THE DISTRICT MAGISTRATE COURT vs EX-PARTE; JOSEPH NARTEY VS GEORGE ACQUAH
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    CAPE COAST - A.D 2018
THE DISTRICT MAGISTRATE COURT - (Respondent) EX-PARTE: JOSEPH NARTEY - (Applicant/Respondent)
GEORGE ACQUAH - (Interested Party/Appellant)

DATE:  23 RD MAY, 2018
CIVIL APPEAL NO:  H1/13/2018
JUDGES:  IRENE CHARITY LARBI MRS. J.A (PRESIDING), L. L. MENSAH (J.A), ANGELINA M. DOMAKYAAREH MRS.( J.A)
LAWYERS:  JOHN MERCER FOR THE INTERESTED PARTY/APPELLANT PRESENT
ISAAC AGGREY-FYNN FOR THE APPLICANT/RESPONDENT PRESENT
JUDGMENT

IRENE CHARITY LARBI (MRS) J.A.

I have had the privilege to read the judgment of my learned sister in this appeal which I agree with in its entirety and wish to complement same.

 

This is an appeal against the decision of the High Court, Sekondi dated 10th March 2016.

 

The Interested Party/Appellant herein described as ‘Appellant’ commenced an action against the Applicant/Respondent (hereinafter referred to as ‘Applicant’) at the District Magistrate Court, Sekondi. The District Court on 10th December, 2013 entered judgment in favour of the Appellant against the Applicant for the Appellant to re-enter Plot No.218A Airport Ridge Extension and take over possession. The court further ordered that the Lands Commission delete the name and particulars of the Applicant from its records in respect of the said land and re-place same with the name of the Applicant’s family.

 

The basis of the Applicant’s case is that he took a lease of a parcel of land Plot No.218A Airport Ridge Extension, Takoradi from the Ekisi Royal Family and has for a period of over ten (10) years thereafter been living in the United States of America (USA).

 

On a visit to Ghana sometime in December 2014 he became aware of an action instituted against him by the Appellant (on behalf of the said family) and the judgment entered against him.

 

The Applicant, per his Lawful Attorney, having been granted leave by the High Court on 17th June, 2015 to apply for judicial review well after the mandatory 6 months period, brought an application under Order 55 Rule (1) of C.I.47 for judicial review in the form of certiorari to quash the judgment of the District Court, Sekondi.

 

The High Court on 10th March, 2016 by an order of certiorari quashed the decision of the District Magistrate Court dated 10th Decemeber, 2015 in the matter of GEORGE E. ACQUAH VRS. JOSEPH NARTEY (Suit No.A1/2/2014).

 

The Appellant, aggrieved by the decision of the High Court, invoked the supervisory jurisdiction of the Supreme Court and sought to quash the decision of the High Court by an order of certiorari. The statement of the Interested Party’s case to the Supreme Court can be found at page 82 to 86 of the record of appeal. The Supreme Court has since struck out that application as being incompetent.

 

Thereafter the Appellant with the leave of this court was granted extension of time within which to appeal on 25th October, 2016. The Appellant then filed an appeal on three main grounds seeking by way of relief for an order setting aside the said Ruling/Judgment of the High Court.

 

The Grounds of Appeal are:

(i) The High Court Sekondi lacked jurisdiction when it quashed by an order of certiorari the judgment dated 10th December, 2013 of the District Magistrate Court, Sekondi in the matter of GEORGE E. ACQUAH VRS. JOSEPH NARTEY (Suit No.A1/2/2014).

(ii) The finding by the High Court that the process in the suit before the District Court Sekondi were not served on the Defendant is not borne out by the documents placed before it.

(iii) The High Court wrongly assumed jurisdiction as there was no error manifest on the face of the judgments or record”.

 

In arguing the appeal counsel, for the Appellant contended that by the provisions of Order 55 Rule 3(1) of the C.I.47, the High Court cannot entertain an application for certiorari outside the six months period after occurrence of the event giving grounds for making the application – in this case 10th December 2013 which is the date of the judgment of the District Magistrate Court, Sekondi.

 

Counsel submitted that the High Court therefore lacked jurisdiction when it entertained the application for judicial review outside the statutory permissible six months period. He submitted further that the leave so granted to the Applicant by the High Court and the proceedings together with the judgment found on it are therefore void and a nullity.

 

Counsel for the Appellant argued further, that even if it is assumed that for purposes of legal argument that the judgment of the District Court came to the knowledge of the Applicant on 13th November, 2014 as deposed to in paragraph 6 of the supporting affidavit for extension of time, filed by the Applicant, the application for certiorari filed on 22nd June, 2015 was also way out of the statutory six months period.

 

In respect of ground that the High Court wrongly assumed jurisdiction as there was no error manifest on the face of the judgment nor was there any breach of natural justice, counsel for the Appellant argued that the High Court Judge sought to resolve contentious issues in the certiorari application as to whether the posting of the court processes and documents were properly done.

 

Counsel submitted that the District Magistrate Court, having made findings of fact that the Applicant was served with the processes especially the writ, it was not open to the Learned High Court Judge to set aside those findings of fact by an order of certiorari. He submitted further that the learned Magistrate might go right or wrong and the remedy for a party dissatisfied with the decision is an appeal.

 

Article 141 of the 1992 Constitution of Ghana provides that:

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”.

 

Certiorari, which is a form of judicial review is resorted to by an Applicant where certain conditions occur. The occurrences which could cause an Applicant to apply for judicial review by way of certiorari among other things include any breach of natural justice. Thus where a court capable of exercising supervisory jurisdiction, like the High Court over lower courts detects by way of affidavit evidence that on the face of a judgment of a Lower Court, there is a breach of the rules of natural justice, the court can assume jurisdiction to hear the matter.

 

In REPUBLIC VRS. MENSA BONSU [1995-1996]1 GLR 377 at 407, SC Adade JSC. Candidly admitted that:-

 “Of course judges, like any other group of human beings, do make mistakes………….”

 

The same eminent jurist Adade JSC in MECHANICAL LLOYD ASSEMBLY PLANT LTD. VRS. NARTEY [1987-1988]2 GLR 598 at 603 SC, expressed thus:

The review jurisdiction is a special jurisdiction. It is a kind of jurisdiction to be exercised in exceptional circumstances. It is not an Appellate jurisdiction. I t is a kind of jurisdiction held in reserve, to be prayed in aid in exceptional situation where a fundamental and a basic error may have inadvertently been committed by the court which error must have occasioned a gross miscarriage of justice”.

 

In the case of REPUBLIC VRS. WASSA FIASE TRADITIONAL COUNCIL & ANOR. EX-PARTE:

 

EBUSUAPANYIN KOFI NYAMEKYE & ORS. [2015] 90 GMJ I, Dotse JSC with regards to Order 55 Rule 3(1) of C.I.47 accommodating the jurisdiction of the High Court in granting extension of time in matters relating to judicial review, opined thus:

 

“The position might therefore be stated that the provisions in Order 55 Rules 3(1) and (2) of C.I.47 do not admit the grant of extension of time to bring applications for judicial review outside the six months period unless special circumstances exist, such as lack of notice to the party applying for the proceedings that terminated in the decision order, ruling, judgment or action that the subject matter of the judicial review seeks to quash or prohibit or as the case may be in appropriate cases”. (Emphasis is mine).

 

In the instant case it is not in dispute between the parties that the subject matter before the District Magistrate Court is Plot No.218A Airport Ridge Extension, Takoradi. The Applicant contends that he was not served with the writ neither was he served with any of the two hearing notices supposed to have been served by substitution based upon the orders of the court suo motu.  The Applicant  contends further that the orders were posted on a wrong property and not on the one in dispute. He contends again that he was not personally served at all from the beginning to the end of the trial and the consequent judgment obtained therefrom are against the rules of natural justice.

 

Natural justice requires that a litigant be informed of any proceedings against him or her. Thus where the rules require service in a prescribed manner, it must be complied with. Similarly where an enactment requires service in a prescribed manner, the enactment must be obeyed. See TEMA DISTRICT ASSEMBLY VRS. DJABATEY [1992] 1 GLR 228.

 

The rationale for service is not far-fetched since it is the service that enables a party to participate in the proceedings. In AMEYIBOR VRS. KOMLA [1980] GLR 820, the Court of Appeal on service of proceedings, relied on the dictum in HOPE VRS. HOPE [1854]4 DE G.M & 328 at page 342 where it is stated that:-

“The object of all service is of course only to give notice to the party on whom it is made so that he may be aware of, and may be able to resist that which is sought against him and when that has been substantially done, so that the court may feel confident that service has reached him, everything has been done that is required”.

 

In REPUBLIC VRS. APPEAL COMMITTEE OF LONDON QUARTER SESSIONS, EX-PARTE

 

ROSSI [1956]1 ALL ER 670 at 674 per Denning LJ, the English Court of Appeal espoused the fundamental principle of service thus:-

 

“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 to appear and defend them. The common law has always been careful to see that the Defendant is fully apprised of the proceedings before it makes any order against him”.

 

It is trite law that proceedings against a party are deemed to commence only after service of a writ or notice on that party. This is because it is the writ that informs the Defendant that the Plaintiff has instituted the action. It is the writ that indicates the nature of cause of action against the Defendant.

In the judgment, the Magistrate in the District Court indicated that the court suo motu ordered the writ of summons together with the order to be served on the Applicant by substituted service. The order was exhibited as Exhibit ‘B’ at page 22 of the record of Appeal.  From the Exhibit ‘B’ the Writ and the Order for Substituted Service were to be served in the following manner:

“1) Notice Board, District Court, Sekondi

2) Plot No.215 Airport Ridge Extension”.

 

It is immediately clear that the plot number of the subject matter in the Order made by the District Magistrate Court, Sekondi did not relate to Plot 218A Airport Ridge Extension, Takoradi.

 

Then again the order for substituted service of Hearing Notice on the Applicant made by the District Magistrate Court on 11th September 2013 (Exhibit ‘C’) at page 23 of the record of appeal was to be served on Plot No.218 Airport Ridge Extension Takoradi. We appreciate that Plot No.218 and Plot No.218A are separate and different plots. The letter ‘A’ distinguishes the two (2) plots in the layout of the area.

 

However, the Appellant in opposing the application tendered proof of service by a bailiff of the court indicating that the substituted served of the writ as well as the Hearing Notice in Exhibits ‘GA3’ and ‘GA4’ at page 42 and 43 respectively of the record of appeal  were effected on Plot No.218A. Based upon these exhibits the Appellant contends that the Applicant was duly served with the processes as ordered by the court.

 

As observed earlier, the Order of the court clearly was that the substituted service of the writ was to be effected on Plot No.215 and the Hearing Notice on Plot No.218 and not on Plot 218A as indicated by the Bailiff. The bailiff therefore had no right to effect service otherwise than as ordered by the court.

 

Suffice to state that there is no rule of law or procedure, or any enactment that gives power to an officer of the court to carry out an order different from what the court has so ordered.

 

Furthermore, it is a basic requirement that service under the rules must be complied with. Therefore a step in the proceedings without notice to the adversary constitutes a breach of the audi alteram partem rule which my result in a jurisdictional defect that may nullify the proceedings.

 

In REPUBLIC VRS. HIGH COURT (FAST TRACK DIVISION) ACCRA, EX-PARTE STATE

 

HOUSING CO. LTD. [2009] SC GLR 177 the Supreme Court unanimously speaking  through  Atuguba JSC cited with approval the dictum of Amissah JA in  VASGUEZ VRS. QUASHIE [1968] GLR 62 at 65 thus:-

A Court making a decision in a case where a party does not appear because he has not been notified is doing an act which is a nullity on the ground of absence of jurisdiction”.

 

See also REPUBLIC VRS. HIGH COURT, BOLGATANGA; EX-PARTE HAWA YAKUBU; [2001-2002] SC GLR 53 and DAWSON VRS. PRESTON [1955] 1 WLK 1219.

 

In our view, the assertion of the Applicant that he was not served with the writ and any proceedings  is more probable than not in view of the clear errors on the face of the Exhibit ‘B’ and ‘C’ in respect of the plot number in dispute.

 

We are satisfied that the District Magistrate Court made an inadvertent fundamental error which if not reviewed by this court would result in a grave if not total miscarriage of justice.

 

Under the circumstances, the High Court was right in assuming jurisdiction in this matter because there was an error manifest on the face of the record which the District Magistrate Court ought to  have noticed before delivering its judgment.

 

It is for these reasons that we hereby affirm the decision of the High Court dated 10th March, 2016 and dismiss the appeal in its entirety.