IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
CAPE COAST - A.D 2017
DISTRICT MAGISTRATE COURT, APAM AND BONDZIE ATTA QUAYE - (Respondent)
EX PARTE-MRS VICTORIA QUAYE - (Interested Party/Appellant)
DATE: 5TH DECEMBER, 2017
CIVIL APPEAL NO: H1/55/2017
JUDGES: IRENE C. LARBI (MRS) J.A. (PRESIDING), LAWRENCE L. MENSAH) J.A., A. M. DOMAKYAAREH (MRS) J.A.
JOHN COFIE FOR APPLICANT/RESPONDENT/RESPONDENT
AYETSI QUAYE FOR INTERESTED PARTY/APPELLANT
DOMAKYAAREH (MRS), J. A.
1. This appeal has risen from an application for the Prerogative Order of Certiorari to the High Court, Winneba, where on 27th April, 2017, the said High Court quashed the decision of the District Court, Apam dated 29th September 2016. In this appeal, the Applicant/Respondent is the wife of the Interested Party/Appellant. The Respondent is the trial court from which this case emanated and travelled through the High Court before finally landing in this Appeal Court. The Applicant/Respondent and the Interested Party/Appellant celebrated their marriage under the Marriages Act, 1884 – 1985 (Cap 127) on 12th April 2008 at the Accra Metropolitan Assembly, Accra. The couple, after their marriage, resided at 9 Hardwicke Road, Palmas Green, London. They had two issues between them, both of them being minors aged six years and six months and three years and two months respectively at the time the application for Certiorari was filed.
2. A misunderstanding arose between the couple and the Applicant/Respondent initiated proceedings in a London Court for the dissolution of the marriage. While this case was pending in the London court, the Interested Party/Appellant, acting through his Lawful Attorney, filed a Petition at the Respondent’s Court at Apam for a dissolution of the same marriage. On 29th September 2016, the Apam District Court granted the petition for Divorce and issued a Divorce Certificate to that effect.
3. Dissatisfied with this outcome, the Applicant/Respondent applied to the High Court,
Winneba for a Judicial Review of the dissolution of the marriage by the district Court on two grounds, namely: -
1) That the District Court lacked the jurisdiction to dissolve the marriage, it being a marriage under the Marriages Act, Cap 127 and
2) That the Magistrate acted in breach of natural justice principle of Audi Alteram Partem by denying the Applicant/Respondent a hearing before dissolving the marriage.
4) The High Court agreed with the Applicant/Respondent and in its Ruling of 27th April 2017, quashed the decision of the District Court as being a nullity. The High Court also cancelled the Certificate of Dissolution of the marriage and awarded costs of Gh⊄3,000.00 in favour of the Applicant/Respondent against the Interested Party/Appellant.
5) The Interested Party/Appellant, being aggrieved with this outcome at the High Court, launched this appeal on basically four grounds, namely, that: -
i) The Ruling of the High Court was given per incuriam by reason of the Judge’s failure to recognize that the District Court has jurisdiction to entertain a petition for the dissolution of an Ordinance Marriage pursuant to Section 47(1)(f) of the District Court Rules, 2009, (C.I. 59)
ii) The Learned High Court Judge erred in failing to draw a distinction between the petition as distinct from the proceedings based thereon, namely, the hearing or trial and the order for the dissolution of the marriage;
iii) The ruling was against the weight of evidence adduced at the trial;
iv) The award of legal costs was without any basis.
No additional Grounds of Appeal were filed even though Counsel indicated in the Notice of Appeal that other grounds may be filed upon receipt of the Record of Appeal.
The appellant is seeking an order to set aside the Ruling or alternatively, an order setting aside the proceedings (hearing and order of dissolution of marriage) and leaving the petition intact.
6. The law on appeals is amply stated in Rule 8(1) of C.I. 19 which directs that any appeal to the Court shall be by way of re-hearing and shall be brought by a notice referred to in the Rules as "the notice of appeal" as well as several decided cases of the Supreme Court of Ghana, including TUAKWA V BOSOM (2001 – 2002) SCGLR 61, AGYEIWAA V P & T COPRPORATION [2007 – 2008] SCGLR 985 at 989 and BROWN V QUASHIGAH [2003 - 2004] SCGLR 93. These cases collectively posit that it is the duty of an appellant who attacks the decision of a lower court to demonstrate where the lover court went wrong. The authorities further state that as an appeal is by way of a rehearing, particularly where the appellant alleges in his notice of appeal that the decision of the trial court is against the weight of the evidence, although it is not the function of the appellate court to evaluate the veracity or otherwise of any witness, it is incumbent upon an appellate court, in a civil case, to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before it arrives at its decision, so as to satisfy itself that, on a preponderance of the probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence.
7. This case also calls into play, the Supervisory Jurisdiction of the courts. For the High Court, this is set out in Section 16 of the Courts Act 1993, (Act 459) which states thus: -
“Section 16—Supervisory Jurisdiction of the High Court.
The High Court shall have supervisory jurisdiction over all lower courts and any lower adjudicating authority; and may, in the exercise of that jurisdiction, issue orders and directions including orders in the nature of habeas corpus, certiorari, mandamus-prohibition and quo warranto for the purpose of enforcing or securing the enforcement of its supervisory powers.”
The 1992 Constitution of the Republic of Ghana, the Supreme Law of the land, provides the anchor for this provision under Article 141 which states as follows: -
“The High Court shall have supervisory jurisdiction over all lower courts and any lower adjudicating authority; and may, in the exercise of that jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory powers.”
8. The Supreme Court has also given direction as to when a court should exercise its supervisory jurisdiction. It says supervisory jurisdiction should be exercised only in those manifestly plain and obvious cases, where there are patent errors of law on the face of the Record, which errors either go to jurisdiction or are so plain as to make the impugned decision a nullity. For that matter, the error(s) of law must be fundamental, substantial, material, grave or so serious as to go to the root of the matter. Although the Supreme Court said this with regard to its supervisory jurisdiction under Article 132 of the 1992 Constitution, yet we all know, as it is trite, that all other courts in Ghana are bound by decisions of the Supreme Court. See the case of REPUBLIC V COURT OF APPEAL, EX-PARTE TSATSU TSIKATA (2005-2006) SCGLR 612.
9. As a function of rehearing, the Ruling of the High Court in respect of the exercise of its supervisory jurisdiction will be examined within the ambit of the above parameters set by the Supreme Court as well as the directives to appellate courts when they are exercising their function of re-hearing.
10. In his Written Submission Counsel for the Interested Party/ Appellant said he would argue the grounds of appeal as one. (See page 3 of the written Submission) In fulfilment of his duty to demonstrate where the High Court went wrong, Counsel for the Interested Party/Appellant submitted that by virtue of Section 47(1)(f) of C.I. 59, the District Court has jurisdiction to hear matrimonial matters and therefore the High Court judge erred in declaring the application filed before the District Court as a nullity. He submitted that, for breach of the Natural Justice Rule of Audi Alteram Partem, the proceedings could be quashed as a nullity but not the originating process itself. Counsel also submitted that the Interested Party/Appellant herein took a tactical position not to challenge the breach of natural justice at the High Court and that this being the case, the High Court was entitled to quash only the proceedings before the District Court for the parties to return to their positions of status quo ante, that is, with a right reserved to both or either of the parties to return to the District Court to contest the petition on the merits. Counsel therefore submitted that this court should set aside the Ruling and permit the parties to appear before the District Court to contest the Petition.
11. Counsel for the Applicant/Respondent conceded the submission of counsel for the Interested Party/Appellant that the High Court erred in holding that the District Court lacked jurisdiction to entertain a petition for divorce of a marriage contracted under the Marriages Act 1884 – 1985. This is the obvious position of the law as same is clearly stated in the following pieces of legislation, namely:
· Order 32 rule 1 (1) of the District Court Rules, 2009 (C.I. 59) and
· Section 47 (1)(f) of the Courts Act 1993 (Act 459)
· Order 32 rule 1(1) of C.I. 59 provides as follows: -
1. (1) The Court in the exercise of its matrimonial jurisdiction under section 47(1)(f) of the Courts Act, 1993 (Act 459) as amended may deal with
(c) custody of children, and
(d) other matrimonial causes”
Section 47 (1)(f) of Act 459 provides as follows: -
“Section 47—Civil Jurisdiction of District Courts.
(1) A District Court shall within the area of its jurisdiction have civil jurisdiction in the following matters—
(f) in divorce and other matrimonial causes or matters and actions for paternity and custody of children;”
12. In respect of the Audi Alteram Partem Rule, Counsel for the Applicant/Respondent also submitted that the High Court was right in finding that the District Court breached same. This is what the Learned High Court Judge said at page 3 of his judgment which can be found at page 23 of the Record of Appeal:
“Perhaps of greater concern is the fact that the entire proceedings which took place before the District Magistrate Court, Apam was without the knowledge of the Applicant.
It therefore implies that the Applicant was never served with the 2nd respondent’s petition for divorce and therefore as the Applicant lacked knowledge of the said petition for divorce, the Applicant was not heard by the District Magistrate Court, Apam before pronouncing the dissolution of the marriage between the Applicant and the second respondent. This is preposterous and a very serious infraction of the law on natural justice as far as the Applicant is concerned”.
13. We could not agree more with the learned High Court judge. He was thus right in quashing the proceedings before the District Court.
In the case of ENEKWA & OTHERS V KWAME NKRUMAH UNIVERSITY OF SCIENCE & TECHNOLOGY (KNUST) (2009) SCGLR 242 at 249 this is what His Lordship Justice Anin Yeboah JSC, said:
“It is a basic principle of the common law that judicial review by way of order of certiorari would lie when it is established that there was a breach of the basic rules of natural justice. It would thus be mere pedantry to cite legal authorities to establish that the courts in Ghana by way of judicial review could quash any proceedings which seek to deny a citizen of this country his basic rights to natural justice if the body which undertook the enquiry is amenable to judicial review.”
Also, in the time honoured case of R V UNIVERSITY OF CAMBRIDGE (1723) 1 STR 557, we find this popular judicial dictum:
“even God himself did not pass sentence upon Adam before he was called upon to make his defence. “Adam (says God) where art thou? Hast thou not eaten of the tree, whereof I commanded thee that thou shouldst not eat? And the same question was put to Eve”.
14. The District Court did not also comply with Sections 1 and 2 of the Matrimonial Causes Act 1971 (Act 367) erroneously referred to by Counsel for the Applicant/Respondent as Marriages Act. We quote the said provisions in extenso.
“Section 1—Petition for Divorce.
(1) A petition for divorce may be presented to the court by either party to a marriage.
(2) The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation.
Section 2—Proof of Breakdown of Marriage.
(1) For the purpose of showing that the marriage has broken down beyond reconciliation the petitioner shall satisfy the court of one or more of the following facts:—
(a) that the respondent has committed adultery and that by reason of such adultery the petitioner finds it intolerable to live with the respondent; or
(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; or
(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; or
(d) that the parties to the marriage have not lived as man and wife for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to the grant of a decree of divorce; provided that such consent shall not be unreasonably withheld, and where the Court is satisfied that it has been so withheld, the Court may grant a petition for divorce under this paragraph notwithstanding the refusal; or
(e) that the parties to the marriage have not lived as man and wife for a continuous period of at least five years immediately preceding the presentation of the petition; or
(f) that the parties to the marriage have, after diligent effort, been unable to reconcile their differences.
(2) On a petition for divorce it shall be the duty of the court to inquire, so far as is reasonable, into the facts alleged by the petitioner and the respondent.
(3) Notwithstanding that the court finds the existence of one or more of the facts specified in subsection (1), the court shall not grant a petition for divorce unless it is satisfied, on all the evidence, that the marriage has broken down beyond reconciliation.”
In the case of CHARLES AKPENE AMEKO V SAPHIRA KYEREMA AGBENU (Suit No H1/20/2014 dated 11th March, 2015) also reported in (2015)99 GMJ 202, which was also a divorce case, His Lordship Justice Dennis Adjei, J.A. succinctly put it thus:
“The trial circuit Judge dissolved the marriage without evidence. The combined effect of Sections 1and 2 of the Matrimonial Causes Act, 1971 (Act 367) is that for a Court to dissolve a marriage, the court shall satisfy itself that it has been proved on the preponderance of probabilities that the marriage has broken down beyond reconciliation. That could be achieved after one or more of the grounds in section 2 of the Act has been proved.” The learned Justice continued thus:
“The failure by the trial Circuit Judge to take evidence in the matter before dissolving the marriage is contrary to sections 1 and 2 of the Matrimonial Causes Act and it is therefore a nullity”
In concurring with Dennis Adjei J.A., Her Ladyship Justice Avril Lovelace-Johnson J.A. nailed it in thus at page 209 “it being a nullity, every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stand there. It will collapse”
15. In his submissions, Counsel for the Interested Party/Appellant intimated in line with Ground (ii) of his Grounds of Appeal that the High Court judge failed to draw a distinction between the petition as distinct from the proceedings based thereon, namely, the hearing or trial and the order for the dissolution of the marriage and for that matter, he quashed all the proceedings in the District Court including the petition itself. See paragraphs 6.2 to 6.4 at page 6 of the Written Submission for the Interested Party/Appellant.
16. We have scanned through the entire Record of Appeal and even thought the Learned High Court Judge stated at page 3 of his Judgment which can be found at page 23 of the Record of appeal that the Chief Justice had not permitted the Magistrate in Apam to dissolve the marriage and therefore his exercise of jurisdiction was wrong, we find no pronouncement of the Learned High Court Judge which quashed the originating process filed at the District Court. This is what the learned High Court judge said in his Judgment at page 25 of the Record of Appeal:
“Certainly that the Applicant was never served with the respondent petition and for that matter, the Applicant was denied the opportunity to be heard on the petition before the District Court, Apam pronounced the dissolution of a marriage contracted under the Matrimonial Ordinance (sic) Cap 127 is a fundamental, substantial, material, grave or so serious as to go to the root of decision of the Court and therefore makes a complete nullity of the decision of the District Court, Apam”.
He continues as follows:
“Accordingly I so declare the entire proceedings with respect to the petition that was before the District Court, Apam as a complete nullity and so the decision by the said court to grant the respondent petition albeit against the Applicant equally cannot stand the test of the law.
The certificate of the dissolution of the marriage of the respondent and the Applicant is hereby cancelled and the said decision culminating in the issuance of the decision of the court is in bad taste and must be condemned as against justice equity and good consciences (sic) of the Applicant and same is quashed”.
17. Throughout this discourse, the learned High Court judge talked of the proceedings and or the decision as being a nullity. He never mentioned the petition or the originating process. It appears the expectation of the Counsel for the appellant was that the High Court Judge should have gone further and made some consequential orders as to how the suit should proceed. But was the High Court judge duty bound to do so? Our answer is No. We agree with the reasoning of Counsel for the Applicant/Respondent as to why the judge only quashed the proceedings and the decision simpliciter and cancelled the resultant Divorce Certificate.
Order 55 Rule 7(2) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) provides thus: -
7. (1) …
(2) On the hearing of an application for certiorari, the Court if satisfied that there are grounds for quashing the decision or proceeding to which the application refers, may quash it and may in addition to quashing it remit the matter to the court, tribunal or authority concerned with a direction to reconsider it and proceed in accordance with the findings of the Court.”
The use of the word “may” means that the making of further orders following certiorari proceedings is permissive and not mandatory.
18. Counsel for the Applicant/Respondent submitted that the decision of the trial judge not to expressly remit the petition to the District Court for rehearing was for good reason because, the Lawful Attorney of the Applicant/Respondent in the application for Judicial Review at the High Court deposed in her Affidavit in Support of the Application that the Interested Party/Appellant herein and Applicant/Respondent herein both reside in London. (see paragraph 5 of the Affidavit in Support found at page 3 of the ROA). This was not denied by the Interested Party/Appellant herein. As a matter of fact, his Lawful Attorney confirmed same at page 8 of the ROA during his evidence-in-chief. Hear him.
“Q. Attorney, where are the parties?
A. They are in United Kingdom”
In addition, the Lawful Attorney of the Applicant/Respondent deposed at paragraph 6 of the Affidavit in Support of the Application for Judicial Review also found at page 3 of the ROA that the Applicant/Respondent herein had initiated proceedings in a London Court for the dissolution of the marriage and that the said proceedings were pending when the Interested Party/Appellant through his Lawful Attorney initiated the divorce proceedings at the District Court, Apam. This deposition was also not challenged by the Interested Party/Appellant herein. This therefore means that whiles the courts in Ghana also have the jurisdiction to hear the petition, the London Court is the “forum conveniens” for the parties by virtue of the fact that they are all resident in London. Indeed, under Order 5 of the District Court Rules, 2009 (C.I. 59) which deals with Venue for Proceedings, Rule 1(5) directs that “any other cause or matter shall be commenced in the Magistrate District in which the defendant resides or carries on business”. The Applicant/Respondent does not reside in any Magistrate District in Ghana therefore following upon this Order 5 R 1 (5) by itself, it would be inappropriate to initiate proceedings against her in Ghana without more ado.
19. Counsel further submitted that the London court has jurisdiction to deal with all matters relating to the marriage, from its dissolution to ancillary reliefs including financial provision for the two infant children of the marriage, and custody of the children. (enforcement of foreign judgments)
Per Order 1 Rule 1(2) of C.I. 47, the Rules of the said C.I. 47 shall be interpreted and applied so as to achieve speedy and effective justice, avoid delays and unnecessary expense, and ensure that as far as possible, all matters in dispute between parties may be completely, effectively and finally determined and avoid multiplicity of proceedings concerning any of such matters.
Therefore, since the divorce proceedings are already pending in the London Court, the Courts in Ghana would be avoiding delays, unnecessary expense and multiplicity of suits by not remitting the petition for rehearing at the District Court. We accordingly make no such order remitting the Petition to the District Court for re-hearing.
20. As already indicated, Counsel for the Interested Party/ Appellant said he would argue the Grounds of Appeal as one. His submissions were however silent on Ground (iv) of the Grounds of Appeal which is that the award of legal costs was without any basis. Ground (iv) is therefore deemed to have been abandoned. Ground (iv) is accordingly dismissed.
21. Save for Ground (i) of the Grounds of Appeal which is upheld, Grounds (ii) and (iii) are also dismissed. The appeal is dismissed as a whole as despite the validity of Ground (i) of the Grounds of Appeal there is sufficient evidence to support the Judgment of the Learned High Court Judge dated 27th April, 2017.