|
Land - Declaration of title -
Invoking supervisory
jurisdiction - Certiorari -
Mandamus - whether or not the
High Court had no jurisdiction
to make the order - Whether or
not there was a breach of
natural justice as he was not
served with the second
application order -
HEADNOTES
The brief facts are that on 13th
May, 2013, the High Court (Land
Division) presided over by
Justice Amos Buertey, gave
judgment in favour of the 1st
Interested Party and against
applicant herein and others for
declaration of title to a parcel
of land at Danchira in the Ga
South District of the Greater
Accra Region. The judgment
further ordered the Lands
Commission, which was 6th
defendant, to “cancel, delete,
expunge, remove, reverse all
registrations, plotting ,
processing of all or any
portions of the land the subject
matter of this suit” that had
been entered in the names of the
other defendants including
applicant herein. Then on 15th
January, 2014, the Supreme Court
gave judgment against the
applicant herein and others and
in favour of Nii Tackie Amoah
VI, who is the grantor of 1st
interested party. In its
judgment the Supreme Court
affirmed the judgment of the
Court of Appeal which declared
Nii Tackie Amoah VI owner of a
larger land at Danchira
including the land of the 1st
interested party and directed
the deletion of applicant’s
documents from the records of
the Lands Commission.Basing on
the judgment of the Supreme
Court, Nii Tackie Amoah VI filed
an application for judicial
review in the nature of mandamus
in the High Court, Accra against
the Executives Secretary, Lands
Commission for an order directed
at him to lapse the plotting of
documents in the name of Nii Noi
Morton in their records . Though
the Applicant herein was not
made a party to the application,
he was served as someone who was
to be affected by the order
sought. He filed an affidavit
in opposition in which he prayed
the court to order the director
of surveys to demarcate the
lands in dispute before any
deletion since, according to
him, the case was a boundary
dispute. Meanwhile, unknown to
Applicant herein, the 1st
Interested Party, using his
judgment given by Justice Amos
Buertey and acting through the
same Lawyer Nathaniel Myers,
filed another application for
mandamus against the same the
Executive Secretary, Lands
Commission praying for the same
reliefs as those in the mandamus
application by Nii Tackie Amoah
VI.
HELD
On the facts giving rise to this
application, since the 1st
interested party chose to
enforce the judgment by applying
to the court for an order of
Mandamus, then it ought to have
served applicant with the
processes not withstanding that
judgment had already been given
in the matter. The natural
justice rule of giving a party a
hearing before making an order
that would affect that party is
not concerned with the merits of
the case of the party to be
affected. Though the interested
party claimed applicant was
served, the evidence shows that
he was not so there was a
violation of the natural justice
principle of audi alteram
patem. For that reason we
shall grant the application for
the order of certiorari to
issue.
STATUTES REFERRED TO IN JUDGMENT
CASES REFERRED TO IN JUDGMENT
Republic v High Court,
Bolgatanga; Exparte Hawa Yakubu
[2001-2002] SCGLR 53
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
G. PWAMANG JSC
COUNSEL
TETTEH JOSIA FOR APPLICANT
FRANCIS ADJEI FOR THE 1ST
INTERESTED-PARTY
---------------------------------------------------------------------------------------------------------------------
R U L I N G
---------------------------------------------------------------------------------------------------------------------
PWAMANG, JSC.
This is an application invoking
the supervisory jurisdiction of
the court for an order of
certiorari to issue to quash
order of mandamus granted by the
High Court, Accra in Suit No.
LD/0214/2015 dated 18th
January, 2016. The order
directed the Executive Director,
Lands Commission to cancel,
delete and expunge from the
records of the Lands Commission
all registrations and plotting
in the names of the applicant
and four others.
The brief facts are that on 13th
May, 2013, the High Court (Land
Division) presided over by
Justice Amos Buertey, gave
judgment in favour of the 1st
Interested Party and against
applicant herein and others for
declaration of title to a parcel
of land at Danchira in the Ga
South District of the Greater
Accra Region. The judgment
further ordered the Lands
Commission, which was 6th
defendant, to “cancel, delete,
expunge, remove, reverse all
registrations, plotting ,
processing of all or any
portions of the land the subject
matter of this suit” that had
been entered in the names of the
other defendants including
applicant herein.
Then on 15th January,
2014, the Supreme Court gave
judgment against the applicant
herein and others and in favour
of Nii Tackie Amoah VI, who is
the grantor of 1st
interested party. In its
judgment the Supreme Court
affirmed the judgment of the
Court of Appeal which declared
Nii Tackie Amoah VI owner of a
larger land at Danchira
including the land of the 1st
interested party and directed
the deletion of applicant’s
documents from the records of
the Lands Commission.
Basing on the judgment of the
Supreme Court, Nii Tackie Amoah
VI filed an application for
judicial review in the nature of
mandamus in the High Court,
Accra against the Executives
Secretary, Lands Commission for
an order directed at him to
lapse the plotting of documents
in the name of Nii Noi Morton
(Applicant herein) in their
records. The application was
Suit No. FAML/86/15 and was
filed on behalf of Nii Tackie
Amoah VI by Lawyer Nathaniel
Myers. Though the Applicant
herein was not made a party to
the application, he was served
as someone who was to be
affected by the order sought.
He filed an affidavit in
opposition in which he prayed
the court to order the director
of surveys to demarcate the
lands in dispute before any
deletion since, according to
him, the case was a boundary
dispute. When lawyer for Nii
Tackie Amoah VI was served with
the affidavit in opposition, he
abandoned the application all
together and it was finally
struck out for want of
prosecution.
Meanwhile, unknown to Applicant
herein, the 1st
Interested Party, using his
judgment given by Justice Amos
Buertey and acting through the
same Lawyer Nathaniel Myers,
filed another application on
14/12/15 for mandamus against
the same the Executive
Secretary, Lands Commission
praying for the same reliefs as
those in the mandamus
application by Nii Tackie Amoah
VI. The second application was
assigned Suit No. LD/0214/2015
with a return date of 18th
January, 2016. This application
was placed before a different
Judge, Justice Anthony Oppong,
and when it was called on the
return date it was granted. The
order of mandamus on the face of
it does not indicate that the
Executive Secretary, Lands
Commission was served with that
application for mandamus.
It is this order that applicant
prays the court to quash on the
grounds that the High Court had
no jurisdiction to make the
order and secondly breach of
natural justice as he was not
served with the second
application in which the order
was made. He has exhibited a
search report as Exhibit “A6a”
as evidence that he was not
served. He has contended that he
ought to have been served with
the application for mandamus so
that he could be heard since he
stood to be affected by the
order sought.
The first interested party filed
an affidavit in opposition on
29/4/2016 through Frederick Kofi
Asare, its Managing Director.
At paragraphs 6, 9, 10 and 11 of
that affidavit he deposed as
follows:
“6. That the application (the
mandamus application) affected
the rights of the present
applicant Nii Noi Morton.
9. That in further answer to the
above, I will say that the
applicant was served with
hearing notice and I attached
same as Exhibit “FA2.”
10. That the applicant filed an
affidavit in opposition per
Exhibit “FA3” attached.
11. That it is thus clear that
the complaint of the applicant
is not grounded that in law and
this application must fail.”
However, the Hearing Notice that
is exhibited and supposed to
have been served on Applicant
herein is a Hearing Notice for
30th October, 2015 in
the application of mandamus by
Nii Tackie Amoah VI which is
Suit No. FAML 86/15.
Applicant’s affidavit in
opposition exhibited is also in
respect of the said Suit No.
FAML 86/15.
This corroborates what applicant
has stated in his affidavit in
this court that he was served
for the mandamus application in
Suit No. FAML/86/15 but not the
in the second one which is Suit
No. LD/0214/2015. The present
application before us is seeking
to quash the order made in Suit
No. LD/0214/15 and it is clear
that the depositions of
Frederick Kofi Asare in the
affidavit in opposition were
meant to mislead this court. No
wonder he and his lawyer failed
to attend the hearing of this
application though they were
served and they filed affidavit
in opposition. What it means is
that the 1st
interested party knew very well
that applicant herein stood to
be affected by the order of
mandamus. He also knew that
there was an earlier application
that applicant opposed yet he
failed to have the application
served on applicant.
It is a well-settled that one of
the grounds on which this court
will quash proceedings by an
order of certiorari is where
there has been a breach of any
of the rules of Natural Justice;
namely nemo judex in causa
sua and audi alteram
partem. In the case of
Republic v High Court,
Bolgatanga; Exparte Hawa Yakubu
[2001-2002] SCGLR 53, Acquah
JSC (as he then was) explained
the scope of the audi alteram
partem rule which requires a
person to be heard in
proceedings wherein a relief is
sought that will affect him. He
said as follows at page 59 of
the report;
“Finally, the contention that
the proceedings and order of 6th
January 2001 were made in
violation of the audi alteram
partem rule is certainly
indefensible. Madam Hawa Yakubu
was the NPP parliamentary
candidate in the disputed
election. The petition sought
not only a recount of the votes,
but also an order to restrain
her from holding herself out as
the duly elected Member of
Parliament for the Bawku Central
Constituency. On the facts and
in the face of the reliefs
claimed in the petition, even if
she was not made a party in the
petition, the High Court itself
on its own motion, has authority
to join her in the petition.”
On the facts giving rise to this
application, since the 1st
interested party chose to
enforce the judgment by applying
to the court for an order of
Mandamus, then it ought to have
served applicant with the
processes not withstanding that
judgment had already been given
in the matter. The natural
justice rule of giving a party a
hearing before making an order
that would affect that party is
not concerned with the merits of
the case of the party to be
affected. Though the interested
party claimed applicant was
served, the evidence shows that
he was not so there was a
violation of the natural justice
principle of audi alteram
patem. For that reason we
shall grant the application for
the order of certiorari to
issue.
(SGD) G. PWAMANG
JUSTICE OF THE SUPREME COURT
(SGD) V. J. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) V. AKOTO-BAMFO
(MRS)
JUSTICE OF THE SUPREME COURT
COUNSEL
TETTEH JOSIA FOR APPLICANT
FRANCIS ADJEI FOR THE 1ST
INTERESTED-PARTY |
