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J U D G M E N T
BROBBEY, JSC:
This is an interlocutory appeal
from the Judgment of the Court
of Appeal dated the 8th
day of May, 2007.
The facts relevant to this case
are that, in the year 1957 Togbe
Ayim Darke IV instituted legal
action against Togbe Gobo Darke
XI of Tsito and one Ntow Peniana,
a subject of Tsito, in the Peki
Native Court for a declaration
of title and damages for
trespass to parcels of land
known as Awaline Avagah and
Tiame. The case was transferred
to the High Court, Ho, presided
over by Francois J. (as he then
was) where the trial commenced
before HIM. The High Court gave
Judgment in favour of Togbe Ayim
Darke IV of Peki on the 11th
of November 1975.
Togbe Gobo Darke XI of Tsito
appealed to the Court of Appeal
and the Appeal was allowed.
There was a further appeal to
the Supreme Court which was
dismissed.
The case appeared to have been
legally closed until the 13th
of July 1987 when Togbe Ayim
Darke IV instituted an action in
the High Court Accra for a
declaration that the Judgement
of Francois J in the High Court,
Ho, was null and void for want
of jurisdiction, and a further
order setting aside the
Judgement of the Court of Appeal
which had affirmed it. It
finally applied for an order
referring the matter to the
Stool Lands boundary Settlement
Commission under the Stool Land
Boundary Settlement Decree, 1973
(NRCD 172). The reliefs were
granted by the High Court in
Accra, presided over by Omari
Sasu J.
Togbe Gobo Darke XII and Ntow
Peniana of Tsito appealed to the
Supreme Court pursuant to leave
granted by the Court of Appeal.
In the preparation of their
case, they run out of time and
the case was struck out by the
Supreme Court. Togbe Gobo Darke
XII then brought an application
for certiorari to quash the
Judgment of the Accra High Court
and all consequential orders
made thereunder. The
application was granted but it
was further ordered that the
suit should be sent to the Stool
Lands Boundary Settlement
Commission.
The Awudome stool as overlords
of the Tsito stool joined the
suit as second claimant . The
Peki stool remained the first
claimant. Upon the coming into
force of the Stool Lands
Boundary Settlement (Repeal)
Act, 2000 (Act 587) all cases
pending before the Stool Lands
Boundary Settlement Commission
including the instant suit were
transferred to the High Court,
Accra. The relevant section of
the Act read as follows:
“3. (1)Subject to subsection
(2), all cases and proceedings
pending before the Commissioner
immediately before the coming
into force of this Act are by
the Act transferred to the High
Court.
(2) Any case before the
Commissioner in which evidence
has been taken shall be
concluded by him within a period
not exceeding eight months from
the date of coming into force of
this Act.”
At the time of the transfer, the
matter was part heard before the
Commissioner. As apparent in
this section 3(2) of Act 587,
the Commissioner was given eight
months to complete all cases
pending before the Commission.
Cases which could not be
completed before the eight-month
deadline were to be transferred
to the High Court to be
concluded. The Peki Stool took
six years to complete its
evidence. The Awudome Stool
started to give evidence but it
called only one witness when the
eight-month deadline expired and
the case was adjourned
indefinitely.
The Stool Lands Boundary
Commissioner who had been
appointed a Court of Appeal
Judge continued to try the case
as additional justice of the
High Court. Upon an application
by the Awudome Stool, the
Supreme Court on 4th
February 2003 granted an order
of prohibition against the
former Stool Lands Commissioner
continuing to try the case. It
further ordered the case be
referred to the High Court for
hearing and advised the parties
to adopt the evidence taken by
the Commissioner.
The case was sent to Mr. Justice
Tweneboa Kodua who was then a
Justice of the Court of Appeal.
He sat on it as additional trial
Justice of the High Court. The
parties were not able to agree
on the adoption of the evidence
of the proceedings taken by the
former Commissioner. While the
Peki Stool preferred the
adoption of the proceedings, the
Tsito stool insisted that the
trial should be started de novo
without adopting the
proceedings. When the issue was
raised before him, the trial
judge ruled that he would
continue with the trial of the
case by adopting the proceedings
from the Commissioner.
Dissatisfied with that order,
the Tsito stool appealed to the
Court of Appeal. The appeal was
dismissed and the High Court
order affirmed. It was against
the decision of the Court of
appeal that the appellant has
appealed to this court.
The grounds of the appeal before
this Court are as follows:
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The Court of Appeal erred in
its construction of section
3 of the Stool Lands
Boundary Settlement
(Repeal)Act, 2000 (Act 587)
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The Court of Appeal erred in
dismissing the Defendant/
Appellant/ Appellant’s
appeal and awarding costs
against it.
The two grounds of were argued
together.
The established rule is that
when a case is transferred from
one High Court to another, the
parties have the option to adopt
the proceedings or to have the
trial started de novo. This is
the common law rule which has
been adopted and practised for
many years in our courts. That
was indeed the procedure adopted
in Boama v Okyere
[1967] GLR 548 and
Coleshill v Manchester
Corporation [1928] 1
K.B. 776 the only cases cited by
the parties in this appeal.
The decisions of the High Court
and the Court of Appeal were
based on the argument that
because the transfer of the
dispute was effected by statute,
i.e. Act 587, s. 3, the normal
rules of the High Court on such
transfers should not apply. In
their view, Parliament intended
that the proceedings should be
adopted. That was more or less
the same basis of the argument
of the respondent who contended
that, by the use of the
expressions in section 3(2), the
entire proceedings as left by
the former Stool Lands Boundary
Settlement Commissioner were
intended by Act 587 to be
adopted in the ensuing trial.
The expressions relied on were
the transfer of “case and
proceedings.”
The obvious point which
militated against the arguments
above is that no where in Act
587 is there any suggestion or
implication that the normal
rules of the High Court should
be deemed to have been waived.
If that was the intendment of
Parliament, it would have said
so in no uncertain terms.
It is significant to point out
that Act 587 replaced the Stool
Lands Boundaries Settlement
Decree, 1973(NRCD 172). Under
NRCD 172, when Parliament
intended to grant powers of
adoption of proceedings to the
trial institution, it did so in
no uncertain terms in section
5(5) which read:
“The Commissioner shall, as he
thinks fit, complete any such
work transferred to him under
section 4 of the section with or
without the hearing of fresh
evidence.”
It is difficult to accept the
argument that Parliament
intended to grant similar powers
to the High Court without any
express provision to that effect
when Parliament was fully aware
of the provisions in the very
Act that Act 587 was repealing
and replacing.
I find the argument based on the
use of the expression “case and
proceedings” simply untenable.
The word “proceedings” may
connote steps taken in the
action such as hearing notices,
surveyor’s reports, etc as
contended by counsel for the
respondent herein. In ordinary
references, the word “case”
necessarily includes everything
that goes with the action
pending in court. This is
because we do not have a
situation where case can be
divorced from proceedings. Case
is wider in its connotation from
proceedings. Without the mention
of proceedings, the transfer of
the “case” would necessarily
have included the proceedings in
the case. The attempt to define
case as separate and distinct
from proceedings is unconvinging
semantics. So long as section
3(2) refers to “case and
proceedings” it certainly refers
to the entire action pending
before the Stool Lands
Commissioner. It cannot be right
to contend that the use of
“proceedings” should be
interpreted to mean that
Parliament did intend to have
the proceedings adopted.
In the appeal before us, both
counsel referred to the position
taken by the Supreme Court when
the issue was raised before it.
It merely advised the parties to
consider adopting the
proceedings before the former
Commissioner. It did not order
the parties to mandatorily adopt
the proceedings. Quite clearly,
the court could have raised it
as an issue to be argued if it
was in any doubt about what the
parties had to do. It is
admitted that the issue was not
argued and therefore the view of
the court remained obiter.
However, it is my view that the
fact that it merely advised the
parties to consider adopting
proceedings was suggestive of
the view that the Supreme Court
at that time did not believe
that the parties could have been
compelled to adopt the
proceedings.
The rationale for the argument
of the respondents that the
proceedings should be adopted by
the High Court without giving
the parties any option was that
Parliament cannot be presumed to
have intended that the
proceedings should be started de
novo because that would imply
that Parliament intended that
the trial was to be delayed but
it was absurd to have suggested
that Parliament intended to
delay the trial. The common law
rule which the High Court has
applied up till now grants
parties right to adopt the
proceedings or have the trial
started de novo. It is a well
established vested right and if
it had to be taken away, it had
to be done in clear terms. One
cannot deduce the abolition of a
vested right by academic
argument which in any case I
find to be a non sequitur. If
Parliament intended to take away
that vested right, it would have
done so in clear and express
terms.
Since the case was transferred
to the High Court, it is the
procedure of the High Court
which has to be used to try it.
Act 587 has not taken away the
application of that procedure in
any way. The parties are
therefore to decide to adopt the
proceedings of the former
Commissioner or have the trial
started de novo. Since the
appellants have clearly evinced
their intentions not to have the
proceedings adopted, the trail
has to be started de novo. That
is the state of the current
rules in the High Court and they
have to be complied with. The
policy in CI 47 that trials
should be expedited is no ground
for sidestepping well
established procedure in the
court.
In my view, the appeal succeeds
and should be allowed.
S. A. BROBBEY
(JUSTICE OF THE SUPREME COURT)
I agree:
G. T. WOOD (MRS)
(CHIEF JUSTICE)
I agree:
DR. S. K. DATE-BAH
(JUSTICE OF THE SUPREME COURT)
I agree:
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
I agree:
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
COUNSEL:
JAMES AHENKORAH WITH GEORGE
AMAGYEI FOR THE RESPONDENT
SOMUAH ASAMOAH FOR THE APPELLANT
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