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WASSEM ATTIEH v. KOGLEX (GH) LTD. & ANO. & PEACOCK PAINTS LTD & ANO. [19/02/2003] C.M. NO. 37/2002.

IN THE SUPERIOR COURT OF JUDICATURE

THE SUPREME COURT

ACCRA.

-----------------------------------------------------

CORAM:     AMPIAH, J.S.C. (PRESIDING)

KPEGAH, J.S.C.

ATUGUBA, J.S.C.

ADZOE, J.S.C.

AFREH, J.S.C.

CIVIL MOTION NO. 37/2002

19TH FEBRUARY, 2003

WASSEM ATTIEH                    ...     PLAINTIFF/JUDGMENT-CREDITOR/RESPONDENT

(T/A/ ATTIEH AGENCIES)

OSU-R.E.

ACCRA.

VRS

1.  KOGLEX (GH) LTD.

2.  MOHAMMED MAJOUD       ...  DEFENDANTS/JUDGMENT-DEBTORS/APPLICANTS

    (ALL OF OSU, ACCRA)

     AND

1.  PEACOCK PAINTS LTD.

2.  SAMIR KHOURY                 ...   CO-DEFENDANTS

    (ALL OF OSU, ACCRA)

______________________________________________________________________________

 

 

IADZOE, J.S.C.:

In this application the defendants/judgment Debtors are asking the Court to grant them (i) an order of stay of execution of the judgment dated 9th May, 2001 and (ii) an order setting aside part of that judgment of 9th May, 2001, which ordered interest on the judgment debt awarded against them at the prevailing bank rate until the date of payment; (iii) they also seek an order substituting a new order for interest on the judgment debt at 4% after judgment till the date of payment. The applicants are of the view that the order for interest was wrong and even void and must, therefore, be set aside. I do not see what could make that order void.

The plaintiff-respondent has raised a preliminary objection to the application, contending that the application “is misconceived as it is not sanctioned by any rules of the Supreme Court.”

The facts: In 1991 the plaintiff obtained judgment at the High Court for the sum of ø74,071,000.00 being the balance outstanding on the value of goods sold by the plaintiff to the defendants. The action was initially against the defendants only. The defendants denied the claim and alleged that it was the co-defendants who bought the goods; they therefore joined the co-defendants. The trial High Court’s judgment was against the defendants and co-defendants jointly and severally. For various reasons, all the three parties – the plaintiff, the defendants and the co-defendants-appealed to the Court of Appeal. The Court of Appeal set aside the High Court judgment on grounds that it was against the weight of evidence, and entered judgment against the co-defendants alone as being liable to the plaintiff’s claim. The plaintiff and co-defendants appealed to the Supreme Court against that judgment and on 9th May, 2001 the Supreme Court allowed the appeal, set aside the Court of Appeal judgment, and entered judgment for plaintiff against the defendants and absolved the co-defendants from any liability. The court awarded the sum of ø74,071,000.00 against the defendants jointly and severally with interest at the current bank rate from 1st May, 1990 to the date of payment.

 

The Defendants react:  The defendants immediately applied for a review of the judgment but did not contest the award of interest in the review. The court dismissed the review application.

The instant application:  It was not until 7th May, 2002 that the defendants filed this present application, citing the award of the interest as an error which the court must “correct”.

In answer to the plaintiff’s objection that the application is not properly before the court the defendants contend that they are properly before the court by virtue of the provisions of Rule 5 of the Supreme Court Rules, 1996, C.I. 16.

Issue to determine:  In the face of the objection, the issue for determination now is, whether or not this application is properly before us so as to give us the jurisdiction to hear it on the merits.

The plaintiff-respondent has raised a number of arguments: That no rule of the Supreme Court permits the application; that Rule 5 is inapplicable; that there is no “cause or matter before the court after the Review application had been dismissed.

The objection is powerful. Rules of procedure appear to be an essential supplement to the other rules of law which confer judicial power on the courts and define a court’s jurisdiction by setting out the conditions and limits under which the court’s decision shall be valid; and invariably any decision given outside the rules may be in breach of the court’s judicial power and duty, and may render it invalid. In Amoabima v. Badu (1957)2 WALR 214, the West African Court of Appeal, following the House of Lords decision in Smurthwaite v. Hanney [1894] AC 494, said:

“A judgment or order obtained by some step not warranted by the rules or capable of being sanctioned is wholly void and may be set aside …” – see (1957) 2 WALR 214, at 216.

The Supreme Court here in Ghana approved and adopted this statement in Ghassoub v. Dizengoff (W.A) [1962] 2 GLR 133; applied it in Mosi v. Bagyina (1963) 1 GLR 337, and followed it in several other cases. 

What Rule 5 provides is this:

“Where no provision is expressly made by these Rules regarding the practice and procedure which shall apply to any cause or matter before the court, the court shall prescribe such practice and procedure as in the opinion of the court the justice of the cause or matter may require”.

It appears to me that for rule 5 to apply two conditions must be established. It must be shown that (i) there is a cause or matter before the court, and (ii) that the court has prescribed the necessary practice and procedure.

The plaintiff-respondent contends that there is no cause or matter before the court and so rule 5 cannot be invoked. His argument is that after the judgment the defendants applied for review but that application was dismissed; and that the dismissal of the review application ended the matter and “thereafter there is no longer any cause or matter before the court. And because there is no longer any cause or matter before the court the said Rule 5 of the Supreme Court Rules, 1996, C.I. 16 cannot be invoked in aid of the Defendant”.

What is a cause or matter? The phrase is not defined in the 1992 Constitution or in the Supreme Court Rules, 1996, C.I. 16. Neither is it defined in the Courts Act, 1993, Act 459. But some other enactments and judicial decisions may help find an answer. Counsel for the plaintiff-respondent has drawn our attention to the High Court (Civil Procedure) Rules, L.N. 140 where Order I defines “cause” and “matter” respectively as follows:-

“Cause” includes any action, suit or other original proceeding between plaintiff and defendant.

“Matter” includes every proceeding in court not in a cause.

The same order I defines “plaintiff” as including “every person asking any relief (otherwise than by way of counterclaim as a defendant) against any other person by any form of proceeding, whether the proceeding is by action, suit, petition, motion, summons or otherwise”. And it goes on to define a “defendant” as including “any person served with any writ of summons or process or served with notice of or entitled to attend any proceedings. When we look at section 117 of the Courts Act (Act 457) we see that it says “cause or matter affecting chieftaincy” means any cause, matter, question or dispute relating to certain named chieftaincy issues. So does section 66 of the chieftaincy Act itself, Act 370 of 1971.

It stands to reason, therefore, to say that “cause or matter” is just synonymous with a court “action” or “law suit”. Indeed Order I of the Civil Procedure Rules referred to above defines “action” as “a civil proceeding commenced by writ or in such other manner as may be prescribed by rules of court  but does not include criminal proceeding by the crown”.  Thus, the courts have held that a “matrimonial cause” is an action: Wilmot v. Wilmot 1981 GLR 521; a civil appeal before the Supreme Court is a civil cause or matter before the court:  Nyantakyiwa alias Kissi v. Kissi and others (1982-83) GLRD 48; and an application for certiorari is an action:  The Rep. V. Secretary to the Cabinet Ex parte Ga Traditional Council (1971) 1 GLR 71.

In my opinion Civil appeal No. 3/2000 titled:

Wassem Attieh                                    …..    Pl/Resp/Appl

vs

Koglex (Gh) Ltd and Mohammed Majoud …..  Def./Appls/Resps

and

Samir Khoury and Peacock Paints Ltd …….  Co-defs/Appls

was a cause or matter before the Supreme Court.

But was it still pending before the court as at 7th May, 2002 when the defendants/applicants filed this motion?

This court gave judgment in the appeal on 9th May, 2001 and later dismissed an application for review of the judgment. The plaintiff-respondent therefore contends that the case is no longer before the court. Counsel for the plaintiff relies heavily on the decision of Hayfron-Benjamin, J. as he then was in the case of Vanderpuije v. Akwei (1971) 1 GLR 242. That was a case in which the plaintiff sued the defendant for declaration of title to a piece of land. During the trial the plaintiff applied for judgment on the basis of certain alleged admissions made by the defendant.  The court dismissed the plaintiff’s application and the plaintiff appealed to the Court of Appeal against the ruling. The defendant then applied that the hearing should proceed in spite of the plaintiff’s appeal, and one of the issues which the trial judge was to resolve was whether or not the ruling dismissing the plaintiff’s application for judgment in respect of which he had appealed to the Court of Appeal was a judgment or decision within the meaning of L.I. 618 to empower the court to grant stay of proceedings. It was in answer to that question that the learned judge held that:

i. a step in proceedings or an interlocutory application is not itself a cause or matter. A cause before a court is the suit or action or original proceedings brought by a Plaintiff against a Defendant; and

ii Where no final judgment has been given in a cause or matter, such cause or matter is deemed still pending before the court in which that action was brought and has not been determined.

I think this is a very straight-forward and logical conclusion drawn from the facts of the case; and I am surprised how  counsel for the respondents has tried to put such a specious interpretation on the judgment  and suggest that the decision must be taken to mean that if a final judgment is given in a case the matter is determined and thereafter there is no longer any cause or matter before the court.  Vanderpuije v. Akwei (supra) has not laid down any such law as counsel propounds and it is my view that counsel has rather misconstrued the decision and thereby misled himself and his client.

The correct legal position appears to be this, that an action is deemed to be still pending before the court as long as something remains to be done even after judgment has been given. Lord Abinger stated this law in Howell v. Bowers (1835) 2 CV. M.&R. 621.  At page 623 he said:

“It is true there has been a judgment, but there has been no satisfaction on the roll; I think, therefore, this is still a suit pending”.

At page 624 of that same report, Parke, B. also said that “all unsatisfied judgments are pending suits”. In Salt v. Cooper (1881) 16 Ch.D 544, an application was made for the appointment of a receiver after final judgment, and it was contended that the appointment was irregular because a receiver could not be appointed after the final judgment. The English Court of Appeal rejected this argument and Jessel, M.R. said at page 551:

“A cause is still pending even though there has been final judgment given, and a court has very large powers in dealing with a judgment until it is fully satisfied”.

The following year 1882, the same Jessel, M.R. in Re Clagett’s Estate; Fordham v. Clagett (1882) 20 Ch.D. 637, at 653, said:

“A cause is still pending in a court of justice when any proceeding can be taken in it. That is the test. If you can take any proceeding, it is pending. ‘pending’ does not mean it has been tried. It may have been tried long ago”.

Awoonor Renner v. Thensu (1930) 1 WACA 77 is a local decision of the West African Court of Appeal. Two suits were involved in that case. In one of them a motion was filed to relist an appeal which had been struck out; in the second suit the motion was to set aside a judgment and proceedings taken in the absence of the applicant. The question was, whether, since in suit (1) the appeal was struck out by the Full Court, and in suit (2) the appeal was actually heard by the Full Court, the West African Court of Appeal which succeeded the Full Court had jurisdiction to entertain the applications to relist and to set aside. The court would have jurisdiction only if the two suits could be said to be pending when the West African Court of Appeal was established.  The court applied the statement of Jessel, M.R. in Fordham v. Clagett and held that the two suits were still pending. The court allowed the application to relist but the motion to set aside was refused on grounds of “inexcusable” delay in bringing it.

There is also the case of Agbemabiase v. Dzisam and others (1973) 1 GLR 291. The appellant had judgment in the District Court and subsequently applied for a writ of possession, but withdrew the application at the hearing. The respondents who were not in court when the appellant withdrew his application then applied for costs and the court granted them ø200 cost.  The appellant applied for a review and the costs were reduced to ¢100. But he was still not satisfied and therefore appealed to the High Court, contending that the application for costs was misconceived as there was at that time no suit pending before the court to entitle the respondents to bring the application for costs. Ata-Bedu J. readily dismissed the appeal holding that all unsatisfied judgments are pending suits. Counsel for the appellant made reference to the case of Vanderpuije v. Akwei (supra) but the learned judge concluded as follows after citing the authorities:

“In the light of the foregoing legal authorities, I find it difficult to agree with the submission of counsel for the appellant that there was no suit pending”.

In the same vein, I can also not accept the respondent’s contention that there is no cause or matter pending before this court in respect of which the defendants/applicants can bring the present application before us. I am fortified in my views by two recent decisions of this court in which the word “pending” was construed: See Essiem v. Republic (1993-94) 1 GLR 451. Republic v. Adu-Boahene 1993-94) 2 GLR 324.The judgment of the court dated 9th May, 2001 has not been satisfied. In the words of Jessel M.R. this court still has “large powers in dealing with” that judgment. The present application is an instance of the exercise of those powers as the applicants are only seeking to set it aside or stay its execution. The argument of the respondent fails and is dismissed. If the position advocated by the respondent’s counsel were the law, how can a party, having won a case, ever go into execution, for example?

The next issue, and this is crucial, is how is rule 5 to be applied? In this regard the relevant portion of rule 5 must be “where no provision is expressly made by these Rules regarding the practice and procedure which shall apply … the Court shall prescribe such practice and procedure as in the opinion of the court the justice of the cause or matter may require”.

We must collect the meaning of this provision, as best as we can, from the words used.  The real intention of the Rules of Court Committee is in those words used by the Committee, because in construing a statute or any written document, we are bound to take its plain language if the language is precise, clear and unambiguous. See Maxwell on Interpretation of Statutes, 11th edition, the opening paragraph of that treatise; dictum of Bower, L.J. in London & North Western Rly Co. v. Evans (1983) 1 Ch. 16, at 27; Croxford v. Universal Insurance Co. (1936) 2 KB 253, at 280 per Scott, L.J.; Tait v. Ghana Airways Corp. (1970) 3 GLR 249, at 257 per Anim, J.A.  These are in a long line of decisions which confirm what Tindal C.J. said generations ago in Alban v. Pyke 134 ER 172, at 174 that:

“When the words… are clear and unambiguous, the fundamental rule is that they need not be interpreted or construed. They are given effect to”.

It stands out clear that under Rule 5, it is the Court which must “prescribe” the practice and procedure where none is provided for in the Rules (C.I. 16). Rule 5 does not give a party the right to come before the Court; it does not also empower a party to adopt his own procedure for the Court’s approval and ratification. If it were so, every party appearing before the Court in the circumstances envisaged by Rule 5 will choose his own procedure and in no time the court will be inundated with procedures instead of being guided by a known “practice and procedure”.

CONCLUSION:

A court can set aside its own judgment if the judgment is shown to be void, or if the judgment is found to be wrong in law in the event of a review; but here it has not been demonstrated that the judgment in issue is void; nor did the applicant, during the earlier review brought before the court, argue the issues he is now raising against the order awarding interest. The interest awarded cannot be said to be void simply because the order is at variance with other previous decisions; it must be remembered that the order that the interest should continue to accrue till the date of payment is also supported by a long line of decisions and there is no apparent reason why this order in particular could be labelled as void. Besides, the applicant missed the opportunity when he failed to argue in the earlier review the points he is now raising and no rule allows him to come back to court with the present application which, in effect, is a motion to review for the second time a judgment already reviewed by this court. I hold the view that the application before us cannot be entertained under Rule 5. In my opinion, where a party has difficulty, or is in doubt, as to what steps to take where there is no express practice or procedure provided, the party must apply to the court for directions rather than arrogate to himself the powers given to the court under Rule 5.

The substantive issue raised in the defendants’ application regarding the award of interest is an important issue as I agree with them that the many conflicting decisions on the point have created considerable uncertainty and confusion in the law; but the plaintiff/respondent’s objection is in limine that the Court has no jurisdiction to entertain the application. Even though we have often said that we must avoid technicalities in our bid to do justice, the question of jurisdiction is not a technicality. If the statute creating the court and the Rules of Court do not confer jurisdiction, it is not in our power or in the power of the Court to assume the jurisdiction. Rules 5 does not confer the jurisdiction that the application invites us to exercise and, without any prevarications, the applicants must be told that they are not properly before the court. I accordingly uphold the objection and dismiss the application.

A.K.B. AMPIAH

JUSTICE OF THE SUPREME COURT

F. Y. KPEGAH

JUSTICE OF THE SUPREME COURT

T.K. ADZOE

JUSTICE OF THE SUPREME COURT

D.K. AFREH

JUSTICE OF THE SUPREME COURT

ATUGUBA J.S.C.

I have had the privilege of reading before hand the Ruling of this Court delivered by my Learned brother Adzoe J.S.C. He has very ably dealt with the seemingly difficult question, whether for the purposes of r. 5 of the Supreme Court Rules, 1996 (C.I. 16), there can be said to be a cause or matter before this Court. The said rule provides as follows: “Where no provision is expressly made by these Rules regarding the practice and procedure which shall apply to any cause or matter before the court, the court shall prescribe such practice and procedure as in the opinion of the court the justice of the cause or matter may require” (e.s.). This Rule might well raise questions of delegatus non protest delegare.

Be that as it may, in addition to the construction placed on the crucial words “cause or matter before the court” by my brother Adzoe J.S.C., another meaning of these words, is a cause or matter that has been brought before the court by a procedure improvised by the party or parties thereto, which procedure is to be subjected to such procedure as this court “shall prescribe as in the opinion of the court the justice of the cause or matter may require”. This latter view is supported by what the predecessor of this court understood the identical rule 5  of the old Rules of this Court, 1970, C.I. 13 to mean. See REPUBLIC VS. HIGH COURT, EX PARTE EVANGELICAL PRESBYTERIAN CHURCH, GHANA (E.P. CHURCH) & ORS., PRATICE NOTE, (1991) 1 GLR 39 S.C, and REPUBLIC V. HIGH COURT, ACCRA , EX PARTE PUPLAMPU 1 (1991) 2 GLR 472 S.C. If this were not so, how could this court, for example, prescribe the procedure to be followed in the case of a Reference to this Court, since in such a case the case from which it comes would have been pending not “before the court”  (which expression in r.5 obviously, means before this court), but in another court?

I am also of the view that unless a point relating to jurisdiction or which is  otherwise fundamental was actually raised and decided in previous proceedings in  his court, this court can still entertain such a point, though subsequently raised. It is trite law that a point of jurisdiction can be raised at any stage of the proceedings, including appeal. Certainly therefore an appeal even to this court does not necessarily close the stages of the proceedings. A review is one such further stage. But even thereafter, as my brother, Adzoe J.S.C. has ably demonstrated, an unsatisfied judgment is still a pending proceeding and therefore also constitutes a further stage of the proceedings, namely, the stage, after Judgment is delivered, but is yet, as in this case, unsatisfied or a step can still be taken in it. If therefore in respect of such pending proceedings there has been a fundamentally erroneous step or order it should be possible for a party to bring an application to vacate the same, see MOSI V. BAGYINA (1963) 1 GLR  337 S.C.

It was held in that case that the constitution of the court for the purpose of such an application is immaterial, that is to say, the inherent jurisdiction to vacate such a proceeding does not depend on whether the application is described as being one for review, or the like.

Following logically upon such reasoning, it has been held often by this court, although with some fluctuations, that statutory time limits do not apply to such situations.

It has further been held by Adade and Taylor JJ.S.C. that it does not matter by what procedure a void order is sought to be impeached; once the void order by whatever process, is brought to the notice of the court, the court must consider it; since it is itself bound, even suo motu to vacate the same. See PENKRO V. KUMNIPAH 11 (1987-88) 1 GLR. 558, S.C.

I am respectfully of the view that the said principle enunciated by Adade and Taylor JJ.S.C. is sound and that in such a case the prescription of any rule by this court for such a situation is either unnecessary, or if prescribed, non compliance with the same cannot be fatal. For, so fundamental is a jurisdictional point, that Sowah C.J. was constrained, in REPUBLIC V. HIGH COURT, ACCRA EXPARTE ADJEI (1984-86) SCGLR 511 S.C. at 515, to say as follows: “Counsel for the applicant in moving his motion raised an objection to the jurisdiction of the court to sit. It must be observed that the objection was raised without notice to the respondent or the court. In ordinary circumstances the court would not have entertained the objection but it thought it was so fundamental that it should be heard…” (e.s.).

For similar reasons, Mustill J, in ROTHMANS V. SAUDI ARABIAN AIRLINES (1980) 3 ALLER 359 at 365 said that when objection is founded on lack of jurisdiction “Entry of an unconditional appearance, does not preclude the defendant from raising the objection at a later stage, since it is the duty of the court not to entertain the dispute” (e.s.) In so thinking, I am further fortified by the case of REPUBLIC V. HIGH COURT ACCRA EX PARTE DARKE (1992) 2 GLR 440 S.C. in which the court annulled previous proceedings, from which those then currently before the court stemmed, in a chain of events; even though those remoter proceedings were not part of the actual proceedings before the court; but only loomed up in the narrative of events. At p.448 Osei-Hwere J.S.C. said: “– the question of want of jurisdiction unshackles all fetters.” (e.s.). The application before us seeks to set aside, an order of interest, made to run up beyond the date of judgment, to the date of final payment; which the applicant says is without or in excess of jurisdiction. Such awards have been made by this court but the specific point of the jurisdiction of this court so to do, has not previously been raised and determined by this court. 

Even, in BARCLAYS BANK V. ALHAJI SUMANI ZAKARI, CM 63/97, unreported, dated 9/12/97 this court, acting under the slip rule,  (inherent jurisdiction) varied its order upon motion to it even though no rule of court had been expressly provided or prescribed for the same.

In OPPONG V. ATTORNEY-GENERAL 2000 SCGLR 275, I said that the settled practices of the court are not affected by the express Rules of this Court, (unless of course, flagrantly inconsistent therewith). Statutory provisions are often supplemented by the common law. It is therefore trite law, that where the Rule-making authority has failed or has not yet prescribed the procedure for ventilating a legal grievance, the suitor is not disabled thereby from approaching the court but may fall on the nearest convenient procedure. See DARKO V. AMOAH (1989-90) 2 GLR 177, RE ELECTION OF FIRST PRESIDENT. (1970) 2 G & G 530 C.A. The notorious procedure for impeaching void proceedings in the court which indulged in them, is by motion, as the applicant in this case has done.

The rules of construction of statutes are mere aids to the court in determining the meaning of provisions of statutes. They are presumptions, not masters. Indeed they are for that matter said not to be rules of law properly so called and cannot over throw clearly established principles of law.  See OSMAN V. TEDAM (1970) 2 G & G 466, C.A.

It is for these reasons that I, for my part, would dismiss the respondent’s preliminary objection.

W. A. ATUGUBA

JUSTICE OF THE SUPREME COURT

COUNSEL

Ayikoi Otoo for the Applicant.

Stanley Amarteifio with Mrs. Agnes Ewool for the Respondent

gso*

 
 

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