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ARYEETEY, J. A.
A brief background to
this application for stay of proceedings pending appeal
is as follows: On 12th June, 2002 the
plaintiffs/respondents issued a Writ of Summons in the
circuit court, Accra for a liquidated sum of
¢10,295,000.00. At the time of the issue of the Writ of
Summons the jurisdiction of the Circuit Court was
limited by section 41(1) (a) (i) of Courts Act, 1963,
(Act 459) to ¢10,000,000.00. On 30th April 2003 while
hearing of the case was still pending the
defendants/applicants filed an application before the
circuit court to strike out the suit for want of
jurisdiction. The Circuit court dismissed the
application and ruled that it had jurisdiction to
entertain the action on the basis that by their pleading
and their conduct the defendants/applicants had agreed
that the circuit court should assume jurisdiction as
required by section 41(3) of Courts Act, 1993 (Act 459).
That subsection reads: “Where the amount claimed or the
value of any land or property exceeds the amount or
value specified in subsection (1) of this section the
Circuit Court shall, not withstanding that section,
proceed to hear the case if the parties agree it should
do so”. Also, the circuit court’s other reason for
assuming jurisdiction in the matter was that at the time
the plaintiff’s witness testified in court on 1st April
2003 its jurisdiction had been enhanced from ¢10,000,000
to ¢100,000,000. The applicant appealed against the
ruling of the circuit court and applied to this court
for stay of proceedings in respect of the substantive
suit before that court. The application is brought under
rule 27A of Court of Appeal Rules, 1977 (C.I. 19) as
amended by Court of Appeal (Amendment) Rules, 1998 (C.I.
21) (l) which reads: “The Court may in any interlocutory
appeal, civil or criminal before it, grant stay of
proceedings pending the determination of the
interlocutory appeal subject to such terms as the Court
considers fit.”
As pointed out by the
submission of learned counsel for the applicants, at the
time the writ was issued, in terms of section 41 (1) (a)
(i) of the Court’s Act, the circuit court had no
jurisdiction to hear the case since the amount claimed
by the respondents exceeded the jurisdiction of the
circuit court and the applicants did not agree to the
hearing of the case by that court as required by section
41(3) of Act 459. The two main reasons which the circuit
court gave for its ruling dismissing the motion to
strike out the writ for want of jurisdiction before it
appear at page 2 of its ruling, exhibit ST as follows:
“It is a cardinal rule
of pleadings that a party is bound by his pleadings. He
cannot plead one set of facts and at the trial base his
case on different facts. Every allegation of facts in
any pleadings, which a party does not admit, must be
denied expressly or by necessary implication. A failure
to deny will be deemed to be an admission except against
a person with a disability. Section 41(3) of Act 459
does not provide that the parties should expressly in
writing or by oral submission confer jurisdiction, so I
had that the defendants agreed by conduct and by
implication of law to confer jurisdiction on this court.
Nothing had been a nullity up to this stage.
I also rule that on the
1st of April, 2003, when the plaintiff gave his
evidence-in-chief, and counsel for the defendants
cross-examined him, this court’s jurisdiction has been
enhanced by Act 620, to ¢100 million.”
Counsel for the
applicants referred the court to the Supreme Court case
of Ababio II and Another v. Akro & Co., and others,
[1963] 1 G.L.R. 195. In that case, after Mr. Pullen had
retired as Court of the Reserve Settlement Commissioner
in the course of an enquiry, Mr. P. M. Riley was
appointed to continue with the enquiry. Even though the
law permitted continuation of the enquiry from where the
previous Commissioner left off provided that the parties
gave their consent, Mr. Riley did not wait for their
consent but assumed that they had given their consent
for him to continue with the enquiry and this was what
the Supreme Court had to say at page 199 of the report
per Ollennu, J.S.C.:
“What is the legal
effect of this? Since Mr. Riley did not begin the
enquiry, but was appointed under section 5(2) in
substitution for Mr. Pullen who had started it, his
jurisdiction to continue it depended entirely upon the
consent of the parties as provided in the said
subsection (2) of section 5 which is as follows:
‘Where the Reserve
Settlement Commissioner has, prior to such appointment,
begun to hold, but has not completed, an enquiry under
the provisions of section 9 of this Ordinance, the
person appointed to act on his behalf or in succession
to him shall not be obliged to begin the enquiry de novo
but may, if he so thinks fit, and with the consent of
all the parties thereto, continue and complete the
enquiry so begun but not completed’…
Without that consent he
is void of jurisdiction, and he should not have
continued the enquiry… In the first place the
commissioner misdirected himself when he said that he
could continue the enquiry provided there is no
objection. The Ordinance says ‘with the consent of all
the parties,’ which we interpret to be the express, not
presumed, consent of each of the parties before the
court.
Now the record of
proceedings shows that the commissioner did not obtain
the consent of any of the parties; there is nothing to
show that he even read out to them the notes he made as
to his presumption that he could continue if no
objection is raised. He appears to have assumed that if
no objection was raised he became vested with
jurisdiction.”
In the instant
application, on the circuit judge’s own showing he did
not make any effort to ascertain from the parties
whether they agreed to his proposal to go on with the
case in spite of the fact that the amount claimed
exceeded the circuit court’s jurisdiction of
¢10,000,000.00 which prevailed at the time. He presumed
that he became vested with jurisdiction since he did not
encounter any objection from the either of the parties,
notably the applicants, the defendants in the
substantive suit. In his submissions counsel for the
applicants pointed out that Article 107 (b) of the 1992
Constitution would not permit Act 620 to operate
retrospectively. According to Article 107 (b) of the
Constitution, “Parliament shall have no power to pass
any law — which operates retrospectively to impose any
limitations on, or to adversely affect the personal
rights or liberties of any person or to impose a burden,
obligation or liability on any person except in the case
of a law enacted under articles 178 to 182 of this
Constitution”. Counsel also referred to the Supreme
Court case of Republic v. High Court, Denu; ex parte
Avadarli [1993-94] 1 G.L.R. 561 in support of his
contention that objection to jurisdiction of the court
can be taken at any time.
On the circuit court’s
ruling that it had jurisdiction to hear the case on the
coming into force of the Courts (Amendment) Act, 2002
(Act 620) if failed to take into account the date of
commencement of the said Act 620 being 1st December 2002
as stated in Courts (Amendment) Act (Commencement)
Instrument, 2002 (E.I. 33). In the light of the wording
of article 107 of the Constitution quoted above I do not
think that the learned circuit judge was entitled to
come to the conclusion that he had jurisdiction to
entertain the case before him on the basis that the
jurisdiction of the circuit court had been enhanced to
¢100,000,000 on account of E.I. 33 which came into force
prior to the plaintiff’s oral testimony in court. I am
of the opinion that this is a proper case where the
application for stay of proceedings ought to be granted.
It is accordingly granted.
(SGD)
B. T. ARYEETEY
JUSTICE OF APPEAL
(SGD)
A. ASARE-KORANG
JUSTICE OF APPEAL
(SGD
E. K. PIESARE
JUSTICE OF APPEAL
COUNSEL
YONNY KULENDI FOR
APPLICANTS
JOHN KLU FOR THE
RESPONDENTS
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