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Stool lands - Joinder - Fraud -
Out of time without leave -
Solicitor’s License - Section
8(1) of the Legal Profession
Act, 1960 (Act 32) – Whether
filing was filed out of time
– Whether to seek leave
of the court to file additional
grounds of appeal at the Court
of Appeal.
HEADNOTES
On
17/3/2013, the occupant of the
Asem stool, Nana Ampofo Kyei
Baffour, the
Plaintiff/Respondent/Appellant
(the Plaintiff) instituted an
action, per his lawful attorney,
at the Fast Track High Court,
Kumasi, against the 1st to
4th Defendants for a
declaration that the parcel of
land being occupied by the
Defendants, forms part of Asem
Stool lands. In time, the 2nd Defendant
herein, Despite Company, applied
for its grantor, the Ghana
Railway Development Authority to
be joined to the action. The
order for joinder made on the
13/5/2013 by the trial judge.
The Plaintiff filed the amended
writ of summons and statement of
claim on 22/5/ 2013 and these
were served on the Ghana Railway
Authority, the plaintiff filed a
motion to review the order
setting aside the default
judgment In the affidavit in
opposition filed on 16/01/2014,
the Plaintiff stated in
paragraph 5 thereof that it was
in December 2013 that the
statement of defence was served
on him through his solicitor. He
stated further that the
statement of defence was not
filed within the 14 days ordered
by the court when the order for
joinder was granted on
13/05/2013. He therefore
submitted that the statement of
defence which was filed out of
time without leave of the court
was a nullity. On 29/01/2014,
the court dismissed the 5th Defendant’s
application for review on the
grounds that since the statement
of defence was filed out of time
and without leave of the court,
the court cannot entertain the
statement of defence, the
Plaintiff filed a notice of
intention to rely on a
preliminary objection “that the
writ of summons filed on
17/1/2013 and the amended writ
of summons are incompetent,
total nullities and invalid on
grounds that Hansen Kwadwo Kodua
Esq. did not have a current
valid annual Solicitor’s License
for the 2013 legal year when he
purported to file the Writ of
Summons and the Amended Writ of
Summons, contrary to section
8(1) of the Legal Profession
Act, 1960 (Act 32). and Hansen
Kwadwo Kodua Esq. was not member
of any professional Chambers
duly registered with the General
Legal Council for the 2013 legal
year when he purported to file
the Writ of Summons and the
Amended Writ of Summons contrary
to Rules 4(1) and 4(4) of Legal
Profession ( Professional
Conduct and Etiquette) Rules,
1969 (LI 613) -
HELD :-
However, we notice that the
judgment of the Court of Appeal
did not turn on the additional
grounds of appeal that were
filed and argued without leave
of the court. Accordingly we
hold there was no miscarriage of
justice and the appeal on this
ground is also dismissed. From
the foregoing, we find no merit
in the entire appeal. The appeal
is accordingly dismissed. The
judgment of the Court of Appeal
is affirmed. It is hereby
ordered that the case be
remitted to the High Court to be
heard on its merit.
STATUTES REFERRED TO IN JUDGMENT
Legal Profession ( Professional
Conduct and Etiquette) Rules,
1969 (LI 613). Rules 4(1) and
4(4)
Legal Profession Act, 1960 (Act
32). section 8(1)
High Court (Civil Procedure)
Rules, 2004 (C.I. 47) Order 5
rules (6) and (7)
CASES REFERRED TO IN JUDGMENT
RE: NON-ISSUE OF MY PRACTICING
CERTIFICATE FOR 2013 – HANSEN
KWADWO KODUAH, ESQ
Barclays Bank Ghana Ltd. V Ghana
Cable [1998-1999] SCGLR 1
Republic v Court of Appeal
&Thomford; Ex parte Ghana
Chartered Institute of
Bankers[2011] 2 SCGLR 941;
Republic v High Court (Fast
Track Division ) Accra; Ex parte
State Housing Co Ltd (No 2)
(Koranten-Amoako Interested
Party) [2009] SCGLR 185;
Republic High Court (Human
Rights Division) Accra; Ex parte
Akita (Mancell-Egala &
Attorney-General Interested
Parties)[2010] SCGLR 374 at 379;
Hayfron-Benjamin JSC in Republic
v High Court, Koforidua, Ex
parte Ohene [1995-96] GLR 1 SC
Republic v High Court
(Commercial Division) Accra; Ex
parte Ports Handling Co Ltd
(Crosswinds Consulting &
Financial Services Interested
Party) 2 SCGLR 1219
Dam v Addo [1962]2GLR 200.
RT Briscoe (Ghana) Ltd v
Amponsah [1969] CC 99;
Republic vs. High Court, Accra;
Ex Parte Puplampu I [1991] 2 GLR
at page 478.
Henry Nuertey Korboe v Francis
Amosa, Civil Appeal No.
J4/56/2014 SC delivered on 21
April, 2016 (Unreported)
Halle & Sonns v Bank of Ghana &
Weather Enterprise
Limited[2011]1 SCGLR 368.
Martin Alamisi Amidu V Attorney
General & Anor, Review Motion No.37/
10/ 2013 date 29TH July,
2014
Republic V High Court (Financial
Division) Accra, Ex-Parte
Tweneboah Kodua,
Civil Motion No. J5/ 22/ 2014
dated 29th July, 2014
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING
JUDGMENT
CORAM:
AKUFFO (MS), JSC (PRESIDING)
ANSAH, JSC ADINYIRA (MRS), JSC
DOTSE, JSC YEBOAH, JSC
COUNSEL.
KWASI AFRIFA FOR THE
PLAINTIFF/RESPONDENT/APPELLANT
NANA ATO DADZIE FOR THE 5TH DEFENDANT/APPELANT/RESPONDENT
ญญญญญญญญญญญญญญญญญญญญญ
JUDGMENT
ADINYIRA (MRS), JSC:-
For purposes of clarity,
it is essential to set out in
chronological detail, the facts
and dates of events, as the bone
of contention in this appeal
are, the due compliance with
time set down by the rules of
court and the principle of the
audi alteram partem rule.
FACTS AND
PROCEDURE:
On 17/3/2013, the occupant
of the Asem stool, Nana Ampofo
Kyei Baffour, the
Plaintiff/Respondent/Appellant
(the Plaintiff) instituted an
action, per his lawful attorney,
at the Fast Track High Court,
Kumasi, against the 1st
to 4th Defendants for
a declaration that the parcel of
land being occupied by the
Defendants, forms part of Asem
Stool lands. In time, the 2nd
Defendant herein, Despite
Company, applied for its
grantor, the Ghana Railway
Development Authority to be
joined to the action.
The order for joinder made
on the 13/5/2013 by the trial
judge was as follows:
“Application for joinder of the
Ghana Railway Authority as 5th
Defendant is hereby granted. The
Ghana Railway Authority is
hereby given 14 days to file all
processes they need to file. The
Plaintiff is to amend the title
of the suit accordingly. Case is
to take its normal course. Costs
of GHS200 is awarded to the
Plaintiff to enable him to file
the amended process.”
The Plaintiff filed the
amended writ of summons and
statement of claim on 22/5/ 2013
and these were served on the
Ghana Railway Authority, the 5th
Defendant/Appellant/Respondent
(5th Defendant) on
25/6/2013.
On 14/6/2013, an
appearance was entered on behalf
of the 5th Defendant.
On 16/7/2013, the
Plaintiff filed a motion for
judgment in default of defence
against the 5th
Defendant with a return date
of25/7/2013. The motion was
heard and granted on 25th
November, 2013 and the matter
adjourned to 11/12/2013 for
assessment of damages.
On 11/12/2013, the date
fixed for assessment of damages,
the 5th Defendant,
represented by counsel, informed
the court that a statement of
defence was filed on 2/8/2013
and applied orally that the
default judgment be set aside.
Counsel for the Plaintiff did
not oppose the application and
the court granted the
application and mulcted the 5th
Defendant in costs of GHC 600.
On 13/12/2013, the
plaintiff filed a motion to
review the order setting aside
the default judgment of
25/05/2013 on the grounds that
the representation by Counsel
for 5th Defendant
that the statement of defence
was filed on 2nd
August, 2013 was false. On
18/12/2013, the court reviewed
the order of 11/12/13 and
restored the default judgment.
On 23/ 12/ 2013, the 5th
Defendant filed a motion for an
order for review of the ruling
of 18/12/2013 and to restore the
order of 11/12/2013. The
application was supported by
copies of the court receipts
indicating that the statement of
defence was indeed filed on 2nd
August, 2013.
In the affidavit in
opposition filed on 16/01/2014,
the Plaintiff stated in
paragraph 5 thereof that it was
in December 2013 that the
statement of defence was served
on him through his solicitor. He
stated further that the
statement of defence was not
filed within the 14 days ordered
by the court when the order for
joinder was granted on
13/05/2013. He therefore
submitted that the statement of
defence which was filed out of
time without leave of the court
was a nullity.
On 29/01/2014, the court
dismissed the 5th
Defendant’s application for
review on the grounds that since
the statement of defence was
filed out of time and without
leave of the court, the court
cannot entertain the statement
of defence.
On 11/02/14, damages were
assessed.
On 18/03/2014, final
judgment was given against the 5th
Defendant.
On 19/03/2014, the 5th
Defendant filed an appeal
against the interlocutory ruling
of 29/01/2014
On 10/04/2014 the 5th
Defendant filed a notice of
appeal against the final
judgment of 18/03/2014
On 22/12/2015 the Court of
Appeal dismissed the notice of
appeal against the interlocutory
ruling of 29/01/2014 on the
grounds that it was filed out of
time. However in the same
judgment, the Court of Appeal
allowed the appeal against the
final judgment of 18/03/2014.
In the judgment the court
held that even though the 5th
Defendant filed the statement of
defence out of time and without
leave of the court, the
subsequent orders by the trial
court on 11/12/13 was evidence
that the court had admitted the
statement as a valid process.
The Court further held it was
apparent on the face of the
record that the assessment of
damages was done by the trial
judge without notice to the 5th
Defendant.
The Plaintiff, aggrieved
by the judgment of the Court of
Appeal, filed a notice of appeal
to the Supreme Court, on
25/12/2015.
GROUNDS OF APPEAL
(a)
The Honorable Court erred
in holding that the assessment
of damages was done by the High
Court, Kumasi without notice to
5th Defendant as the
5th Defendant and its
counsel were present when the
suit was being adjourned for
assessment and yet they chose to
stay away from the said
assessment thus the conclusion
of the Court of Appeal that the
audi alteram partem rule was
breached is erroneous and
palpably wrong.
(b)
The Honorable Court erred
in disregarding the fraud
perpetrated on the lower court
by the 5th Defendant
on the ground that the issue of
fraud had indirectly been
abandoned by the Plaintiff by
failure to restate it in an
affidavit in opposition
(c)
The Honorable Court erred
in holding that the 5th
Defendant could disregard the
time imposed by the High Court,
Kumasi for it to file its
appearance and defence and that
the order of the High Court,
Kumasi in relation to the filing
of appearance and defence made
it impossible for the 5th
Defendant/Appellant/Respondent
to file its processes within
time.
(d)
The Honorable Court erred
when although it held that the
ground of appeal argued by the 5th
Defendant was misconceived it
would take and base itself on a
different ground of appeal not
canvassed by the 5th
Defendant/Appellant/Respondent
itself.
(e)
The Honorable Court erred
in not realizing that the filing
of 2 separate notices of appeal
by the 5th Defendant
was an abuse of the process of
court and to that extent its
jurisdiction had not been
properly invoked.
(f)
The Honorable Court erred
in failing to appreciate that
the second notice of appeal it
based its decision on was a
nullity having regard to the
pendency of the earlier one
filed based on substantially the
same grounds.
(g)
The Honorable Court erred
in disregarding the binding
judicial authorities provided it
by the Plaintiff on the need for
candor and in coming to the
conclusion that the issue of
condor was inapplicable to the
case before it.
(h)
The Honorable Court’s
decision has led to the
situation where the 5th
Defendant has benefited from its
own wrong contrary to law thus
occasioning a substantial
miscarriage of justice to the
Plaintiff.
(i)
Additional grounds to be
filed upon receipt of a
certified true copy of the
judgment
On 31 December 2015 the
Plaintiff filed additional
grounds of appeal which he
listed in his statement of case
as (j), (k) and (l) respectively
and are as follows:
(j) The Honorable Court erred in
holding that the 5th
Defendant/Appellant/Respondent
filed a defence on 2nd
August 2013 contrary to the
evidence on record that no
statement of defence was filed
by the 5th Defendant
on that date.
(k) The Honorable Court erred in
interfering with a positive
finding of fact made by the
trial judge in whose province
findings of fact lay.
(l) The Court of Appeal
disregarded the question of
absence of solicitor’s license
raised in the written
submissions of the Plaintiff as
well as the issue of filing of
additional ground of appeal
without leave thus occasioning a
substantial miscarriage of
justice to the Plaintiff as both
issues were fatal to the appeal
of the 5th Defendant
before the Court of Appeal.
Preliminary Legal Objection by
the Defendant
On 25 October the
Plaintiff filed a notice of
intention to rely on a
preliminary objection “that the
writ of summons filed on
17/1/2013 and the amended writ
of summons filed on 22/05/2013
by Hanson Kodua Esq. for the
appellant herein initiating the
suit in the High Court Kumasi
are incompetent, total nullities
and invalid for all purposes and
accordingly all processes filed
pursuant to the filing of the
said Writ of Summons, the
Amended Writ of Summons, and the
judgments based on the invalid
and incompetent Writs of
Summonses as well as any
execution based thereon are also
invalid and of no effect.”
The grounds of his
objection are as follows:
1.
Hansen Kwadwo Kodua Esq.
did not have a current valid
annual Solicitor’s License for
the 2013 legal year when he
purported to file the Writ of
Summons and the Amended Writ of
Summons, contrary to section
8(1) of the Legal Profession
Act, 1960 (Act 32).
2.
Hansen Kwadwo Kodua Esq.
was not member of any
professional Chambers duly
registered with the General
Legal Council for the 2013 legal
year when he purported to file
the Writ of Summons and the
Amended Writ of Summons contrary
to Rules 4(1) and 4(4) of Legal
Profession ( Professional
Conduct and Etiquette) Rules,
1969 (LI 613).
We are surprised that this
preliminary objection is being
raised at this late stage as
Counsel for the Plaintiff, had
raised a similar point at the
Court of Appeal and repeated it
before us as an additional
ground of appeal. This objection
appears to be tit for tat and
shows lack of candour on the
part of both lawyers.
Though an objection such as this
goes to the validity of the
processes filed by a solicitor
and could therefore be raised at
any stage of the proceedings,
the best practice in our
opinion, is for the point to be
raised at the earliest
opportunity and at the early
stage of the proceedings at the
trial court.
In any event Mr. Hansen Kwadwo
Kodua has attached in response
to the objection attached a copy
of correspondence from the
General Legal Council which
speaks for itself and is
reproduced hereunder:
“Hansen Kwadwo Kodua Esq
In God We Trust Legal Consult
Ltd
Millennium Plaza
Kumasi
RE: NON-ISSUE OF MY PRACTICING
CERTIFICATE FOR 2013 – HANSEN
KWADWO KODUAH, ESQ.
We respond to your letter
22nd November 2016 in
respect of above.
We acknowledge that
although you duly paid and
applied for the issuance of a
practicing licence for the year
2013, your forms unfortunately
were part of application forms
which the Sub-Committee for
reasons of expediency deferred
for lump issue in the ensuing
year 2014.
Indeed, you were entitled
to a licence and the
inadvertence to issue same was
no fault of yours but that of
the Sub-Committee.
We noted that you had
since applied for a licence for
2014, and the GLC/GBA
Secretariat took steps to issue
your 2014 licence which covered
the prior period of 2013 as
well. We hope the above would
straighten out the record.
Yours faithfully,
Signed by
J.L. LAWSON
EXECUTIVE SECRETARY, GBA
For: CHAIR, GLC COMMITTEE ON
SOLICITORS
LICENCE &
REGISTRATION OF CHAMBERS”
We note that the counsel for
the Plaintiff added his 2012
solicitor licence number to the
statement of claim filed on
17/1/2013. The letter supra
shows counsel for the
Plaintiff applied and paid for
his licence in 2013 but due to
bureaucratic delay by the
issuing authority the licence
was issued in 2014. We take
judicial notice of the fact that
in 2013, there was a backlog in
the issuance of solicitor
licences and solicitors who had
proof of having paid for renewal
or issue of licence to practice
were not penalized by the
courts.
Consequently we dismiss the
preliminary legal objection.
Consideration of the Appeal on
its Merits
Having disposed of this
preliminary legal objection we
will now proceed to consider the
grounds of appeal.
Ground (a)
The Honorable Court erred in
holding that the assessment of
damages was done by the High
Court, Kumasi without notice to
5th Defendant as the
5th Defendant and its
counsel were present when the
suit was being adjourned for
assessment and yet they choose
to stay away from the said
assessment thus the conclusion
of the Court of Appeal that the
audi alteram partem rule was
breached is erroneous and
palpably wrong.
Counsel for the Plaintiff
refers to pages 161 162 of the
Record of Proceedings and
submits the record “amply
demonstrated that at the time
the suit was being adjourned for
assessment of damages Counsel
for the 5th Defendant
was present and therefore
required no notice to be served
on him” Counsel went on to cite
a plethora of authorities to
demonstrate that when a party
has been given due notice of a
hearing and fails to turn up on
the due date; that party cannot
turn round to complain he was
not given a hearing.
Counsel for the 5th
Defendant on the other hand
submits that the record does not
support the Plaintiff’s
contention. Counsel contends:
“on 23/12/13 5th
Defendant filed a motion for a
review of the court’s decision
dated 18/12/13 with a return
date of 20/1/14. The assessment
of damages could therefore not
have been heard on 13/01/14 as
earlier scheduled as the
order/judgment/ruling on which
the assessment was going to be
based was the subject of the
pending review motion.” He cites
Barclays Bank Ghana Ltd. V
Ghana Cable [1998-1999] SCGLR 1
to the effect that a court
generally has no jurisdiction to
proceed against a party who has
not been served.
We noticed from the record that
the trial judge heard the 5th
Defendant’s application for
review on 20/1/14 where both
parties and their lawyers were
present. The court adjourned the
ruling to 29/1/14.
The ruling was read by the
judge on 29/1/14, but there was
no indication on the face of the
record of the presence of any of
the parties or their counsel. At
the end of the ruling too no
date was fixed for assessment of
damages.
The Court of appeal, in
their judgment at pages 364 to
365 per Ayebi J.A. held:
“On 11/2/14, the plaintiff led
evidence in proof of his stool’s
claim. It is also called
assessment of damages. The 5th
Defendant was absent from
court. But before the court
heard the plaintiff that day, it
observed that the 5th
Defendant was present on the
29/10/14 when the ruling was
read and the court adjourned the
matter for the day. The ruling
runs from pages 184 to 192.
There is no indication at the
beginning or at the end of the
ruling that any of the parties,
let alone the 5th
Defendant was present. At the
end of the ruling too, no date
was set down for assessment of
damages. So as appeared from
the record before us, the 5th
Defendant was not notified of
the dates of the assessment of
damages and the judgment itself
which went against it. The
court in that regard again
erred.”
We affirm this finding; as
a court generally has no
jurisdiction to proceed against
a party who has not been served
or notified of a hearing date;
to hold otherwise, would be a
clear violation of the audi
alteram partem rule. See
Republic v Court of Appeal
&Thomford; Ex parte Ghana
Chartered Institute of
Bankers[2011] 2 SCGLR
941; where the Supreme
Court at pages 945 to 947
referred to its recent decisions
that non-compliance with the
audi alteram partem rule would
result in nullity.
In the plethora of cases
cited by Counsel for the
Plaintiff; for example,
Republic v High Court (Fast
Track Division ) Accra; Ex parte
State Housing Co Ltd (No 2)
(Koranten-Amoako Interested
Party) [2009] SCGLR 185;
Republic High Court (Human
Rights Division) Accra; Ex parte
Akita (Mancell-Egala &
Attorney-General Interested
Parties)[2010] SCGLR 374 at 379;
where the Supreme Court held the
principle of the audi alteram
partem rule was inapplicable; it
was clearly evident, on the face
of the record that the party,
complaining of a breach of
his/her right to be heard, was
present in court on the day the
case was adjourned for hearing
or was served with hearing
notice but chose not to be
present either by himself or
counsel to be heard on the due
date. This was however not the
situation in the appeal before
us.
From the foregoing the
appeal on this ground fails and
is dismissed.
It is convenient to deal
with grounds (b) (c) and (j)
together as these grounds relate
to the filing of the statement
of defence on 2/8/13.
Ground (b) (c) and (j)
(b)The Honorable Court
erred in disregarding the fraud
perpetrated on the lower court
by the 5th Defendant
on the ground that the issue of
fraud had indirectly been
abandoned by the Plaintiff by
failure to restate it in an
affidavit in opposition.
( c) The Honorable Court
erred in holding that the 5th
Defendant could disregard the
time imposed by the High Court,
Kumasi for it to file its
appearance and defence and that
the order of the High Court,
Kumasi in relation to the filing
of appearance and defence made
it impossible for the 5th
Defendant to file its processes
within time.
(j)The Honorable Court
erred in holding that the 5th
Defendant filed a defence on 2nd
August 2013 contrary to the
evidence on record that no
statement of defence was filed
by the 5th Defendant
on that date.
Counsel for the Plaintiff
submits that counsel for the 5th
Defendant perpetrated
fraud on the trial court when he
told the court that the 5th
Defendant had filed its
statement of defence on
2/8/14.He cited a lot of cases
to demonstrate that a court
cannot disregard fraud as it
vitiates all proceedings.
Counsel submits further that the
filing of the statement of
defence was out of time and
therefore void, and consequently
the entry of a default judgment
against the 5th
Defendant was lawful. He submits
further that it was wrong for
the Court of Appeal to hold that
the Plaintiff had abandoned the
allegation of fraud perpetrated
when it was not mentioned in his
affidavit in opposition to the
application for review by the 5th
Defendant.
While Counsel for the 5th
Defendant agrees with the
principle of law enunciated in
the many cases cited by the
Counsel for the Plaintiff on the
effect of fraud, he nevertheless
rejects their relevance to this
case as he contends there was no
fraud perpetrated on the court
as there is incontrovertible
evidence on record to show that
the 5th Defendant
filed its statement of defence
on 2/8/13. Counsel submits
further that in the absence of
any specific direction that a
statement of defence be filed
within 14 days, it would appear
rather a strident criticism of
the 5th Defendant’s
alleged default in filing the
process within 14 days.
The issue of fraud was
jettisoned by the trial judge
when he exonerated the 5th
defendant and laid the blame and
confusion on the High Court
Registry and the process
servers. At page 152 the trial
judge said:
“The courts exist to do
justice. Since there is
evidence to show that the 5th
Defendant filed its defence on 2nd
August, 2013, it cannot be
faulted in the matter. The
fault can be laid squarely at
the feet of either the bailiffs
or the private process servers.
They have misled the Plaintiff
into thinking that the 5th
Defendant had not entered
appearance and neither had it
filed defence. In the result,
this court will set aside the
interlocutory judgment entered
in favour of the Plaintiff on
25/11/13. Suit will take its
normal course.”
On 18/12/2013, the trial
court reversed its ruling when
it was brought to its notice
that the statement of defence
was filed out of time. On
23/12/2013, the 5th
Defendant applied to have the
order setting aside the default
judgment reinstated. The trial
court’s reason for refusal given
on 29/01/2014 was not on based
on the grounds of fraud but on
non-compliance with time. The
Court of Appeal chastised the
trial court for backtracking on
its own orders for reasons to be
discussed below.
It is pertinent at this
stage to set out the rules
relating to the filing of
processes by a defendant upon
joinder under Order 5 rules
(6) and (7) of the High Court
(Civil Procedure) Rules, 2004
(C.I. 47), which provides:
(6) Where under this rule a
person is ordered to be made a
defendant, the person on whose
application the order is made
shall procure it to be noted in
the Cause Book by the Registrar
and after it is so noted
(a) the amended writ shall be
served on the person ordered to
be made a defendant; and
(b) the defendant so
served shall thereafter file an
appearance
When the 5th
Defendant was joined to this
action on 13/5/13, the trial
judge made the following order:
“Application for joinder of the
Ghana Railway Authority as 5th
Defendant is hereby granted. The
Ghana Railway Authority is
hereby given 14 days to file all
processes they need to file. The
Plaintiff is to amend the title
of the suit accordingly. Case is
to take its normal course. Costs
of GHS200 is awarded to the
Plaintiff to enable him to file
the amended process”
The rules supra clearly
show that there is no process
the 5th Defendant was
obliged to file before the
amended writ is served on him.
Compliance with the time frame
set under the various rules can
only be computed after service
of the writ on the 5th
Defendant. Therefore the part of
the trial judge’s order that the
Defendant to file all the
processes within 14 days, was in
our view in conflict with the
rules of procedure.
For purposes of case management
and the expeditious trial of the
substantive land matter before
it, the trial judge had
discretion, to abridge the time
for filing processes. However
the exercise of such discretion
must be within reason and in
accordance with the rules of
procedure.
In our opinion, the Court of
Appeal adequately dealt with
this issue of non-compliance
when it said at pages 362 to
363:
“Just as courts are enjoined to
ensure compliance with statutes,
the courts must also make orders
which are enforceable. Orders of
a court are in the nature of a
command or direction to do an
act or to refrain from doing an
act. Compliance or
non-compliance with an order of
a court has its consequences.
An order of a court should
therefore be clear,
straightforward and devoid of
any ambiguity. On 13/5/13 the
court ordered the 5th
Defendant to file processes
which needed to be filed within
14 days.
“I cannot fathom how the said
order made by Justice Koomson
should be interpreted to mean
that the 5th
defendant should file a
statement of defence within 14
days. This is because the order
is not only nebulous but also
very ambiguous. The truth of
the matter is that the court
never repeat never ordered the 5th
defendant to file its statement
of defence within 14 days. As
has been demonstrated, the 5th
defendant upon the joinder could
not have filed any process in
the matter unless an amended
writ of summons was served on
it.”
The order of the High Court
dated 11/12/2013 setting aside
the default judgment and
awarding costs to the Plaintiff
clearly demonstrates that the
court waived the non-compliance
with the time lines and adopted
the statement of defence filed
out of time by the Defendant.
In effect, Hayfron-Benjamin
JSC in Republic v High
Court, Koforidua, Ex parte Ohene
[1995-96] GLR 1 SC, said at
pages 6-7 of the Report:
“In the light of authorities
it must be concluded that a
court cannot regard a statement
filed out of time a nullity” In
the same vein, Anin Yeboah
JSC, in Republic v High
Court (Commercial Division)
Accra; Ex parte Ports Handling
Co Ltd (Crosswinds Consulting &
Financial Services Interested
Party) 2 SCGLR 1219 at
page1225 said: “ To put
it simply, a trial judge has no
jurisdiction to disregard a
statement of defence on record
when entertaining an application
for judgment in default of
defence.”
In our opinion, the Court of
Appeal did not commit any error
of law when it stated at page
364:
“The Setting aside of the
default judgment, ordering the
suit to take its normal course
and penalizing the 5th
defendant for the late filing of
the statement of defence is
ample evidence that the court
had admitted the statement as a
valid process henceforth. There
was no application by the 5th
defendant for leave to file the
statement of defence out of
time. But by these orders the
court made, the said statement
of defence filed on 2/08/13 was
deemed to have been regularized
and ratified by the court.”
The Court of Appeal
rightly chastised the trial
court when it held:
“Therefore the trial judge
backtracked in his ruling of
29/01/ 14 when it declared the
statement of defence filed on
2/08/13 null and void because it
was in disobedience of the order
of the court. Indeed in view of
the orders of the trial judge
made on 11/12/13, the ratio of
the 29/01/14 ruling has
undermined its own orders. It is
grievous error on the part of
the trial judge for which reason
the 29/01/14 ruling should not
be allowed any validity and
existence on the record.”
We affirm the reasoning and
conclusion the Court of Appeal.
The appeal on grounds (b), (c)
and (j) are therefore dismissed.
For the foregoing reasons
we will dismiss Grounds (g)
and (h) which are almost
similar in content and scope.
Ground (d)
The Honourable Court erred when
although it held that the ground
of appeal argued by the 5th
Defendant was misconceived it
would take and base itself on a
different ground of appeal not
canvassed by the 5th
Defendant itself.
Counsel for the Plaintiff
submits that “a ground of appeal
not argued is deemed abandoned”
and that what the Court of
Appeal did in this case is
substituting a ground not argued
and concludes that “this is
similar to substituting a case
for a party contrary to the
principle enunciated in Dam v
Addo [1962]2GLR 200.”
We note that Counsel for the
plaintiff did not adequately
address this ground of appeal
and also failed to point out the
exact substitution that he
complained of. In any event, it
is clear from the judgment that
the Court of Appeal considered
ground (viii) of the grounds of
appeal to have sufficiently
covered all the issues in
controversy; when it said at
page 356 of the record of
proceedings:
“ I am of the view that all
issues relating to the filing or
non-filing of a statement of
defence by the appellant,
applications and rulings of the
trial judge thereon, all of
which culminated in the final
judgment against the appellant
can be covered under this ground
of appeal.”
In our opinion what the court
did was quite legitimate; as in
determining the real issues in
controversy between the parties,
the appellate court has a
discretion based on the record
before it to prefer one ground
of appeal as against another. On
the record, the real issue
related to the statement of
defence filed out of time set
down by the rules of court and
the hearing of assessment of
damages based on the default
judgment that took place without
notice to and in the absence of
the 5th Defendant.
The appeal on this ground (d) is
rather frivolous and is
accordingly dismissed.
Grounds (e) and (f)
can be determined together
(e)
The Honorable Court erred in
not realizing that the filing of
2 separate notices of appeal by
the 5th Defendant was
an abuse of the process of court
and to that extent its
jurisdiction had not been
properly invoked.
(f) The Honorable Court
erred in failing to appreciate
that the second notice of appeal
it based its decision on was a
nullity having regard to the
pendency of the earlier one
filed based on substantially the
same grounds.
Counsel for the Plaintiff did
not put forth any submissions in
respect of the above grounds of
appeal except to cite a plethora
of cases to the effect that the
filing of two appeals in respect
of the same case was an abuse of
the court process.
We will dismiss this ground of
appeal in limine as the 5th
Defendant had a right to appeal
against both the interlocutory
and final decisions of the High
Court. The best practice in our
view is to include the appeal
against the interlocutory
decision in the appeal against
the final decision. RT
Briscoe (Ghana) Ltd v Amponsah
[1969] CC 99; Republic
vs. High Court, Accra; Ex Parte
Puplampu I [1991] 2 GLR at page
478.
The Court of Appeal went on to
address a common concern of
ours, on the filing of appeals
against interlocutory rulings;
as per Ayibi J.A. at page 352 of
the judgment:
“It is common practice in the
courts that before a final
judgment is delivered at the
close of all proceedings, the
court would have delivered other
ruling on interlocutory matters
mainly. A party against whom
those ruling s were given may be
aggrieved by them and could have
appealed. It is however not the
practice to appeal against every
such interlocutory ruling as
seems to be the practice by some
practitioners. If those
interlocutory rulings culminated
in the final judgment against an
aggrieved party, an appeal
against the final judgment
incorporating or alluding to
those interlocutory matters in
the grounds of appeal is the way
to go.”
Grounds (e) and (f) are
accordingly dismissed.
Ground (k)
The Honorable Court erred in
interfering with a positive
finding of fact made by the
trial judge in whose province
findings of fact lay.
The Plaintiff in his statement
of case just cited case
authorities without addressing
the ground of appeal or point
the finding of fact which he
claimed was wrongly interfered
with by the Court of Appeal.
Ground (k) is therefore
dismissed.
Ground (l)
The Court of Appeal disregarded
the question of absence of
solicitor’s license raised in
the written submissions of the
Plaintiff as well as the issue
of filing of additional ground
of appeal without leave thus
occasioning a substantial
miscarriage of justice to the
Plaintiff as both issues were
fatal to the appeal of the 5th
Defendant before the Court of
Appeal.
This ground of appeal is
twofold: the first part of this
ground of appeal deal with lack
of solicitor’s licence by
counsel for the 5th
Defendant.
Apparently this issue was dealt
with as a preliminary point on
17/2/15 by the Court of Appeal
as indicated at page 246 of the
record of proceedings when
Counsel for the 5th
Defendant promised to produce
and file it at the Court
Registry. However there is no
such filing on the record.
In any event, the written
submissions filed by Counsel
subsequently, on 26/6/15 had
Counsel’s solicitor licence
number written on it. We think
this is sufficient for us to
hold that Counsel for the 5th
Defendant has a valid solicitor
licence. We therefore dismiss
this ground of appeal.
LAW REFORM
. We recall our jurisprudence in
cases such as Henry Nuertey
Korboe v Francis Amosa, Civil
Appeal No. J4/56/2014 SC
delivered on 21 April, 2016
(Unreported) where we held,
in effect, that a lawyer without
a valid solicitor’s licence for
any particular year, as required
by section 8(1) of Act 32,
cannot practice as a lawyer in
any court or prepare any process
as a solicitor within the
particular period of non
compliance, and that any process
originated by such a solicitor
is a nullity.
This clearly may seem to be an
injustice to the litigant and
the solution does not lie in
expecting a litigant to verify
beforehand, the credentials and
legal capacity of his lawyer and
of his chambers, to perform the
services he is engaged to
undertake.
Objections taken to non
compliance with section
8(1) of Act 32 keep cropping up
which cause delay in the
delivery of justice. Perhaps it
is about time for the Rules
Committee to make amendments to
Order 2 rules 5 (1) (b) and 7
of the High Court (Civil
Procedure) Rules, 2004, (C.I.
47) on indorsement and issue
of writ, respectively.
We propose:
1.
Order 2 rule 5 (1) (b) to
be amended as follows:
Where the plaintiff sues by a
lawyer who issues a writ the
plaintiff shall, in addition to
the residential and occupational
address of the parties, provide
at the back of the writ, the
lawyer’s firm’s name and
business address, and
solicitor’s licence and chambers
registration numbers in
Ghana and also, if the solicitor
is the agent of another the
firm’s name and business
address, and solicitor’s
licence and chambers
registration numbers of his
principal.
(Proposed amendment highlighted)
2.
Order 2 rule 7 to be
amended by the addition of a new
sub rule as follows:
No writ
shall be sealed or
issued by a Registrar if it the
writ does not comply
with Order 2 rules 5
(1) (b)
(Proposed amendment highlighted)
3.
Further rules to be
formulated for the above
requirement to apply to any
filing by the plaintiff and
defendant as well.
PRACTICE DIRECTION
In the interim, a practice
direction may be issued for the
Bar and the Registrars to follow
until such time that the Rules
Committee amends the rules.
The second leg of ground (l):
… on the filing of additional
ground of appeal without leave
thus occasioning a substantial
miscarriage of justice to the
Plaintiff as both issues were
fatal to the appeal of the 5th
Defendant before the Court of
Appeal.
Counsel for the 5th
Defendant concedes that it erred
in not seeking leave of the
court to file additional grounds
of appeal at the Court of
Appeal. He however submits that
the courts over the years have
always in the interest of
justice admitted such grounds of
appeal even when argued without
leave. He stated further that
non-compliance with the rules of
court do not render proceedings
void, citing Halle & Sonns v
Bank of Ghana & Weather
Enterprise Limited[2011]1 SCGLR
368.
We disapprove of this blanket
statement, as it has been an
unwavering practice for this
Court, during the oral hearing
of appeals, to draw the
attention of lawyers to their
failure to ask for leave to file
and argue additional grounds of
appeal contained in their
statement of case. The fact that
leave is usually granted when
leave is properly sought by this
Court should not be taken as a
licence for the bar to ignore
rules of procedure.
We wish to reiterate our
recent views expressed by the
Supreme Court on the need by the
Bar to ensure proper legal
standards and to uphold
procedural rules. In Martin
Alamisi Amidu V Attorney General
& Anor, Review Motion No.37/10/2013
dated 29TH
July, 2014 we held per
Wood CJ:
“I do appreciate Counsel’s
concern about the falling
standards of the legal practice
in our jurisdiction; relative in
particular, to the growing
number of Court processes that
are filed in total disregard to
the procedural rules of Court.
I also do understand his anxiety
about the seeming complicity of
the Courts in not exacting
strict legal accountability but
rather choosing to encourage
mediocrity, by aiding the
complacent and slothful to find
refuge under the waiver of
non-compliance rule and also the
substantial justice principle”
Similarly, in Republic
V High Court (Financial
Division) Accra, Ex-Parte
Tweneboah Kodua, Civil
Motion No. J5/22/2014 dated
29th July, 2014,
the Supreme Court held per
Akamba JSC:
“There is an emerging tendency
in practice today to consider
that the rules of procedure
indeed do not matter so long as
an application is placed before
the Court. Yet the rules of
procedure are as integral as the
substantive law to the success
of the trial process. It is
therefore essential that time
lines set down under the rules
of Court are adhered to, to
facilitate timely trials.
Infringements of these rules
without reasonable
justification should be met with
corresponding sanctions or
denials”
However, we notice that the
judgment of the Court of Appeal
did not turn on the additional
grounds of appeal that were
filed and argued without leave
of the court. Accordingly we
hold there was no miscarriage of
justice and the appeal on this
ground is also dismissed.
From the foregoing, we find no
merit in the entire appeal. The
appeal is accordingly dismissed.
The judgment of the Court of
Appeal is affirmed.
It is hereby ordered that the
case be remitted to the High
Court to be heard on its merit.
S. O. A ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
S. A. B. AKUFFO (MS)
(JUSTICE OF THE SUPREME COURT)
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
V. J.
M. DOTSE
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
COUNSEL
KWASI AFRIFA FOR THE
PLAINTIFF/RESPONDENT/APPELLANT
NANA ATO DADZIE FOR THE 5TH
DEFENDANT/APPELANT/RESPONDENT
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