• IN THE SUPERIOR COURT OF JUDICATURE
  IN THE COURT OF APPEAL
  ACCRA - A.D 2017
  

THE REPUBLIC

vs.

LANDS COMMISSION - (Respondent)
EX PARTE; NICHOLAS NORTEY (Applicant/RespondentT),
DANIEL ADDOQUAYE ADDO AND BENJAMIN TETTEH OLEWOLON (Applicants/Applicants)

JUDGMENT

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The learned trial Judge erred in failing to appreciate the legal effect of the respondent’s non- compliance with the mandatory provisions of Order 55 Rule (4) 2 (d) and Order 55 Rule 5 sub-rule

(1) of the High Court (Civil Procedure) Rules 2004, C. I. 47 in the respondent’s application.

The learned trial Judge erred in his view that “however the presence of the applicants in this application is to to assist the court in arriving at a decision” which erroneous view caused him to fail to uphold the appellants’ first and fundamental ground that the mandatory provision of Order 55 Rule 4 sub-rule 2 (d) and Order 55 Rule 5 sub-rule 1 of C. I. 47 in the respondent’s application for mandamus rendered the said application incompetent being a breach of the audi alteram partem rule of natural justice which goes to the jurisdiction of the court and rendered the proceedings in respect of the said application and the order for mandamus granted as a result of the said application a nullity.

The learned trial Judge erred in his failure to set aside the order of mandamus granted by him in favour of the respondent on 24th November, 2011 on the appellant’s first and fundamental ground that the said order was a nullity due to the respondent’s non-compliance with the mandatory provisions of Order 55 Rule 4 sub-rule 2 (d) and Order 55 Rule 5 sub-rule 1 of C. I. 47 in view of the learned Judge’s own concession in paragraph 3 of page 2 of his ruling dated 16th February,  2012 that under Order 55 Rule 5 (2) of C. I. 47, the applicants should have been served with a copy of the original application since the result of the application directly affects the Tetteh Olewolon’s family but not the Lands Commission.

The learned trial Judge erred in his dismissal of the appellants’ application for an Order to set aside the order of mandamus granted by him in favour of the respondent on 24th November, 2011 since the learned Judge lacked jurisdiction to hear and grant the respondent’s said application for mandamus in view of the respondent’s failure to comply with the mandatory provisions of Order 55 Rule 4 sub-rule 2 (d) and Order 55 Rule 5 sub-rule 1 of the High Court (Civil Procedure) Rules, 2004, C. I. 47 in the respondent’s application for mandamus which failure to comply with same rendered the said application for mandamus incompetent being a breach of the audi altaram partem rule of natural justice which goes to the jurisdiction of the court and rendered the proceedings in respect of the said application and the order of mandamus granted as a result of the said application a nullity.

 

The learned trial Judge erred in his view that the judgment dated 8th March, 2011 of Justice John Adjet-Nasam “requires that the recovery of possession made in favour of the defendants in Suit No: 323/83 be expunged from the records of the Lands Commission as these were fraudulently obtained since the said judgment of Justice John Adjet-Nasam did not state that the order for possession granted by Justice Isaac Lartey-Young on 5th March, 2007 was fraudulently obtained and did not make such an order but only declared the said order for possession null and void solely on the legal ground that as there was no order for recovery of possession in respect of the land the said Judge should not have granted the said order for possession.

The learned Judge erred in making an order that the “Lands Commission, Accra, should expunge from their records the recovery of possession made in favour of Tetteh Olewolon’s family with regard to the land in Suit No: 323/83… and restore the names assigned to the lands before the recovery of possession and the plotting in Suit No: 323/83… was done” since the said judgment dated 8th March, 2011 of Justice John Adjet-Nasam on which the learned Judge purported to found his order did not make such an order but only declared the order for possession dated 5th march, 2007 granted by Justice Isaac Lartey-Young null and void solely on the legal ground that as there was no order for recovery of possession in respect of the land the said Judge should not have granted the said order for possession.

The order of the learned Judge that the Lands Commission, Accra, should expunge from their records the recovery of possession made in favour of Tetteh Olewolon’s family with regard to the land in Suit No: 323/83… and restore the names assigned to the lands before the recovery of possession and the plotting in Suit No: 323/83… was done” after he had set aside his said order of mandamus dated 24th November, 2011 and which order to the Lands Commission the learned Judge stated was to replace his said order of mandamus dated 24th November, 2011 was made without jurisdiction since the appellants’ said application to set aside the said order of mandamus was not an appeal or a rehearing of the respondent’s application for mandamus.

The learned Judge erred in the award of costs against the appellants.

 

The learned Judge gravely erred when he failed to set aside the said order of mandamus dated 28th November, 2011 on the appellants second ground since the order which the learned Judge alleged Justice John Adget-Nasam made in his judgment dated 8th March, 2011 and on which the learned Judge purported to found his order “Lands Commission should expunge from their records Tetteh Olewolon’s Family Registration and to plot the judgment obtained by Boi Stool in its records” is a non-existent order.

Further grounds will be filed upon receipt of the record of proceedings.

 

On 26th March, 2012, the appellant filed additional ground of appeal ‘K’ which reads:

 

The order of the learned Judge that the Lands Commission, Accra should expunge from their records the recovery of possession made in favour of Tetteh Olewolon’s family with regard to the land in Suit No: 323/83… and restore the names assigned to the lands before the recovery of possession and the plotting in Suit No: 323/83… was done” after he has set aside his said order of mandamus dated 24th November, 2011 and which order to the Lands Commission the Judge stated was to replace his said order of mandamus dated 24th November, 2011 was made without jurisdiction and was a nullity since neither the appellants nor the respondent had made an application for the said order in the appellants application pending before the learned Judge which was an application to set aside the said order of mandamus dated 24th November, 2011 and not a rehearing of the respondent’s application for mandamus.

 

The relief sought from the Court of Appeal is for the whole ruling dated the 10th day of February, 2012 to be set aside and the appellant’s application to set aside the order of mandamus be granted.

 

At this stage, let me put it on record that the respondents did not file any process in this appeal.

 

Before dealing with the arguments canvassed in support of this appeal I will give a brief background of the case.

 

On 24th day of November, 2011, the High Court, Accra granted an order of mandamus directed at the Lands Commission, Accra to expunge from their records Tetteh Olewolon’s family registration, as ordered by the High Court, Land/Financial Division, on 8th March, 2011 and to plot the said judgment obtained by Boi Stool in its records.

 

Following the order supra, Daniel Addoquaye Olewolon and Benjamin Tetteh Olewolon, who claimed to be directly affected by the application for mandamus and the order of mandamus granted on 24th day of November, 2011, filed an application to the High Court seeking to set aside the order of mandamus made by the court dated 24th November, 2011.

 

The basis of that application was that the order of mandamus dated 24th November, 2011 in Suit No: SOLM/2/12 entitled Republic Vs. Lands Commission Ex parte Nicholas Notei Dowuona, the custodian of Boi Stool has been brought to their notice.

 

They continued that, the Boi Stool in the application which culminated in the order of mandamus supra, failed to name them as affected parties and to serve them with notice of the application as required by the legal procedure governing applications for judicial review in terms of Order 55 Rule 4 (2) (d) and Rule 5 (1) of the High Court (Civil Procedure) Rules, 2004, C. I. 47 to enable them respond to the application for the consideration of the High Court.

 

It is the case of the applicants that Order 55 Rule 4 & 5 quoted supra is mandatory and the failure of the Boi Stool to comply with the above order rendered the said application incompetent and the order of mandamus granted as a result of the said application a nullity.

 

Secondly, the High Court, Land/Financial Division did not make any order on the 8th of March, 2011 that the Lands Commission should expunge from their records Tetteh Olewolon’s family registration and to plot the judgment obtained by Boi Stool in its records as the said order is non-existent.

 

Thirdly, and more importantly, they deposed, in Suit No: L323/83 entitled  Ebenzer Narku Okwei Vs. Daniel Addoquaye Addo & Anor. the Boi Stool commenced an action for declaration of title to an 87.68 acre piece of land situate at Boi.

 

After a lengthy trial, the High Court dismissed the plaintiff’s said claim on the grounds of res judicata arising from the judgment of the Court of Appeal in Civil Appeal No: 49/80 and secondly on the finding that the plaintiff stool (Boi Stool) had failed to prove their alleged ownership of the land, the subject matter of the dispute. The plaintiff’s appeal to the Court of Appeal and Supreme Court were both dismissed unanimously.

 

They deposed that the Boi stool in its application for an order of mandamus failed to disclose this to the High Court and this was calculated to mislead the High Court.

 

The applicants concluded that the judgment of the High court dated 8th day of March,  2011 against them was in error and they have appealed to the Court of Appeal against the said judgment.

 

Based on the foregoing, the applicants prayed the High Court to set aside the order of mandamus as same is a nullity.

 

As stated supra, the High Court whilst varying its earlier order, dismissed the applicants’ application to set aside the order of mandamus hence this appeal.

In arguing the appeal, counsel for the appellants argued grounds (a), (b), (c) and (d) together (and we would follow the order in which The grounds of appeal were argued). He then submitted on these grounds that, by granting the respondent’s application for an Order of mandamus, without complying with the mandatory provision of Order 55 Rule 4 & 5 of CI 47, i.e. by serving the application on the appellants who were directly affected by the said application. They were not heard at all by the trial judge.  This is in clear breach  of the audi altaram partem rule of natural justice which goes to the jurisdiction of the court and rendered the proceedings in respect of the said application for mandamus and the order of mandamus granted a nullity. Counsel referred us to the case of Republic vs. Appeal Committee of London Quarter Session; Ex Part Rossi (1956) 1 All ER 670,674 a decision by Denning L. J. (as he then was) who held that “… it is to be remembered that it is a fundamental principle of our law that no one is to be found guilty or made liable by an order of any tribunal unless he has been given fair notice of the proceedings so as to enable him appear and defend himself”. (our emphasis)

He further referred us to the cases of BARCLAYS BANK OF GHANA LIMTED VS GHANA CABLE CO. LTD & OTHERS [1998–99] SCGLR 1 and IN RE KUMI (Deceased); KUMI V. NARTEY (2007-2008) SCGLR 623.

 

He continued that even though the trial judge conceded in his ruling that the appellants should have been served with the respondent’s application but he did not accede to the appellants’ contention that the proceedings and the order so granted were rendered null and void. Counsel for the appellant concluded on this point that, the legal position is that a breach of the audi altaram Partem rule of natural justice in any proceedings goes to the jurisdiction of the court and renders the proceedings and any order/s made in those proceedings a nullity. Base on the above submissions, counsel for the appellants invited  us to allow the appeal on the above grounds.

 

In the ruling in contention, the trial judge conceded that the appellants should have been served with the Respondent’s application which resulted in the granting of the Order of mandamus dated 24th November 2011. This is what the High Court Judge said in his ruling:

“The basis of the application is that Order 55 rule 4 sub rule 2   and rule 5 (1) of C. I. 47, they as persons affected, should have been made parties to the application. That not having been made parties in that application, they could not assist the court in arriving at the decision it came to. That in the judgment of the High Court, Land/Financial Division, no order was made that the Lands Commission should expunge from their records Tetteh Olewolon’s family registration and to plot the same judgment obtained by Boi Stool in its record.

I concede that under Order 55 Rule 5(2) of C. I. 47 (sic), these applicants should have been served with a copy of the original application, since the result of the application directly affects the Tetteh Olewolon’s family, but not the Lands Commission” (our emphasis).

 

Since the application leading to the order of mandamus was on notice and the result directly affected the appellants, the later ought to have been served and or notified. Failure to serve them is clearly in breach of the rules of natural justice i.e. the audi altaram partem rule which goes to the jurisdiction of the court. Consequently, the proceedings leading to the grant of the order of mandamus and the order of mandamus dated 24th November 2011 are a nullity. See the case of IN RE KUMI (deceased); KUMI V. NARTEY [2007 – 2008] SCGLR, 623, 624-625 holding (3) thereof; where their Lordships held that:

 

“It was trite law that a person cannot be found guilty or liable by   an order or judgment unless he had been given fair notice of the trial or proceedings to enable him to appear and defend himself. A judgment or order procured under such circumstances is a nullity. Where the proceedings are a nullity, they are automatically void and any person affected by them can apply to have them set aside ex debito justitiae. See also the case of REPUBLIC V. HIGH COURT, ACCRA, EX-PARTE SALLONM AND OTHERS [SENYO COKER; INTERESTED PARTY] 2011 I SCGLR 574, 577 hold (3):

 

“the right to be heard in proceedings before a court of law – the audi altaram partem rule - was well-established in every common law jurisdiction. Thus, no matter the merits of the case, the denial of the audi altaram partem rule would be seen as a basic fundamental error which should nullify proceedings made pursuant to the denial.” (our emphasis).

 

It should be taken away only when the rules of court or practice so permitted. Order 81 of the High Court (Civil Procedure) Rules, 2004 (C. I. 47), could not be reasonably applied to regulate a basic fundamental error, which error had denied a party his constitutional and inalienable right to be heard in a case in which the party (such  as  the  applicants  in  the  instant  case) had been adjudged a victor in civil proceedings and what was left   was execution ...”

 

In the words of Anin Yeboah JSC;

 

“Indeed, procedural defects have been cured in various cases if the defects are not fundamental. If the defect is such that a party’s right has been seriously denied, as in this case, a court should not apply Order 81. Lack of service of hearing notice for example, has always been seen as a fundamental defect... Equally so, if a party is denied his right to be heard, as in this case, it should constitute a fundamental error for the proceedings to be declared a nullity (our emphasis again).”

 

The Supreme Court minced no words in the consequence of breach of the principle of audi alteram partem rule which would result in loss of jurisdiction in the case of REPUBLIC V. HIGH COURT, ACCRA, EX PARTE OSAFO [2011] 2 SCGLR 966, 968 hold (2) when they held that:

 

“The consequence of a denial of the fundamental right of hearing was so well-settled that in all cases of proven default, the judgment so entered by the court would be so fundamentally flawed as to be quashed by certiorari. In the instant case, the High Court had committed an error so fundamental that it had the effect of vitiating its decision of 26 January 2009, granting judgment under Order 13 rule 6(1) and (2) without hearing the applicant. So fundamental was the right of hearing that where there was a breach, then notwithstanding the clear provisions of Order 81 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), … the proceedings affected by its breach, could not be rectified by the courts. In that event, the court had no discretion in the matter but to grant relief by order of certiorari ...”

 

Relating the cases cited supra to the case under consideration, since the appellants were directly affected by the order of mandamus, they should have been served with the application. Failure to serve them render the proceedings and the order of mandamus dated 24th November, 2011 a nullity and the High Court should have granted the appellants’ application by setting aside the order of mandamus.

 

From the foregoing, grounds (a), (b), (c) and (d) of the appeal succeed and they are upheld.

 

This brings us to ground (i)

 

The argument advanced in support of this ground is that, in granting the order for mandamus, the trial Judge did not state or refer to the part or portion of the judgment dated 8th March, 2011 that made the order he purported to found his said order on.

 

Counsel continued that, this is so because in the said judgment, the High Court, Land/Financial Division, Accra, did not make any order that the Lands Commission should expunge from their records Tetteh Olewolon’s family registration and plot the judgment obtained by Boi Stool in its records. The alleged order is non-existent. Counsel referred to MacFoy Vs. United Africa Company Ltd. (1961) 2 ALL ER 1169, a Privy Council decision. In the words of Lord Denning…

 

“You cannot put something on nothing and expect it to stay there. It will collapse”.

 

He therefore invited us to allow the appeal on this ground also.

 

Our reaction to ground (i) is that we have already held that the trial Judge breached the fundamental rule of natural justice the audi altaram partem rule by not hearing the appellants before making the order of mandamus dated 24th November, 2011 and further directing that the appellants’ family land registered with the Lands Commission should be expunged from the latter’s records as that order was a nullity. Secondly, the judgment dated 8th March, 2011 which the trial Judge based his order on was a declaratory one. It reads in part as follows:

 

“the judgment obtained in the Suit No: 49/80 is hereby declared to have been obtained by fraud.

Cost of Gh¢5,000.00 against each defendant.”

 

So the question is what order was the trial Judge ordering the Lands Commission to enforce? None.

 

Indeed at the High Court, the respondent’s case was that, the High Court, Coram: John Ajet-Nasam J. directed that the plotting done based on Civil Appeal No: 49/80 should be expunged. See paragraph 7 of the affidavit in opposition filed on the 31st January, 2012 at page 123 of the record of appeal which reads:

 

“7 That in answer to paragraph 10 of the applicants’ affidavit,        I state that the High Court, Coram: John Ajet-Nasam J. directed that the plotting done based on Civil Appeal No: 49/80 should be expunged.”

 

But as quoted supra, the judgment the trial Judge based his order of mandamus was a declaratory one, declaring the judgment obtained in Suit No: 49/80 as having been obtained by fraud. See page 118 of the record of appeal.

Having found that no order was made in the judgment dated 8th March, 2011, the trial Judge sought to vary his order of mandamus dated 24th November, 2011 and replaced it with the one dated 16th February, 2012. This the trial Judge could not do. To do so would amount to setting up a new case for the respondent. See the case of Dam Vs. Addo [1962]  2 GLR 210, 216. See also Nyamaah Vs. Amponsah [2009] SCGLR 316, 362 holding (1) where their Lordships held that:

 

“It is the duty of the trial court to make pronouncement on the reliefs that a party seeks. Therefore the trial court is to ensure that the issues it sets down for determination would aid it in making justifiable decisions  on the reliefs  sought. Consequently, a Judge who makes order for a relief not sought by a party, can be held to have exercised an irregular jurisdiction…”

 

Ground (i) of the appeal succeeds and it is hereby upheld. The above reasoning also disposes off ground (e) and (f) of the appeal.

 

The next grounds of appeal addressed by counsel for the appellants are (g) and (k() which were argued together.

 

On these grounds, counsel for the appellants referred to the portion of the ruling in contention in which the trial Judge varied his order with another order directed at the Lands Commission.

 

Counsel submitted that, the appellants applied to set aside the order for mandamus. It was the duty of the trial Judge to evaluate the grounds canvassed by them in the motion to set aside the order by either granting or dismissing same.

 

According to counsel, the said motion to set aside the order of mandamus not being an appeal was not by way of rehearing and the trial Judge had no power to make a new order upon dismissal of the said motion.

 

Consequently, the order made on the 16th February, 2012, which has culminated in this appeal, was made without jurisdiction and is a nullity.

 

We agree with counsel for the appellants that the trial Judge had no right to vary the order of mandamus dated 24th November, 2011 when the appellants has challenged that order  as being a nullity. That variation in the ruling under contention had the effect of over- reaching the appellants at the High Court in view of the motion on notice to set aside the said order. The variation could not be justified since the processes leading to the order of mandamus dated 24th November, 2011 was given in clear breach of the rules of natural justice that is, the appellants were not heard. This breach is so fundamental that it goes to the jurisdiction of the court and is unanswerable.

 

See the case of Banda V. Ayisi [2013-2014] 2 SCGLR 1259, 1262.

 

This was the case that the defendant at the trial court raised the issue of the plaintiff’s capacity. Instead of the trial Judge ruling on the point so taken, rather sought to amend the title of the plaintiff suo motu. The Court of Appeal held that, that action by the trial Judge was wrong as the issue of capacity is so fundamental to justice that it cannot be sacrificed on the altar of expediency or for the sake of avoiding multiplicity of suits.

 

On a further appeal to the Supreme Court by the defendant, their Lordships per Gbadegbe (JSC) delivering the unanimous judgment of the Court, affirmed the decision of the Court of Appeal and held at page 1262 of the report that:

 

“The amendment we hasten to say, had the effect of overreaching the defendant in view of the objection taken by him to the capacity of the plaintiff, which point required to be ruled upon in the judgment.”

 

Grounds (g) and (k) succeed and they are hereby upheld.

 

For the reasons given in this judgment, this appeal succeeds. The ruling of the High Court dated 16th day of February, 2012 is hereby set aside. The Order of Mandamus directed at the Lands Commission, Accra dated 24th day of November, 2011 which Order was replaced with the Order dated 16th February, 2012 in the ruling on appeal is also set aside.

 

(Sgd.)

MARIAMA OWUSU

[JUSTICE OF APPEAL]

 

(Sgd.)

Welbourne, (J.A.)                      I agree              MARGARET WELBOURNE

[JUSTICE OF APPEAL]

 

(Sgd.)

Sowah, (J.A.)                         I also agree             CECILIA H. SOWAH

[JUSTICE OF APPEAL]