IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
C.F.C. CONSTRUCTIONS COMPANY - (Plaintiff/ Respondent)
THE REGISTERED TRUSTEES TESANO SPORTS CLUB - (Defendants/Appellants)
DATE: 24 TH MAY, 2018
SUIT NO: H1/100/2018
JUDGES: SAMUEL MARFUL SAU (J.A) PRESIDING, AVRIL LOVELACE-JOHNSON (J.A), AND HENRY A. KWOFIE (J.A)
MIRANDA BANNERMAN WILLIAMS FOR DEFENDANT/APPELLANTS
MR. FRIMPONG BOADU FOR RESPONDENT
AVRIL LOVELACE-JOHNSON JA:
This is an appeal against the judgment of the High Court dated 19th October 2016 by which it dismissed the Defendants/Appellant’s (Defendant hereafter) appeal against the judgment of the District Court given in favour of the Plaintiffs/Respondents (Plaintiffs hereafter).
The background of this case as is relevant to the present appeal can be summarized as follows.
The Plaintiffs who had a long lease on a piece of land put up the Tesano sports club on a portion and sub leased it to the Defendants on 26th April 1971. In or about September 2011, the Plaintiffs offered the Defendants the opportunity to purchase the club. The offer was rejected. Plaintiffs thereafter wrote to the Defendants and asked them to bring their activities to a close in the light of their intention to offer the property to other interested parties. They followed this up with a letter giving one year’s notice of their intention to terminate the lease. They issued the present writ in the District Court a year later on 18th February 2013 for recovery of possession. The Defendants denied their claim and also counterclaimed for the following reliefs:
A declaration that by virtue of the agreement entered into between the parties on 26th April, 1961 the Defendant’s lease with the Plaintiff will expire on or around 31 June, 2019 and as such the Defendant claims continued possession and enjoyment of the property.
A declaration that upon the expiration of the tenancy agreement entered into between the parties the Defendant as per clause 4 (b) of the lease agreement has an option to renew the lease for a further thirty one (31) years.
Costs and such further order as the Honourable Court may deem fit.
As stated earlier, Plaintiffs obtained judgment. Defendants appealed to the High Court and lost and so have launched the present appeal.
Four grounds of appeal were filed in this case with the intimation that further grounds would be filed upon receipt of the Record of Appeal. No such further grounds were filed. The four grounds of appeal filed are as follows
The Judgment is against the weight of the evidence.
The trial Court erred in law by inter alia failing or refusing to strike out the substantive suit as being a nullity and of no legal effect given (a) the determination of the trial court that at the time the action initiated counsel for the plaintiff was not licensed to practice pursuant to section 8(1) of Act 32(b) the trial Court found itself bound by the unreported case of Henry Nuertey Kroboe v. Francis Amosa Civil Appeal No. J4/56/2014 delivered on 21 April 2016 by the Supreme Court.
The trial court erred by holding that a) in order to invoke section 29 of NRCD 175 as applicable law the appellant should have taken steps to remedy the breaches within the notice period (b) the trial Court was right in refusing to apply section 29 of NRCD 175 and section 17(1) of the Rent Act 1963.
The trial court failed and or refused to consider the Defendant/Appellant/Appellant counterclaim
Ground (b) which faults the trial court for not striking out the substantive suit as being a nullity will be dealt with first since upholding that ground of appeal will make the consideration of the other grounds irrelevant.
On this ground counsel for the Defendants submit that the learned High Court judge was wrong when he held that the Defendants having failed to take leave to appeal the Magistrate’s interlocutory decision, they could not on appeal raise it as a jurisdictional issue. He further submits that by Rules 30 and 32 of this Court’s rules, CI 19, such a failure to appeal as above stated, should not stay the hand of this Court on that issue and urges us “to make any order that ought to have been made.” On this point he also submits that once the court did not have jurisdiction to do an act no plea of estoppel of any kind could cure that defect in jurisdiction.
He concludes that the learned High Court judge failed to apply the rules of court as they were intended to be applied and instead erred when he used them as a bar to doing justice in the appeal before it.
The position of Counsel for the Plaintiff is that;
“The answer will not be what the Court of Appeal can or cannot do in hearing an appeal where an interlocutory matter had not been appealed against, nor will the answer be the extent to which a judgment creating res judicata could go. The answer will be the correctness or otherwise of the ruling of the District Court, (the ruling at page 254 of the Record of Proceedings). If the ruling is correct (there is no decision to the contrary) then the appellant has no cause to complain. If the Appellant therefore wants this Court to decide on the ruling to determine whether it was right or not, then the appellant should have set the issue down as a ground of appeal or should have applied to this Court under Order 8 Rule 7 of the Court of Appeal Rules CI 19 to be allowed to argue the matter and allow Respondent to reply to the argument. The Appellant did neither of the two. Indeed the Appellant has not discussed the merits of the ruling before the Court at all, In the circumstance the Appellant has put the matter to rest and I pray the Court to find so”
I have some difficulty understanding the above argument. It is however sufficient to say that at the High Court the Defendants filed amended grounds of appeal which included one that the trial court did not have jurisdiction to enter judgment in favour of the Plaintiff. See pages 356 and 360 of the ROA.
Being dissatisfied with the High Court’s finding on that issue, they have further appealed to this Court.
The judgment of the learned High Court Judge shows that his reasons for not being persuaded by the arguments of counsel for the Defendants (regarding the refusal of the trial court to dismiss the suit because Plaintiffs’ counsel was not licensed to practice) were two. The first was that the Defendants had circumvented the Rules of Court by not seeking leave as required by section 21(3) of the Courts Act to appeal against the Magistrate’s ruling. The second was that having failed to do so, it was erroneous for the Defendants to raise the said refusal as a jurisdictional issue before him on appeal.
Order 51 of CI 47 governs appeals from the District Courts to the High Court. Rule 14 entitled Powers of Court hearing appeal states in sub rule 2 as follows
“The powers of the Court in respect of an appeal shall not be restricted by reason of any interlocutory order from which there has been no appeal”
The Rules of this Court, CI 19 provide a similar provision in rule 30 that:
“No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the Court from giving a decision upon the appeal as may seem just”
It is clear then that the High Court ought not to have felt itself restricted in anyway by the order of the magistrate in question or the failure to appeal it by the Defendant. He should have considered the merits of the arguments put forward on the issue and come to a decision on it.
As stated earlier, at the High Court, the Defendants in their amended notice of appeal added a ground which stated that the District Court had no jurisdiction to grant the judgment it did in favour of the Plaintiffs. It is obviously this ground that led to the learned High Court judge’s comments about jurisdiction.
An objection to jurisdiction can be made in the following circumstances enumerated by the Supreme Court in the case of
R V ADU BOAHENE [1992-93] GBR 684 @ 693 :
“An objection to jurisdiction, when taken, is either in relation to some territorial limitations affecting the tribunal or the lack of jurisdiction affecting the subject matter of the dispute or charge (in criminal cases) or the lack of jurisdiction over the parties, or the non-existence of a condition precedent to the assumption of jurisdiction.
The legal dictionary WORDS AND PHRASES legally defined Volume 2: D-J 3rd Edition page 497 under the General Editorship of John B Saunders of Lincoln’s Inn Barrister has the following definition on the word JURISDICTION.
“By ‘jurisdiction’ is meant the authority which a court has to decide matters which are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the court is constituted, and may be extended or restricted by similar means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction extends or it may partake of both of these characteristics……Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing.
A court may lack ‘jurisdiction’ to hear and determine a particular action or application because of…..(iii) the parties to the proceedings, for example diplomatic immunity, or although having jurisdiction to hear and determine the proceedings, it may lack particular jurisdiction to make the order made’’ Oscroft v Benabo  2 All ER 548@ 557 , CA per Diplock LJ
“Jurisdiction” is an expression used in a variety of senses and takes its colour from its context. Anisminic Ltd v Foreign Compensation Commission  2 ALL ER 986@ 994 per Diplock LJ.”
From the above Supreme Court case and legal dictionary definition, it is clear that the learned High Court Judge was in error when he stated that the issue before him was ‘not a jurisdictional error’
In this appeal the Defendants call upon this Court to strike out the present suit as a nullity on the basis that at the time the writ was issued Counsel for the Plaintiffs was not licensed to practice as required by section 8(1) of the Legal Profession Act, Act 32.
By virtue of our statutory power of rehearing under Rule 8 (1) of the Court of Appeal Rules CI 19, we are required to examine all the evidence led and come to our own conclusions on the matter and on the basis of that decide if this ground of appeal has merit. We bear in mind that the two lower courts have dismissed counsel for the Defendant’s position on the issue so ordinarily this Court should be slow to disturb their findings. However if those findings are perverse, not supported by evidence led or law, it is this Court’s duty to set them aside. See:
DJIN VS. MUSA BAAKO (2007-2008) SCGLR 68.
KOGLEX LTD. NO. 2 VS. FIELD (NO.2) (2002) 2 SGLR 175.
Both lower courts made one relevant finding of fact to the effect that on the date counsel for the Plaintiffs issued the present writ he was not licensed to practice law. This finding of fact, being accepted by all there is no need to further comment on it
The ground of appeal under discussion is easily dealt with for the simple reason that the Supreme Court which is the highest Court of the land and whose decisions bind this Court stated in the case of Nuertey Kroboe v Francis Amosa Civil Appeal No34/56/2014 delivered on 21st April 2016 stated in part as follows per Dotse JSC
“…..a lawyer who has not taken out a Solicitor’s license in any year unless granted a waiver by the General
Legal Council for any length of time cannot practice as a professional lawyer in any court of competent jurisdiction in Ghana and or sign any documents’”
The Supreme Court then proceeded to strike out the writ of summons filed by the lawyer in that case. On the basis of this authority we find that this ground of appeal has merit and is upheld. We need no further reason to uphold it. This suit which was commenced by a writ issued by counsel for the Plaintiff who was at the time admittedly not licensed to practice is hereby struck out as a nullity.
It is most unfortunate that the learned High Court judge after stating that the decision of the Supreme Court referred to above “is good law and I respect it and it binds me” like the Magistrate; fell into error and refused to apply it. He, on the grounds that there was no issue of jurisdictional error and that the rules of court had been circumvented and the magistrate on the ground that the Defendant was estopped from raising it. It is trite that an estoppel cannot be created by the decision of a court which did not have jurisdiction to deal with the matter giving rise to that decision. See BAKUMA VS. EKOR (1972) 1 GLR 133.
This case was referred to in the Supreme Court case of ABABIO & ORS VS. KARIKARI & ANOR
(2001-2002) 1 GLR 381. The court stated at page 403 in part as follows:
“……. Where a decision of an inferior court is pleaded as conclusive against one of the parties to a dispute, it must be shown by the person who relies on that decision that the court giving it had Jurisdiction.”
Having found merit in this ground of appeal and thus upholding it, no purpose will be served in considering the other grounds of appeal filed since the finding under this ground determines the whole appeal.
The writ being a nullity, nothing can be based on it. MACFOY V UAC LTD AC 152 @ 160 PC. The judgment of the High court in this matter including costs are also hereby set aside as being a nullity.
One of the reliefs sought from this Court is for judgment to be entered in favour of the Defendants on their counterclaim. The writ used to commence this matter having been found to be a nullity and the said counterclaim having been prosecuted within the ambit of the matter, we are unable to grant that relief.
Costs of GH¢5,000.00 for the Defendants/Appellants