AMMA ADUTWUMWAA vs THE CIRCUIT COURT EX-PARTE MADAM AKUA BOSOMPEMAA & KOFI NSIAH
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    KUMASI - A.D 2018
AMMA ADUTWUMWAA - (Interested Party/Appellant)
THE CIRCUIT COURT EX-PARTE MADAM AKUA BOSOMPEMAA AND KOFI NSIAH -(Applicants/Respondents)

DATE:  12 TH NOVEMBER, 2018
CIVIL SUIT NO:  H1/24/17
JUDGES:  ADUAMA OSEI JA (PRESIDING), DZAMEFE JA, M. WELBOURNE JA
LAWYERS:  KWAME ADOM-APPIAH FOR APPLICANTS/RESPONDENTS
AMA ASENSO FOR INTERESTED PARTY/APPELLANT
JUDGMENT

 

DZAMEFE, JA

This is a matter of an application for Judicial Review in the nature of Certiorari filed by Applicants at the High Court, Kumasi, praying for an order of Certiorarito quash a ruling and a judgment of the Circuit Court Kumawu Ashanti dated 12th day of January 2017. The ruling referred to adjudged that the parties to the suit have reached terms of settlement based on which the court entered a consent judgment, as the said decision was made in breach of the rules of natural justice and or error which is apparent on the face of the record.

 

The applicant Madam Akua Bosompemaa in her affidavit in support to the application averred they were the defendants in a land suit instituted on the 25th of June 2013 at the Circuit Court, Kumawu-Ashanti by the Interested Party, Suit No. AL/08/13 originallyentitled;

Ama Adutwumwa

vrs.

1. Abusuapanin Opoku Sekyere

2. Madam Akua Bosompemaa

3. Kofi Nsiah

 

The applicant prayed the trial High Court, Kumasi for an orderof Certiorari to quash the decision or consent judgment or the purported consent judgment of the Circuit Court, Kumawu dated 12thJanuary 2017 which was delivered based on a purported “Terms of Settlement” brought into being by strangers to the suit mentioned above. By the said judgment the Circuit Court purports to have adopted terms of settlement as a consent judgment thus makingthem (applicants) liable to re-build the disputed property as a family property for the parties thereto.

 

The applicants averred further that the Circuit Court which purported to enter the decision complained of was bereft of jurisdiction, the moment it breached the audi alteram parterm rule by reason of the fact that the 2nd and 3rd defendants and the applicants in the suit were not heard by the Court. Their signatures were not on the terms of settlement relied on by the court before it purported to adopt the terms of settlement as a consent judgment. It is her case that, that was an error on the face of the record of the Circuit Court, Kumawu-Ashanti.

 

The applicant said theywere at all material times the defendants in the suit and that the plaintiff had closed her case and she the applicant gave her evidence–in-chief for the 2nd and 3rd defendants and was under cross examinationwhen thecourt became vacant since the transfer of the judge. There was the need for application and adoption of the proceedingswhen the new judgetook over the case. However,before the adoption ofthe proceedings could be done, some members of the plaintiff’s immediate family proposed amicablesettlement to the court. This was done in the absence of theparties.

 

These members without any consultation or their consent nor any agreement reached between the parties to the suit strangely drew up terms of settlement and signed same by themselves. Neither of the parties to the suit signed the purported Terms of Settlement whichthe court relied on to enterthe purportedconsentjudgment dated 12th January 2017.

 

It is their case that the said terms of settlement were not officially filed at the Registry of the Circuit Court, but rather deposited with the Registrar, thus making it an extraneous material which a competent judicial body such as the respondent court ought not to have placed any premiumon. Although this purported terms of settlement were neither signed by the parties to the suit nor was it officially filed at the court, the court relied on same and adopted it on the 12th of January, 2017 as the consent judgment. On that date of adoption, the parties were all absent from court and there is no evidence on record that the parties were served with Hearing Notice to appear on that particular date. Assuming the parties even signed the document, it was still incumbent on the court to question them verbally to ascertain whether it was their deed. The applicant avers also that one Kwame Opoku who represented the 2nd and 3rd defendant on that 12/01/17 did not have their mandate to do so.

 

Upon notice of these, applicant said they instructed their lawyer to have the anomaly rectified whereupon he filed a motion to set aside the consent judgment but same was dismissed by the court. It is the applicant’s case that since they (2nd and 3rd defendants) did not sign the “terms of settlement”, it can never be takenat law and in equity as being their deed and therefore not bound by same.

 

It is her argument that, that purported consent judgment of the Circuit Court dated 12/01/17 is null and void by reason of the fact that the court breached the audi alteram partem rule when it relied on a document not signed by the parties especially they the defendants to the suit.

 

It is their prayer that in the interest of justice, this court orders the proceedings of the Kumawu Circuit Court dated 12/01/17 be brought before this court to have same quashed.

 

The interested party in opposing this application averred that this motion by the applicant is a nullity since it is unknown to the rules of court. That the motion does not disclose any chamber registration contrary to statue and settled case law and same be dismissed in limini.

 

It is his case that the consent judgment was arrived at with the full knowledge, consent and concurrence of the applicants who authorized Collins Yaw Adjei to sign on their behalf whilst he the interested party also authorized the son Kwame Sarfo to sign on his behalf.

 

That the terms of the consent judgment were freely and voluntarily entered into by the applicant. They agreed to rebuild H/No. Plot 16 Kumawu, Ashanti which was illegally demolished by the 1st applicant. According to him, two meetings were held before the consent judgment was signed and one of those meetings were held in the 1st applicant’s house and this motion is only mischievous and calculated to overreach him.

 

He averred further that that the law provides a specific procedure for challenging or seeking to nullifying a consent judgment which procedure was pointed out to the applicants and their counsel but they have refused to adopt it.

 

It is their case that whatever the Circuit Court, Kumawudid in that Suit No. H1/08/13 was done within the jurisdiction of the court and to that extent this application for certiorari is completely misconceived. That the Circuit Court was in no error but just acted in line with the wishes of the parties to the suit.

 

In conclusion, counsel submitted that in the instant appeal the parties themselves settled their differences out of court and filed terms of settlement which the honourable court adopted as consent judgment and therefore there is neither an error patent on the face of the record or a denial of the right to be heard and the circuit Court certainly had jurisdiction to adopt the terms freely entered by the parties. They therefore pray this application be dismissed as wholly unmeritorious and without legal foundation or basis.

 

Ruling

The trial court in its ruling asked whether the consent judgment entered by the Circuit Court was wrong at law? In answering its own question, it came to the conclusion that those interveners, at the Circuit Court who pleaded with the court to be given the chance to settle the case amicably, Collins Yaw Adjei and Kwame Sarfo could only be reorganized as acting as arbitrators to the parties of the substantive case. That, they acted as arbitrators when they announced to the court to permit them to withdraw the case from the court for settlement. The trial Judge supported his stand by saying it is in conformity with Section 47 (3) of the ADR Act [2010] Act 798 Pg. 57 ROA.

 

The trial Judge came to the conclusion that though Collins Yaw Adjei and Kwame Sarfo were not parties to the case, “they acted as mediators or arbitrators since they were interveners, their duty under Section 81 (1) was for them, having satisfied themselves that there was a settlement which is acceptable to the parties, to formulate the terms for their considerations and receive observations from the parties, after which they are required to formulate a possible settlement in light of their observations” – [pg. 58 ROA].

 

The trial court said the parties to the suit may draw up for themselves a written settlement agreement and sign it up or in the alternative, may request the mediator to assist them draw up a written settlement agreement for them after which the parties sign the settlement agreement.

 

The court ruled that when the parties sign the settlement agreement they the parties shall be deemed to have agreed to the settlement. The Act does not permit the interveners who acted as mediators to draw up a settlement agreement for the parties and sign it themselves. The court said the purported settlement agreement was not signed by the parties themselves therefore it will be extremely difficult for it to conclude that it was the act of the parties. It said:

“The signatories to the purported settlement agreement are alien to the case that was filed before the Circuit Court, Kumawu titled Suit No. A1/08/13 with Ama Adutwumwaah as Plaintiff against Abusuapanin Opoku Sekyere, substituted by Kwame Boahen, Madam Akua Bosompemaa and Kofi Nsiah. They were not signed by any of these parties listed above but signed by Collins Yaw Adjei and Kwame Sarfo” – Pg. 59 ROA

 

The court ruled since there was no legal proof that the consent judgment filed was consented to by the parties, since they never signed it, it could therefore not be their act but that of the two signatories and reached by themselves. That what they presented to the court was rather a settlement agreement which did not meet Section 81 (1), (2) and (3) ofAct 798.

 

The court ruled that the agreement entered as the consent judgment of its parties is an error of law which cannot bind the parties since they never appended their signatures to same.

 

The court said, “the signatures were of aliens to the suit and by basing his judgment on that document, the court and for that matter, the Judge, acted without jurisdiction and his judgment was an error at law” – Page 61 ROA.

 

The court also observed that the consent judgment laid before the Circuit Court was not filed at the Registry of the Court to give it a filing date and time of filing and this makes the settlement itself alien to the court. That the document itself was not properly laid before the Judge for its use. – Page 61 ROA

 

The court therefore granted the application praying for the order of certiorari to quash the purported consent judgment of the Circuit Court, Kumawu dated 12th January, 2017 and was accordingly quashed.

 

The Interested Party/Appellant herein dissatisfied with this ruling of the High Court, Kumasi dated 21st July, 2017 filed this appeal on the following grounds:

1. The court erred in failing to hold that certiorari is not the appropriate procedure for seeking to assail or challenge a consent judgment.

2. The ruling is against the weight of affidavit evidence.

3. The court erred in failing to analyse the well-founded contentions of the Interested Party/Appellant in relation to the blatant disregard for the rules of Court in the course of the application filed by the Applicants/Respondents.

4. There was absolutely no basis for quashing the consent judgment freely entered into by the parties and/or their representatives.

5. The Court erred in its finding that there was an error on the face of the record and so a condition for certiorari was present for same to be granted.

6. The erroneous judgment has occasioned a substantial miscarriage of justice to the Interested Party/Appellant who has had a regular judgment by consent quashed on grounds which do not justify a grant of the high writ of certiorari.

7. The costs of Gh¢3, 000.00 awarded against the Interested Party/Appellant is wrong excessive and no in line with settled authority.

8. Additional grounds to be filed upon receipt of a certified true copy of the ruling.

 

Relief sought from this court is an order setting aside the ruling of the High Court, Kumasi, dated 21st July, 2017 and a further order restoring the correct judgment entered by Circuit Court, Kumawu on 12th January, 2017.

 

SUBMISSIONS

Counsel for the appellant argued ground II first. That the judgment was against the weight of evidence. Counsel submitted that from the court records, there was a letter dated 12th October, 2016 from Collins Yaw Adjei and Kwame Sarfo praying the Circuit Court for a withdrawal of the case for settlement. The record shows that all the parties agreed to the said amicable settlement and the court also obliged the said persons seeking the amicable settlement and granted them leave to pursue the said settlement and for the parties to file their terms of settlement on or before 1st December, 2016.

 

On 1st December, 2016, when the case was called, all the parties, i.e. the applicant/respondents as well as Interested Party/appellants were present and informed the court that they were unable to settle and prayed for an extension of time to finalize the settlement. The court adjourned the case to 12th January, 2017 for the parties to file their terms of settlement.

 

That on the 12th January, 2017 all the parties were absent but represented. The said Collins and Kwame Sarfo were also recorded as present.

 

Counsel for the appellant argues that with the information above, it cannot be correct that the applicant/respondent herein were not aware of any settlement as they claim in their affidavit in support of the motion for certiorari. He said there was no need for the applicant/respondent to be served hearing notices to attend court on the said 12th January, 2017 because the record clearly shows that all the parties were present when the case was adjourned to the said date. It is also on record that even though on 12th January, 2017, all the parties were absent, they were represented. It is his submission that no breach of the rules of natural justice occurred since all the parties were aware of and consented to the settlement culminating into the consent judgment dated 12th January, 2017. It is his submission that honourable High Court erred in granting the order of certiorari.

 

Ground 1:

That the court erred in failing to hold that certiorari is not the appropriate procedure for seeking to assail or challenge a consent judgment, and that the it erred in the finding that there was an error on the face of the record and so a condition for certiorari was present for same to be granted.

 

Counsel argued these grounds submitting that the applicant/respondent’s remedy in challenging the consent judgment delivered by the Circuit Court, Kumawu, has been rightly pointed out to them as being by action and it was wrong for them to resort to an application for certiorari.

 

Counsel for the respondent in answer to the appeal said it lacks merit as none of the grounds could sustain the appeal. He submits that one’s presence and agreeing to have a matter settled out of court by interveners is mutually exclusive from participating in deliberations seeking to have the matter amicably settled and subsequent execution of any terms drawn out of settled issue by all the parties. It is their case that the respondents never appended their signatures to the Exhibit. (Terms of settlement). Since they never signed, the Circuit Court was under an obligation to inquire from the parties whether or not it was their document which it failed to do and by that failure, the court breached the principles of Natural Justice.

 

Going through the record of appeal and the evidence before this court, I identified two issues:

i. Whether the respondents are bound by the terms of settlement

ii. And whether the procedure to set aside a consent judgment is by certiorari or not.

 

The appellant filed no additional grounds so that ground of appeal is dismissed.

i. Whether the respondents are bound by the terms of settlement

 

I would not want to waste the court’s time by narrating the facts again. However, the main reasoning of the High Court decision was the absence of the signatures of the parties to the suit on the copy of the terms of settlement filed. The document is referred to as the “Final settlement of the above suit” and was signed by one Collins Yaw Adjei and Kwame Sarfo both of whom were not parties to the substantive suit. Exhibit ‘MAB1’ on page 9 of the record of appeal shows the Circuit Court, Kumawu proceedings involving the case in issue as follows:

 

“26/10/16         -           Case called

Parties -           Plaintiff: Absent but represented by Agnes

Anim (daughter)

                                   All defendants present

Intervener        -           There is a letter dated 12/10/16 from

Collins Yaw Adjei and Kwame Sarfo praying the court for a withdrawal of the case from the court for settlement. Plaintiff and all defendants agreed for a withdrawal from court for amicable settlement. The court also obliged”.

 

The court based on the permission by the two interveners and the party’s agreement to it, granted the request and granted leave to withdraw the case for amicable settlement. The court ordered the parties to file their settlement terms on or before 01/12/16. The case was adjourned to 01/12/16. The two interveners left their postal addresses and telephone numbers with the court.

 

On 01/12/16 when the case was called, the plaintiff and Defendants were all present. The parties informed the court they were unable to settle and wanted extension of time to finalize the settlement. This was duly granted and case adjourned to 12/01/17.

 

On 12/01/17, case was called, both plaintiff and defendants were absent but duly represented by Agnes Anim (for plaintiff) and Kwame Opoku (for defendants). The two interveners were present. The two interveners presented the terms of settlement to the court to be adopted. In the said settlement filed with the court, the parties have agreed as follows:

1. That the defendant led by 2nd defendant, Madam Akua Bosompenaa, have agreed to re-build the Bretuo family house NO. AP Plot 16, Kumawu-Ashanti which was demolished by the 2nd defendant few years back.

2. That upon the defendants promise to re-build the entire house for the family, the plaintiff too has accepted to pledge wholeheartedly.

3. No order as to costs – [page 12 of ROA]

The terms of settlement as filed was signed by the two interveners, namely Collins Yaw Adjei and Kwame Sarfo.

 

It is interesting to note that the parties to the suit themselves never signed the terms of settlement that was adopted by the court as their consent judgment.For whatever reasons we cannot tell from the records.

 

A consent judgment or agreed judgment is a settlement that becomes a court judgment when the judge sanctions it. In effect a consent judgment is merely a contract of acknowledged in open court and ordered to be recorded, but it binds the parties as fully as other judgments. The court will enter judgment by consent for a party or both parties provided the consent is express, precise and unambiguous and not presumed- Ababio II vrsAkro& Co. [1963] 1 GLR 195 SC.

 

The court does not inquire whether the proposed settlement achieves a just result, it assumes that it does. See (1) Rep vrs. High Court (Commercial Court) Accra, ex-parte The Trust Bank Ltd dated 12th November 2008 SC per Atuguba JSC, (2).Owusu vrs Kumah [1984-86] 2 GLR 29 CA.

 

It is desirable that a party consenting to a judgment or order and the lawyer are in court when the consent judgment is entered if only to eliminate subsequent repudiation of the consent judgment. Hungarotex Foreign Trading Co. vrs Boateng [1984-6] 1 GLR 611 CA.

 

The facts from the records is that on the day the terms were presented to the court the parties themselves were absent in court. The court therefore was denied the opportunity of finding out from them if it was their deed.

 

Normally the courts after the presentation of the terms of settlement do question the parties as to the veracity and their consent to the terms of settlement. This was however not done.

 

I think since the signatures of the two parties were not on the terms of settlement it was incumbent on the trial court to make that enquiry to be sure if is their deed before accepting same as the consent judgment. I agree with the applicant that the trial court erred by not carrying out that investigation. The court erred by accepting that document signed by the two interveners who were not parties to the suit as the consent judgment. Normally we expect the parties to sign the terms of settlement so as be bound. Sometimes their lawyers, if they were represented can do but even that depend on the extent of the authority given them so to do and also with their full knowledge – In Re Arthur (Deceased); Abakah vrs Attah-Hagan [1972] 1 GLR 435 CA.

 

I agree with the trial High Court Judge that the absence of the signatures of the two parties on the terms of settlement is an apparent error on the face of the record.That being the case then applicant was right in praying for an order of certiorari to quash the decision of the Circuit Court, Kumawu.

 

Certiorari is a discretionary and special remedy and in seeking it the questions to be considered are: -

1. Whether or not the inferior court or tribunal acted within its jurisdiction.

2. Whether the court was not in breach of the rules of Natural Justice

3. Whether there is an error on the face of the record.

 

(i) Rep vrs High Court Accra Ex-Parte –Attorney General (Ohene Agyapong Interested party) [2012] 2 SC GLR 1204.

(ii)Rep. vrs High Court, Accra Ex Parte Asakum Engineering Construction Ltd &Ors [1993-4] 2 GLR 643.

 

Since I held earlier that the trial judge was right in his holding that there was an error apparent on the face of the record he was thus right in granting the remedy of certiorari to quash the decision of the Circuit Court.

 

The trial court also erred in not seeing the parties and ascertaining from them whether they agreed to the terms of settlement filed. I say so because it is fundamental for those to be bound by any contract to be parties to same and the evidenced their signatures. It is the signatures that bind them to the agreement.

 

I think it is incumbent on all trial judges in situations like in the instant appeal to make surethey see the parties physically to question them as to their consent and agreementunlessthere is evidencebefore the court that a party had consented to his counsel or attorney to sign on his or her behalf.

 

I want it to be on record that this arrangement is totally different from an arbitration where the arbitrator can sign the award alone but same binding on the parties.

 

On the totality, I think this appeal lacks merit andsameis dismissed.

 

I hereby order that the proceedings in the case beforethe allegedamicablesettlement be adopted and the case continue before a different Circuit Court to be assigned by the Supervising High Court Judge, Ashanti Regional.

 

{SGD}

SENYO DZAMEFE

[JUSTICE OF APPEAL]

 

{SGD}

I AGREE                                                               K. N. ADUAMA OSEI[JUSTICE OF APPEAL]

(PRESIDING)

 

(SGD)

I ALSO AGREE                                         MARGARET WELBOURNE (MRS.)

[JUSTICE OF APPEAL]