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ADZOE, 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
¢74,071,000.00 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 plaintiffs 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
¢74,071,000.00 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.
140A where Order 1 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 1 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 1 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 Muhamed
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
¢200 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 this
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 II
(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
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