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J U D G M E N T
WOOD (MRS)
On the 20th of July
1989, the
Plaintiff/Appellant/Appellant
instituted proceedings against
the
Defendant/Respondent/Respondent
in the Kumasi High Court for, a
number of reliefs including, (a)
a declaration that property No.
10, Block X has been sold on
conditional basis to him, (b) an
order compelling her to execute
an assignment in respect of the
property in his favour and (c)
an order of perpetual injunction
restraining her and all persons
claiming through her from laying
any claim or exercising any
exclusive rights over the said
property.
This case, like many civil
disputes in our jurisdiction,
has had a rather chequered past.
In the course of the trial, the
respondent lost his counsel.
Other major setbacks suffered
include; a four- time change of
solicitors, several adjournments
before the two different judges
who had handled it at one time
or the other, and a seven year
lull in the proceedings during
which period it lay fallow in
the registry.
Seven years after summons for
directions, the case was on the
27th of March 1997,
finally placed before Abada J
who proceeded to take evidence
from the parties. The appellant
successfully closed his case and
the Respondent opened her
defence by giving evidence and
proceeding to call three
witnesses. However, on the 24th
of May 2000, Mr. F. A. Jantuah
filed a notice of change of
Solicitors, announcing his
intention to appear as the new
counsel for the respondent.
Surprisingly, however, neither
the new solicitor nor the
respondent appeared in court the
following day, that is, on the
25th of May 2000, the
date on which the case had been
scheduled for further hearing.
Neither did they make an
appearance on any of those
subsequent days the court set
aside the matter for the
hearing to continue.
Indeed, although on one
occasion, i.e. the 24th
of July 2000, the learned trial
judge, I believe out of
exasperation, threatened to
close the Respondent’s case and
to proceed to give judgment if
they failed to attend court on
the next adjourned date, he
refrained from carrying out the
threat. The record does not show
why. I believe he was prompted
by an innate desire to do
substantial justice to the
parties and so give the erring
Respondent another chance. Be
that as it may, the case went
through two other subsequent
adjournments, with the reason
assigned for the latter
adjournment being that:
“….. the proceedings are not
ready”.
This implies an admission that
Mr. Jantuah, the new counsel had
sought and been graciously
granted an adjournment, on the
all too familiar ground, but
sadly, one of the major causes
of unnecessary delay in civil
litigation that, as new counsel,
he needed to be furnished with a
certified true copy of the
proceedings. The case was then
rescheduled on three other
occasions, until finally on the
12th of November,
2001, the trial judge adjourned
it sine die. He did not assign
any reasons for this sine die
adjornment seeing that on all
other occasions that he had been
compelled to postponement the
matter, he had always invariably
adjourned it to a specific date.
But, an order of transfer, which
was subsequently tendered at the
appeal hearing as exhibit JF 1
clearly shows why he proceeded
in this direction. Apparently,
while the case was part heard,
the learned trial judge was
transferred to Ashanti/ Manpong,
following which, under the hand
and seal of the then acting
Chief Justice, by an order of
transfer dated the 8th
of November 2001, His Lordship
the Chief Justice “entirely
transferred from the list of Mr.
Justice A.K. Abada”, the case of
Yaw Soro v Juliana France to
another High Court Judge”. The
order read in part:
“Now therefore in exercise of
the powers vested in me by s.104
of the Courts Act 1993, [Act
459], I, Edward Kwame Wiredu
acting Chief Justice of Ghana do
hereby order that the said case
be entirely transferred from the
list of Mr. Justice A. K. Abada
who is now transferred to
Manpong /Ashanti to another High
Court Judge in Kumasi to be
dealt with according to law.
And I further order the
Registrar of the High Court of
Justice Kumasi/Ashanti to cause
the parties to be notified of
this transfer generally and of
hearing date of any matter or
proceeding pending in the said
Court.”
Rduly complied with all the
orders contained therein,
including the order to notify
the parties of the transfer.
It does therefore come as a
surprise that notwithstanding
these plain facts, namely, (1)
the petition by the new counsel
that the recorded evidence be
made available for his study to
enable him represent his client
effectively, which said prayer
was graciously granted, the fact
of the original transfer with no
order for a retransfer, the sine
die adjournment, and coupled
with the fact that without
notice to the Respondent who had
then not completed his case, the
learned trial judge nevertheless
proceeded to deliver his
judgment on the 18th
of December, 2001, prompting the
aggrieved Respondent to appeal
the decision on a number of
grounds, including the rather
grave charge that he was denied
a hearing.
After hearing arguments from
both sides, the Court of Appeal
declared the judgment a complete
nullity and ordered a retrial.
Dissatisfied with this turn of
events, the Appellant is, by
this appeal, calling for a
reversal of the said decision.
Paradoxically, the rather long
“historical” background of this
case, does not match the content
of the appeal. It is being
fought on only one point, a
narrow, albeit important
jurisdictional ground. That sole
issue which is contained in the
self explanatory ground reads:
“That the declaration that the
judgment of the trial High Court
was a nullity was wrong since
there was ample direction from
the Chief Justice in writing
that dated 22/11/2001 on the
file requesting the parties to
appear before Mr. Justice Agbada
[sic] for the said learned judge
to deliver judgment in the above
–mentioned case and consequently
the order for retrial of suit
was wrong and a nullity.”
A careful look at the Court of
Appeal’s judgment shows that His
Lordships of the Court of Appeal
rested their decision on two
grounds. Firstly, the fact that
at the time gave the decision
did, he was not seized with
jurisdiction to deal with the
case and deliver the judgment
and consequently that “he acted
ultra vires when he gave
judgment in the matter”. What
informed their opinion was that:
“Since under the Courts Act it
is only the Chief Justice who
has power to transfer cases, in
order to be clothed with
jurisdiction over those part
heard cases, it is the Chief
Justice who must once more issue
an order retransferring the case
to the judge. This is a
statutory requirement that must
be complied with.”
Secondly, they upheld the
submission that the Respondent
was not given a hearing, a
conclusion based on the finding
that:
“…..there is no record of the
fact that the judge heard verbal
addresses from counsel or that
counsel submitted any written
addresses. As at the time he was
reading his judgment, the
learned trial judge knew that
defendant /appellant new
solicitor Mr. F. A. Jantuah had
written to the Chief Justice and
they were awaiting a reply to
their letter…”
In reality, these are the
matters which informed their
Lordships decision to allow the
appeal, notwithstanding their
summary of the day’s
proceedings, [which creates the
erroneous impression that the
decision was based on only one
point], in the following terms:
“…we unanimously say that the
judgment of the court below
which was read by Abada J was
null and void as same was read
when the matter had been
transferred by the Chief
Justice.”
I have taken the trouble to
detail the matters on which the
court’s decision rested owing to
the legal consequences that must
necessarily flow from the
appellant’s election to attack
only one half of the judgment,
leaving the other half
unchallenged.
I think the plain significance
is that on the Appellant’s own
showing, this other alleged
error will not occasion any
miscarriage of justice, for the
simple reason that, even if this
ground of appeal were sustained
and the error were corrected,
the declaration of nullity would
still stand in view of that
other unchallenged an
sufficiently valid alternate
ground upon which the decision
was also based.
Be that as that may, I find no
merit whatsoever in this sole
ground of appeal. From the
arguments advanced on both
sides, it is not disputed that
the Lord Chief Justice
transferred this case in its
entirety from the judge in
question. It is also not
disputed that his decision to
assume jurisdiction and to
finally dispose of the case was
based solely on a mere letter
from the Chief Justice bearing
No. SCR/167A/VOL.42 dated 22nd
November, 2001 addressed to the
Appellant and copied to the
Registrar of the High Court,
Kumasi. The real issue in
controversy between the parties
in this appeal therefore is
whether this letter properly
clothed him with jurisdiction or
the necessary power to determine
the case which had at the time
been taken away from him.
I do not think it does. The
power to transfer, and thereby
take away the jurisdiction of
any judge to hear and determine
any cause or matter pending
before him or her, be it a
part-heard-case or a fresh
matter, is in stricto senso
reserved exclusively in the
Chief Justice. A Supervising
High Court Judge and a Chairman
of the Regional Tribunal are
also empowered to order the
transfer of cases, but their
powers are understandably,
subordinate to that of the
Chief Justice.
The S104 provides:
“ [1] Subject to the provisions
of the Constitution, the Chief
Justice may by order under his
hand transfer a case from any
judge or tribunal to any other
Judge or tribunal, and from a
court referred to in this Act to
any other competent court at any
time or stage in the course of
proceedings and either with or
without application from the
parties to the proceedings.
[2] The order may be general or
special and shall state the
nature and extent of the
transfer of the and in any case
of emergency the power of
transfer may be exercised by
means of a telegraphic transfer
telephonic or electronic
communication from the Chief
Justice.”
The subsection 3 of the statute,
underscores the importance of
due compliance with the
preceding subsections 1 and 2.
It states:
“[3]A transfer of a case made by
telegraph, telephone, or
electronic communication and not
confirmed immediately by order
signed and sealed in a manner
specified by the Chief Justice
or any person authorised in that
behalf by him shall be of no
effect.”
Thus, although the statute
reserves a right in the Chief
Justice to effect transfers in
urgent cases by means of
telephone, telegraph or
electronic communication, the
order of transfer ceases to be
of any effect if it is not
confirmed immediately by a
written order signed and sealed
by him.
The necessary implication is
that, whenever a judge’s
jurisdiction over any matter is
taken away pursuant to the
exercise of this discretionary
statutory power, that is, under
the hand and seal of the Chief
Justice, acting under and by
virtue of the statutory powers
conferred on him by S.104 of the
Courts Act, 1993, Act 459, the
only manner by which the
jurisdiction may be validly
restored, is by another formal
transfer, a retransfer, so to
speak in the like manner, that
is to say, under his hand and
seal as provided for under the
S. 104 of Act 459. It does
follow that, a purely
administrative letter, merely
directing the affected judge to
reassume jurisdiction would not
suffice. It shall, to borrow
the wordes of the statute, be of
no effect.
Abada J.’s court notes of the 18th
of December, the day on which
judgment was delivered, refer to
a retransfer of the case. In
actual fact, he described the
order of transfer as having been
revoked. But these facts
cannot be accurate in the light
of the fact that no order of
retransfer and or revocation,
as the case may be, made under
the relevant provisions of Act
459, was produced at the
hearing, and also that the
Appellant does not speak of any
such revocation order, but an
ordinary letter. At best then,
this letter from the Chief
Justice addressed to the
appellant may be described as an
administrative letter and not an
order of transfer as envisaged
under Act 459. It therefore
lacked legal validity and had
the force of an administrative
directive only.
The procedure for a proper
transfer of jurisdiction, which
I have outlined above is, to
borrow the words of his
Lordships of the Court of
Appeal:
“…….. a statutory requirement
that must be complied with”.
Unfortunately these requirements
were overlooked. I do not think
it was intentional. His
Lordships rightly concluded
that:
“…..at the time of delivering
judgment on 18/12/2001 the
learned trial judge had become
functus officio and was not
clothed with jurisdiction.”
Much as I sympathise with the
Appellant, the learned justices
were right in their conclusion
that the decision he obtained
was a nullity and I would
accordingly affirm it.
However, on the given facts of
this case, the order for a
hearing de novo would not be
justified. That part of the
entire proceedings which may
properly be described as a
nullity for lack of jurisdiction
is in respect of only those
parts which Abada, J wrongly
assumed jurisdiction. From the
facts, it is only the judgment
and all orders of the 18th
December, 2001. Up until the
order of transfer, he was
clothed with jurisdiction to
hear and determine the case and
it would therefore be wrong to
nullify the proceedings in
relation to those dates. I
would therefore vary the order
for a retrial and order that
this case which was transferred
from Abada, J be placed before
another High Court Judge in
Kumasi. I would, subject to
this variation, dismiss the
appeal.
G. T. WOOD (MRS)
JUSTICE OF THE SUPREME COURT
LARTEY, J.S.C.:
This is an appeal against the
unanimous decision of the Court
of Appeal, reversing the
judgment of the Kumasi High
Court, which had entered
judgment for the appellant
(herein simply called the
plaintiff) in a land suit
against the respondent (herein
also simply called the
defendant).
The plaintiff and
the defendant lived together for
about four years as concubines.
In that relationship the
plaintiff got to know of the
defendant’s family plot No. 10
Block ‘X’ Bompata, Kumasi which
the plaintiff claimed to have
purchased from the defendant’s
family in 1987 for an agreed
price of ¢480,000.00 upon
certain terms and conditions,
which included the plaintiff
using his own resources to
develop the land by building a
four storey concrete house upon
the said plot of land. The
plaintiff avers that he
fulfilled his part of the
agreement by erecting a building
on the land to near completion;
the vendor family also fulfilled
their part by assigning the
property to the defendant.
Notwithstanding the foregoing
the defendant has refused to
execute a deed of encumbrance
for the parties herein. The
defendant, as a resultant
trustee and in gross disregard
to the agreement has used the
property in diverse ways to
collect sums of money from
prospective tenants without
accounting to the plaintiff
despite repeated demands.
Upon these facts the
plaintiff caused a writ of
summons to issue against the
defendant claiming the following
reliefs:
“(1) A DECLARATION that the
family of the Defendant
represented by Mrs. Mercy Hagan,
Rebecca Dadzie, Caroline Dadzie,
Mrs. Josephine Edzii and
Christina Dadzie sold property
Plot No. 10 Block ‘X’ Bompata,
Kumasi to the Plaintiff in or
about 1987 on the following
conditions:-
(a)
that the said property would
after purchase be developed by
the plaintiff into a four storey
sandcrete building;
(b)
that the legal Assignment of the
said property by the Defendant’s
said family should be in the
name of the Defendant as
resultant trustee she being
Plaintiff’s wife and member of
the assigning family instead of
the Plaintiff’s name or directly
to him so that the family
character of the property would
be retained;
(c)
that after the litile (sic) deed
of the legal Assignment had been
executed the Defendant in turn
would be enjoined in
consideration of matters stated
in (1)(a) and (b) supra to
execute Deeds of encumbrances on
the said property in the
following manner.
(i)
that all the store rooms
including the living rooms in
the ground floor of the said
storey building belong to (or)
owned by and shall remain the
property of the Plaintiff for
ever;
(ii)
that the family of the Defendant
aforesaid shall possess and own
one flat consisting of three
bedrooms one toilet and bath on
the first floor of the building
for ever;
(iii)
that the Defendant shall own and
possess alone and exclusively
the rest of the rooms on the
first floor excepting the family
flat thereon for ever;
(iv)
that all the rooms and
facilities on the 2nd
floor shall be jointly owned and
possessed by the Plaintiff and
the Defendant for ever.
(v)
That all the rooms and
facilities on the third floor
shall also be owned and
possessed jointly by the
Plaintiff and the Defendant for
ever;
(vi)
That in fulfillment of the
aforementioned conditions the
legal assignment should be made
by the Defendant’s family
represented by the persons
aforesaid to the Defendant as a
resultant trustee for all the
parties to the said agreement;
(2) DECLARATION that it is
wrongful, contrary to equity and
good conscience and also
contrary to the agreement and
the conditions precedent to the
sale, purchase and legal
assignment of the said property
in the name of the Defendant for
the self-same Defendant to
refuse, despite repeated
demands, fail or neglect to
execute the aforementioned Deeds
of encumbrances on the
assignment as mentioned in (1),
(ii), (iii), (iv), (v) and (vi)
supra.
(3) An Order of this
Honourable Court compelling the
Defendant to execute in terms of
the agreement and/or conditions
precedent to the purchase by the
Plaintiff from the Defendant’s
said family of the said property
and the assignment of same in
the name of the Defendant
instead of that of the Plaintiff
Deeds of encumbrances in respect
of the said property.
(4) General damages for
breach of agreement and failure
to fulfil conditions precedent
to the assignment of property
Plot No. 10 Block ‘X’ Bompata,
Kumasi.
(5) An Order of this
Honourable Court compelling the
Defendant to account to the
Plaintiff in respect of all
monies collected by the
Defendant in respect of the said
property Plot Number 10 Block
‘X’ Bompata, Kumasi.
(6) An Order of perpetual
injunction restraining the
Defendant her executors
customary successors, personal
representatives, assigns, agents
and all persons claiming by from
or through her possession
ownership or title to and/or
exercising an EXCLUSIVE right
over the said property Plot
Number 10 Block ‘X’ Bompata,
Kumasi.”
Five witnesses were
called by the plaintiff, three
of whom claimed to have worked
for the plaintiff in respect of
the disputed property. The
other two witnesses also gave
corroborative testimonies in
support of the plaintiff's
case. Indeed these two
witnesses (PWs 3 and 4)
considerably impressed the trial
judge who, not only described
them as witnesses of truth, but
also that their stories largely
confirmed the agreed conditions
prior to the purchase of the
disputed plot and the
development of the building
thereon. The plaintiff tendered
in evidence several receipts
covering the purchases of
building materials to strengthen
his case.
For her part the
defendant denied the plaintiff's
claim, explaining that she
purchased the plot because the
family could not collectively
develop it. It was her case
that the family requested her to
provide one bottle of schnapps
and a purchase price of
¢480,000.00 which she paid.
In his judgment the
trial judge held the view that
there was no evidence to
contradict the plaintiff's
assertions and therefore a
resulting trust must have been
necessarily created. After
considering the respective
stories of the parties and the
principles enunciated in the
cases of ASANTE V. BOGYABI
[1966] G.L.R. 232 and
TSIRIFO V. DUAH VIII [1959]
G.L.R. 63 he expressed the view
that the plaintiff had proved
the existence of the collateral
agreement by preponderance of
probabilities. Consequently he
entered judgment for the
plaintiff as per the plaintiff’s
writ of summons and the
statement of claim and dismissed
the defendant’s counterclaim.
Apart from the
original ground of appeal
couched in what appears to be
vague and general in language,
the defendant filed, on 28 May
2002, five additional grounds of
appeal of which grounds 1, 2 and
5 were abandoned. The original
ground of appeal was substituted
by a simple one which sought to
say “that the judgment given was
void and a nullity”. The Court
of Appeal, rightly in my view,
proceeded to condense all the
grounds of appeal and narrowed
them to two for its
consideration. After tracing
the historical path along which
this case travelled from its
inception, the Court of Appeal
held the judgment read by the
trial judge on 18 December, 2001
to be null and void because the
judge had become functus
officio, bereft with any
jurisdiction to deliver that
judgment. It finally ordered
the case to be remitted to the
court below, i.e. the High
Court, Kumasi to be heard de
novo. It is against this
judgment of the Court of Appeal
that the plaintiff being
aggrieved and dissatisfied
launched the instant appeal on
the following grounds:
“(a) That the declaration
that the judgment of the trial
High Court was a nullity was
wrong since there was ample
direction from the Chief Justice
in writing dated 22/11/2001 on
the file requesting the parties
to appear before Mr. Justice
Abada for the said learned Judge
to deliver judgment in the
above-mentioned case, and
consequently the order for
retrial of the suit was wrong
and a nullity.
(b)
Other grounds of appeal will be
filed on receipt of the record
of proceedings before the Court
of Appeal, Accra”.
The brief argument which was
canvassed on behalf of the
plaintiff in respect of the
first ground of appeal was that
a letter bearing the reference
No. SCR/167A/VOL. 42 and dated
22 November, 2001 was
addressed to the plaintiff by
the Chief Justice, which letter
was also copied to the Registrar
of the High Court, Kumasi. The
contention here is that once the
letter was copied to the High
Court Registrar it must have
been received by the trial court
Registry or it must have found
its way to the docket or file to
be transmitted to the Court of
Appeal Registrar. The plaintiff
called in aid for his submission
Rule 14(1)(d) and (e) (C.I. 19)
which reads as follows:-
“14(1) The Registrar of the
court below shall transmit the
record when ready together with-
(d) the docket or file of
the case in the court below
containing all papers or
documents filed by the parties
concerned; and
(e) the exhibits,
documents or other things
received by the court below in
respect of the appeal.”
Now, applying Rule 14 and the
relevant sub-rules to the facts
of this case in relation to the
transmission of the record to
the Court of Appeal, there is no
proof that the personal letter
of the plaintiff was in fact
received by the High Court
Registrar, even if it was copied
to him as claimed by the
plaintiff. And even if it was
indeed received by the Registrar
of the High Court in the
language of Rule 14(1)(d) of
C.I. 19 the responsibility of
filing the letter or paper or
document on the docket through
the Registrar lay squarely on
the plaintiff and no one else.
This apparently he failed to
do. And having failed to
discharge that duty the
plaintiff cannot validly
complain of the absence on the
docket of that particular
“paper” or “document” or
“thing”.
Granted, however, for purposes
of argument that the Chief
Justice’s alleged letter to the
plaintiff was properly included
in the documents forwarded to
the Court of Appeal Registrar,
the question arises as to what
legal effect that letter would
have in this appeal. Could the
so-called directive contained in
the plaintiff’s alleged letter
be made to defeat or override
the statutory authority as
enacted in section 104 of the
Courts Act, 1993 (Act 459)? I
do not think so. The section
empowers the Chief Justice to
order the transfer of a case
from one judge to the other.
And to appreciate its full force
I desire to reproduce it as
follows:-
“104.(1) Subject to the
provisions of the constitution,
the Chief Justice may by order
under his hand transfer a case
from any Judge, or tribunal to
any other Judge or Tribunal, and
from a court referred to in this
Act to any other competent court
at any time or stage in the
course of proceedings and either
with or without application from
the parties to the proceedings.
(2)
The order may be general or
special and shall state the
nature and extent of the
transfer and in any case of
urgency the power of transfer
may be exercised by means of a
telegraphic, telephonic or
electronic communication from
the Chief Justice.
(3)
A transfer of a case made by
telegraph, telephone or
electronic communication and not
confirmed immediately by order
signing and sealed in a manner
specified by the Chief Justice
or any other person authorized
in that behalf by him shall be
of no effect”.
Thus it is section 104 of Act
159 which prescribed the formal
mode of effecting any transfer
of a case to another judge. Its
formalities or characteristics
include the signature and seal
of the Chief Justice or a person
authorized to sign and seal such
order of transfer. Clearly
therefore as in the instance
case, a mere letter from the
Chief Justice to one of the
parties will not suffice to
effect a valid order of transfer
or retransfer of a case. If the
trial judge had adverted his
mind to the said section 104 of
Act 459 he would have been very
slow in the preparation and
delivery of the judgment.
It is equally important to note
from exhibit JF 1, the formal
order of transfer of the case
from the list of the trial judge
that, as on the 8th
day of November, 2001, the judge
had been transferred from Kumasi
to Mampong-Ashanti. If by 22
November, 2001 the Chief Justice
had had a change of mind in
respect to the transfer of the
case, or had decided to
retransfer the case back to the
trial judge the logical thing to
do was for the Chief Justice to
draw up a fresh order of
transfer similar to the
defendant’s exhibit FJ 1, (see
page 157 of the record of
proceedings), directing that the
case be remitted back to the
trial judge. In the absence of
anything in that direction, I
am unable to appreciate the
argument that the judge was
clothed with jurisdiction when
he resurfaced or re-emerged at
the Kumasi High Court on 18
December, 2001 for the delivery
of the judgment.
Now, a brief comment on the
PRAECIPE FOR SEARCH filed by the
plaintiff on 12 December, 2003
(page 171 of the record). The
first question was whether the
Chief Justice ordered the
transfer of the suit to the
trial judge after 8 November,
2001, and if so when? The
answer was in the affirmative
and the order of retransfer was
alleged to have been made on 22
November, 2001. As earlier on
observed in this judgment the
existence of any such directive
by the Chief Justice to the
plaintiff and the Registrar of
the High Court is not borne out
in the record of proceedings.
Indeed there is no proof of any
such retransfer order, and
therefore this court is entitled
to dismiss the argument touching
upon that point as a sham.
The next in the series of
questions on the certificate of
search was whether the parties
or their solicitors were
notified of the alleged
retransfer order. This question
is closely linked to another
question which asks whether the
parties were aware of the date
of judgment, and if so how?
Again the answer to both
questions were in the
affirmative with the further
assertion that hearing notices
were served on the parties on
the 5th and 13th
December, 2001. A careful
scrutiny of the proceedings at
the High Court shows that only
one hearing notice (exhibit YS
2) was issued on 4th
December, 2001, which on its
face was directed at counsel for
the plaintiff. And even on this
hearing notice, there is no
proof that the plaintiff was in
fact served. The certificate of
service is completely blank.
There is nothing to substantiate
the claim on exhibit 3 that
hearing notices were served on
the parties. In my view both
exhibits 2 and 3 are riddled
with doubts and uncertainties.
As I examined both documents,
the question I kept asking
myself was whether they formed
part of a grand design aimed at
securing at all costs judgment
for the plaintiff.
Be that as it may, I have
already come to the conclusion
that the trial judge lacked
jurisdiction when he purported
to have delivered the judgment.
My view is that nothing
emanating from the judgment
could be clothed with
jurisdiction, and that the whole
judgment is unenforceable. I
intend to conclude this judgment
by borrowing the famous words of
Lord Denning in MAC FOY V.
UNITED AFRICA CO., LTD.
[1961]2 All E.R. 1169.
“If an act is void, then it is
in law a nullity. It is not
only bad, but incurably bad….
And every proceeding which is
founded on it is also bad and
incurably bad. You cannot put
something on nothing and expect
it to stay there. It will
collapse”.
In the result, I would dismiss
this appeal and affirm the
decision of the Court of Appeal
with a slight variation in its
final order that the suit be
sent back to the High Court,
Kumasi for it to be heard de
novo. For my part I would order
that the parties be permitted to
decide whether to adopt the
proceedings and continue from
where it was formally
transferred from the list of the
trial judge or to start all over
again.
F . M. LARTEY
JUSTICE OF THE SUPREME COURT
DR. S. TWUM
JUSTICE OF THE SUPREME COURT
PROF. T. M. OCRAN
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME COURT
COUNSEL:
Mr. W. Y. Oppong for Appellant.
Mr. Yaw Boafo for Respondent.
gso* |
