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Practice and procedure – High
Court – Venue – Objection may
not be raised after filing
defence – Prior unsuccessful
application to Chief Justice for
transfer of action irrelevant to
objection to venue – Courts Act
1971 (Act 372) s 99, High Court
(Civil Procedure) (Amendment)
Rules 1977 (LI 1107) Or 5 r 1.
Upon entering conditional
appearance to the action in the
High Court, the defendants
petitioned the Chief Justice
under section 99 of the Courts
Act 1971 (Act 372) to transfer
the case from Cape Coast to
Accra. The Chief Justice
declined and the parties filed
their statements of claim and
defence respectively. The
defendant, then applied under
Order 5 r 1 of the High Court
(Civil Procedure) (Amendment)
Rules 1977 (LI 1107) for an
order transferring the case to
Accra. The court dismissed the
application sub nom Hooper v
Oils & Fats Co Ltd [1992-93]
GBR 384 and the defendants
appealed unsuccessfully to the
Court of Appeal, and to the
Supreme Court.
Held:
(1) The Courts Act 1971 (Act
372) s 99 vested in the Chief
Justice the administrative power
to transfer any case. Under
section 100 of the Act and Order
5 r 1(8), LI 1107, a High Court
judge might report the pendency
of any proceeding before him to
the Chief Justice for transfer.
Under section 99 the applicant
could apply for transfer at any
stage of the proceeding but
under section 100 or Order 5
rule 1(8) he ought to do so
before or at the time when he
was required to plead in the
action. The difference between
the two procedures lay in the
timing of the application.
(2) When the defendants applied
to the High Court, they had
filed their statement of
defence, contrary to the
provision in Order 5 r 1(8).
They could have brought their
application after entering
conditional appearance or even
at the time of filing the
defence but not afterwards. The
earlier application to the Chief
Justice under section 99 did not
affect the time for raising the
objection under the rule. The
objection was therefore belated.
K Zwennes
(with him, Hughes and
Amponsah-Dadzie) for the
appellants.
Dereck Sangari
for the respondents.
Case referred to:
Mahama v Soli
[1976] 2 GLR 99.
APPEAL from the ruling of the
Court of Appeal in Hooper v
Oils & Fats Ltd [1992-93]
GBR 384.
BAMFORD-ADDO JSC.
This is an appeal from the
majority judgment of the Court
of Appeal dismissing an appeal
of the appellants which they had
brought against the ruling of
the High Court, Cape Coast. The
appellants were sued in the High
Court, Cape Coast by the
respondents for certain reliefs.
Counsel for appellants entered
conditional appearance to the
writ. He then petitioned the
Chief Justice under section 99
of the Courts Act 1971 (Act 372)
for a transfer of the case from
Cape Coast to Accra giving
reasons for the application. The
Chief Justice did not accede to
that request. Thereafter the
respondents in this case (then
plaintiffs) filed a statement of
claim and the appellants (the
defendants) also filed a
statement of defence. A few days
later the appellants filed a
motion under Order 5 r 1 of the
High Court (Civil Procedure)
(Amendment) Rules 1977 (LI 1107)
for the transfer of the suit to
Accra. The relevant sub-rules
under Order 5 r 1 are as
follows:
“(1) Every writ of summons shall
be issued out of the Registry
and shall, without prejudice to
the provisions of section 99 of
the Courts Act 1971 (Act 372) be
regulated in accordance with
this rule.
(6) All other actions shall be
commenced in the Region in which
the defendant resides or carries
on business.
(8) Where an action is commenced
in a Region other than that in
which it ought to have been
commenced, the action may,
notwithstanding, be tried in the
Region in which it was commenced
unless the court reports to the
Chief Justice that in its
opinion the action ought to be
transferred, and the Chief
Justice ordered that it be
transferred accordingly, or
the defendant raised an
objection to the jurisdiction
before or at the time he is
required to plead in the
action.” (Emphasis mine.)
The High Court dismissed the
application for transfer holding
that the respondents were
entitled to sue the appellants
in Cape Coast and also that the
application in any case was
belatedly made under order 5 r
1(8) of LI 1107. The appellants
appealed to the Court of Appeal,
which also by a majority of 2 to
1 dismissed the appeal, hence
the appeal to this court.
The grounds of appeal are that
the majority in the Court of
Appeal wrongly held that the
objection to venue was taken
belatedly under Order 5 r 1(8)
of LI 1107, in that by so
holding they failed to
appreciate that the respondents
had other available procedure
under section 99 of the Courts
Act 1971 for objecting to venue.
Another ground was that the
Court of Appeal, in giving
reasons for dismissing the
appeal erroneously held that
when the appellants filed their
defence they were caught by
Order 70 rule 2 of the High
Court (Civil Procedure) Rules
1954.
The Courts Act 1971 (Act 372),
section 99 deals with the power
of the Chief Justice to transfer
any case at any stage in the
course of any proceedings either
with or without application from
any of the parties to the
proceedings. This is an
administrative power given to
the Chief Justice for transfer.
Section 100 of the Act also
gives a judge of the High Court
the judicial power as enacted
also in Order 5 r 1(8), to
report to the Chief Justice any
civil or criminal case pending
before him, which in his opinion
ought for any reason to be
transferred; and if the Chief
Justice is satisfied that a
transfer is desirable he shall
specify the court to which or
the judge to whom the case is to
be transferred for hearing and
determination, and issue such
other directions as may be
necessary.
An application under section 99
can be made at any stage of the
proceeding, but in an
application under section 100 or
under Order 5 r 1(8) it is
specifically stated that the
application should be made
either before or at the time,
when the applicant is required
to plead in the action. It is
true the appellants had an
alternative procedure to object
to venue other than Order 5 r
1(8) or under section 99, but
the difference between the two
procedures lies in the time when
the application can be made as
stated above; and once a choice
is made the rule as to time will
be applicable.
When the appellants applied to
the High Court at Cape Coast for
a transfer of the suit they had
already filed a statement of
defence; they did not do so
before or at the time they were
required to plead to the action
and they were caught by the
provisions of Order 5 r 1(8).
Order 1 defines “pleading” to
include “any petition or summons
and also includes that
statements in writing of the
claim or demand of any
plaintiff, and of the defence of
any defendant thereto, and of
the reply of the plaintiff to
any counter claim of the
defendant.” At the time of
pleading or before pleading,
means exactly what it says and
the appellants could have
brought their application after
entering conditional appearance
or even at the time of filing
the defence and not afterwards.
The fact that they had earlier
applied to the Chief Justice
under section 99 did not affect
the time limit permitted under
Order 5 r 1(8) for objecting to
venue. The Court of Appeal
therefore rightly held that the
appellants’ objection to venue
was taken belatedly against rule
1(8) of Order 5 and the petition
written to the Chief Justice
under section 99 of Act 372
could not be considered as an
objection under Order 5 r 1(8)
nor could it affect the
permissible time of objecting to
venue, under that rule. In any
case the judge did not find it
deserving, on the merits to
recommend to the Chief Justice,
who had already declined to
transfer the case by his letter
dated 11 June 1990 to the court
to exercise his power of
transfer under section 100 of
Act 372.
In respect of the other ground
of appeal namely that the Court
of Appeal erred in relying on
Order 70 r 2 of the High Court
(Civil Procedure) Rules 1954 (LN
140A) as a further reason for
holding that appellants’
application for transfer to the
court was belated, I think this
is quite justified. Order 70 r 2
deals with the effect of
non-compliance with the rules
and says:
“No application to set aside any
proceedings for irregularity
shall be allowed unless made
within a reasonable time, nor if
the party applying has taken any
fresh step after knowledge of
the irregularity.”
The application made by the
appellants to the High Court,
Cape Coast was not made under
Order 70 r 2 to set aside any
proceeding for irregularity, it
was made under Order 5 r 1(8)
for transfer of the case to
another venue and therefore
Order 70 r 2 had no application
to this case. The reason given
for dismissing the appeal on
this ground was therefore not
only wrong, but also irrelevant.
However since this was not the
only reason why the Court of
Appeal held that the application
brought by the appellants for a
transfer of the suit was
belated, this error would not
alter the outcome of this appeal
which is that the Court of
Appeal rightly dismissed the
appeal on the ground that the
application brought under Order
5 r 1(8) was belated. Perhaps it
would not be out of place here
to remind ourselves of the
admonition of Wiredu J in the
case of Mahama v Soli
[1976] 2 GLR 99 at 101, holding
(5) that:
“The provision of the Courts
Act, 1971 (Act 372) section 99
should be invoked only in
exceptional and extreme cases.
The practice whereby parties or
their solicitors resorted to it
in ordinary circumstances which
could be dealt with under the
Courts Act 1971 (Act 372),
section 100 should be
discouraged.”
Now the relevant section is
section 105 of the Courts Act
1993 (Act 459). For the above
reasons the appeal fails and
ought to be dismissed. The
substantive case should be tried
before the High Court, Cape
Coast.
(sgd) ABBAN JSC
(sgd) AMUA-SEKYI JSC
(sgd) HAYFRON-MENJAMIN JSC
(sgd) AMPIAH JSC
Appeal dismissed.
S Kwami Tetteh, Legal
Practitioner
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