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J U D G M E N T
WOOD (MRS) C.J:
On the 25th of
October, 2007, the Judicial
Committee of the National House
of Chiefs dismissed the appeal
from the adjudicating body of
the Western Regional House of
Chiefs, that is’ the Judicial
Committee of the House.
Dissatisfied, the petitioners/
appellants are, by way of an
appeal to this court,
challenging the said decision on
the following grounds:
GROUNDS OF APPEAL
“1. The Judicial Committee of
the National House of Chiefs
erred when they relied on
extraneous matters which did not
form part of the record of
Appeal to deliver their
judgment.
2. The Judicial Committee of
the National House of Chiefs
erred when they held that the
Petitioners/Appellants herein
cannot maintain the present
action as their family member
had sometime ago instituted an
action against some of the
Respondents herein and they
should go to the Judicial
committee of the Regional House
of Chiefs to continue with the
hearing of the matter.
3. The Judicial committee of
the National House of Chiefs
erred when they affirmed the
position taken by the Judicial
committee of the Regional House
of Chiefs that failing to file
reply constitutes an admission
of the averments contained in
the statement of Defence.
4. The Judicial committee of
the National House of Chiefs
erred by affirming the wrong
procedure adopted by the
Respondents by allowing the
Respondents to orally raise a
preliminary objection to the
competence of the petitioners
action.
5. The judgment is against the
weight of evidence on record.”
The facts which triggered the
original action before the
Judicial Committee of the
Western Regional House are not
at all complex. On the 20th
of April 2000, the appellants
filed a petition against the
Respondents before this body for
the following reliefs:
“A) A declaration that the
petitioners are the owners and
Kingmakers of the Royal Sewuah
Paramount Stool of Bamiankor.
B) A declaration that the
purported nomination, election
and enstoolment of Henry Acquah
a.k.a. Angama Tu Agyan without
the knowledge, consent and
authorization of the Petitioners
is null and void and therefore a
nullity.
C) An injunction restraining the
Respondents from nominating,
electing or enstooling any
person as Omanhene of the
Paramount Stool of Bamiankor.
D) An injunction restraining the
4th Respondent from
holding himself out as Omanhene
of Gwira Traditional Area or
performing the functions
associated with that effect.”
The Respondent entered
conditional appearance, on the 4th
of May 2000, a step the
appellant contends is clearly
unwarranted by the procedural
rules governing judicial
proceedings before the
Committees of the Houses of
Chiefs. They did not take any of
the known legal steps which
ordinarily should follow the
entry of conditional appearance
or appearance under protest as
it is alternatively known, and
filed a statement of defence on
the19th of April.
As happens to be the norm for
parties who have filed for
permanent injunctions, the
appellants additionally filed a
motion for an order of interim
injunction. It was at the
hearing of the interlocutory
application, when no memorandum
of agreed issues has been set
down for hearing, that the
respondent successfully raised
an oral preliminary objection
challenging the competency of
the petition on the grounds of
lis alibi pendence. Their case
was that an action for similar
reliefs was pending before the
same forum thus making the
instant action legally
incompetent. The appellants
unsuccessfully opposed the oral
objection; by not only denying
the claim of alibi pendence, but
roundly condemning the practice
and procedure by which the
preliminary legal point was
brought before the tribunal.
They argued strenuously that the
application to have the action
dismissed in limine ought to
have come by way of a motion on
notice strictly disposed of
without resort to any other
extraneous matters.
The Ground 4 of appeal
therefore raises the issue of
whether the preliminary
objection was based on the right
practice and procedure, given
that it was oral rather than by
way of a motion or summons as
envisaged under order 25 rules
2- 4 of the High Court (Civil
Procedure) Rules 1954 (LN140A).
The issue of procedural
impropriety was one of the main
questions raised before the two
lower tribunals, that is, the
two Judicial Committees of the
Houses of Chiefs. The Judicial
Committee of the National Houses
of Chiefs concluded firmly that
from the records, the objection
was not brought specifically
under order 25 rule 2 of the
High Court Civil Procedure
rules. The appellate tribunal
did not address the pertinent
subsidiary issues which informed
the trial committee’s conclusion
that upheld the plea of lis
alibi pendence. They reasoned
that counsel for the respondents
Mr. Ebow Dawson, made no
explicit reference to any
specific rule, let alone the
rule 2. Their further contention
is that counsel only submitted
that he was raising a
preliminary legal objection and
was urging that the entire suit
be dismissed in limine on the
grounds that it was frivolous
and an abuse of the process,
since the same issues were being
litigated in the case of Nana
Akpenu Kapanyila v Awulae
Amankra Panin, before the
Western Regional House. They
based their conclusion that the
action was infact pending on the
results they obtained from a
search they conducted suo moto.
It would have been very easy to
resolve this issue had there
been legislation expressly
providing that in judicial
proceedings before the National
and Regional Houses of Chiefs,
all applications to have
petitions dismissed in limine on
preliminary legal grounds be
governed by the (High Court
Civil Procedure) Rules, 1954
(LN140A). But such is not the
case. Indeed, the Chieftaincy
(National and Regional Houses of
Chiefs) Procedure Rules, 1972,
CI 27, the rules which govern
judicial proceedings before the
judicial committees of the
various Houses of Chiefs,
contains no specific provisions
regulating this type of
application. Does it therefore
mean that, where there are
procedural gaps or lacuna in the
law, and a party in any
proceedings before the Judicial
Committees’, intends to raise a
preliminary legal objection to
have an action dismissed in
limine, as did the respondents
in this instant case, there is
no opportunity available to seek
redress? Certainly not.
In judicial proceedings before
the Judicial Committee, Rule 28
of C1 27 amply caters for all
those causes or matters, and
this includes applications,
whether they be oral or by way
of motions or summons, and in
respect of which there are no
express rules with regard to the
practice and procedure to be
followed. The rule provides:
“28. Where no provision is
expressly made by these Rules or
by any enactment regarding the
practice and procedure to be
followed in any cause or matter
before a Judicial Committee,
that Committee shall follow such
practice and procedure as in the
opinion of the Judicial
Committee the justice of the
cause or matter may require,
regard being had to the
principles of customary law, and
to the practice and procedure of
the High Court of Justice.”
What is the scope of this rule?
These Judicial Committees are
mandated, in the exercise of
discretionary authority, to
formulate the practice or
procedure that should regulate
such causes or matters.
Expectedly, the power must be
exercised judicially not
arbitrarily; and based on sound
reason and policy as
circumscribed by the operative
rule 28. While I concede that
they are not bound by any
intractable or rigid rules, or
unduly hampered by technical
rules of procedure, the practice
and procedure formulated,
according to the rule 28, must
conform to the ordinary notions
of justice and fairplay. In
this regard, the law requires
that the Committee’s decision
must be guided by the principles
of customary law as well as the
practice and procedure of the
High Court. The rule 28 mandates
that the practice and procedure
followed meets the requirements
of indigenous law and custom,
and the High Court practice and
procedure governing the matter
under reference. Certainly, the
dominant requirement in any
given case would be largely
dependent on the particular
cause or matter under
consideration. As a general
rule, I should think that given
the policy reasoning underlying
the conferment of jurisdiction
in chieftaincy disputes on
traditional bodies, greater
weight must necessarily be given
to the principles of customary
law, where a purely customary
matter is under consideration.
On the other hand, I think the
procedural rules of the High
Court must guide the choice of
practice and procedure, where
purely legal objections or steps
known to conventional civil
proceedings, happens to be the
matter for consideration.
The legitimate legal question is
this: Does this court have power
to interfere with the
committee’s decision of the
particular practice or procedure
to follow in any given cause or
matter? I should think so; if
only the circumstances justify
such interference. I think
that the mere fact that they
have been clothed with authority
to formulate the practice and
procedure in certain instances,
does not take away the power of
an appellate court to overturn
their decision. The
circumstances under which an
appellate court would interfere
with the exercise of a
discretionary jurisdiction is so
well settled, it admits of no
controversy. The more recent
case of Sappor v Wigitap
[2007-2008] SCGLR 677
sets out the legal parameters
for interference. We observed
that:
“An appellate court would
interfere with the exercise of
discretion where the court below
applied wrong principles or the
conclusions reached would work
manifest injustice or that the
discretion was exercised on
wrong or inadequate material.
Arbitrary, capricious and
uninformed conclusions stand in
danger of being reversed on
appeal.”
Indeed, an appeal being by way
of a rehearing, clothes us with
power to determine whether in
this instant case, the appellate
committee was right in its
conclusion that an oral
application was the proper
procedure to follow. So
clearly, we would have power to
overturn this decision if we are
satisfied that wrong principles
of law has been applied or that
the choice of practice and
procedure did not conform to the
requirements of the law as I
have tried to explain it.
To come to a proper decision, I
am not unmindful of the general
principles which govern appeals
against the exercise of
discretionary power as clearly
outlined in the long line of
cases in our jurisprudence,
namely that this is not an
appeal from the discretion of
the committee to this court.
It seems to me that both the
trial and appellate committees,
with all due deference, missed
the substance of the important
procedural question which arose
for determination. The
controversy was not so much
about the timing of the process,
as about the propriety of the
procedure employed to have the
entire action dismissed in
limine and the mode by which the
fundamental issue of the plea of
lis alibi pendence was
determined. No blame can be
attached to the Honourable
members of the Committee. This
was a purely legal exercise
under the guidance of the
Committee’s counsel, a legal
practitioner who was expected to
bring his legal expertise to
bear on all legal matters which
rear up their heads before these
traditional tribunals. The
committee respectfully,
erroneously limited themselves
to only the submissions made by
counsel on both sides of the
legal divide, without proceeding
to independently determine from
the records the substance of the
application before it. This in
my view perhaps explains why
they identified the following as
the issue for determination “was
whether or not the objection so
raised was under Order 25, rule
2 or a preliminary legal point”,
as if to say that prelimnary
legal points cannot be taken
under Order 25 r 2. Indeed it
was from this fundamental
mistaken view that they
observed:
“Before we delve into the issue
whether or not Order 25 rule 2
applies in the instant case, it
is incumbent to refer to the
proceedings of the 28th
of August, 2002 at page 11 of
the Record where the said
preliminary objection to dismiss
the petition in limine was
raised. From the Record, Mr.
Ebow Dawson for the Defendants
in the trial Committee intimated
that he was raising a
preliminary objection on the
whole petition and moved that
the same be dismissed as
“frivolous and an abuse of
process.” Counsel for the
Petitioner, Mr.
Abaka then countered that there
was no order which entitled him
(Dawson) to an application as to
the frivolity or otherwise of
the application.
We have taken pains to dilate
the antecedents of this matter
for obvious reasons and from
this scenario, it is our view
that the preliminary objection
thereby raised by the Counsel
was not made under Order 25 rule
2 as contended by Petitioners
Counsel. Rather, it was Counsel
for the Petitioners who
introduced the said order into
the proceedings. The Record
further shows that when Counsel
insisted that the Petitioners
comply with the order, Dawson
for the Defendants soundly
denied and instead strenuously
maintained that he was merely
coming by preliminary point of
law. Abaka for the Petitioners
at this point agreed, but added
that “It is for the Judge to
find out if there is point of
law.”
In our view, the issue for the
determination by the trial
Committee was whether or not the
objection so raised was made
under Order 25 rule 2 or a
preliminary legal point. For the
reasons already stated above, we
hold that the said objection was
a preliminary legal point and
the trial committee erred when
it went to great lengths in
dilating on the application of
Order 25 rule 2. Thus all the
submissions by both counsel in
respect of the said order 25 are
otiose and are therefore of no
consequence to the outcome of
the instant appeal. In our view
a preliminary point of law can
be raised at any time during a
trial where the issue borders on
capacity, competence, or
jurisdiction among others the
determination of which could
dispose of the case.”
I find the conclusion that the
respondents were not proceeding
under Order 25 r.2, but by way
of a preliminary (whatever that
is intended to mean) legal
point, is not supported by the
record. On 19th of
May, 2000, the respondents
raised the issue of alibi
pendence by the paragraphs 5 and
6 of their statement of defence.
They pleaded:
“5. The defendants further
contend that the matters raised
in paragraphs 4,5,6,7 and 8 of
the petition are all matters in
issue in the case of Nana APENU
KPANYILI v. AWULAE AMANKRA
PANYIN presently pending before
the Western Region House of
Chiefs, Sekondi for judgment.
6. The Defendants therefore
contend that the action by the
Petitioners is incompetent and
should be dismissed in limine.”
Indeed, in moving orally, they
did not hide the plain fact that
they were proceeding, as they
were entitled to, under the
objection they had raised in
their pleadings:
“Rule 2 Order 25 permits us to
raise by our pleadings – (read
in court). We have raised by our
pleadings that the action is
incompetent in law.”
In reality, the Order 25 rule 2
is the appropriate rule under
which a legal objection of the
kind submitted by the respondent
may properly be raised. I could
not, given the record, fit their
application under the equally,
if not more stringent Order 25
r.4. In any event, if I had, I
would still have concluded that
an oral application does not
conform to the rules, as cases
like Harlley v Ejura Farms
[1977] 2 GLR 179 and In
Okofo Estate Ltd. v Modern Signs
Limited and Anor.[1996-97]
SCGLR224, clearly
demonstrate Be that as this
may, the important question is
having chosen to raise such a
serious legal objection on the
pleadings, what procedure ought
they to have followed to have
the matter, including the
critical question of there being
a pending action involving the
same parties and similar reliefs
properly determined?
I think this is a purely legal
step exclusive to traditional
civil proceedings brought under
the High Court Civil Procedure
Rules and customary law has no
indigenous equivalent practice
or procedures regarding it. The
rule, for good reason, is
carefully circumscribed in its
operation to ensure justice. In
determining legal questions
under it; a judge is limited to
the pleadings and the pleadings
only. It does not admit the
introduction of any extrinsic
evidence. I should have thought
that in this instant case, in
determining what practice or
procedure was to be followed to
have the action decided not on
the merits, but in limine, on
the basis of the statements that
is to say the pleadings, the
dominant criteria should have
been the High Court rules. The
appellate tribunal should have
adopted the practice and
procedure that parties who
proceed under order 25 r. 2 of
the High Court Civil Procedure
rules follow. Indeed all
applications under the order 25
are not oral. They are by motion
supported by affidavit setting
out inter alia the matters
relied in support of the
application, enabling the issues
between the parties in the
context of the application to be
identified or clarified.
In this instant petition,
following this procedure would
have clearly laid two matters
bare. It would have been
evident to the committees’ that
in considering the application
before them, they are limited to
only the documentations which
serve as pleadings, that is the
petition and the statement of
defence. It would also have
become apparent to them that
fundamental disputed questions
of fact as to all the matters
that must be proved to succeed
on the plea of lis alibi
pendence was joined as between
the parties, and those issues
can only properly be determined,
not even on the strength of
affidavits, and certainly not
from the submissions of counsel
at the bar, nor the manner in
which the appellate tribunal
chose to do it, but in the
normal course of trial, by
proper evidence. In other words,
it did not lie in the power of
the tribunal to have that
question tried within the oral
application. Under the Order 25
rule 4, a court must not depend
on extrinsic evidence to arrive
at its conclusions. Thus, once
it became apparent to the
regional committee that the
facts were being disputed; the
legal objection raised by the
respondents should have been
dismissed so that the case could
proceed to trial.
The appellate committee’s
failure on appeal to correct
that fundamental error made by
the Regional Committee cannot be
overlooked. That Committee had
erroneously concluded that the
failure of the appellants to
file a reply to the respondents’
statement of defence on the plea
of lis alibi pendence amounted
to an admission of these
critical facts. But, I had in
the case of In re Ashalley
Botwe Lands; Adjetey Agbosu and
others v Kotey and others
[2003-2004] 420, had
opportunity to examine the
purpose of a reply in civil
proceedings and ruled that a
reply was not necessary if the
sole aim was to deny the facts
alleged in the defence, for in
its absence, there was an
implied joinder of issues on the
defence. I made this
pronouncement:
“The failure of a party to file
a formal reply to a statement of
defence, did not necessarily
amount to an admission of the
facts pleaded in the statement
of defence and consequently it
was not necessarily fatal to a
plaintiff’s case.”
The National Committees failures
led to a further perpetuating of
the error when the committee suo
moto, without recourse to the
parties, and respectfully, in
flagrant violation of the rules
of procedure and natural
justice, proceeded to conduct
its own search at the registry,
to gather information on the
Nana Akpenu Kapanyila case and
using the extrinsic information
so obtained to arrive at its
final conclusion.
In any event, judging from the
well established authorities on
the plea of lis alibi pendence,
I have no doubt that the
decision to dismiss the petiton
in its entirety, without putting
the appellant to his election as
to the forum they would like to
pursue their rights, was wrong
in law and the appeal must
succeed on this point as well.
This court unanimously speaking
through Abban CJ in the case of
In Re Application by New
Patriotic Party and Peoples
Convention Party (Applicant);
Tehn-Addy v Electoral
Commission and another [1996-97]
SCGLR 216 :
“By this principle, the suit
must be between two parties in
one court in respect of a given
matter and one of the parties
goes to another court within the
same jurisdiction-seeking the
same relief. In such a
situation, either party may be
put to his election as to the
forum in which he would like to
pursue his claim. In which case
the other suit may be dismissed
or stayed pending the outcome of
the other.”
Concluding, I find the appeal
succeeding on both procedural
and substantive grounds. I will
set aside the orders of
dismissal.
G. T. WOOD (MRS)
CHIEF JUSTICE
ANSAH, J.S.C.
The appeal before us raises,
inter alia, issues concerning
the propriety of a party issuing
out a petition for relief from
the court whilst a suit was
pending awaiting judgment in the
same court. Also raised are
issues concerning failure of a
party to file a reply in the
course of proceedings.
Before delving into the merits
of the appeal, it is proper to
state the facts involved.
Simply put, they are that the
appellants herein petitioned the
Judicial Committee of the
Western Regional House of Chiefs
for the following relief:
-
“A declaration that the
petitioners are the owners
and Kingmakers of the Royal
Sewuah Paramount Stool of
Bamiankor.
-
A declaration that the
nomination, election and
enstoolment of Henry Acquah
aka Angama Tu Agyan without
the knowledge consent and
authorization of the
petitioners are null and
void and therefore a
nullity.
-
An injunction restraining
the Respondents from
nominating, electing or
enstooling any person as
Omanhene of the Paramonut
Stool of Bamiankor.
-
An injunction to restrain
the 4th
Respondent from holing
himself out as Omanhene of
Gwira Traditional Area or
performing the functions
associated with that
effect.”
The Regional House dismissed the
petition thus compelling the
petitioners to appeal to the
National House of Chiefs. The
appeal was dismissed and the
petitioners brought the present
appeal to this court against the
judgment of the National House
on the following grounds:
-
“The National House of
Chiefs relied on extraneous
matters not part of the
record of appeal for its
judgment.
-
The National House of Chiefs
held that some of the Family
members had instituted
action against some of the
respondents so it should go
to the Western Regional
House of Chiefs to continue
with the hearing of that
matter.
-
The Judicial Committee of
the National House of Chiefs
erred when it affirmed the
position taken by the
Judicial Committee of the
Regional House of Chiefs
that failing to file reply
constitutes an admission of
the averments contained in
the Statement of defence.
-
The Judicial Committee of
the National House of Chiefs
erred by affirming the wrong
procedure adopted by the
respondents by allowing the
respondents to orally raise
a preliminary objection to
the competence of the
petitioners’ action.
-
The judgment is against the
weight of the evidence on
record.”
It became obvious the grounds of
appeal dealt with both
procedural matters in grounds
1-4 and the matter relating to
the weight of the evidence in
ground 5. I propose to deal with
the appeal by lumping them in
that manner for convenience and
call the petitioners the
appellants, and the respondents
the respondents.
In their statement of defence
the respondents pleaded in
paragraph 5 that the matters
raised by the appellants in
their statement of claim, were
made issues in the previous suit
of Nana Apenu Kpanyili v Awulae
Amankra Panyin pending before
the Western Region House of
Chiefs awaiting judgment after
trial. Counsel for the
respondents submitted that the
Western Region House of Chiefs
had to find whether it was true
such a suit was pending before
it. That house found the
allegation to be true and with
that struck out the petition.
The appellate National House of
Chiefs affirmed the decision of
the trial Western Region House.
A dominant reason for the
decision of the lower courts was
that the petitioners did not
file any reply to the averments
in the statement of defence and
the consequence was that the
petitioners were deemed to have
admitted them. Counsel for the
appellants submitted in
connection herewith that the
position taken by both lower
judicial committees was
untenable and contrary to law
and the judgment founded on it
should be set aside.
I am of the opinion that counsel
for the appellant was right in
his submissions on this point of
law. In Re Ashalley Botwe
Lands; Tetteh Agbosu ors v Kotey
& others [2003-2004] SCGLR 420
cover the point where in holding
4 this court said as follows:
“The failure of a party to file
a formal reply to a statement of
defence did not necessarily
amount to an admission of the
facts pleaded in the statement
of defence and consequently it
was also not necessarily fatal
to a plaintiff’s case. A reply
was not even necessary if its
sole aim was to deny the facts
alleged in the defence for in
its absence there was an implied
joinder of issues to the
defence… However where the
defence included a counterclaim,
a reply would become necessary
for the purpose of embodying the
defence to the counterclaim in
the reply. Consequently, the
conclusion by the lower courts
(i.e. the National House of
Chiefs and the Western Region
House of Chiefs), that in the
absence of a reply, the
plaintiffs were deemed to have
admitted the matters pleaded in
the statement of defence was
erroneous. Dictum of Azu Crabbe
JA, (as he then was), in Odoi
v Hammond [1971] 1 GLR 375
at 385 cited.”
That was the error the trial
chieftaincy tribunal allowed
itself to fall into. The
appellate National House did not
help the situation when it also
affirmed the erroneous stance
taken by the trial tribunal. In
other words by not filing a
reply to the statement of
defence so as to rebut the
averments in paragraphs 4-8 of
the defence quoted below, could
not be deemed to have been
admitted or accepted by the
appellants
In the result the third ground
of appeal succeeds.
The second ground of appeal
raised issues concerning a cause
pending before a court awaiting
judgment and a party proceeding
to file another suit either in
the same court as in this case
or even elsewhere.
The facts that led to this
ground of appeal were that the
respondents pleaded that:
“the matters raised in
paragraphs 4, 5, 6 and 7 of the
petition are all matters in
issue in the case of Nana Apenu
Kpanyili v Awulae Amankra Panyin
presently pending before the
Western Region House of Chiefs,
Sekondi, for judgment.”
(See paragraph 5 of the
statement of defence.).
In the paragraphs referred to in
the statement of defence, the
appellants had averred in their
petition that:
“4…. the Respondents’ house
known as Polley Mensah or Miezah
is different from the
Petitioners.
5. The Petitioners contend that
the Respondents do not succeed
the Petitioners and none of the
Respondent’s ancestors were ever
buried in the Royal cemetery of
Bamiankor.
6. The Petitioners further
contend that there have been
intermarriages between the
Petitioners and the Respondents
which clearly show that the
parties herein are descendants
from two distinct and separate
families.
7. The Petitioners again contend
that the ancestors of the
Petitioners emigrated from
Techiman in the Brong Ahafo and
traveled and founded Bamiankor
whilst the ancestors of the
Respondents came from Nkoranza
to Aketenkyi.”
It was these pleadings that the
respondent submitted were deemed
to have been admitted by the
appellants because they did not
react to them by way of a reply
filed subsequent to the
statement of defence. I have
stated above in this opinion
that the submission was
erroneous in law. However, the
point was accepted by the
Western Region House of Chiefs
in a ruling on a motion for an
order for interim injunction by
the appellant to restrain the 4th
defendant as the Paramount Chief
of the Gwira Traditional Area.
The Regional House found that
the suit referred to was Suit
No. 1/74 which was pending
before the court. In that suit
the relief was for:
“a declaration that the
petitioners house is part and
parcel of the Sewuah Paramount
Stool family of Gwira Bamiankor
and as such members thereof are
eligible for nomination and
election to the said Paramount
stool and are also entitled to a
share of all stool revenue
derived from lands attached to
the said Paramount Stool.”
Whilst the suit subsisted the
appellants herein filed another
suit on 7th November
1995 that ‘they are
Kingmakers of the Royal Sewuah
Stool family of Bamienkor and
entitled to participate in the
nomination, election and
installation of a paramount
chief of Gwira Traditional Area”.
The petitioners withdrew the
earlier petition, but on 25
April 2000, Nana Apenu Kpanyili
became respondents to a petition
by Nana Adwoa Effiah IV and
another i.e., the present
proceedings that culminated in
this appeal.
Nana Apenu Kpanyili lost his
case as well and appealed
against the decision to the
National House of Chiefs. The
National House remitted the case
to the Regional House for
retrial. By 12 September 2002
when the house gave its ruling
no judgment had been given in
the case (which was still
pending by then) but the docket
could not be
traced
The Regional House found that
the two petitions and the one
pending before the Regional
House upon remittance from the
National House were the same as
raising the same issue. The
Regional House for this reason
dismissed the petition by the
petitioners in the case,
appellants herein, and rather
ordered the resumption of the
hearing of the suit Number 1/74
intituled Nana Apenu Kpanyili v
Awulae Amankra Panyin.
The appellant has submitted the
National House erred in ruling
that the suits number 1/74 and
the present were the same as
raising the same issues.
In the first place it was
submitted by counsel for the
appellants that the names of the
parties in this suit under
appeal are different from those
of the parties in Nana Apenu
Kpanyili v Awulae Amankra. The
appellants herein are strangers
to that suit and nothing showed
that the appellants and Nana
Apenu are members of the same
family. I pause here and state
that when a party makes an
averment that the parties are
the same and it is denied, the
party making the averment bore
the onus of proof that the
averment was true. In this case
the respondent alleged the
parties herein are the same as
in Nana Apenu Kpanyili v Nana
Amankra Panyin in Suit No. 1/74
but led no evidence in proof
when the appellant denied it.
The proceedings in that earlier
suit have not been tendered so
that it could safely be accepted
that the parties are the same.
That would mean the averment was
not proved. There is no doubt
that the luscious bone of
contention between the parties
has been who as between the
parties has a better right to
occupy the Stool of Bamianko.
The respondent proceeded under
Order 25 rules 2-5 of the High
Court Civil Procedure Rules,
1954, L.N.(140 A) since
repealed. They read:
“2. Any party shall be entitled
to raise by his pleadings any
point of law, and any points so
raised shall be disposed of by
the Judge who tries the cause at
or after the trial, provided
that by consent of the parties,
or by order of the Court or a
Judge on the application of
either party, the same may be
set down for hearing and
disposed of at any time before
the trial.
3 If in the opinion of the Court
or a Judge, the decision of such
point of law substantially
disposes of the whole action, or
of any distinct cause of action,
or of any distinct cause of
action, ground of defence,
set-off, counterclaim or reply
therein, the Judge may thereupon
dismiss the action or make such
other order therein as may be
just.
4 The Court or Judge may order
any pleading to be struck out,
on the ground that it discloses
no reasonable cause of action or
answer, and in any such case or
in the case of the action or
defence being shown to frivolous
or vexatious, the Court or a
Judge may order the action to be
stayed or dismissed or judgment
to be entered accordingly as may
be just.”
The practice under the rule is
that a party wishing to rely on
it must apply to the court. Such
applications shall be by a
motion and not by an oral
submission.
In this case the respondent
raised the point of law orally
and the issue is was this
procedure allowed under the
rule?
The practice under Order 25 is
that a court exercising
jurisdiction under this Order
considers only the pleadings as
they stand but not on affidavits
or any extrinsic evidence: see
Ghana Muslims Representatives
Council v Salifu [1975]2 GLR
246; Harlley v Ejura Farms Ltd.
[1977] 2 GLR 179.
The appellate National House of
Chiefs in purporting to use a
search report in arriving at its
decision fell well outside the
scope of Order 25 r4. When the
respondent moved to strike out
the petition on the grounds that
another suit between the same
parties over the Bamianko Stool
was pending and that the
appellant herein was deemed to
have admitted the averments in
the defence and so the new
action was frivolous, and should
be struck out for that reason,
he was bound to set down the
point of law for hearing and
disposed of at any time before
the trial. This should have been
done in writing in a motion. The
failure to follow this practice
fell foul of the rules of
procedure and was fatal to the
respondent’s case. Accordingly
the trial Regional House of
Chiefs and likewise the National
House of Chiefs, with the
greatest respect, erred in
affirming the erroneous judgment
of the trial chieftaincy
tribunal on this point.
I now proceed to consider ground
2 of appeal. In Re
Application by New Patriotic
Party and Peoples Convention
Party (Applicant ); Tehn-Addy v
Electoral Commission and another
[1996-97] SCGLR 216 an
application was made to this
court for an order to stay
proceedings pending the final
determination of the applicants’
claims in a different suit
pending in the High Court,
Accra.
This court used the occasion to
expound the principle of lis
alibi pendence. This court
speaking through Abban CJ said
at pages 217-218 that:
“By this principle, the suit
must be between two parties in
one court in respect of a given
matter and one of the parties
goes to another court within the
same jurisdiction-seeking the
same relief. In such a
situation, either party may
be put to his election as to the
forum in which he would like
to pursue his claim.
In which case the other
suit may be dismissed or
stayed pending the outcome of
the other.” (emphasis mine)
Much earlier, in the High Court
case of Kumah v Ankomah
[1972] 2 GLR, there had been
concurrent proceedings in an
application for letters of
administration in a High Court
and a District Court by a
defendant and a plaintiff
respectively and the submission
had been made that in view of
the pending action in the High
Court between the same parties
over the same cause of action,
the jurisdiction of the district
court was ousted. The High
Court, Cape Coast, presided over
by Baidoo J decided that it was
necessary to examine the plea of
lis alibi pendence and
the circumstances under which
the plea would be sustained. He
said quoting what Jessel M.R.
said in McHenry v Lewis (1882)
22 Ch. D. 397, C.A. that:
“When a plaintiff sues a
defendant for the same matter in
two courts in this country, such
a proceeding is prima facie
vexatious and the court will
generally, as of course,
put the plaintiff to his
election and stay one of the
suits….”
(emphasis mine)
It becomes clear that in such a
situation, the practice and
procedure has been to put the
party suing to his election as
to which forum to pursue his
remedy and to stay proceedings
in any of the action; it was not
to strike out one suit
completely without putting the
party to his election first.
That was the pith of the
submission by the appellant in
this case.
Counsel for the respondent
challenged the submission on the
need to put the appellants to
their election, “because the
decision in the case which
basically is about who has the
right to mount the Barmeanko
Stool will put to rest this
case”.
That was untenable.
It was arguable the two suits in
Nana Apenu Kpanyili v Awulae
Amankra Panyin and the present
petition dealt substantially
with who has a better right to
ascend to and occupy the
Bamianko stool and there was
evidence no decision has been
given on this issue as between
the parties as yet. At best the
suit before the trial
chieftaincy tribunal is awaiting
judgment but the record is lost
or cannot be traced.
The result was that the lower
tribunals erred in dismissing
the petition in the Western
Region House of Chiefs because a
similar petition was pending in
the house awaiting judgment or
hearing, so the parties should
go there to continue the
hearing. The view backed by
authority is that the petitioner
should be put to his election as
to which suit to pursue and if
for one reason or the other that
was not feasible to order a stay
of proceedings in either suit.
The trial Western Region House
of Chiefs slipped into striking
out the petition for it
misdirected itself by taking a
wrong view of the law that
because no reply was filed in
response to the averments in the
statement of defence, they were
deemed to have been admitted by
the appellants.
As stated already the appellate
National House perpetuated the
error by the lower House and
affirmed it. The judgment under
appeal was manifestly against
the law and evidence. In those
circumstances, to say the least
the appeal succeeds on ground 5
as well.
It was for these reasons that I
am of the opinion that the
appeal should be allowed and the
judgment of the National House
of Chiefs set aside.
J. ANSAH
JUSTICE OF THE SUPREME COURT
I agree:
J. V.M. DOTSE
JUSTICE OF THE SUPREME COURT
I also agree:
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
I also agree:
P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
COUNSEL:
SIR DENNIS ADJEI FOR THE
PETITIONERS/APPELLANTS/APPELLANTS
JOSEPH A. DAWSON FOR THE
RESPONDENTS/RESPONDENTS/RESPONDENTS
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