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RULING
ANIN YEBOAH, JSC:-
The applicant herein was sued by
the interested party for
recovery of a sum of money due
and owing to the interested
party. The usual ancillary
relief of interest was also
endorsed on the writ. The facts
leading to the claim is not
necessary for the determination
of this application. It
appears, however, that the
interested party was represented
by its lawful attorney, one Mr.
Kwaku Twumasi Ampofo. The High
Court, at the application for
directions set down the issue of
capacity of the interested party
to be argued by the parties, as
the applicant had challenged the
capacity of the plaintiffs on
the grounds that the Power of
Attorney was irregular.
On 6/12/2005, the High Court
dismissed the application to set
aside the writ on grounds of
want of capacity. The
applicants herein appealed to
the Court of Appeal which by a
majority decision on 12/07/2007
allowed the appeal and set aside
the writ of summons and made
further consequential orders as
follows:
“the writ filed by Kwaku Twumasi
Ampofo and all process following
in this case are null and void
for lack of authorization by
Annex Management Company”
The interested party here lodged
an appeal against the majority
decision to this court but
subsequently on 4/12/2007
withdrew the appeal. It follows
that the majority decision stood
as the subsisting judgment of
the court.
As the writ had been declared a
nullity, the interested party
issued a fresh writ as suit № AC
158/2007 and indorsed it as
follows: AUREX MANAGEMENT AND
INVESTMENT AS/SA, Acting by
its lawful Attorney Kwaku
Twumasi Ampofo etc before the
Fast Track High Court, Accra.
Both parties settled pleadings
and it appeared that the
applicant as defendant in the
suit repeated his objection on
the capacity of the interested
party’s lawful attorney.
According to the applicant, the
same power of attorney which had
been rejected by the Court of
Appeal in the earlier suit at
the court of Appeal was being
used at the High Court in the
fresh suit. The High Court judge
on 1/4/2008 dismissed the
application whereupon the
applicants herein lodged an
appeal to the Court of Appeal
and filed a motion to stay
proceedings of the High Court.
The learned High Court judge
dismissed the application which
was subsequently repeated at the
Court of Appeal.
The learned trial judge at the
application for directions stage
ordered the parties herein to
file their respective documents
in the case as according to him,
the suit could be disposed off
by legal arguments. The order
was complied with by the
parties. The learned judge in
his judgment, which is the
subject of this application,
entered judgment for the
interested party and held that
the interested party (as
plaintiff) is not estopped from
instituting the fresh action.
The applicant hearing has
invoked the supervisory
jurisdiction of this court to
quash the judgment of the
learned High Court judge.
The applicant in his statement
of case has canvassed four main
grounds as the basis for this
application as follows:
1.
The decision of the High Court
violates the andi alteram partem
rule.
2.
The trial judge acted in excess
of jurisdiction or lack of it
when he purported to overrule
the decision of the Court of
Appeal.
3.
The trial judge had no
jurisdiction to preside over a
suit which by the decision of
the Court of Appeal was void.
4.
The trial judge having become
aware that there was an appeal
against his ruling at the Court
of Appeal together with an
application to suspend
proceedings pending the
determination of that appeal,
ought to have known his
jurisdiction became suspended
and did not have mandate to give
judgment.
The argument canvassed on the
first ground was that there was
no proper service on the
applicant when the court heard
the case and gave judgment. The
affidavit in support of this
application sworn to by one Ben
K. Kuffour, specifically
paragraph 34 speaks of short
service of notice of trial. In
course of his argument, learned
counsel said he had a case at
the Volta Regional House of
Chiefs at Ho, and had requested
for an adjournment with a letter
drawing the attention of the
trial judge to the short service
and his absence.
I understand the position of the
law to be that all adjournments
are subject to the court’s
convenience. Trial courts are
to exercise discretion in
adjournments of cases pending
before the courts. It is only
when an adjournment is refused
on illegitimate grounds that an
appellate court is bound in the
interest of justice to
interfere. See MAHAMA v SOLI
[1976] 2GLR 99, HAIGGI v
COMMONWEALTH HAULAGE [1963] 1GLR
276, BUABENG v FORKUO & OR
[1970] CC 59 CA. Assuming on
the facts of this case that the
learned trial judge erred in his
refusal to grant an adjournment
to the applicant herein, his
refusal to exercise his judicial
discretion in favour of the
applicant should not be
construed as violation of the
audi alteram partem rule. The
applicant had notice of trial
and there no rule of procedure
which sets a time limit for
parties to respond to hearing
notice summoning their presence
for trial. I think this ground
of the application is
misconceived and not supported
by any case law or rule of
procedure.
A court of law is not bound to
adjourn a case on the grounds
that a lawyer for the party
applying for the adjournment had
officially written to the trial
court to ask for an adjournment
on stated grounds. The
discretion to adjourn a matter
in court is under the rules of
court is vested in the court and
if it is properly exercised, an
appellate court will be slow in
interfering with such discretion
unless it is proved that the
discretion was unfairly
exercised.
The next ground which was argued
with such force was on
jurisdiction. Learned counsel
had contended that the learned
trial judge purported to
overrule the Court of Appeal’s
decision. According to counsel,
as the Court of Appeal had
declared the power of attorney
as illegal and contrary to the
powers of Attorney Act, Act 549
of 1998, the decision of the
majority of the Court of Appeal
was binding on the High Court
judge. To him, the judge’s
refusal to follow the majority
decision of the Court of Appeal
amounted to want of
jurisdiction.
Article 136 clause (5) of the
1992 Constitution makes it
mandatory for all courts lower
than the Court of Appeal to
follow the decisions of the
Court of Appeal on questions of
law. The learned trial judge
did not impliedly ignore this
provision of the constitution.
In fact in his ruling on the
preliminary objection dated the
1/04/2008, he said as follows:
“It is my humble view that given
the record before them the
majority in the Court of Appeal
could not have come to a
different conclusion.
As referred to above it is the
contention of the applicant that
in the light of the above ruling
it is incorrect and bad in law
for the Attorney to use the same
power of attorney to sue in the
present case.
If indeed the power of attorney
with which the present suit has
been commenced were the same as
the one in suit №138/2005; I
would have had no difficulty in
sustaining the objection raised
by the applicant. The Attorneys
would have no capacity and the
suit would have to be dismissed
accordingly”
He proceeded to hold that the
power of attorney in the suit №
AC 158/2007 which has culminated
in this application is different
from the one in suit № 138/2005
which was determined at the
Court of Appeal. Counsel for
the interested party and the
trial judge were factually right
when they contended that the two
powers of attorney were
different. This is borne out by
the fact that the first one was
issued on 3/03/2005 and the
second one was issued on 9th
August 2005. Indeed they were
different in form and contents,
dates etc. In my opinion, the
trial judge did not in any way
overrule the decision of the
Court of Appeal as contended by
counsel for the applicant. In
any case, failure to follow a
binding authority by a lower
court should not be construed as
amounting to excess or want of
jurisdiction to warrant the
intervention of this court’s
supervisory jurisdiction. Such
errors if apparent should be
redressed by appeals. See
REPUBLIC v HIGH COURT ACCRA,
EX PARTE COMMISSIONER FOR HUMAN
RIGHTS AND ADMINISTRATIVE
JUSTICE (ADDO INTERESTED PARTY)
[2003-24] SCGLR 312 and REPUBLIC
V HIGH COURT, ACCRA EX PARTE
INDUSTRIALIZATION FUND FOR
DEVELOPING COUNTRIES [2003-2004]
SCGLR 348.
Another ground on jurisdiction
which counsel for the applicant
argued was that as the Court of
Appeal had decided the fate of
the Power of Attorney and the
appeal to the Supreme Court was
withdrawn, the judgment of the
Court of Appeal sets a seal on
the matter as it declared the
action as void. A close reading
of the judgment of the Court of
appeal’s majority decision by
Quaye J-A was that as the power
of attorney was defective and
runs counter to the Powers of
Attorney Act, Act 544 of 1998
the action was void and the writ
together with all proceedings
were a nullity. Personally I
have my own misgivings about the
order make by the learned judge,
but the judgment is not on
appeal before us in this
application, for me to comment
on it. There was no question of
jurisdiction raised before him
to declare the writ void under
the circumstances. The position
of the law on this point was
settled about forty years ago in
the case of BARCLAYS BANK D.C.O
V HEWARD-MILLS [1969] CC 132
CA. It was held as follows:
“When a judgment is set aside on
the grounds that it was obtained
by fraud, the nullity does not
affect the writ of summons.
similarly, when proceedings are
set aside by an appellate court
as a nullity, the writ which
commenced the proceedings
remains unaffected, unless
the grounds of nullity is that
the trial court has no
jurisdiction to issue the writ.
The legal effect of declaring
proceedings null and void is
that there has been no
adjudication upon the claim, and
so the writ or claim
automatically goes back to the
trial court there to be properly
adjudicated upon”
The issue of jurisdiction was
not raised by the applicants
before the Court of Appeal. It
was a simple case of lack of
locus standi. As by a judicial
pronouncement the writ and the
entire proceedings had been
declared void, I think the
interested party’s access to the
court to issue a fresh writ
could not be construed as
violating the law. As said
earlier, the two powers of
attorney were different and the
judge whose decision is the
subject of this application was
sitting on a fresh matter with a
wholly different suit number.
The issue of jurisdiction
therefore dose not arise for
consideration by this court.
Lastly, the applicant argued
that as there was a pending
application for stay of
proceedings at the Court of
appeal, the judge ought to have
refrained from proceeding to
hear the case. The record shows
that the trial judge refused an
application for stay of
proceedings. The suit suffered
several adjournments as indeed
the affidavit in support of this
application shows.
The record shows that on two
separate hearing dates, learned
counsel for the applicant in
Exhibits SGL 12 and SGL 13 wrote
to the court on 28/07/2008 and
1/12/2008 respectively to ask
for adjournments. It should be
pointed out that no where in
these two letters did counsel
make it known to the trial court
that he had indeed filed a
repeated application for stay of
proceedings at the Court of
Appeal. He did not annex a copy
of the motion and failed to copy
counsel for the interested
party. In as much as counsel’s
integrity should not be doubted
in this case, I think lawyers
should assist trial courts to
know that such applications
which are filed outside their
courts in appellate courts are
brought to the notice of the
trial courts. The letter of
28/07/2008 stated inter alia
that : the hearing of a motion
to stay proceedings in this
court has been scheduled for
Wednesday . 30th July
in the Court of Appeal; in the
letter of 1/12/2008 no where did
counsel repeat his request for
adjournment based on the
pendency of the motion to stay
proceedings as the Court of
Appeal. His request was on
simple grounds that he was
travelling to Ho, in the Volta
Region to do a case. The basis
for the adjournment on
28/07/2008 that there was a
pending stay of proceedings at
the Court of Appeal had
impliedly ceased to exist given
the contents of the letter of
1/12/2008.
I think if the learned judge’s
attention had been drawn to the
pendency of the motion to stay
proceedings at the Court of
Appeal by exhibiting a copy of
the motion to the letter he
could have commented on it
before proceeding to hear the
case. It should, however be
pointed out that the trial
judge’s jurisdiction to hear the
case on the 1/12/2008 was not
destroyed by the pendency of the
motion to stay proceedings as
the Court of Appeal. Counsel
did not assist the court with
even a single decided case on
this point. A stay of execution
is conceptually different from
stay of proceedings in legal
proceedings.
I am of the considered opinion
that the grounds for this
application and the facts do not
establish that the learned judge
exceeded his jurisdiction or
engaged in any serious
illegality to warrant our
intervention by way of
certiorari. The application is
thus dismissed for want of
merit.
ANIN YEBOAH
( JUSTICE OF THE SUPREME COURT)
I agree
S. A. BROBBEY,
( JUSTICE OF THE SUPREME COURT)
I agree
J. ANSAH
( JUSTICE OF THE SUPREME COURT)
I agree
S. O. A. ADINYIRA (MRS)
( JUSTICE OF THE SUPREME COURT)
I agree
J. V. M. DOTSE
( JUSTICE OF THE SUPREME COURT)
COUNSEL:
MAWUENA AGBENOTO FOR THE
APPLICANT
NII AKWEI BRUCE THOMPSON FOR THE
INTERESTED PARTY
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