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JUDGMENT
ANSAH, JA:
The plaintiff in the
court below sued for the specific performance of an
agreement for the sale of goods sold and delivered which
transaction the defendants failed to honor. He also
sought an order authorizing the 3rd , 4th, and 5th
defendants to release or pay the plaintiff any checks or
monies standing in the name or credit of the first
defendant with the Social Security Bank Limited, Ring
Road Central Branch, Accra, in satisfaction of the
balance of the purchase price of the goods sold by the
plaintiff to the 1st and 2nd defendants. The plaintiff
next sought an interim order to freeze the bank account
of the 1st defendant with the said bank, prevent any
transfer, payment or withdrawal by the defendants of any
check or monies deposited with or standing to the credit
of the 1st defendant, pending the determination of this
action. There was an alternative claim for the return of
all the quantity of gold the plaintiff sold to the 1st
and 2nd defendants that the defendants failed to pay
for. As the record of proceedings had it, the plaintiff
discontinued the action against the 3rd, 4th and 5th
defendants.
The facts that gave
rise to the action were, as per the statement of claim,
that pursuant to an agreement between the plaintiff
company, the 1st and 2nd defendants for the purchase of
One Hundred Kilograms of AU gold at a unit price of
$7,300 per kilogram, a total of $730.000. The plaintiff
deposited the entire consignment with the 3rd defendant
company. The 4th and 5th defendants gave samples of the
gold to the 1st and the 2nd defendants to be tested and
weighed. Thereafter, they made a part payment of $60,000
to the plaintiff and promised to pay the balance of
$670,000 as soon as the consignment was handed over to
them. The 3rd defendant acknowledged the receipt of a
check for the balance from the 1st and 2nd defendants
and guaranteed the payment of the same to the plaintiff
as soon as the consignment was delivered to the 1st and
2nd defendants. All the parties signed an undertaking to
that effect, and in consequence of that, the plaintiff
consented to the release of the whole consignment of
gold to the 1st and 2nd defendants by the 3rd defendant.
The 3rd and 4th defendants failed to either release the
check or pay the balance of the purchase price to the
plaintiff. The 1st and 2nd defendants had taken delivery
of the gold; they could not be traced and were preparing
to abscond the jurisdiction without settling the unpaid
balance. They were also trying to stop the payment of
the check and monies they had paid into the 1st
defendant's account with the 3rd defendant. To forestall
these the plaintiff took this action for the remedies
outlined above.
When the defendants
defaulted in entering an appearance, the plaintiff
applied for an order of default judgment. The
application succeeded against the 1st and 2nd
defendants, but was discontinued against the 3rd
defendant for it had entered appearance at the time of
hearing the application. The plaintiff next applied for
summary judgment against the 3rd defendant. The trial
judge dismissed the application. Meanwhile, the 1st
defendant succeeded in setting aside the default
judgment against it only to face another application for
an order for summary judgment filed against it on 19
March 2002 on the grounds that the 1st defendant had no
defense to the action. The trial court granted the
application and entered summary judgment for the
plaintiff and ordered the specific performance of the
agreement in question. It is against this judgment that
this appeal has been brought. The ground proffered was
the general ground that the judgment was against the
weight of evidence.
The first
defendant-appellant (thereinafter called simply the
appellant) adopted the curious procedure of substituting
this ground of appeal with others not covered in the
notice of appeal. This is permissible but with the leave
of court under Rule 8 (7) and (8) of the Court of Appeal
Rules, 1997, CI 19. The new grounds of appeal became as
follows:
1. The judge erred in
law in ignoring the jurisdictional objection raised on
behalf of 1st defendant.
2. The judge erred in
holding that the first defendant was served with the
Statement of claim.
3. The judge erred in
law in purporting to regularize the conditional
appearance of the 1st defendant without offering him an
opportunity to react to it in any way, and proceeded to
enter summary judgment against him.
4. The judge was
incompetent or had no power to regularize the irregular
appearance.
5. The judge erred in
law when he glossed over or disregarded substantive
issues of fact, which were joined on the record.
6. The judge erred in
law when he held that Exhibit A attached to the Summons
for Summary Judgment did not offend against the
Contracts Act, and, similarly, that it was not subject
to the Stamp Act.
7. The Judge was
patently biased in favour of the plaintiff against the
1st Defendant and was, accordingly, incapacitated to
hold the scales of justice evenly.
Rule 8 (7) of C.I. 19
states as follows:
"The appellant shall
not without leave of the Court urge or be heard in
support of any ground of objection not mentioned in the
notice of appeal but the court may allow the appellant
to amend the grounds of appeal upon such terms as the
court may think just".
It is permissible for
an appellant to state only the general ground of appeal
and intimate in the notice of appeal that further
grounds would be filed upon the receipt of the ruling,
judgment or the record of proceedings i.e., additional
grounds later on. Under the rule quoted, when the
additional grounds are filed, the appellant should seek
and obtain the leave of the court to make submissions
thereon. If the submissions are filed already, he should
at the earliest opportunity pray the court to admit them
and treat them along the submissions on the original
grounds. Thus it was not open to counsel to simply file
the additional grounds and the submissions on them, as
was done in this case. It was a step not sanctioned by
the rules of court. The additional grounds are not
properly before us and as per the rule above quoted;
counsel would not be heard on them. They are struck out.
When that was done then we are left with only the
omnibus ground of appeal.
Under Rule 8 (8) of the
rules:
"Notwithstanding
sub-rules (4) to (7) of this rule, the court in deciding
the appeal, shall not be confined to the grounds set out
by the appellant, but the court shall not rest its
decision on any ground not set out by the appellant
unless the respondent has had sufficient opportunity of
contesting the case on that ground".
The record of
proceedings shows that at the hearing of the application
for summary judgment, counsel for the respondent therein
(the appellant herein), attacked the jurisdiction of the
court to hear the matter. The point was not belaboured
upon but it put both the court and the applicant therein
(the respondent herein), on their guard, or should have.
The respondent therefore had a sufficient opportunity of
contesting the case on that ground.
As a matter the
jurisdiction of a court to hear and determine any cause
or matter is of some fundamental importance. I would
even say that it is decisive of this appeal. The Circuit
Court established under the Courts Act 1993, Act 459, is
an inferior court (by no means a derogatory term),
envisaged under Article 126 (1) (b) of the 1992
Constitution. As such it is not unlimited in its
jurisdiction; it can and does exercise the jurisdiction
as is circumscribed for it by its enabling law. Where
that court purports to exercise a jurisdiction that
manifestly is in excess of the limits conferred upon it
by law, it is usurpation or an unlawful assumption of,
or exercise of jurisdiction. Any judgment or order made
or founded on it is defective for want of jurisdiction
and is pro tanto null and void and must be set aside for
that reason.
Section 41 of the
Courts Act, 1993, Act 459 defines the jurisdiction of
the Circuit Court as follows:
a). Original
jurisdiction in civil matters—
(i) in all personal
actions arising under contract or tort or for the
recovery of any liquidated sum where the amount claimed
is not more than ¢10,000,000.00".
Clearly, this was
personal action for the specific performance of a
contract between the plaintiff and the defendants. The
plaintiff, for reasons best known to it, did not name
any figure in the claim. But then in paragraph 8 of the
statement of claim, the plaintiff averred that:
"8. Thereafter, the 1st
and 2nd made a part payment of Sixty-Thousand US Dollars
towards the purchase of the gold promising to settle the
balance of Six Hundred and Seventy Thousand US Dollars
(which they claimed had already been paid into 1st
defendants account with 3rd defendant) as soon as the
consignment is handed over to them."
I have referred to the
facts that gave rise to this action earlier in this
judgment. Whatever agreement the parties came to for the
sale of the quantity of gold was reduced into writing
and marked as Exhibit A and headed 'Receipt' attached to
the affidavit in support of the application for summary
judgment. There is not an iota of doubt that the pith of
the plaintiffs complaint before the court was that each
of the defendants failed to comply with the terms of the
agreement in Exhibit A. By this action, the plaintiff
wanted an order to be decreed in his favour for the
agreement to be specifically enforced, or for an order
for the 3rd, 4th, and 5th defendants to release or pay
the balance of $670,000 to the plaintiff, or in the
alternative for "the 1st and 2nd defendants to return
all that quantity of gold sold and delivered to the 1st
and 2nd defendants which consignment the defendants have
failed to pay for".
That is the amount
claimed, or the value of the gold the subject matter of
the dispute. Most indisputably, either is far in excess
of the upper limits of the court. When counsel for the
appellant drew the attention of the court to the fact
that it lacked the jurisdiction to hear the suit, it was
essentially an objection founded on Section 41 of Act
459. The judge should have adverted his attention to the
claim as endorsed on the writ of summons and the
statement of claim to find out what the substance and
the value of the claim were in order that he decided
whether they fell within or outside his jurisdiction. If
he had done that he would have found that in the face of
that objection he should take evidence to resolve the
issue of the value of the subject matter of the dispute
before him and upon the answer as found by him on that
inquiry, determine whether or not the issue was within
his competence to hear. If the value was more than his
jurisdiction, then he was under a duty to either divest
himself of jurisdiction completely and refer the matter
to the High Court under Section 41(2) of Act 459, or
ascertain and obtain the agreement of the parties to
nevertheless continue with the trial, under Section 41
(3). That I think was the procedure the law enjoined the
trial judge to follow when counsel submitted that he had
no jurisdiction to try the case before him. It was a
matter of regret that the trial judge did not follow
this procedure but literally brushed the objection aside
by not caring to make even a cursory reference to it in
his ruling, and simply went on to assume jurisdiction
over the matter and continue to deliver the ruling now
under attack.
It cannot be
overemphasized that the law was settled that an inferior
court had limited jurisdiction and an objection could be
taken to its jurisdiction at any stage of the
proceedings even on appeal, see Okomfo Afua v. Sarbah
[1974] 1 GLR 147; Bakuma v. Ekor [1972] 1 GLR 133, CA;
Essah v. Sofo [1972] 2 GLR 301; Hausa v Dauda [1961] GLR
(Part II) 550.
The procedure on what a
trial should follow when an objection was raised on his
jurisdiction to try a case is a matter of law.
Jurisdiction is conferred on an inferior court by
statute since that court itself is a creature of
statute. The parties cannot confer jurisdiction upon
that court expressly or by their acquiescence and even
where they purport to do so, it must be in strict
compliance with the provisions of the enabling law. In
this instant case, the court did not follow the
procedure laid down by the law by which the parties
could confer jurisdiction on the court even where the
value of the dispute well exceeded the maximum
jurisdiction of the court.
'Where a court exceeds
its jurisdiction, because the judge assumed to do (and
in fact did something) which cannot in any way be
justified by the relevant statutory provisions from
which he derived his power to adjudicate, the whole
proceedings was a nullity. It was automatically null and
void', see holding 2 of the head notes to Bakuma v. Ekor
(supra), at page 135. The trial judge could have saved
the proceedings if he had followed the procedure,
ascertained and obtained the agreement of the parties to
hear the matter still, which should be plain and
manifest on the face of the record. By not doing that he
offended against the rules governing his jurisdiction
with the result that what followed were nullities and
ought to be set aside which we do now.
The issue as to the
want of jurisdiction was so fundamental that it
completely washed away the substratum of the entire
proceedings. We refuse to give any consideration to the
other grounds of appeal as we are of the candid opinion
that to do so would amount to indulging ourselves in an
otiose and a fruitless academic exercise, which this
court can ill-afford to expend its precious but limited
time and energy upon. Where it is proved that the trial
court had no jurisdiction to try a case, whatever
transpired in the court was a nullity; nothing could be
founded on it. In such a situation, that ground alone is
sufficient to determine the appeal; all other grounds on
the merits of the case, pale into insignificance.
Before I am done with
this appeal, I wish to make an observation about claim 3
on the writ of summons. I have quoted it already and I
will not repeat it in full here. It is in short a claim
for an interim order "pending the final determination of
this action". The issue of law is whether or not the
plaintiff was right to endorse this interim order that
sounded in the nature of an interim injunction on the
writ of summons. A similar situation arose in Ediyie v.
Honny [1975] 2 GLR 142 where a preliminary objection was
raised against a claim for interim injunction endorsed
on a writ of summons. Edusei J. (as he then was), upheld
the preliminary objection, holding that an application
for interim injunction could be applied for after the
issue of a writ of summons under Order 50 rules 7 and 8
of the High Court (Civil Procedure) Rules, 1954 (LN
140A). That was not a relief to be endorsed on a writ of
summons. I agree with Edusei J and affirm his judgment
on that point. In this instant case, I hold that claim 3
was wrongly endorsed on the writ of summons and I order
it to be struck out and it is hereby struck out
accordingly.
This court has the
power and the duty to order the trial court to do what
it ought to have done but failed to do. We exercise that
power and order that this case should be remitted back
to the trial court and as the claim before the court was
far in excess of the jurisdiction of that court, for the
court to proceed to exercise the jurisdiction in Section
41 (3) and obtain the agreement of the parties to
continue with the trial. If the trial judge had been
mindful of his jurisdiction he would have complied with
the law and acted upon it. This he woefully failed to
do. We cannot simply wink at this neglect of duty and
suffer it to let it pass by. We are compelled by the law
to do that which the judge should have done but
neglected to do, hence the order just made. We would
have had no inhibition whatsoever to transfer the case
to the court with competent jurisdiction to try it, to
wit the High Court to try it but for the provision in
the rules rule 41 (3), a saving device for the case to
be tried by the same court but then this time by the
consent and agreement of the parties which must be clear
on the face of the record. We so order as we allow the
appeal.
J. ANSAH
JUSTICE OF APPEAL.
FARKYE, JA:
I agree.
S. T. FARKYE
JUSTICE OF APPEAL
ASARE KORANG, JA:
I also agree.
A. ASARE KORANG
JUSTICE OF APPEAL
COUNSEL
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