IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ACCRA - A.D 2018
NANA BANYIN RIBERIO -(Plaintiff/Appellant)
COUNCIL OF GHANA INSTITUTE OF MANAGEMENT AND PUBLIC ADMINISTRATION -(Defendant/Respondent)
DATE: 1ST MARCH, 2018
CIVIL APPEAL NO: HI/150/2017
JUDGES: F.G. KORBIEH J.A (PRESIDING), B.F. ACKAH-YENSU J.A, I. O. TANKO AMADU J.A
TANKO AMADU J.A
(1) The written submission of the Defendant/Respondent in this appeal is unique though not entirely novel. It is unique because counsel for the Respondent not only supported the Appellant’s written submission, but proferred arguments in concession by arguing that the Learned Trial Judge indeed erred in her judgment and therefore the same to be set aside as sought by the Appellant. This approach by the Respondent’s counsel when they could have opted not to file any response, demonstrates academic honesty and commendable professional conduct and we wish to place same on record as such.
(2) The background facts giving rise to this appeal are not in dispute at all. By writ issued from the Industrial Division of the High Court Accra, the Plaintiff/Appellant (hereinafter referred to as the “Appellant”) sought reliefs against the Defendant/ Respondent (hereinafter referred to as the “Respondent”) as follows:-
“(a) ………………General damages in respect of liability or breach of statutory duty on the part of the Defendant under the Workmen’s Compensation Act 1987 (PNDCL 187) for personal injuries sustained by accident arising out of and in the course of the employment of the Plaintiff or about the 30th November, 2011.
b. Legal costs.
(3) At the close of pleadings, the Trial Court adopted the following issues for determination of the dispute between the parties.
“(a) Whether or not the Defendant is liable for damages in respect of liability or breach of statutory duty under the Workmen’s Compensation Act 1987 (PNDCL.197) for personal injuries arising out of and in the course of the employment of the Plaintiff on or about the 30th November 2011.
b. Whether or not the Plaintiff is entitled to the reliefs he claims.
c. Any other issues arising from the pleadings”.
(4) Significantly, at the directions stage, neither the parties nor the Trial Court suo motu raised any issue with respect to the statutory jurisdiction of the Trial Court though admittedly, being a foundation or threshold issue, it could be raised at any stage of the proceedings even on appeal.
(5) In the instant case, without inviting the parties to address her on the Trial Court’s jurisdictional competence even at the end of the trial, the Trial Judge in delivering hereself raised the issue of the Court’s statutory jurisdiction suo motu and held inter alia as follows:-
“A combined reading of Section 19, 21, and 38 on the interpretation of ‘court’ shows that the proper forum for the institution of the instant suit ought to have been the District Court or the Circuit Court or any Court as declared by the Chief Justice.
By reason of the foregoing, I am of the view that this court lacked jurisdiction to determine this matter. Accordingly, I decline same to enable the Plaintiff institute the action in the appropriate forum”.
(6) It is from this judgment that the Appellant has appealed to this court by notice filed on 7/9/2015 in which the following grounds of appeal have been formulated and set out as follows:-
“(a) The said decision or ruling whereby the Learned Trial Judge declined jurisdiction to determine the case on its merits was erroneous and contrary to the express provisions of the 1992 Constitution of the Republic of Ghana and the Court Act 1993 Act 459.
(b) The said decision or ruing is against the weight of the evidence”.
(7) In the legal submissions filed on behalf of the Appellant, it was submitted in reference to the 1992 Constitution and the Courts Act 1993 (Act 459) that:-
(a) ……………… by Article 125(5) of the 1992 Constitution, the judiciary shall have jurisdiction in all matters relating to the Constitution and such jurisdiction as parliament may confer. It is further submitted on this provision that parliament can only add, but not substract any jurisdiction conferred on the Superior Courts by the Constitution. The case of REPUBLIC VS. BOATENG; EX-PARTE ADU GYAMFI II  I GLR 317 at 328 cited:
(b) The primary source of jurisdiction conferred on the High Court is the constitution which by Article 140 conferred on the High Court original jurisdiction in all matters.
(c) The scope of the jurisdiction of the High Court has been amplified by Section 15 of the Courts Act 1993 (Act 459) relying on the jurisdiction conferred on it pursuant to Article 140 of the Constitution.
(d) That pursuant to Section 101 of the Courts Act, concurrent jurisdiction has been specifically conferred under sub-sections 1 and 2, while under Section 107, the High Court is empowered to remit cases at any stage of proceedings before judgment to the District Court in any civil cause or matter where the justice of the High Court considers that the matter may be suitably dealt with by the District Court. And this is either upon application by any of the parties in the action or by the High Court on its own motion.
(8) The Appellant’s counsel has referred us to the cases of ARHIN VS. BRENYA  CC.59
ATAA VS. ASHANTI GOLDFIELDS CORPERATION 2 GLR 421 CHAHIN VS. BOATENG 2 GLR 174 & MANSAH VS. ASAMOAH 1 GLR 225, to buttress his arguments.
(9) Further references with respect to the allegation of jurisdictional error committed by the Trial Judge include TIMITIMI VS. AMABEBE  14 WACA 374 at 376 & AKYEM VS.
ADU 32 GLR 71.
(10) In seeking relief from this court counsel for the Appellant submits that…………….. “by virtue of the wide powers conferred on this Honourable Court under Rule 32 of C.I.19 of the Court of Appeal Rules, 1997, the court has jurisdiction to exercise the powers conferred on it by the above mentioned rule to give any judgment based on the record of appeal and make any order that ought to have been made, and to make any further or other order as the case may require rather than remit to the Trial Judge who has already declined jurisdiction to determine the case on its merits. For, as in EMA VS. ACAS (CA)  I WLR 113 at 1126 Lord Denning M.R. said:
“It is well settled that on appeal, this court is entitled and ought to re hear the case as at the time of rehearing and ought to give such judgment as ought to be given if the case came at that time before the court of first instance………………..”.
(11) As we have already stated, the Respondent did not contest the appeal but rather commendably elected to make submissions in support of the Appellant’s case. The Respondent’s submission has referred us to two constitutional law cases both of which are relevant to the determination of this appeal. They are; TUFFOUR VS. ATTORNEY-GENERAL  GLR 655 which in respect of the interpretation of the 1979 Constitution but relevant to the jurisprudence on the issue and SAM (NO.2) VS. ATTORNEY-GENERAL  SC GLR 305-346 where Bamford Addo JSC held inter alia with respect to the scope of Section 15 of the Divestiture of State Interests (Implementation) Law 1993 PNDCL 236 vis a vis Articles 140(1) 293 (2) and (3) of the 1992 Constitution as the Act purports to oust the jurisdiction of the courts with respect to acts and omissions by persons under the Act i.e. PNDCL 236.
(12) Her Ladyship held inter alia that: “Section 15 of PNDCL 326, which is subordinate to the constitution, cannot properly limit the High Court’s jurisdiction constitutionally given to the High Court without necessary authority……………….. Despite the provision in Article 37(1) the Constitution, can Section 15 of PNDCL 326, which in effect seeks to deprive a certain class of litigants of their equal rights and opportunities before the law, a right expressly granted them by Article 37(1) of the constitution itself, prevent them access to the courts contrary to the letter and spirit of the Constitution? Section 15 of PNDCL 326 is also discrimatory against the said class of litigants as it takes away from them the opportunity to enforce their legal rights possessed by all contrary to the constitution particularly Article 17(1)……………..”.
(13) The Respondent concluded the submissions by urging on this court that “the matter instituted by the Plaintiff/ Appellant on 7th August 2013 in the High Court was well within the jurisdiction of the High Court. Therefore the Trial Judge erred when she held that the Plaintiff/Appellant should have commenced action in the District or Circuit Court”.
(14) In determining this appeal, we found it necessary to quote Bamford Addo JSC in the SAM (NO.2) VS. ATTORNEY GENERAL CASE (supra) in extenso in order to apply the same parity of reasoning so as to uphold the case of the Appellant in this appeal as supported by the Respondent. We are in agreement with all the submissions of both parties and as we have no further legal considerations to add in determining the appeal. We notice that the Learned Trial Judge fell into a jurisdictional error when she adopted a mechanical interpretation of the provisions of the Workmen’s Compensation Act  PNDCL 187 without deference to the provisions of the fundamental law, the constitution of the Republic of Ghana . In the result, this appeal succeeds. The judgment of the Trial High Court is hereby set aside.
(15) Now, as noted earlier in this judgment, the Appellant has urged this court to exercise jurisdiction pursuant to its power of rehearing under Rule 8(1) of the rules of this court and make further order pursuant to Rule 32, by determining the dispute on the basis of the evidence on record. There is no doubt that this court is empowered by its ground rules to determine a matter as if it were exercising the powers of the Court below particularly where from the record of appeal there is no further evidence to be adduced at the Court below.
(16) However, as a matter of constitutional obligation, the primary duty of the High Court in the exercise of its original jurisdiction is to determine matters based on the evidence before it and when an appeal arises therefrom, this court has a duty to evaluate the entire evidence in order to determine whether or not the Trial Court arrived at its findings and conclusions upon the correct perspective. Further we have a duty to consider whether the Trial Court drew the proper logical inferences from the totality of the evidence and whether or not the relevant law has been properly applied.
(17) We notice that whereas the Appellant formulated a ground of appeal on the omnibus ground, no submissions were made therefrom and the Respondent also rightly did not make any submissions on same. To review the evidence and give judgment on the substantive dispute is to deprive either party from the benefit of a judgment on the evidence from the High Court which by the Constitution and Courts Act is best suited to do so and which may be a subject of appeal to this court. Where an appeal is made from the exercise of this court’s oversight jurisdiction as has been urged on us, an intending Appellant from that decision would have been deprived the opportunity of a hearing at the first Appellate forum.
(18) We shall therefore decline the invitation to determine the substantive dispute between the parties at this forum. Having set aside the judgment of the Trial Court, we hereby order that the case be remitted to the High Court differently constituted for the purposes of adopting the proceedings and determining the dispute between the parties by resolving any questions of law and fact that may have arise from the pleadings and evidence.
(Justice of Appeal)
I agree F.G. KORBIEH
(Justice of Appeal)
I also agree B.F. ACKAH-YENSU
(Justice of Appeal)