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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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