Practice and
Procedure - Invoked the
supervisory jurisdiction –
Supreme Court – Certiorari -
Application for joinder -
Strucking out for want of
prosecution - Non-service on the
interested party – Rule of
natural justice breached -
Injunction -
HEADNOTES
The
applicants as plaintiffs
instituted an action against one
John Wilson Akoto in suit for
ejectment, arrears of rent
menses profit and interest on
the outstanding rent. One
Charles Senyo Coker who is the
interested party to this
application applied to be joined
as co-defendant, the
application for joinder
though filed on record was not
moved and same was accordingly
struck out however, the said
Charles Sanyo Coker and Charles
Duamoah Bortey commenced as
action at the High Court, Accra
claiming against the 1st
and 3rd applicants
herein the reliefs of an order
restraining the defendants from
ejecting the plaintiff until the
determination of the agreement
between the plaintiffs and the
late Jacob Daniel Salloum
injunction against the
defendants and each of their
agents, servants, workers,
assigns and privies restraining
them from interfering with the
plaintiff’s quite enjoyment of
the remaining term of their
agreement with Jacob Daniel
Salloum ,and cost. Subsequent to
the filing of the writ, the
plaintiffs in the suit
No.BL393/2006 were granted an
interlocutory injunction the
argument of learned counsel for
the applicants is that, as they
were the obvious target of the
application before the High
Court, the learned judge ought
to have heard them before
vacating the writ of possession
and the execution processes at
the instance of a non-party to
the case from which the
execution was levied. They
contend that the application
made to the court by motion to
vacate the writ of possession
and the processes of execution
ought not to have been made
ex-parte but on notice to them.
Order 19 of the High Court
(Civil Procedure) Rules of 2004,
CI 47
HELD
MAJORIY OPINION
The courts in
Ghana and elsewhere seriously
frown upon breaches of the audi
alteram partem rule to the
extent that no matter the merits
of the case, its denial is seen
as a basic fundamental error
which should nullify proceedings
made pursuant to the denial.In
this application, the facts show
clearly that the conduct of the
interested party was clearly
intended to overreach the
statutory rights of the
applicants. It is our opinion
that as this court has in
several cases held that a breach
of the rules of natural justice
rendersproceedings a nullity, we
will declare that the applicants
have sufficiently made a case to
warrant our supervisory
intervention. We will therefore
grant the application in the
terms prayed and declare the
proceeding of the High Court
dated the 20/09/2010 a nullity
for the reasons canvassed
above.On the second ground, we
think that as the
errorcomplained of has been
declared fundamental and this
renders the proceedings a
nullity, the application also
succeeds on the second ground.
The application is thus granted
as prayed.
MINORITY OPINION
The principle
involved here is that, although
a court like the High Court in
the instant case might commence
an inquiry with clear
jurisdictional powers, it might
lose those powers where it
commits any of the errors
mentioned therein, i.e.
exceeding its jurisdiction by
making orders in excess of its
powers or not affording an
opportunity to the parties in
the case to be heard etc, this
list could be endless.
The important thing
however is for a court such as
this Supreme Court to embark on
a critical analysis and survey
to find out whether the court
below breached any rule of
practice in its determination of
the rights of the parties.In the
instant case, I find no such
thing existing and will dismiss
the application.
The learned trial
High Court Judge did not breach
the audi alteram partem
rule of the principle of natural
justice. This is because the
application before him was for
an ex-parte application which he
granted. He was not obliged to
afford the applicants a hearing.
For the above
reasons, I will dismiss this
application seeking to invoke
the supervisory jurisdiction of
this court to quash the decision
and orders contained in the
orders of the High Court dated
29th September, 2010.
STATUTES
REFERRED TO IN JUDGMENT
High Court
(Civil Procedure) Rules of 2004,
CI 47
CASES
REFERRED TO IN JUDGMENT
Leedo v. Bank
of the North [1998] 7 SCNJ 328
R v.
Kensington Income Tax
Commissioners, Ex parte
Princess Edmond de polignac
[1917] IKB 486 CA
R v. Accra
District Court Magistrate, Ex
parte Kuma {1968] GLR 955.
In re Kumi
(dec’d), Kumi v. Nartey
[2007-2008] SCGLR 723
Republic v
High Court; Accra, Ex parte
Allgate Co. Ltd (almagamated
bank ltd interested party)
[2007-2008] SCGLR 1041
Amoako v.
Hansen [1987-88] 2 GLR 26 at
43-44
Republic v.
High Court, Bolgatanga:Ex parte
Hawa Yakubu [2001-2002] SCGLR 53
Barclays Bank
of Ghana Ltd. v. Ghana Cables
Co. Ltd. & Ors. [1998-1999]
SCGLR
Craig v.
Kanssen [1943] 256 CA,
R v. Appeal
Committee of County of London
Quarter Sessions, Ex parte rossi
[1956] I ALL ER 670 CA.
Republic v
High Court, Accra Ex-parte
Anyan, (Platinum Holdings –
Interested party) [2009] SCGLR
255
Hanna Assi
(No.2) v GIHOC Refrigeration &
Household Products Ltd.
[2007-2008] 1, SCGLR 16
Fosua &
Adu-Poku v Dufie (deceased) &
Adu-Poku Mensah [2009] SCGLR 310
Republic vrs
High Court, ex-parte Allgate Co.
Ltd. (Amalgamated Bank Ltd –
Interested Party) 2007-2008 1041
Amoako v
Hansen [1987-88] 2 GLR 26 at
43-44.
Boakye v
Tutuyehene [2007-2008] SCGLR 970
Republic v
High Court, Accra: Ex-parte
Appiah [2000] SCGLR 389,
Republic v
High Court, Accra: Ex-parte
Industrialisation Fund for
Developing Countries [2003-2004]
1 SCGLR 384
The Republic
v Court of Appeal, Accra:
ex-parte Tsatsu Tsikata
[2005-2006] SCGLR 612
R v
Northumberland Compensation
Appeal Tribunal, Ex-parte Shaw
1952 1 KB 338
Republic v
High Court, Accra: Ex-parte
Commission on Human rights and
Administrative Justice – Addo,
Interested party [2003-2004] 1
SCGLR 312.
BOOKS
REFERRED TO IN JUDGMENT
Atkin’s
Encyclopedia of Court Forms in
Civil Proceedings second edition
at page 203
DELIVERING
THE LEADING JUDGMENT
ANIN YEBOAH
JSC:
DISSENTING
JONES DOTSE
JSC:
COUNSEL
JOSEPH
NICHOLAS NKRUMAH FOR APPLICANTS
WITH HIM FESTUS OWUSU – BADU
ANTHONY
DESEWU FOR THE INTERESTED PARTY
___________________________________________________________________
R U L I N G
___________________________________________________________________
ANIN YEBOAH
JSC:
The
applicants in this case have
invoked the supervisory
jurisdiction of this court to
quash by certiorari the order of
the High Court, Accra dated the
29/09/2010. The applicants and
the interested party do not
dispute the facts of this
application.
Briefly, the
facts are as follows: On the
29/11/2001 the applicants as
plaintiffs instituted an action
against one John Wilson Akoto in
suit number L653/2001 for
reliefs of ejectment, arrears of
rent menses profit and interest
on the outstanding rent. One
Charles Senyo Coker who is the
interested party to this
application applied to be joined
as co-defendant. It appears
that the application for joinder
though filed on record was not
moved and same was accordingly
struck out on 20/10/2005 for
want of prosecution. No
procedural effort was made to
either relist or repeat the
application. On the 19/04/2006,
however, the said Charles Sanyo
Coker and Charles Duamoah Bortey
commenced as action at the High
Court, Accra as suit No. BL
393/06 claiming against the 1st
and 3rd applicants
herein the reliefs of an order
restraining the defendants from
ejecting the plaintiff until the
determination of the agreement
between the plaintiffs and the
late Jacob Daniel Salloum,
injunction against the
defendants and each of their
agents, servants, workers,
assigns and privies restraining
them from interfering with the
plaintiff’s quite enjoyment of
the remaining term of their
agreement with Jacob Daniel
Salloum ,and cost.
Subsequent to
the filing of the writ, the
plaintiffs in the suit
No.BL393/2006 were granted an
interlocutory injunction on the
17/04/2007 by Abada J.,
restraining the first and third
applicants herein. According to
the affidavit of the first
applicant, after the grant of
the interlocutory injunction the
parties to the suit have not
pursued the action. In the suit
No.L653/2001, the said John
Wilson Akoto died and was
substituted by John Wilson Akoto
Jnr. Upon substitution, Entry
of judgment was served on him.
The interested part to this
application filed a Notice of
claim on the grounds that the
houses in execution were the
subject of a pending action in
suit No.BL 393/2006: CHARLES
SENYO COKER & OR V. FARID DANIEL
SALLOUM & OR. The
applicants herein filed a motion
on notice on 30/10/2009 and
prayed the court to set aside
the Notice of Claim filed by the
interested part herein. The
motion was argued before Justice
E.B.K Agbloyor of the High
Court, Accra who in his ruling
ordered the applicants herein to
abide the final determination of
suit No. BL 393/2006 before any
step is taken against the
interested party herein.
The
applicants herein, however, on
24/8/2010 filed an application
for leave to issue writ of
possession against the
defendant/judgment/debtor John
Wilson Akoto (Jnr) in suit
No.L653/2001. The application
was granted on 1/09/2010. The
record of exhibits shows that on
7/09/2010, the applicants filed
the Writ of Possession against
Mr. John Wilson Akoto (Jnr) and
on 27/09/2010 the writ of
possession was only executed
against John Wilson Akoto (Jnr)
and left out other persons in
possession, including the
interested party herein. Indeed
the applicants suppressed the
facts by not disclosing to the
court the order made by Abgloyor
J.
On
27/09/2010, the very day the
writ of possession was executed
at the instance of the
applicants, the interested party
filed a motion Ex parte praying
the court presided over by Mr.
Justice Abdulai Iddrisu to set
aside the writ of possession.
In the affidavit in support of
the said application sworn to by
the interested party, reference
was made to the order of
Abgloyor J dated the 30/04/2010
and the import of same. It also
raised the issue of non-service
on the interested party when the
applicants wanted to levy
execution by writ of possession.
The learned judge Mr Justice
Abdulai Iddrisu granted the
application ex parte and in his
ruling dated the 29/09/2010 set
aside the execution levied by
the applicants. In his ruling
the learned judge said as
follows:
“It must be noted that this
court took its decision based on
the facts that
were put before it. It is
however revealing that certain
facts which were
essential and could have
assisted the court in its
decision were not disclosed
to
the court.
The court can set aside under
its inherent jurisdiction any
order which it had
been induced to make such as
by mistake or even innocent
suppression of
material facts”
The learned judge proceeded to
set aside the execution at the
instance of
the
interested party who was not a
party to the original suit”
The
applicants who are aggrieved
have resorted to this
application by invoking the
supervisory jurisdictions of
this court by complaining on two
main grounds as follows:
i. A breach of the principle
of audi alteram partem rule.
ii. Error of law (on the face
of the record)
In a
nutshell, the argument of
learned counsel for the
applicants is that, as they were
the obvious target of the
application before the High
Court, the learned judge ought
to have heard them before
vacating the writ of possession
and the execution processes at
the instance of a non-party to
the case from which the
execution was levied. They
contend that the application
made to the court by motion to
vacate the writ of possession
and the processes of execution
ought not to have been made
ex-parte but on notice to them.
The practice
in Civil Proceedings is that in
pending matters applications are
usually made to the court by
motion for a grant of any order
in terms of the prayers sought
in the motion. The rules and
practice at the High Court,
however, regulates how motions
could be either on notice or
ex-parte. Order 19 of the High
Court (Civil Procedure) Rules of
2004, CI 47 provides guidelines
for making applications by
motion. For the purposes of
this application, reference may
be made to Order 19 rule (1) (3)
which states as follows:-
“(3) Except where the Rules
otherwise provide, no motion
shall be made
without
previous notice to the parties
affected”
Order 19 rule
(3), however, vests powers in
the High Court to entertain
motions ex-parte under limited
circumstances. Indeed, it is
part of the rules and practice
that certain motions by their
nature ought to be made ex-parte
given the circumstances. The
learned author of Civil
Procedure in Nigeria at page
553 states the position as
follows:
“These are
two main circumstances which, as
decided in Leedo v.
Bank of the North [1998] 7
SCNJ 328, an application
ex-parte could be made. These
are (i) when, from the nature of
the application, the interest of
the adverse party will not be
affected and
(ii) when
time is the essence of the
application.
In any of these situations a
court may rightly exercise its
desertion by granting motion ex-
parte. But where the motion
will affect the interest of the
adverse party, a court of
law should insist
and order that the adverse party
be put on notice” (emphasis
ours).
The above
statement of the law is also
supported by a passage in
Atkin’s Encyclopedia of Court
Forms in Civil Proceedings
second edition at page 203.
“Motions may be made either ex
parte or upon notice. All
motions in an
action (other than a motion for
judgment) are interlocutory.
The general rule
is
that no motion may be made
without previous notice to the
parties
affected. But the court or
judge if satisfied that the
delay caused by
proceeding in the usual way and
giving the necessary notice
would or might
entail irreparable or serious
mischief, may make any order
ex- parte
upon such terms as to costs
or otherwise, and subject to
such undertaking, if
any, as the court or judge
may think just, leaving any
party affected by the
order at liberty to move
to se it aside”
In our
respectful opinion, we think the
suppression of the orders made
by Agbloyor J notwithstanding,
the interested party who was not
originally a party to the
judgment for which the Writ of
possession was sought and
granted ought to have given
notice to the judgment/creditors
when he sought to set aside the
execution processes as a party
affected by the execution. His
not being a party to the
substantive case in which a
final judgment had been given,
makes this situation more
serious. How a person who was
not originally a party to a case
in which what is left is
execution can mount an
application ex parte under the
circumstances of this case to me
is not clearly sanctioned by any
rule of law or practice. The
affidavit which sought to
support his application to
vacate the orders was very
terse.
It did not
even disclose any urgency of the
matter and any irreparable
injury which would have resulted
from resorting to the hearing of
the application on notice. In
any case, the interested party
was not ejected from the
premises during the enforcement
of the writ of possession for
him to complain of any urgency
under the circumstances.
I freely
accept the proposition of law
that in motions mounted ex
parte, the utmost good faith is
required of an applicant. The
few cases which come to mind
are: R v. Kensington
Income Tax Commissioners,
Ex parte Princess Edmond de
polignac [1917] IKB 486 CA
and R v. Accra
District Court Magistrate, Ex
parte Kuma {1968] GLR 955.
But we wonder whether an
application to set aside any
order which was made by a court
of competent jurisdiction by
relying on suppressed facts
should be made ex parte when
there are no prevailing
circumstances warranting it to
be made ex parte without notice
to the person to be affected.
I am not
unmindful of the existing saving
provisions under Order 81 of CI
47 which has relaxed the strict
application of the rules in
matters of non-compliance. To
us, much depends on the extent
of the irregularity of the
proceedings and the nature
thereof. In this application,
the main ground canvassed before
us is the breach of the rules
of the audi alteram partem
rule. The right to be heard in
proceedings before a court of
law is well established in every
common law jurisdiction. It
should be taken away only when
the rules of court or practice
permits it to be so. I do not
think that order 81 could be
reasonably applied to regulate a
basic fundamental error which
error has denied a party his
constitutional and inalienable
right to be heard in a case in
which the applicant had been
adjudged a victor in civil
proceedings and what is left is
execution. No especial
circumstances have been shown to
exist in the affidavit of the
interested party as we have
already stated above. To invoke
Order 81 to cure this serious
fundamental error would bring
too much laxity in practice and
such situations should be
avoided.
In the recent
case of IN RE KUMI
(Dec’d), KUMI v.
NARTEY [2007-2008] SCGLR 723
Sophia Adinyira JSC said at page
632-633 as follows:
“As said earlier, it is trite
law that a person cannot be
found guilty or liable on
order or judgment unless he had
been give fair notice of the
trial or
proceeding to enable him to
appear and defend himself. This
is the essence
of
justice. Failure by a court
or tribunal to do so would be a
breach of the
rules of civil procedure and
nature justice.
A judgment or
order procured under such
circumstances is, in our view a
nullity.
(emphasis mine)
Prof.
Date-Bah JSC in discussing the
scope of Orders 81 of CI 47
observed in the case of
REPUBLIC V HIGH COURT;
ACCRA, EX PARTE ALLGATE CO. LTD
(ALMAGAMATED BANK LTD
INTERESTED PARTY) [2007-2008]
SCGLR 1041 at page 1052 said:
“This
decision is probably a case too
far for this jurisdiction.
There is binding precedent in
this jurisdiction to the
contrary, even after the
enactment of the new Order 81,
r1 of the High Court Rules. For
the reasons eloquently
articulated by Taylor JSC in
AMOAKO V. HANSEN [1987-88] 2
GLR 26 at 43-44, non-service of
a process where service of same
is required, in my view
goes to jurisdiction.
Non-service implies that audi
alteram partem, the rule of
natural justice is
breached.
This is fundamental and goes
to jurisdiction”
In the Ex-
parte Allgate Co. Ltd case,
supra, His Lordship Professor
Date-Bah JSC in his concluding
remarks summed up the law at
page 1054 as follows:
“To summarise then, where there
has been non-compliance with any
of the
rules contained in the High
Court (Civil Procedure) Rules,
2004 (CI 47) such
non-compliance is to be regarded
as an irregularity that does not
result in
nullity, unless the non-
compliance is also a breach of
the constitution or of a
stature other than the rules of
court or the rules of natural
justice or otherwise
goes
to jurisdiction”.
With these
binding precedents very current
on the law, we are fortified to
hold that the irregularity which
is acknowledged by all nullified
the proceedings which the
applicants are complaining of.
The position
of the law is that, breach of
the basic rules of natural
justice as it has happened in
this application before us
renders the proceeding a
nullity. Learned counsel for
the applicant has drawn our
attention to the recent cases of
Republic v. High Court,
Bolgatanga:Ex parte Hawa
Yakubu [2001-2002] SCGLR 53
and Barclays Bank of Ghana
Ltd. v. Ghana Cables
Co. Ltd. & Ors.
[1998-1999] SCGLR 1 to
illustrate how this court frowns
upon the beach of the rules of
non-service especially in the
Ex-parte Hawa Yakubu’s case.
Indeed, it has been the practice
that even if an application is
ex parte and the court is of the
view that it has to be on notice
the court should order for a
copy of the motion to be served
on the affected party even
though the application has been
sought ex parte.This practice
has the statutory backing under
order 19 rule 1 (4) of CI 47.
It illustrates how parties ought
not to be denied this basic and
fundamental right in civil
litigation.
Indeed,
procedural defects have been
cured in various cases if the
defects are not fundamental. If
the defect is such that a
party’s rights have been
seriously denied as in this
case, a court should not apply
Order 81. Lack of service of
hearing notice for example has
always been seen as a
fundamental defect. See
CRAIG V. KANSSEN
[1943] 256 CA, R V.
APPEAL COMMITTEE OF
COUNTY OF LONDON QUARTER
SESSIONS, EX PARTE ROSSI
[1956] I ALL ER 670 CA. Equally
so, if a party is denied his
right to be heard as in this
case, it should constitute a
fundamental error for the
proceedings to be declared a
nullity.
The courts in
Ghana and elsewhere seriously
frown upon breaches of the audi
alteram partem rule to the
extent that no matter the merits
of the case, its denial is seen
as a basic fundamental error
which should nullify proceedings
made pursuant to the denial.
In this
application, the facts show
clearly that the conduct of the
interested party was clearly
intended to overreach the
statutory rights of the
applicants. It is our opinion
that as this court has in
several cases held that a breach
of the rules of natural justice
renders proceedings a nullity,
we will declare that the
applicants have sufficiently
made a case to warrant our
supervisory intervention. We
will therefore grant the
application in the terms prayed
and declare the proceeding of
the High Court dated the
20/09/2010 a nullity for the
reasons canvassed above.
On the second
ground, we think that as the
error complained of has been
declared fundamental and this
renders the proceedings a
nullity, the application also
succeeds on the second ground.
The application is thus granted
as prayed.
[SGD]
ANIN
YEBOAH
JUSTICE OF
THE SUPREME COURT
[SGD] DR. S.K. DATE-BAH
JUSTICE OF THE SUPREME COURT
[SGD] B. T. ARYEETEY
JUSTICE
OF THE SUPREME COURT
[SGD]
V. AKOTO-BAMFO [MRS.]
JUSTICE OF THE SUPREME COURT
JONES DOTSE
JSC:
I have had
the advantage of reading the
lead judgment delivered by my
brother Anin-Yeboah Jsc. I have
applied myself and my thoughts
as best as I can to this
opinion, but I am unable to
accept the reasoning and the
conclusions reached therein. I
therefore proceed to deliver the
following as my dissenting
opinion.
This is an
application at the behest of the
Applicants herein, seeking an
order of certiorari pursuant to
article 132 of the Constitution
1992 to quash the order of the
High Court, Accra presided over
by Alhaji Abdulai Iddrisu J,
dated 29th September,
2010 on the following grounds:
1.
Breach of the principle of audi
alteram partem rule and
2.
Error of law on the face of the
record
FACTS
The relevant
facts pertinent to the instant
application are that, on the 29th
day of November, 2001 the
Applicants herein namely:
Farid Daniel
Salloum
Fawzi Daniel
Salloum
Fouad Daniel
Salloum and
Jacob Daniel
Salloum, as plaintiffs,
instituted an action in the High
Court, Accra, Suit No.L653/2001
against one John Wilson Akoto –
as defendant basically for the
following reliefs:
a.
An order of ejectment or
recovery of possession in
respect of H/Nos. F 684C/2 and
F684/D/2 Osu R E, Accra.
b.
Payment of arrears of rent,
mesne profits and interest on
the arrears of rent which at the
time totalled ¢64,720,000.00
(now GH¢6,472.00).
During the
pendency of the above suit in
the High Court, the interested
party herein filed an
application on the 20th
day of July, 2005 seeking to
join the said suit as a
co-defendant.
In his
application in support of the
application for joinder, the
interested party deposed to the
following pertinent facts:
“In or about
July 1990, the said Mr. Akoto
introduced me to the original
owner of the said flats, Jacob
Daniel Salloum”.
“The said Mr.
Jacob Daniel Salloum leased the
said two flats to me”
“The
plaintiffs are very much aware
that I am the occupant of the
said flats and occupy the same
as tenants of Mr. Jacob Daniel
Salloum.
“In or about
the year 1993, the plaintiffs
herein brought a suit against us
at the then Community Tribunal
at Osu and Labadi but later
abandoned the action when we
challenged their capacity”.
All the above
depositions are contained in
Exhibit I, attached by the
Applicants herein to their
application in support of this
certiorari application.
The
interested party was however
unable to pursue his application
for joinder, which was later
struck out for want of
prosecution on 20th
October, 2005.
Later, on or
the 19th day of April
2006, the Interested party and
one Charles Duamorh Bortey
instituted a substantive action,
suit No. BL 393/06 in the High
Court, Accra against Farid
Daniel Salloum and Fouad Daniel
Salloum, the 1st and
3rd Applicants
herein.
The reliefs
claimed by the Interested Party
and Charles Bortey were:
a.
An order restraining the
defendants from ejecting the
plaintiff’s until the
determination of the agreement
between the plaintiff and the
late Jacob Daniel Salloum.
b.
Injunction against the
defendants, their and each of
their agents, servants, workmen,
assigns and privies
restraining them from
interfering with the plaintiffs
quiet enjoyment of the remaining
term of their agreement with
Jacob Daniel Salloum.
The
interested party and another,
were accordingly granted an
Interlocutory injunction on 17th
April 2007 – reference exhibit
3, in the following terms:-
“Upon hearing
Anthony Desewu Esq., Counsel for
and on behalf of the
plaintiffs/Applicants herein,
and Joseph Nkrumah, Esq.,
Counsel for and on behalf of the
Defendants/Respondents herein;
it is hereby ordered that the
defendants herein be and are
hereby restrained from ejecting
the plaintiffs until the
determination of this suit. It
is hereby further ordered that
the defendant herein, their
agents, servants, workmen,
assigns and privies be and are
hereby restrained from
interfering with the plaintiffs
quiet enjoyment of the premises
until the final hearing and
determination of this suit.”
(Reference to
plaintiff are to the Interested
Party, and defendants to the 1st
and 3rd
applicants).The original
defendant in Suit No L 653/2001
John Wilson Akoto died and was
accordingly substituted by his
son John Wilson Akoto Jnr. by
order of the court dated 22nd
October 2008, reference exhibit
4.
The case
proceeded to trial and the final
judgment was pronounced by
Agbloyor J, on the 29th
day of January 2009 who
delivered judgment in the case
in favour of the plaintiffs
therein, applicants herein, by
granting all the reliefs they
had claimed.
The
Interested Party on the 13th
day of February 2009 filed a
Notice of claim pursuant to
order 44 r. 12 of C. I 47
reference exhibit 6.
Thereafter,
an application was filed by the
Applicants herein to dismiss the
Notice of Claim, whereas the
Interested party disputed and
opposed same.
Agbloyor J,
in a considered ruling dated 30th
April, 2010 stated in part as
follows:
“The claimant
wants this court to pronounce on
his interest in the property as
a tenant in the alleged
agreement between him and one
Jacob Daniel Salloum to occupy
the property in issue for a
period expanding between 1st
January 1991 to December 2015.
To protect the same interest he
filed suit No. BL 393/2006
against the plaintiffs claiming
reliefs for an order restraining
the defendants from ejecting him
from the property until the
agreement determined by
affidavit evidence in this
court. He should therefore
pursue Suit No BL 393/2006 to
its logical conclusion by
calling evidence in a full
dressed trial. Because of
that suit this court cannot
order the filing of a fresh suit
in this court as mandated by
order 44 rule 13 (1) (b) of C.
I. 47.
The
defendants in that case who are
plaintiffs/applicants herein
should abide the final
determination of that suit
before they take any step with
regard to the claimant’s status
vis a vis the subject property.
More especially, they should
abide by the interlocutory
injunction slapped on them on 17th
April, 2007 by a High Court then
presided over by Abada J until
final determination of that
suit.”
The
applicants herein, then filed a
motion ex-parte on the 24/8/2010
for leave to issue a writ of
possession in respect of the
premises the subject matter of
Suit No. L653/2001 in respect of
which they had judgment. This
application was granted by an
Accra High Court differently
constituted from Agbloyor J on 1st
September, 2010. The Applicants
proved that they filed a
praecipe for a writ of
possession and were later put
into possession by execution of
the writ of possession on
27/9/2010.
The
applicants in paragraph 19 of
their affidavit in support of
the instant application deposed
as follows:
“That the
applicants herein, being mindful
of an interlocutory injunction
restraining them from ejecting
the interested party herein in
Suit No. BL 393/2006 which is
still pending before an Accra
High Court was very careful and
did not have, the interested
party ejected from the property
under execution.”
The crux of
the instant application is that,
the High Court Accra, presided
over by Alhaji Iddrisu J, on the
29th day of September
2010 upon an ex-parte
application filed by the
Interested Party herein, set
aside its earlier order dated 1st/9/2010
which granted leave to the
applicants for a writ of
possession.
The
Applicants therefore contend
that by so doing, the orders
contained in the decision of
29/9/2010 have breached the
audi alteram partem
principle of the rules of
natural justice as they were not
given a hearing and that there
is also an error of law on the
face of the record.
In order to
put the instant application in
proper perspective it will be
desirable to quote the reasons
which the learned trial Judge
gave for vacating his earlier
orders of 1st
September, 2010.
It must be
noted that in this ruling, the
learned Judge expressed surprise
at the conduct of learned
counsel for the applicants who
concealed relevant information
from the court.
For example,
the learned Judge specifically
mentioned the interlocutory
injunction granted by Abada J,
on 17th April 2007
which is still subsisting as
well as Agbloyor J’s ruling of
30th April, 2010.
Based upon
these two orders or decisions,
Alhaji Abdulla Iddrisu J, stated
as follows:-
“It has not
been shown that the ruling
mentioned above has been set
aside or even challenged. It
therefore means that the ruling
is in operation and is valid
until it is set aside. It must
be noted that this court took
its decision based on the facts
that were put before it. It is
however revealing that
certain facts which were
essential and could have
assisted the court in its
decision were not disclosed to
the court.
This court
can set aside under its inherent
jurisdiction any order which it
had been induced to make such as
by mistake or even innocent
suppression of material facts.
I therefore
set aside the order of this
court which was made on 1st
September, 2010 granting leave
to the Applicant in that case to
recover possession of H/No.
F684C/2 and F684D/2 and its
subsequent execution. The
parties are to abide by the
ruling of this court delivered
on 30th April, 2010
by my brother Justice Agbloyor.”
The above are
the raw facts of this certiorari
application before the court.
What must be
noted are the following:
1.
The applicants herein, have a
valid judgment against John
Wilson Akoto Jnr in respect of
the premises in suit No. L
653/2001.
2.
The Interested party also has a
valid interlocutory injunction
order dated 17/4/2007 granted by
Abada J, restraining 1st
and 3rd Applicants
therein from interfering with
the interested party’s enjoyment
of that part of the premises he
occupies.
3.
The Applicants and the
Interested party are bound and
estopped by the order of
Agbloyor J, dated 30/4/2010 from
executing the final judgment
entered in their favour against
the interested party until the
final determination of Suit No.
BL 393/2006.
4.
The Applicant’s themselves have
admitted in their affidavit in
support that the interested
party is in occupation of
portions of the premises for
which reason by virtue of the
orders referred to supra, they
have decided not to execute the
judgment against him.
The necessary and logical
deduction that can be made
therefore is that, the presence
of the Interested Party in the
portion of the property he
occupies before the execution of
the writ of possession by the
applicants has been admitted by
them. This means the interested
party is entitled to continue to
occupy his portion until the
final determination of the case.
The applicants will therefore
not lose anything if the order
of execution is set aside in
that instance.
By way of
further explanation, what this
means is that, if the Applicants
herein contend that they have
not executed the writ of
possession against the
Interested Party in respect of
the premises which he occupies,
then by logical deduction,
nothing would be lost by the
applicants if the execution of
the order of the writ of
possession in so far as it
touches and concerns the
interested Party is set aside.
RECEPTION OF
ARGUMENTS IN THIS COURT
It must also
be noted that upon the reception
of arguments in this case, the
court held that the interested
Party herein, having filed his
statement of case outside the
statutory period allowed under
the rules without leave of the
court, and not seeking to
regularise same until after the
conclusion of the arguments of
learned Counsel for the
applicants, the said statement
of case cannot be used and
relied upon in this case. This
was because the point had been
raised and argued against him.
This ruling is therefore
premised upon the facts of the
case and the exposition of the
law as contained only in the
statement of case of the
applicants.
GROUNDS OF
APPLICATION
In his
statement of case, learned
Counsel for the Applicants
stated thus:
“The
Interested Party’s ex-parte
application made on the 27th
September, 2010 which was
granted on 29th
September, 2010 even though he
was not a party to the suit was
an error on the face of the
record. The effect of the
decision of the High Court,
Accra on that date was to set
aside the final judgment entered
against John Wilson Akoto (Jnr)
on 29th January by a
stranger to a suit without
giving the applicants herein any
opportunity to be heard even
though they were the
plaintiff/judgment/creditors in
that suit.”
From the
above, the Applicants have
reiterated their two prong
argument in this case, and these
are:
1.
Breach of the principles of
audi alteram partem and
2.
Error of law on the face of the
record
It is
important to deal with and
dispose off the contention that
the Interested Party herein is a
stranger to the case.
Admittedly,
the interested party is in
stricto sensu not a party in the
suit No. L653/2001. But it has
to be noted that, he not only
filed a Notice of Claim in that
suit when the applicants herein
proceeded to have their judgment
executed without giving him a
Notice, but he successfully
obtained a ruling from the High
Court, which restrained the
Applicants from executing the
judgment against the interested
party, without abiding the
result of Suit No. BL393/2006 as
directed by Agbloyor J.
In addition
to the above, the orders made by
the High Court were such that,
the fortunes of the suit filed
later by the Interested Party
against 1st and 3rd
Applicants herein, suit No.
BL393/2006 were inextricably
linked to suit No L653/2001.
Considering
the above scenario to the fact
that the interested party
successfully secured an
important ruling in his favour
as a claimant, then it becomes
clear that the said interested
party cannot under any stretch
of imagination be described as a
stranger to suit No L653/2001.
In
considering whether a party is a
stranger to a suit or not, care
must be taken to ensure that the
telescope is not centred only on
the primary parties in the suit.
If that is done, a lot of
injustice will be done other
persons whose interests and
claims are linked one way or the
other to the actual suit before
the court. For instance, in the
instant case, it is quite clear
that the Interested Party, being
a tenant in the premises the
subject matter in Suit No.
L653/2001 who has on his own
secured an interlocutory
injunction to restrain the
Applicants herein from
disturbing his quiet enjoyment
of the said premises in Suit No.
BL 393/2006, cannot be said to
be a stranger.
No wonder
learned counsel for the
Applicants in their Statement of
Case in the best traditions of
the Bar conceded the fact that
the order of Agbloyor J, made on
30th April, 2010
directed the Applicants to abide
the final determination of the
suit before any action could be
taken against the Interested
party.
When
therefore, in clear breach of
the said directives the
interested party was ejected
pursuant to an execution of a
writ of possession emanating
from the said court, the
interested party has nowhere to
turn to except the very court
that made the orders and apply
to have them set aside.
Similar facts
arose in the case of
Republic v High Court, Accra
Ex-parte Anyan, (Platinum
Holdings – Interested party)
[2009] SCGLR 255 .
In this case,
the applicant and the Interested
party were sub-lessees of Edward
Nassar & Co Limited. Edward
Nassar & Co, themselves held
leases in respect of larger
plots of land leased to them by
the Government of Ghana. Later,
the interested party sued the
applicant and obtained a
judgment against him for a
declaration of title to a plot
of the land that had been
specifically marked and
identified which it claimed
formed part of the sub-lease it
had obtained from the head
lessee, Edward Nassar.
This plot of
land was in the same area as the
plots of land sublet to both the
applicant and the interested
party by Edward Nassar and Co.
After
obtaining the judgment, the
interested party took steps to
execute the judgment by
applying for a writ of
possession. This was granted by
the trial court. The applicant
however alleged that in
executing the writ of
possession, the interested party
had entered into another
property belonging to him other
than that in respect of which he
had been granted judgment. He
therefore brought interpleader
proceedings in the High Court
against the attachment of the
property contending that the
property had been wrongly
attached by the interested
party.
In his
ruling, the trial Judge found
that the property attached by
the interested party was not the
one in respect of which the
interested party had judgment.
The trial
Judge however held that the
applicant no longer had any
interest in the property which
was wrongly attached by the
interested party.
Aggrieved by
that decision, the applicant
then brought proceedings in the
Supreme Court for an order of
Certiorari on the grounds of
want or excess of jurisdiction
contending that, the applicant
as the claimant had no interest
in the subject matter of the
interpleader proceedings.
The Supreme
Court unanimously held per R.C
Owusu (Ms)JSC dismissing the
application for certiorari on
the following grounds:
...”It was
when property had been attached
normally under a writ of fieri
facias that a person other
than the defendant who claimed
an interest in it could
interplead. In cases (like the
instant case) where the
execution was wrongful or
irregular, the proper relief
available was to have the writ
of execution set aside.
Per curiam:
If by the application, the
claimant’s title was in issue
then the trial Judge was
perfectly acting within his
jurisdiction when he pronounced
on it. Under those circumstances
if he commits any error which is
not patent on the face of the
record, certiorari will not
issue by way of remedy. Under
those circumstances the
aggrieved party’s remedy lies in
an appeal”.
The
similarities between the
ex-parte Anyan case and this
case are many and are enumerated
as follows:
1.
Both relate to post-judgment
execution proceedings
2.
Both relate to steps taken by
one party to set aside property
that was considered to have been
wrongly attached.
3.
The Supreme Court as it were
confirmed that the right
procedure to adopt under these
circumstances was to have the
execution set aside.
4.
In the instant case, setting
aside the writ of possession was
exactly what the interested
party did, albeit by an ex-parte
process.
Under these
circumstances, the interested
party, once he was a claimant in
the earlier proceedings cannot
be said to be a stranger in the
case. He certainly is not, he
has an interest in the case.
As a final
court of this country, the
Supreme Court should endeavour
to do substantial justice to all
parties and manner of persons
all the time, provided their
claims were not out of tune with
the issues before the court. See
Hanna Assi (No.2) v GIHOC
Refrigeration & Household
Products Ltd. [2007-2008] 1,
SCGLR 16 review
decision per Prof. Ocran JSC of
blessed memory, and which was
applied also in the case of
Fosua & Adu-Poku v Dufie
(deceased) & Adu-Poku Mensah
[2009] SCGLR 310
at 352.
I will
therefore for the reasons
articulated supra and also on
account of the duty cast on
courts of law to do substantial
justice dismiss the issue that
the interested party is a
stranger to the case.
DENIAL OF
RIGHT TO BE HEARD
There is
however no doubt that the
applicants herein were not heard
before the court vacated it’s
previous orders made granting
them a writ of possession,
because of the procedure that
was adopted.
It must be
noted that, the application
filed by the interested party to
the court was an ex-parte
application. This in terms of
procedure meant that it was only
a one sided application in which
only the applicant is seeking
the courts intervention, in
emergency situations or others
in which no harm would be
caused the other party if they
are not heard. Under the High
Court (Civil Procedure) Rules
2004, C. I. 47 the type of
applications which can be
brought as ex-parte have been
clearly stated.
Order 19 r
1(1) of the High Court (Civil
Procedure) Rules, 2004, C. I. 47
provides as follows:
“Every
application in pending
proceedings shall be made by
motion.”
Order 19 r 1
(3) on the other hand provides
thus:
“Except where
these Rules otherwise provide,
no motion shall be made without
previous notice to the parties
affected.”
From the
above, it is clear that with the
introduction of C.I. 47, the
procedure to initiate any
applications in any pending
action before the courts, has
been simplified by limiting it
to the process referred to and
known as a motion.
Similarly,
order 19 rule 1 (3)
categorically states that unless
otherwise provided, no motion
shall be made without notice to
the other side or party to be
affected thereby. This means
that if in the opinion of the
party initiating the application
by motion, any other party will
be affected by the result
thereof, then the rules provide
that such a party must be given
notice to enable his side of the
case also to be heard. This is
to ensure that the audi alteram
partem rule is complied with.
But that is
not the end of the procedure
outlined and mandated by the
rules of procedure.
Order 19
rules 3 (1) (2) & (3) of C. I.
47 which deals specifically with
ex-parte motions provides thus:
1.
Subject to rule 1 sub rule (3),
an application by motion may be
made ex-parte where any of these
rules provides or where, having
regard to the circumstances, the
court considers it proper to
permit the application to be
made.”
2.
“The court may make an order
ex-parte on such terms and
subject to such undertaking as
it considers just where it is
satisfied that delay caused by
proceeding in the ordinary way
would or might entail
irreparable damage or serious
mischief.”
3.
“The Court shall not grant an
application made ex-parte under
subrule 2 unless the applicant
shows to the satisfaction of the
court good reason for making the
application ex-parte and the
precise nature of the
irreparable damage or serious
mischief which will be
occasioned by proceeding in the
ordinary way.”
4.
“The court in its discretion may
refuse to hear an application
ex-parte and may direct that
notice shall be given to all the
parties affected by the
application.”
I have
decided to expatiate on the
procedure allowed under the
rules of procedure for
initiation ex-parte motions,
because the process sought to be
quashed by the applicant was an
ex-parte motion.
By the clear
words of order 19 rule 3 (1) the
circumstances under which an
ex-parte motion may be applied
for are:
i.
Where under the rules of
procedure contained in C. I. 47
or any other enactment, the
procedure for doing so has been
clearly stated as permitted by
an ex-parte process.
ii.
Where having regard to the
circumstances of that particular
case, the court is satisfied
that it is proper to permit the
procedure of the motion by an
ex-parte process.
iii.
There is however a rider,
contained in order 19 r 3 (2)
that a court in granting an
ex-parte motion may grant it
upon terms or subject to such
undertaking as it considers
just. In making such a decision,
a court is to consider what
damage or mischief would be
caused if the process is
initiated by giving notice to
the other party.
iv.
The court is also enjoined under
order 19 r 3 (3) of C. I. 47 not
to grant any ex-parte
application unless the applicant
shows good reason to the
satisfaction of the court and
the precise nature of the
irreparable damage or serious
mischief that will be caused if
the party should proceed in the
ordinary way by giving notice.
In the
instant case, I have already
given an exhaustive background
of the facts of this case.
The
interested party, it must be
noted had two valid subsisting
orders granted by the High Court
which any court desirous of
ensuring that justice is done
must enforce and or comply with.
Besides, the
applicants themselves have been
mandated specifically by the
orders of Agbloyor J, made on
30/4/2010 requesting them to
abide the determination of a
pending suit in Suit No BL
393/2006 which was still pending
in the High Court.
It is now
history that the applicants
herein concealed from the court
all the relevant and material
information from the court when
they applied ex-parte for the
writ of possession.
By ejecting
the interested party from the
premises, a step they were
injuncted from proceeding with
until certain processes had been
complied with, can the
applicants legitimately apply to
this court for this
discretionary remedy?
My answer is
a simple no. This is because, in
my opinion, the interested party
by his ex-parte application had
been able to show not only by
depositions in an affidavit, but
by proof of documentary evidence
to wit: relevant court orders
that he is not expected to be
ejected from the premises. These
court documents and orders by
themselves, speak volumes and
have far reaching effect.
Under the
premises, I ask myself this
question, will the applicants
have an answer to these
documents emanating as they are
from a court of competent
jurisdiction? Certainly not.
Indeed they
have not offered any explanation
for their fraudulent conduct in
concealing these vital, material
and relevant information from
the court when they applied for
the writ of possession.
I am
therefore satisfied that the
court which granted the ex-parte
order setting aside the writ of
possession acted within its
powers and was duly satisfied
under the circumstances before
it made the order, the failure
of the court not to have limited
the operation of the ex-parte
order notwithstanding.
In coming to
the conclusion I have reached in
this matter, I have been guided
by the fact that courts of law
exist to do substantial justice
at all times. In the interest of
justice, equity and fairness,
this court as the final court of
the land should strive to do
substantial justice provided
that will not result in an
unconstitutionality or wreck
injustice on either party.
From the
proven and undisputed facts of
this case, a lot of injustice
and hardship will be caused the
interested party if the
application is granted. With the
granting of the application,
there is no guarantee that the
interested party will not be
shown the exit from the premises
he occupies which will be in
clear breach of the orders of
the High Court. I cannot preside
over such a wilful and flagrant
abuse of the powers and sanctity
of courts of competent
jurisdiction.
Since this
court has all the powers of the
High Court and beyond, I would
have preferred a situation where
the court would evaluate the
facts of the case and give a
decision by directing the
parties as to what to do in
order to do substantial justice,
for example by ensuring that the
applicants comply with their
undertaking that the interested
party will not be ejected and
directing the expeditious and
speedy disposal of the pending
case. This in my opinion is in
accord with the dictates of
substantial justice than
restricting oneself to the
doctrinaire approach of breach
of the audi alteram partem rule,
which is non-existent in this
case.
I am of the
view that assuming the decision
of the trial court to grant the
ex-parte motion amounted to
denying the applicants an
opportunity to be heard which is
denied, is it such an
irregularity that is so
fundamental that it cannot be
cured by order 81 r. 1 of the
High Court (Civil Procedure)
Rules, C. I. 47?
My attention
has been drawn to the unanimous
decision of this court in the
case of
Republic vrs High Court,
ex-parte Allgate Co. Ltd.
(Amalgamated Bank Ltd –
Interested Party) 2007-2008 1041.
I have
perused the said judgment and
discovered that the court in
coming to their decision
endorsed an earlier decision in
the case of
Amoako v Hansen [1987-88] 2 GLR
26 at 43-44.
I have also
apprized myself of an earlier
decision given by the same court
in
Boakye v Tutuyehene [2007-2008]
SCGLR 970, given
almost a year before the
decision in the ex-parte
Allgate case was delivered.
In the earlier case of Boakye
v Tutuyehene, the decision
in Amoako v Hansen
appears to have been reversed.
In the Boakye
case referred to supra, Dr. Twum
JSC as he then was emphatically
stated thus:
“Further, the
new order 81 has made it clear
that perhaps apart from
lack of jurisdiction in its true
and strict sense, any
other wrong step taken in any
legal suit should not have the
effect of nullifying the
judgment or the proceedings”.
Having
perused the entire decision in
the ex-parte Allgate and the
Boakye cases, I am of the
considered opinion that, the
facts and the circumstances of
this case are strikingly
different from the circumstances
that necessitated the decision
in the ex-parte Allgate case.
I am
therefore of the considered view
that the learned High Court
Judge had jurisdiction to have
entertained the ex-parte
application and there was no
need to have heard the
applicants, since they were not
parties therein. I certainly
approve of the practical
approach adopted by the court in
the Boakye v Tutuyehene case.
In real
terms, I am of the considered
view that in order to ensure
that the effect of order 81, r.1
of C.I. 47 is not neutralised to
such an extent that the policy
and philosophical underpinnings
behind the passage of the
High Court (Civil
Procedure) Rules 2004, C. I. 47
are not undermined, then order 1
r (2) must be seen to be
complied with both in the letter
and spirit. Order 1 r (2) states
as follows:
“These
rules shall be interpreted and
applied so as to achieve speedy
and effective justice, avoid
delays and unnecessary expense,
and ensure that as far as
possible, all matters in dispute
between parties may be
completely, effectively and
finally determined and
multiplicity of proceedings
concerning any of such matters
avoided.”
From the
above, it is quite clear that
much as proceedings in the High
Court under C. I. 47 are to be
expedited so as to avoid delays,
they are also meant to promote
effective justice and ensure
that disputes between parties
are completely and effectively
determined in real terms.
In that
respect therefore, I think the
principle in the decision in
Boakye v Tutuyehene should
be considered on a case by case
basis and perhaps in this case
it will be observed that, a
restricted application of the
decision is necessary in order
to do substantial justice.
I am
therefore of the considered view
that, the learned High Court
Judge had jurisdiction to have
entertained the ex-parte
application and there was
therefore no need to have heard
the applicants, as they were not
parties therein.
In the
ex-parte Anyan case already
referred to supra, Justice Rose
Owusu (Ms) JSC, delivering the
unanimous judgment of the court,
and relying on celebrated cases
like :
Republic v
High Court, Accra: Ex-parte
Appiah [2000] SCGLR 389,
Republic v
High Court, Accra: Ex-parte
Industrialisation Fund for
Developing Countries [2003-2004]
1 SCGLR 384 and
The Republic
v Court of Appeal, Accra:
ex-parte Tsatsu Tsikata
[2005-2006] SCGLR 612
held on pages
262-263 as follows:
“The law
is well settled that the
supervisory jurisdiction of the
court under article 132 of the
1992 Constitution is exercised
only in those manifestly
plain, obvious and clear cases
where there are patent and
obvious errors of law on the
face of the record which error
must go to the jurisdiction of
the court so as to make the
decision of the court a
nullity.”
There is
therefore nothing patent on the
record in the instant case to
make the decision of the trial
court a nullity such that the
supervisory jurisdiction of the
court can be invoked.
It is also
important to observe that, it is
one thing for a court to have
jurisdiction and another thing
for the court to have exceeded
its jurisdiction in the course
of the proceedings, or failing
to comply with the requirements
of natural justice i.e. the
audi alteram partem
principle which demands that
every party must be given an
opportunity to be heard before
he or she is condemned, during
the course of hearing a matter
in respect of which the court
had jurisdiction. See the case
of
R v Northumberland Compensation
Appeal Tribunal, Ex-parte Shaw
1952 1 KB 338 and
Republic v
High Court, Accra: Ex-parte
Commission on Human rights and
Administrative Justice – Addo,
Interested party [2003-2004] 1
SCGLR 312.
The principle
involved here is that, although
a court like the High Court in
the instant case might commence
an inquiry with clear
jurisdictional powers, it might
lose those powers where it
commits any of the errors
mentioned therein, i.e.
exceeding its jurisdiction by
making orders in excess of its
powers or not affording an
opportunity to the parties in
the case to be heard etc, this
list could be endless.
The important
thing however is for a court
such as this Supreme Court to
embark on a critical analysis
and survey to find out whether
the court below breached any
rule of practice in its
determination of the rights of
the parties.
In the
instant case, I find no such
thing existing and will dismiss
the application.
The learned
trial High Court Judge did not
breach the audi alteram
partem rule of the principle
of natural justice. This is
because the application before
him was for an ex-parte
application which he granted. He
was not obliged to afford the
applicants a hearing.
For the above
reasons, I will dismiss this
application seeking to invoke
the supervisory jurisdiction of
this court to quash the decision
and orders contained in the
orders of the High Court dated
29th September, 2010.
[SGD] J. V. M.
DOTSE
JUSTICE OF THE
SUPREME COURT
COUNSEL:
JOSEPH
NICHOLAS NKRUMAH FOR APPLICANTS
WITH HIM FESTUS OWUSU – BADU
ANTHONY
DESEWU FOR THE INTERESTED PARTY |