESPONDENTS/RESPONDENTS/RESPONDENTS.
PWAMANG, JSC:-
Before the court is an
appeal against the judgment of
the Court of Appeal dated 27th
June, 2016. The facts relevant
for the determination of this
appeal are not in dispute. By a
writ of summons filed in the
High Court, Agona Swedru on 31st
December, 2002 the
plaintiff/respondent/respondent,
to be called the respondent,
sued Opanyin Kwadwo Ababio of
Awutu claiming that a parcel of
land at Aboansa in the Central
Region is the property of Anona
Chochoe family of Awutu and for
perpetual injunction. The
Defendant filed a defence and
counterclaimed for a declaration
that the land was the property
of Gyandodey Anona family of
Awutu. Though the two families
have a common origin, they each
claimed exclusive ownership of
the disputed land.
After Summons for
Direction were filed the parties
submitted themselves to an
amicable out of court
arbitration and arrived at a
settlement. They filed the
minutes of the arbitration in
the High Court and prayed the
court to adopt it as judgment in
the suit. The trial judge, Senyo
Dzamefe J (as he then was)
directed them to file proper
terms of settlement which could
be adopted by the court. They
complied and drew up terms of
settlement based on the out of
court arbitration, had it signed
by the parties and their lawyers
and filed in the court. It was
agreed in the terms of
settlement that the consent
judgment shall be binding on
the parties and their families;
being the Gyandodey Anona Family
and Chochoe Botwey family and
that the families are separate
and distinct. In the terms the
Gyandodey Anona family was
declared the allodial owner of
the disputed land.
On 22nd December, 2004, in
the presence of the parties, the
High Court presided over Senyo
Dzamefe J adopted the terms of
settlement as consent judgment
and made an order of injunction
against Awo Chochoe Botwey
restraining her from further
development of the disputed
land. The trial judge also made
an order for the valuation of a
house Awo Chochoe Botwey was
constructing on the land in
order for the court to make
further orders in respect of it.
The record does not indicate
further proceedings pursuant to
the order for valuation.
It appears not long after
the judgment the respondent
became dissatisfied with the
terms of settlement so on 7th
January, 2005 he caused a
different lawyer, Kojo Anan Esq,
to file a motion on notice
seeking to set aside the consent
judgment and the terms of
settlement. In the affidavit in
support of the said application
the respondent deposed that
though he signed the terms of
settlement he did not agree with
the contents. After a hearing
the court dismissed the
application on 20th July, 2005.
The respondent appealed against
the dismissal of his application
to set aside. The notice of
appeal was filed on 4th August,
2005 and though there was
settlement of records of appeal
respondent did not pursue it.
On 27th October, 2008, in
very unusual circumstances, the
registrar of the High Court,
Agona Swedru issued a hearing
notice to the parties to attend
court for a hearing on 5th
November, 2008. I say very
unusual circumstances because
there was no pending proceedings
in the court, no motion had been
filed and in fact we do not find
a letter applying for the
hearing notice to issue.
Nonetheless, on 5th November,
2008 the parties appeared before
Justice B. O. Tetteh with lawyer
Kojo Anan appearing for the
respondent and no legal
representation for the
defendant. Lawyer Kojo Anan
informed the court that they
were making efforts to revisit
the settlement and they needed
an adjournment. The judge
obliged and adjourned the case.
Thereafter, on 10th December,
2008 minutes of a family
meeting under the chairmanship
of respondent headed "Anona
Chochoe Botwey Family of Awutu
Settlement, Bawjiase 5/12/08"
were filed on the case docket.
The minutes did not state any
terms of settlement of any
matter in dispute between the
parties but only stated that the
defendant made an affidavit in
September, 2008 that he wanted
settlement but even that
affidavit was not attached. This
was highly irregular because
documents that are not court
processes cannot be filed in the
court unless they are exhibited
to an affidavit filed in the
case. The parties appeared
before B.O. Tetteh J again on
13th January, 2009, and he
pointed out to them that only
minutes of a meeting held by the
interested parties was on the
case docket but no terms of
settlement had been filed. The
plaintiff's lawyer responded
that they intended to file terms
of settlement so the case was
further adjourned. Despite the
promise no terms of settlement
were filed. What we find on the
record is another record of
minutes without a suit number,
not addressed to the registrar
of the court and containing no
terms as would normally be
stated in a settlement of a
dispute. That document was dated
30th January, 2009 and filed on
2nd February, 2009. After a
number of adjournments Justice
B. O. Tetteh ruled as follows on
1st June, 2009:
"BY COURT:
Minutes of a meeting dated
5/12/08 have been filed.
Parties have asked the
court to adopt this minutes as
their terms of
settlement and proceed to enter
consent judgment. In the
spirit of settlement
and peace between the parties
the court has no
objection to the attempts
that have been made (sic) by the
parties themselves.
By consent of the Anona
Chochoe Botwey Family of
Awutu with the sub-title,
settlement. Consent
judgment is now entered.
Judgment within the spirit of
this settlement is now
entered by consent. Suit
struck out as
settled."
On 7th July, 2015 the
applicant/appellant/appellant,
hereafter to be referred to as
the appellant, filed a motion
seeking to set aside the above
judgment of Justice B. O. Tetteh
dated 1st June, 2009. He stated
in the affidavit in support that
he was applying on behalf of the
Gyandodey Anona Family of Awutu
of which he was the head and
that having regard to the
earlier consent judgment of
22/12/04, the order of B.O.
Tetteh was a nullity. The
motion was served on the
respondent and Naache Awo
Chochoe Botwey IV, who
apparently had by then been
substituted for the original
defendant in the suit. They
filed a joint affidavit in
opposition. The High Court,
Agona Swedru presided over by
Peter Dei Ofei J on 27th
October, 2015 dismissed the
application to set aside the
judgment of 1st June, 2009. In
his ruling the High Court judge
stated as follows:
"From the
onset, three very important
observations are hereby made
which will go to the root of
this application. First, the
applicant is not
a party to the suit. Secondly,
the applicant's family is also
not a party and since this
consent judgment was
entered on 1st June, 2009, the
Gyandodey family has
never applied to join the
suit as a party. Thirdly and
very important, the procedure
adopted to set aside the
consent judgment is
unknown in law."
In sum, those were the
grounds upon which the High
Court dismissed the application.
Appellant appealed to the Court
of Appeal and though they
expressed dissatisfaction with
the manner the case had been
handled and even set aside
certain parts of the ruling of
Peter Dei Ofei J where he made
findings of fact without
evidence, they nevertheless
dismissed the appeal. They gave
the following as the grounds
upon which they determined the
appeal:
"The issue
of the capacity of the
Applicant/Appellant herein, NAI
KOJO ADU II as well as
the mode he adopted to obtain
the relief he sought from the
court, namely, an order to set
aside the consent
judgment entered on 01/06/2009
by B. O. Tetteh J."
On the procedure to be
adopted to apply to set aside
the judgment the Court of Appeal
endorsed the holding of the High
Court that on the authority of
Lamptey v Hammond [1987-88]
1 GLR 327 the Gyandodey
family was not party to the case
and being a stranger it ought to
have issued a writ of summons
to set aside the judgment. On
the issue whether the appellant
had the capacity of Head of
Gyandodey family in which
capacity he applied to the court
the Court of Appeal said that
issue cannot be determined on
affidavits alone but through
evidence in an appropriate
forum.
Being aggrieved, the
appellant has appealed to this
court as the final court. Having
perused the whole record and
examined closely the grounds of
the appeal it is clear to us
that both the High Court and the
Court of Appeal did not give
sufficient consideration to the
issue of the legality of the
proceedings conducted by B. O.
Tetteh J. Before both courts the
appellant argued that that those
proceedings were a nullity but
his submissions on that ground
were not answered. But in our
view, it is only after the court
has determined the status of
the judgment that is sought to
be set aside that it would be
properly placed to decide on the
issues of the procedure to be
adopted in setting same aside
and the requirement of locus
standi. The procedure by which a
non party may set aside a
default judgment is different
from the procedure to be adopted
if the judgment is void or is a
final judgment.
If one takes a close look
at the relieves that were placed
by the respondent before the
court in the writ of summons
that commenced this case, and
even those by the defendant in
his counterclaim, it becomes
clear that the consent judgment
entered by Senyo Dzamefe J
concluded the suit. It was a
final judgment as it
conclusively determined the
rights of the parties in the
subject matter land in
contention between the parties.
See Bozson v Altrincham Urban
Council [1903] 1 K.B. 547.
It is true that the court made
an order for a valuation of a
house to be carried out so that
it could make further orders,
but that did not detract from
the finality of the judgment of
Dzamefe J. The Respondent in his
statement of case in this court
has sought to argue otherwise
and contended that the judgment
was interlocutory. However, as
was held in Ababio v. Turkson
(1950) 13 W.A.C.A. 35, a
final judgment does not mean the
last judgment, but the judgment
determining rights finally, such
as a judgment establishing the
liability to account and
directing accounts to be taken.
It therefore appears to us that
there was nothing for B. O.
Tetteh J to sit over unless to
make the consequential orders
after the valuation.
Furthermore, as has been
pointed out earlier in this
judgment, there was no valid
legal process that invoked the
jurisdiction of B. O. Tetteh J
to hold proceedings in the case
after final judgment had been
given in the matter. The minutes
of the family meeting
subsequently filed in the case
docket on 05/12/2008 is not a
court process. It is completely
unknown to the rules and
procedures of the court and
proceedings in court cannot be
conducted any how without regard
to the practice and procedures
of the court. The High Court
registrar in this case was not
alive to his duties. It
undermines the integrity of the
adjudication process for parties
to throw documents into court
dockets without regard to the
practice of the court. Meanwhile
it is that document that B. O.
Tetteh J purported to adopt as
consent judgment. A close
reading of those minutes at page
78 of the record does not show
the defendant agreeing to a
revision of the terms of the
consent judgment of 22/12/04. In
fact no mention is made of those
terms in the minutes adopted by
the judge and there are no terms
in those minutes. No legal
rights arise out of those
minutes and it appears to us
that both parties to this case
have been disputing over a non
issue.
The trial judge in his
ruling refusing to set aside the
judgment of B.O. Tetteh J quoted
from the document filed on
2/2/09 but that was not the
document adopted by B.O.Tetteh
J. It is the minutes of the
family meeting dated 5/12/08
that were adopted and they do
not create any enforceable legal
rights that can be adopted as a
judgment. Probably that was why
the judge entered the judgment
in terms of the spirit and not
the letter of those minutes.
This is a judgment which on it
face is vacuous and it takes
only an inspection of the
judgment roll to demonstrate its
want of vitality. It is the type
of judgment that is described as
'a dead limb upon the judicial
tree, which should be lopped
off'. In our respectful opinion,
what took place in the court on
01/06/09 was an absolute nullity
and the judgment is therefore
void.
The question then is what
is the procedure to be adopted
to apply to a court to set aside
its own void order. The locus
classicus in this area of the
law in Ghana is Mosi v
Bagyina [1963] 1 GLR 337 and
it is still good law. We wish to
set out the facts and holding of
the Supreme Court as in the
headnote of the law report;
"The respondent who had
obtained judgment in the native
court for possession of certain
land, applied to the High Court
on a motion ex parte "for an
order of this court for writ of
possession to be issued for the
enforcement of the [native
court] judgment." A writ of
possession was subsequently
issued out of the High Court by
Mr. Commissioner Christian and
executed in September 1959.
In December 1960, the
appellant applied to High Court
by motion on notice asking that
the writ of possession be set
aside on the grounds that (1)
under Order 47 it was irregular
because it was obtained ex parte
and (2) the High Court had no
jurisdiction to order issue of
the writ because the decree for
possession was made by the
native court. Crabbe J. refused
the application holding that,
"If this is an appeal from the
decision of the Commissioner of
Assize and Civil Pleas then the
High Court has no jurisdiction
to entertain such appeal. If it
is an application for a review
of Mr. Christian's order . . .
Then the applicant is out of
court because under Order 39, r.
2 such application should be
made to the same judge who made
the order." The appellant
appealed from Crabbe J.'s
ruling.
Held, allowing the appeal:
(1) the High Court acts
under Order 47 only where,
either in its original or in its
appellate jurisdiction, it has
itself made an order or given a
judgment for the recovery or
delivery up of possession. The
High Court does not decree or
order possession or give
judgment for the recovery or
delivery up of possession where
it, in its appellate
jurisdiction, merely affirms a
decree or order or judgment for
possession made by a lower
court. It follows therefore
that Mr. Commissioner Christian
sitting in the High Court,
Sunyani, had no jurisdiction to
order the issue of the writ of
possession, and the order was
therefore void.
(3) The application before
Crabbe J. was neither in the
nature of an appeal nor one that
called for the exercise of
appellate jurisdiction and it
was also not an application for
a review. It was an application
for the court to exercise its
inherent jurisdiction to set
aside an order which is void.
(4) Where a judgment or an
order is void either because it
is given or made without
jurisdiction or because it is
not warranted by any law or rule
or procedure, the party affected
is entitled ex debito justitiae
to have it set aside, and the
court or a judge is under a
legal obligation to set it
aside, either suo motu or on the
application of the party
affected. No judicial
discretion arises here. The
power of the court or a judge to
set aside any such judgment or
order is derived from the
inherent jurisdiction of the
court to set aside its own void
orders and it is irrespective of
any expressed power of review
vested in the court or a judge;
and the constitution of the
court is for this purpose
immaterial. Further, there is
no time limit in which the party
affected by a void order or
judgment may apply to have it
set aside. Craig v. Kanseen
[1943] 1 K.B. 256, C.A.; Forfie
v. Seifah [1958] A.C. 59, P.C.;
Amoabimaa v. Badu (1957) 2
W.A.L.R. 214, W.A.C.A.;
Concession Enquiry No. 471
(Ashanti) [1962] 2 G.L.R. 24,
S.C., and Ghassoub v. Dizengoff
[1962] 2 G.L.R. 133, S.C.
applied.
From the above statement
of the law the procedure of
applying by motion on notice
adopted by the appellant in this
case was proper. Beyond that,
where the order is void as in
this case, no matter how the
court comes by the knowledge of
its existence the court on its
own motion is required to set
same aside. The policy of the
law is to deny void orders the
coercive authority of the court
or accord them legality as that
would turn the court into an
instrument of injustice.
The lower courts concerned
themselves with the procedure
whereby a stranger may apply to
set aside a judgment discussed
in Lamptey v Hammond
[1987-88] 1 GLR 327, and
that line of cases but that
procedure is where a default
judgment has been taken and a
stranger to the proceedings who
is affected seeks to set the
default judgment aside and
defend the action. Even in those
cases the summons that is
referred to in the decisions is
application by summons as
distinguished from application
by motion and it is not a
reference to writ of summons.
Having regard to the fact that
our current High Court rules
have done away with applications
by summons that procedure
prescribed in Lamptey v
Hammond would be satisfied
if a stranger filed a motion and
served both the plaintiff and
the defendant praying for leave
to set aside a default judgment
that affected him. In this case
the appellant had his
application to set aside served
on the plaintiff and the
defendant. That appears to be
the intendment of Order 19
Rules 1 and 2 of the High Court
(Civil Procedure) Rules, 2004
(C.I. 47).
Where a direct application
is made to the court that made a
void order praying for the order
to be set aside, the only locus
that needs to be proved by an
applicant is that he stands to
be affected by the order. He
does not necessarily need to be
a party to the proceedings in
which the order was made. If the
court upon knowledge of the
voidness of its order can set
same aside by itself then what
use will be served by insisting
that the applicant has to be a
party. In this case the
appellant in his affidavit in
support of the application to
set aside the order of B. O.
Tetteh deposed that the
Gyandodey Anona family of which
he is the head stood to be
affected by the order of B. O.
Tetteh J as it appeared to
override the consent judgment of
22/11/04 which declared his
family as the allodial owner of
the land in dispute. To that
extent he had locus to apply to
the court to set aside its void
order though he was not a
party.
The next issue is the
question of the capacity of the
appellant and whether he was
indeed the head of the Gyandodey
Anona family or not. The Court
of Appeal was right in saying
that where a party to court
proceedings alleges a certain
capacity and he is challenged,
then he is required to prove it
with evidence. It is equally
correct to say that the
challenge to the capacity of a
party to proceedings can be
raised by the court suo moto.
However, in this case neither
the respondent nor the trial
judge challenged the capacity of
the appellant as Head of Anona
Gyandodey family in the course
of the hearing of the
application to set aside. At
paragraphs 7 and 17 of the
affidavit in opposition to the
motion to set aside in the High
Court, the respondents deposed
as follows:
"7. That
paragraph 8 is admitted as
Applicant's own admission
confirms that he and/or
his Gyandodey Anona family are
not parties to (sic)
the suit.
17. That
paragraphs 22 and 23 are denied
to the extent that Applicant's
Gyandodey Anona family was
....."
The record does not show
that at the hearing of the
application to set aside the
trial judge challenged the
capacity of the appellant and
requested him to provide
evidence to prove same and he
failed to offer proof. It is
clear from the above that the
capacity of the appellant was
admitted by the respondent and
accepted by the trial court. It
was therefore not competent for
the Court of Appeal to raise
that issue in their judgment
when the appellant was no longer
in a position to lead evidence
to prove his capacity.
In our opinion, the
proceedings that were conducted
in this suit after the refusal
of the application to set aside
the judgment of 22/11/04 were
null and void except those
relating to contempt which in
fact constitute a separate and
distinct action. The High Court
was therefore duty bound to set
aside the void judgment of B.O.
Tetteh J dated 1st June, 2009.
In conclusion, we allow
the appeal and set aside the
ruling of the High Court dated
27th October, 2015 and the
judgment of the Court of Appeal
dated 27th June, 2016. We
restore the judgment of Senyo
Dzamefe J dated 22/12/04. The
appellant in his amended notice
of appeal prayed the court to
make orders in relation to the
substitution of the original
defendant in this case but we
decline that prayer. Those
orders were not made as part of
the application that is on
appeal before us. Similarly we
decline to make changes in the
terms of settlement filed on
20/12/04 since the court has no
authority to change the
agreement of the parties,
without going through the
appropriate legal processes
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
W. A. ATUGUBA
(JUSTICE OF THE SUPREME COURT)
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
COUNSEL
SAMUEL KOJO ANDREW FOR THE
DEFENDANTS/APPELLANTS/APELLANTS.
PAA KOJO ANAN FOR THE
RESPONDENTS/RESPONDENTS/RESPONDENTS. |
