IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2019
CHARLLES ADDAE & OTHERS - (Plaintiffs)
KOFI AKUADA & ANOTHER - (Defendants)
DATE: 28TH MAY, 2019
SUIT NO: H1/24/2019
JUDGES: MARIAMA OWUSU J.A. (PRESIDING), DZAMEFE J. A., WELBOURNE (MRS) J. A.
FRIMPONG BOAMAH FOR APPLICANT/APPELLANT
WILLIAM OLEANS ODURO FOR THE INTERESTED PARTY/RESPONDENTS
This is an appeal against the decision or ruling of the High Court, Sunyani, dated the 4th day of June, 2017.
THE GROUNDS OF APPEAL as found on pages 73 to 74 of the ROA are as follows:
The entire ruling of the learned trial judge was much against the weight of documentary evidence or much against the weight of the exhibits and affidavits filed by the Applicants/Appellants.
The learned trial judge sadly failed to consider critically the legal effect of the exhibits “A”-“C” tendered by the Applicants/Appellants and which such error resulted in substantial miscarriage of justice to the Applicants/Appellants.
The cost awarded against the Applicants/Appellants was excessive.
Additional grounds of appeal shall be filed upon the receipt of the Records of Appeal.
No further ground of appeal was filed as per the ROA and the Written Submissions of both Parties. There are therefore three (3) grounds of appeal to be dealt with by this Court and due to the unique nature of this case, we shall deal with the grounds of the appeal in seriatim.
In this appeal, the Applicants/Appellants are hereinafter referred to as the Appellants while the Respondents/Respondents are hereinafter referred to as the Respondents and the Interested Parties are hereinafter referred to as the Interested Parties. The record of appeal is hereinafter referred to as ROA. The order of the District Court which triggered this appeal is found at page 23 of the ROA. The Ruling of the High Court, Sunyani spanned from pages of 65 to 71 of the ROA. The Notice of Appeal is found at pages 73 to 74 of the ROA.
The facts of the case according to the interested parties are that, they (the interested parties) are the principal members of the Gyaasehene Stool/Family of Nkomi Traditional Area. Following the death of Opanin Kwame Mensah, the then Abusuapanin of the Gyaasehene Stool/Family a funeral was to be organized and celebrated in accordance with the custom and practices of the people of Nkomi Traditional Area.
The 1st Appellant who is not the Abusuapanin and the 2nd Applicant were hindering the peaceful celebration of the funeral by their conduct that had the potential of breaching the peace. At all times material no Gyaasehene had been nominated, selected and installed.
On 22nd of March 2017, the interested parties informed the District Magistrate of Kwame Danso on oath by an application supported by an affidavit that the Appellants were about to undertake an activity that had the potential to disturb the peace of Kajaji so an injunction should be placed on their activity.
The Appellants were invited to the District Court to show cause why they should not be bonded to keep the peace of the area. The Appellants were in court on 24th March 2017. After the parties had given evidence before the Court to the effect that there was no Gyaasehene and Abusuapanin as at 24th March 2017, the Magistrate ordered that 1stAppellant, Kofi Akwada and the 2nd Applicant/Appellant, Afreh Augustine should refrain from holding themselves as the Abusuapanin and Gyaasehene of Kajaji respectively until such time that the entire Gyaase family go through the agreed tradition to nominate and install the right person to fill the vacant position.
On the same 24th March 2017, the Magistrate ordered the Appellants who had admitted that they were not the Abusuapanin and Gyaasehene of Kajaji to be bonded in the sum of Five Thousand Ghana Cedis (GH₵5,000.00) each with one surety to ensure peace in the area for one month or in breach of which they would serve a six (6) month prison term each.
The Appellants applied to the High Court, Sunyani to have the Order of the District Court, Kwame Danso quashed by an order of Certiorari and prohibition which application was dismissed on 4th June, 2017, hence this appeal.
According to the Appellants the 2ndAppellant, Afreh Augustine is Gyaasehene of the Nkomi Traditional Council, having been properly selected, elected and enstooled. On the 22nd day of March, 2017, the Respondents mounted an action before the Kwame Danso District Court in respect of an Ex-Parte application for the grant of interim injunction. It must be noted that, even though the application for injunction was mounted by way of Ex-Parte, there is nothing on record that, a Writ of Summons was issued. A conduct or procedure which is/was alien to the requirement expressly stated in ORDER 2 RULE 3(2),(2),(3),(4),(4), (5) and (6) of C.I. 59 of 2009. No Writ of Summons was issued and therefore the entire action was against statute whereby the Kwame Danso Court had no jurisdiction to entertain same; let alone making consequential orders. According to the Appellants, whatever happened was null and void, which has resulted in a miscarriage of justice. It is the Appellants’ case that the High Court, Sunyani failed to consider this all important requirement.
It is further the case of the Appellants that the order given by the trial District Court which is captured at page 23 of the record of appeal is another serious procedural irregularity. According to the Appellants, the Motion Ex-Parte which was filed on the 22th March, 2017 and fixed for hearing on the 24th March, 2017 was actually heard and determined on 22nd March, 2017 with the order that: “…the defendants are made to sign bond in the sum of GH₵5,000 each with one surety for a period of one month to ensure the peace of the area.”.
This to them is unbelievable, incredible and a serious breach of the Court’s procedures and processes. Strangely according to Counsel, the learned High Court Judge made fetish of section 22(1) of Act 30, which deals with CRIMINAL PROCEDURE and which is different from CIVIL PROCEDURE. In Appellants’ view, the learned trial judge’s confusion and wrong vision of the entire case made them substitute Civil procedure for Criminal procedure and therefore arrived at a wrong conclusion. The case of the Appellants is that, their recourse to the issuance of certiorari and prohibition by way of Judicial Review is proper and appropriate within the given situation.
Being dissatisfied and aggrieved with the ruling of the High Court, the Appellants caused the instant appeal to be filed.
Ground a: “The entire ruling of the learned trial judge was much against the weight of documentary evidence or much against the weight of the exhibits and affidavits filed by the Applicants/Appellants.”
The judicial authorities are legion to the effect that anappeal is by way of rehearing, particularly where the appellant alleges in his notice of appeal that the decision of the trial court is against the weight of evidence. In such a case, it is incumbent upon an appellate court, in a civil case, to analyze the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision, so as to satisfy itself that on a balance of probabilities the conclusions of the trial judge are reasonably or amply supported by the evidence.See the cases of Daniel Ofori v. Ecobank Ghana Ltd & Ors, Civil Appeal No. J4/11/2016 unreported Judgment delivered on 25/07/2018; Gregory v. Tandoh (2010) SC GLR 97 and Evelyn Asiedu Offei v. Yaw Asamoah, Civil Appeal No. J4/64/2016, Judgment delivered on 25th April, 2018, Unreported.
The crux of the Appellants’ case is that the Respondents herein mounted an action before the Kwame Danso District Court on 22nd day of March, 2017 in respect of an Ex-Parte application for the grant of interim injuction for which there was nothing on record to show that, a Writ of Summons was issued. A conduct of procedure which which according to them is/was alien to the requirement expressly stated in Order 2 Rule 3 (1), (2), (3), (4), (5) and (6) of C.I. 59 of 2009. The case of the Appellants per their Counsel is that, since no Writ was issued, the entire action was against Statute and consequently, the Kwame Danso District Court had no jurisdiction to entertain same; let alone make any consequential orders. Hence, whatevder happened on that basis was null and void and of no consequential effect. However, upon an application to the Sunyani High Court to addres this alleged irregularity, the High Court, Sunyani failed to consider this important statutory requirement.
In their Written Submission at page 3, paragraph 1, Counsel for the Appellants submitted that, the procedure at page 20 of the ROA (the “Summons to Show Cause”) was a nulity which has resulted in substantial miscarriage of justice to the Appellants herein.
It is further the case of the Appellants as submitted by their Counsel at page 3, paragraphs 2 - 3 of their Written Submission that, there was another serious procedural irregularity which is captured at page 23 of the ROA (the Court Order). Evidence on record shows that, the motion which was filed on 22nd of March, 2017 and fixed for hearing and determination on the 24th of March, 2017, was actually heard and determined by the trial District Court on the 22nd of March, 2017. This is what the Appellants’ Counsel referred to as “unbelievable, incredible and a serious breach of the Court’s procedure and processes.”
We confirm from our thorough examination of the ROA that, the District Court sat and heard the motion on both dates, thus on both 22nd March, 2017 and also on 24th March, 2017.
In their further submission, Counsel for the Appellants expressed their dissatisfaction with the order of the court which demands that the Appellants were made to sign bond in the sum of Five Thousand Ghana Cedis (GH₵5,000.00) each with one surety for a period of one month.
Evidently, at page 3, paragraph 3 of the Written Submission of the Appellants, this is what counsel for the Appellant has submitted:
“defendants are made to sign bond in the sum of GH₵5,000.00 each with surety for a period of one month to ensure peace of the area.”
We are of the view that the Appellants need not make any issue from the cost for the bond. This is because, so long as the the Appellants comply with bond condition, and as a result, the peace of the area is kept intact for the stated period of one month, there would not be the need for the Appellants to pay any cost for the breach of the peace of Kajaji. Our view is that, it is therefore the Appellants’ choice per their subsequent conduct as to whetherto breach the bond and pay or to comply with same and not to pay the said sum of the Five Thousand Ghana Cedis (GH₵5,000.00) each.
According to Counsel for the Appellants in his written submission, whom we wish to quote verbatim:
“Curiosly enough, and strangely to relate, the learned High Court Judge, at pages 65 and 71 of the ROA, made fetish of Section 22 (1) of Act 30.”
According to Counsel for the Appellants, Act 30 deals with Criminal Proceedings. He rightly pointed out that, Criminal Procedure is different from Civil Procedure. The Appellants’ Counsel is of the view that, “the learned trial Judge’s confusion and wrong vision of the entire case made them substitute Civil Procedure for Criminal Procedure and hence, they arrived at a wrong conclusion.”
We wish to quote in extenso Sections 22 (1) and 24 of the Criminal Procedure Act 30 (as amended) for ease of reference.
Section 22 - Execution of bond for keeping the peace
(1) When a District Magistrate is informed on oath that a person is likely:
(a) To commit a breach of the peace or disturb the public peace, or
(b) To do a wrongful act that may probably occasion a breach of the peace or disturb the public peace,
The magistrate may require that person to show cause why that person should not be ordered to execute a bond, with or without sureties, for keeping the peace for a period determined by the Magistrate.
Section 24 - Order to be made
When a District Magistrate acting in compliance with section 22 or 23, thinks it necessary to require a person to show cause as specified under any of those sections, the District Magistrate shall make an order in writing setting forth
(a) The substance of the information received;
(b) The amount of bond to be executed;
(c) Whether the bond is for keeping the peace or for good behavior;
(d) The period for which is to be in force; and
The number, character, and class of sureties required.
We do not find any reason to fault the judge’s application of the above law.
We disagree with the Appelants’ Counsel and condemn in no uncerterin terms this unfortunate comment and verbal attack on the learned trial High Court Judge. These kind of statements ought not to have come from a lawyer of his stature and repute.
It is finally the case of the Appellants herein that, the recourse to the issuance of certiorari and prohibition by way of Judicial Review is proper and appropriate within the given situation.
This Court is of the opinion that, the hearing of the application (Ex-Parte Motion) by the District Court, Kwame Danso on the 22nd March, 2017 did not occasion any breach of the rules of natural justice.
The fact that the application is a Motion Ex-Parte, it follows that the Appellants need not be present nor to be heard by the Court.
Further, the hearing and determination of the said application proceeded to 24th March, 2017 for which the Appellants were present in Court as indicated at page 24 of the ROA.
Flowing from the above analysis it is clear that the issue of a breach of the rules of natural justice which is one of the valid grounds on which Certiorari may lie does not arise. We therefore think that Certiorari and prohibiting order will not apply under thepeculiar circumstances of the instant case.
For this reason, we dismiss this ground of appeal.
“b. The learned trial judge sadly failed to consider critically the legal effect of the exhibits “A”-“C” tendered by the Applicants/Appellants and which such error resulted in substantial miscarriage of justice to the Applicants/Appellants.”
At page 6 of their Written Submission, Counsel for the Appellants stated their case, by submitting that, Exhibit “A” as captured in page 20 of the ROA (the Summons to Show Cause) cannot be considered in law as an invocation of the District Court’s jurisdiction.
Counsel submitted that, Exhibit “A” is not a Writ of Summons and Exhibit “B” is purported to be a Motion Ex-Parte for interim injunction, which can be found at page 21 of the ROA.
According to Counsel for the Appellants, as to what exactly the Appellants were to be restrained from doing or not, in Exhibit “B”, they were not told.
Appellants’ Counsel submitted in their written submission that, the net effect of exhibits “A”-“B” is that, the District Court’s jurisdiction, as of 24th of March, 2017, had not been properly invoked.
This Court disagrees with the Appellant’s Counsel that, the jurisdiction of the trial court was not properly invoked, to the extent that, the application in question was an ex-parte motion and therefore putting them on notice as well as their presence in court was not necessary. In our view, we think that the jurisdiction of the trial District Court was properly invoked considering the peculiar nature and the exigency of the need to maintain the peace atKajaji.The position of the law is that it is just not any error that has the effect of ousting a court of its jurisdiction but that for an error to have any such effect it ought to be basic and fundamental. See the Republic v. Court of Appeal; Ex-Parte TsatsuTsikata (2005-2006) SCGLR 612.
Counsel for the Appellant further submits that, exhibit “C”, which is at page 22 of the ROA (the affidavit of some members of the Gyaase family), with a closer observation of the affidavit in question, what was before the District Court is a matter which deals with the Gyaase Stool. Paragraph 3 of the affidavit in question at page 22 of the ROA reads as follows:
“3.That the Gyaase stool is vacant till date.”
In the view of the Appellants as per their Counsel, the above paragraph, when considered, vis-à-vis the entire purported application makes it quite clear that, the purported action was a “cause or matter affecting chieftaincy.”
Counsel for the Appellants further submitted and quizzed that, how can a motion filed on 22nd March, 2017and with “Summons to Show Cause” be heard and determined by the Judge on the same date? And then asked rhetorically;“who even placed the docket meant for 24th March, 2017 before the Judge
on 22nd March, 2017?” Counsel was wondering whether money changes hand to influence the whole proceeding which was meant to be heard on 24th March, 2017 for same to be heard and determined on 22nd March, 2017.
We hold the view that there was no need for the Appellants to be present in court either on the 22nd March or 24th March, since the application in question is an ex-parte application.
We think that, if Counsel for the Appellant wished to raise any issue of corruption as to the allegation that money exchanged hands in this case, he ought to have adduced credible and admissible evidence to that effect, so that liability may lie on culprit’s head. This court is not an arena for conjecturing and therefore, we will not pander to this bareallegation or innuendo as suggested by the Appellant’s Counsel.
Again, this Court agrees with the High Court that the matter brought before the trial District Court was never, a cause or matter in relation to chieftaincy as alleged by the Appellants. Because, it does not border on the selection, appointment, election, installation, enstoolment or enskinment of a chief.Article 277 of the Constitution of Ghana, 1992 defines who a “Chief” is. In the case of Republic v. High Court, Kumasi; Ex-Parte Abubakari [1997-1998] 2 GLR 315, it was held inter alia that:
“A cause or matter affecting chieftaincy” has been defined under section 66 of the Chieftaincy Act, 1971 (Act 370). It states:
“‘cause or matter affecting chieftaincy’ means any cause, matter, question or dispute relating to any of the following
(a) the nomination, election, appointment or installation of any person as a Chief or the claim of any, person to be nominated, elected, appointed or installed as a Chief;
(b) the destoolment or abdication of any Chief;
(c) the right of any person to take part in the nomination, election, appointment or installation of any person as Chief or in the destoolment of any Chief;
(d) the recovery or delivery of stool property in connection with any such nomination, election, appointment, installation, destoolment or abdication;
(e) the constitutional relations under customary law between Chiefs”
As was stated by Sophia Akuffo JSC(as she then was) in the case of Republic v High Court, Koforidua; Ex Parte Bediako11, [1998-99] SCGLR 91 at 92;
“To my mind, the mere fact that the question of whether or not a person is a chief rears its head during an application for certiorari before the High Court does not necessarily constitute the matter as one affecting chieftaincy for the purposes of section 57 of the Courts Act, 1971 where such a question arises as a matter secondary to the determination of the fundamental question of whether or not an inferior body had the jurisdiction to do something, and does not give rise to the necessity to make a final determination of such status and whether or not such a person has been properly nominated, elected and installed according to the applicable custom or usage . In order to constitute a matter as one affecting chieftaincy, it must, in my view, be the determination of which, unless overturned on appeal, would settle once and for all, a chieftaincy matter or dispute.´’
It is clear in this instant case, the matter that went before the trial judge did not constitute a matter affecting chieftaincy.
The matter brought before the trial District Court is basically on signing and keeping of the bond to enhance peace in an area for a period and this basically bordered on Criminal procedure.
In our view, the legal effect of Exhibits “A”-“C” as tendered by the Appellants herein has not resulted in any substantial miscarriage of justice.
This ground of appeal is accordingly dismissed.
“c. The cost awarded against the Applicants/Appellants was excessive.”
We have observed from the ROA that the District Court, Kwame Danso ordered that the Appellants are made to pay Five Thousand Ghana Cedis (GH₵5,000.00) each in addition to one surety each in order to keep the bond and the peace of the town, Kajaji.
This we think is fair and reasonable. This is because once the Appellants keep the peace of the town for the stipulated one month, without causing any chaos or disorder, they will not be obliged to pay the said amount and the bond will be lifted automatically. For this reason, this ground of appeal is dismissed.
We would conclude by relying on the case of Veronica Opoku (Suing Per Her Lawful Attorney Mrs. Dorothy Poku v. Mary Lartey, Civil Appeal No: J4/14/2016, Judgment delivered on 24th January, 2018, where the Supreme Court per AkotoBamfo JSC held among other things as follows:
“It is generally established that, an appellate Court must not disturb findings of fact made by a trial Court, if the appellate court could have come to a different conclusion unless, the findings of fact, made by the trial judge went wholly unsupported by the evidence or crucial documentary evidence.” In our view therefore, the findings of fact, made by the trial Judge were wholly supported by the evidence on the ROA.
From the foregoing analysis, we strongly hold the view that the grounds of appeal as canvassed by the Appellant herein are unmeritorious and we dismiss same in entirety and so we hold.
It is the duty of all and sundry, especially the officers of the court to keep the sanctity of the court. It is therefore very unfortunate to note that Counsel for Appellant herein could not restrainhimself from using such strong language to attack the integrity of the learned trial Judge. We take strong exception to such conduct and warn that court officials, especially, practising lawyers should be mindful of the language they use in court. This is not in any way meant to intimidate or discourage counsel from freely expressing their views in court. They can do so but in a courteous and respectful manner.
Appeal dismissed. Cost of GH¢2,000. For Interested Parties/Respondents against Appellants/Appellants.