THE REPUBLIC vs THE REGISTRAR, DISTRICT MAGISTRATE COURT, SRKONDI EX PARTE: JOSEPH NATTEY & GEORGE ACQUAH
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    CAPE COAST - A.D 2018
THE REPUBLIC - (Defendant/Respondent/Appellant)
THE REGISTRAR, DISTRICT MAGISTRATE COURT, SRKONDI -(Respondent)
EX PARTE: JOSEPH NATTEY (Applicant/Respondent)
AND GEORGE ACQUAH (Interetsed Party/Appellant)

DATE:  23RD MAY, 2018
CIVIL APPEAL NO:  H1/13/18
JUDGES:  IRENE C. LARBI (MRS) J.A. (PRESIDING), LAWRENCE L. MENSAH) J.A., A. M. DOMAKYAAREH (MRS.) J.A.
LAWYERS:  JOHN MERCER FOR THE INTERESTED PARTY/APPELLANT
ISAAC AGGREY-FYNN FOR THE APPLICANT/RESPONDENT
JUDGMENT

A. M. DOMAKYAAREH (MRS), J.A

1. This is an appeal against the judgment of the High Court Sekondi dated 10th March 2016. In the said judgment, His Lordship the Learned Trial Judge quashed the decision of the District Court, Sekondi dated 10th December 2013, by which the District Court had given judgment in favour of the Interested Party/Appellant herein and against the Applicant/Respondent herein. The Interested Party/Appellant was the plaintiff at the District Court while the Applicant/Respondent was the defendant at the District Court.

 

2. The antecedents of the litigation that culminated in this appeal are that: The defendant i.e. the Applicant/Respondent herein bought a piece of land on leasehold terms known as Plot No. 218A, Airport Ridge Extension, Takoradi from the Ekisi Royal family (i.e. the family of the Interested Party/Appellant) in 1987.   Thereafter, for a period of over ten years he lived and worked in the   United States of America. The Applicant/Respondent contented that when he visited Ghana in December 2014, he became aware of a judgment purportedly entered against him by the Respondent court on 10th December 2013 following a Writ of Summons served by the Interested Party/Appellant against him claiming reliefs which included an order for the Interested Party/Appellant to re-enter the Applicant/Respondent’s plot No. 218A, Airport Ridge Extension.

 

3. At the hearing of the suit, the Respondent District Court became aware that the Applicant/Respondent could not be personally served with the Writ of Summons and therefore, the Court suo motu made an order that the Writ of Summons be served on the Applicant/Respondent by Substituted Service which was complied with. The Applicant/Respondent still did not attend court whereupon the Court made another order for a Hearing Notice to be served on thehim again by Substituted Service.  This was also complied with. The Applicant/Respondent still did not attend court whereupon the Respondent District Court heard the case and delivered judgment against the Applicant/Respondent as aforesaid.

 

4. The Applicant/Respondent applied to the High Court to have this judgment quashed on the grounds that he was not both in fact and in law served with the Writ of Summons that initiated the case and that consequently there was a breach of the rules of Natural Justice when the judgment was entered against him without hearing him. The Applicant/Respondent also contended that the Substitution Orders relied upon by the Respondent District Court were posted on the wrong property and not the one in dispute. He therefore sought an Order of Certiorari from the High Court, Sekondi  to quash the said decision of the District Court.

 

5. The Interested Party/Appellant opposed the Application. He contended that his family granted the plot in dispute in 1987 as aforesaid subject to terms, one of which was that the Applicant/Respondent should develop the plot within three (3) years.  The Interested Party/Appellant deposed in his affidavit in Opposition that in February 2013 his Lessor family  realised that no development had taken place on the disputed plot and therefore notified the Applicant/Respondent of his default through his contact address as given in the Lease Agreement by registered mail. The Interested Party/Appellant deposed further that a second notification was issued to the Applicant/Respondent in April 2013 again by registered cover. The Interested Party/Appellant therefore instituted the action against the Applicant/Respondent to re-enter the land for his breach of covenant to build on the land. The Interested Party/Appellant acknowledged that when the Applicant/Respondent was not appearing in court, the Court ordered Service by Substitution on several occasions but the Applicant/Respondent failed to attend court. He the Interested Party as plaintiff, therefore, entered the witness box and gave his evidence-in-chief. Hearing Notice was again served by Substitution on the Applicant/Respondent but he did not turn-up in court. The Court therefore delivered its judgment. The Interested Party/Appellant strongly contended that the judgment of the District Court was regularly obtained and cannot be said to have been obtained in breach of the rules of Natural Justice and therefore Certiorari will not lie to quash same.

 

6. The Learned High Court judge found that the Applicant/Respondent was not properly served with any originating processes and that consequently the Audi Alteram Partem rule of Natural Justice was breached. He accordingly quashed the decision of the District Court.

 

7. The Interested Party/Appellant was aggrieved by this outcome. He lodged this appeal on 31st October 2016 pursuant to leave granted to him by this Court dated 25th October 2016. By way of relief, he is seeking an Order of this Court to set aside the judgment of the High Court on four grounds. These are: -

i. The High Court Sekondi lacked jurisdiction when it quashed by an order of certiorari the judgment dated 10/12/2013 of the District Magistrate Court Sekondi in the matter of George E. Acquah v Joseph Nartey (Suit No. A1/2/2014)

ii. The finding by the High Court that the processes in the suit before the District Court, Sekondi were not served on the defendant is not borne out by the documents placed before the High Court

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

iv. Additional grounds of appeal may be filed

 

Essentially, there are only three grounds of appeal as no additional grounds have been filed.

 

GROUND (I) OF THE GROUNDS OF APPEAL:

The High Court Sekondi lacked jurisdiction when it quashed by an order of certiorari the judgment dated 10/12/2013 of the District Magistrate Court Sekondi in the matter of George E.  Acquah v Joseph Nartey (Suit No. A1/2/2014)

 

8. The Interested Party/Appellant referred to order 55 r 3(1) of the High Court (Civil Procedure) Rules, 2004; CI 47 and contended that the High Court lacked jurisdiction to entertain the Application for Certiorari outside the statutory six (6) months’ period after the occurrence of the event which is the date of the District Court judgment, i.e. 10th December 2013. Order 55 r 3(1) provides thus: - “Time for making application

3. (1) An application for judicial review shall be made not later than six months from the date of the occurrence of the event giving grounds, for making the application.”

Counsel contended that the leave granted by the High Court, Sekondi on 17th June 2015 for the Applicant to apply for judicial review out of time and the proceedings together with the judgment founded thereon were void and a nullity. Counsel cited the case of REPUBLIC V WASSA FIASE TRADITIONAL COUNCIL AND ANOTHER EX PARTE EBUSUAPANYIN KOFI NYAMEKYE

AND OTHERS (2015) 90 GMJ 1 in support. The Interested Party/Appellant argued that even granted that the judgment came to the notice of Applicant/Respondent on 13th November 2014, the date on which he filed a search in the Registry of the Court on the case as per Exhibit ‘C’, the filing of his Application for Certiorari on 22nd June 2015 was way out of the statutory six months’ period within which he is permitted to file his Application.

 

9. In response, Counsel for the Applicant/Respondent contended that quite to the contrary, the High Court had jurisdiction right from the grant of the Leave for Extension of Time up to when it quashed the judgment of the District Court. While conceding what Order 55 r 3(1) of CI 47 provides as quoted supra, Counsel pointed out that Order 80 r 4(1) and (2) of CI 47 provide for extension of time or reduction of time when making the application. These provisions state as follows: -

“Extension or reduction of time:

4. (1) The Court may, on such terms as it thinks just, by order extend or reduce the period within which a person is required or authorised by these Rules, or by any judgment, order or direction, to do any act in any cause or matter.

(2) The Court may extend any such period although the application for extension is not made until after the expiration of that period. “

 

Again, under Article 141 of the 1992 Constitution and Section 16 of the Courts Act 1993  (Act 459) the High Court has supervisory jurisdiction over all lower courts. Article 141 of the 1992 Constitution provides as follows: -

“141. 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”

Section 16 of the Courts Act 1993 (Act 459) for its part, states as follows: -

“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.”

 

10. In the case of the REPUBLIC V HIGH COURT, CAPE COAST, EX PARTE LARBIE and ANOTHER, (1994-95) 1 GBR 278, the Supreme Court per Amua-Sekyi JSC categorically stated that although there are constitutional restrictions on the jurisdiction of the High Court relating to the original jurisdiction of the Supreme Court (Article 2) and the Judicial Committees of the National House of Chiefs in chieftaincy matters (Article 273 (5)), yet this does not restrict the High Court in its supervisory jurisdiction over all lower courts and any lower adjudicating authority.

 

11. The very case of EX PARTE EBUSUAPANYIN KOFI NYAMEKYE cited supra and relied upon by the Interested Party/Appellant did not totally foreclose the power of the High Court to grant extension of time after the expiry of the six months allowed. On the contrary, it confirmed the legality of the High Court in granting the extension of time, the hearing and determination of the case under special circumstances. Speaking through Dotse JSC at page 33 - 34, the Supreme Court stated the law as follows:

‘The position might therefore be stated that, the provisions of Order 55 Rules 3(1) and (2) of CI 47 do not admit the grant of extension of time to bring applications for judicial review outside the statutory 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 might be in appropriate cases. A case in point where lack of notice was made an issue and rendered null and void was decided by Amissah J.A. sitting as an additional Judge of the High Court, in the case of Vasquez v Quashie (1968) GLR 62 where he held as follows:

”A court making a decision in a case where a party did not appear because he had not been notified would be doing an act which was a nullity on the ground of absence of jurisdiction”.

 

In the circumstance therefore where the Applicant for judicial review, was not aware of the proceedings which are the subject matter of the judicial review because he was not notified, it is clear that time will not run until he was notified or deemed to be aware after due diligence.’ (Emphasis added).

 

Referring to Order 80 Rule 4(1) and (2) of CI 47, this is how Anin Yeboah JSC put it: -

“The reading of the above Rule makes it very clear that Oder 80 which deals with time is a general provision which gives power to the High Court to extend or limit times required under the rules in existence. Like order 81, which is a general provision dealing with non-compliance, order 80 caters for situations to extend or reduce time for taking steps in the High Court …”

 

Ground (I) of the grounds of appeal is dismissed as it is abundantly clear that the High Court had jurisdiction to handle the case.

 

GROUND (II) AND (III) OR THE GROUNDS OF APPEAL:

ii. The finding by the High Court that the processes in the suit before the District Court, Sekondi were not served on the defendant is not borne out by the documents placed before the High Court

 

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

 

12. Counsel for the Interested Party/Appellant argued these two grounds together. He submitted that granted that the High Court had jurisdiction to entertain the certiorari application, it assumed jurisdiction more than it had in the circumstances as there was no error of law apparent on the face of the judgment or even the record, just as there was no breach of the rules of Natural Justice. Counsel cited the following instances as demonstrating that the High Court exceeded its jurisdiction namely: that the learned High Court judge referred to contentious matters such as:

·         requiring proof of the service by registered mail relied on by the Interested Party/Appellant by a search result;

·         requiring that the trial magistrate should have referred to the service by registered mail in his judgment as he referred to the Orders for Substituted Service;

·         requiring that the Interested Party/Appellant ought to establish per proper proof by way of documentation that the Applicant/Respondent was served; and also

·         whether the postings of the court processes or documentation were properly done.

 

 Counsel submitted that these matters could not be determined on the face of the documents placed before the High Court in a certiorari application unless by enquiry.

 

13. On the service of documents, Counsel for the Interested Party/Appellant submitted that the Orders for Substituted Service were served following due process as demonstrated by Exhibit GA2 at page 41 of the ROA – the affidavit of posting the Writ of Summons, together with the Order on the Notice Board of the District Court on Plot No. 218A, Airport Ridge Extension Takoradi; Exhibit GA3 (page 42 of the ROA) which is the Affidavit of Posting of the Order for Substituted Service at the District Court Notice Board on Plot No. 218A Airport Ridge Extension, Takoradi; and Exhibit GA4 (page 43 of the ROA) which is another Order for Substituted Service. Counsel submitted that the Magistrate made findings of fact on these matters that the Applicant/Respondent was duly served  with the court processes and therefore it was not open to the Learned High Court Judge to set aside those findings of fact by an order of Certiorari because they did not seem legally  right  to  him. Counsel submitted that as the Magistrate may go right or wrong, a party dissatisfied with his decision has a remedy in an appeal and not judicial review.

 

14. Counsel further submitted that by Order 4 rr 4(2) and 6(2) of the District Court Rules 2009, CI 59 the affidavits of service, Exhibits GA2, GA3 and GA4 were presumptive of due service on the Applicant/Respondent of the documents mentioned therein. These rules clearly state that the production of an Affidavit of Service (rule 4(2) or Certificate of Service (rule 6(2) by the bailiff or person serving a document is “prima facie evidence of service”. He submitted that the Applicant/Respondent was thus given an opportunity to be heard and there was, therefore, no breach of the rules of Natural Justice. Counsel however conceded that the presumption in Order 4 rr 4(2) of CI 59 is rebuttable. He submitted that the presumption of due service can be rebutted only when the Applicant/Respondent makes a complaint to the trial District Court by way of an application to set aside the judgment entered against him. Counsel said as the Applicant/Respondent made such an application to the District Court which was dismissed, his remedy lay in an appeal and not an Application for Certiorari. Counsel cited the case of ATTORNEY GENERAL AND ANOR. V. APAADE LODGE LTD (2009) 21 MLRG in support. The APAADE LODGE CASE is indeed binding authority for the proposition that when a trial court refuses to set aside its default judgment, then the proper procedure was for the applicant to appeal against both the refusal and the default judgment. In the instant appeal however, there is nothing in the Record of Appeal to indicate that the Applicant/Respondent applied to the District Court to set aside the default judgment and same was refused as claimed by counsel for the Interested party /Appellant. The Applicant/Respondent had    the option of proceeding under Order 14 Rule 9 of CI 47 (Setting aside default judgment) or Order 55 of CI 47 (Application for Judicial Review) and from the Record before us, he chose the latter procedure.

 

15. Responding to the arguments of Counsel for the Interested Party/Appellant on the service of the documents and Hearing Notice, Counsel for the Applicant/Respondent pointed out that there was no controversy between the parties that the property in dispute was Plot No. 218A, Airport Ridge Extension, Takoradi. It was also not in doubt that the Writ of Summons and Hearing Notices could not be personally served on the Applicant/Respondent as directed by Order 4 r 1(5) of the District Court Rules, 2009 (C1

 

59) which clearly provides that “Unless the Court considers it just and expedient to direct otherwise, service shall be personal with the document to be served being delivered to the person to be served.” In any event, the Applicant/Respondent was then living in the United States of America. The Magistrate, Suo Motu, ordered that the Applicant/Respondent be served with the Writ of Summons by Substituted Service as he was entitled to do under Order 4 r. 5 (c) of CI 59. This rule 5 (c) also provides that “Where it appears to the Court either after or without an attempt at personal service that for any reason personal service cannot be conveniently effected, the Court may order that service be effected …

 

(c) in any other manner that the Court directs.”

 

16. The order was accordingly drawn up (Exhibit CI at page 11 of the ROA). The said order clearly and unambiguously stated that the order was also to be posted on plot No. 215, Airport Ridge Extension, Takoradi. It was therefore, totally wrong for the bailiff to have filed an affidavit of posting of this order on Plot No. 218A, Airport Ridge Extension, Takoradi as per Exhibit GA2. The owner of Plot No. 218A would be within his rights to ignore an order relating to Plot No. 215 posted on his/her premises. The Hearing Notice Exhibit C2 at page 12 of the ROA was also drawn out for plot No. 218 which is not the property in dispute. Posting of these orders on Plot No. 218A cannot be proper  service as the orders related to different properties. The District Court therefore breached the Natural Justice rule of Audi Alteram Partem when it went ahead to determine the case based on the defective substitution orders made.

 

17. We must say that the bailiff had no authority to paste the substitution orders on properties other than those stated in the orders and if he detected that there were mistakes in the orders, it was his duty to return same to the Registry for the necessary corrections to be made if they were clerical.   Once there was breach of natural justice the High Court was right on the authority of EX PARTE KOFI NYAMEKYE’S CASE cited supra to grant extension of time within which to apply for the order of certiorari. Also see the cases of REPUBLIC V. HIGH COURT, ACCRA; EX PARTE ATTORNEY- GENERAL (DELTA FOODS CASE) (1998 -99) SCGLR 595 @ 611 where the Supreme Court speaking through Acquah JSC (as he then was)held that “if a court gives judgment against a defendant who was never given notice of, or served with, the writ of summons, the error arising from the lack of service or notice of the writ cannot be corrected to save the judgment”; BARCLAYS BANK OF GHANA LTD V GHANA CABLE CO. LTD AND OTHERS (1998 - 99) SCGLR 1 where the Supreme Court at Holding 1, posited thus “Since on the facts, the defendants had not been served with the writ of summons issued by the plaintiff bank, the High Court had no jurisdiction to enter final judgment against them. … A court has generally no jurisdiction to proceed against a party who has not been served. Accordingly when a defendant complains that he has not been served with a writ of summons or any process which requires his personal service, the court is duty bound to examine that complaint thoroughly and make a definitive finding irrespective of whether there is proof of service or entry of appearance on behalf of the defendant” (Per Acquah JSC as he then was, Charles Hayfron-Benjamin JSC concurring) and REPUBLIC V HIGH COURT, ACCRA EX PARTE ALLGATE CO. LTD (AMALGAMATED BANK LTD INTERESTED PARTY) (2007 -2008)

 

SCGLR 1041 where the Supreme Court held at Holding 2 thus “Non-service of a process where same is required goes to jurisdiction. Non-service implies that audi alteram partem, the rule of natural justice, is breached. This is fundamental and goes to jurisdiction. Thus, the reason why, even after the coming into effect of Oder 81 of CI 47, non-service of a process results in nullity is not because of non-compliance with a rule of procedure, but rather because it is an infringement of a fundamental principle of natural justice, as recognised by the common law.”

 

18. The Supreme Court also clarified that the effect of non-service which results in nullity is different from the effects of short-service which is regarded as an irregularity. Such an irregularity may serve as a ground for setting aside proceedings following it under Order 81, r 1 but it does not make those proceedings null and void.

 

19. Counsel for the Applicant/Respondent also correctly pointed out that there were errors of law manifest on the face of the judgment of the District Court contrary to the assertion by Counsel for the Interested Party/Appellant.  Counsel pointed out that the Orders for substitution which were made   on plots of land which were not the subject matter of the litigation was an error of law and that the subsequent denial of the Applicant/Respondent the right to be heard was also an error of law. We agree with Counsel and accordingly dismiss Grounds (II) and (III) of the grounds of appeal.

 

20. As demonstrated in the forgoing, the Interested Party/Appellant has not made out any of his substantive three grounds of appeal. The appeal is accordingly dismissed in its entirety and the judgment of the High Court, Sekondi 10th March 2016 affirmed.

 

SGD

 

Angelina M. Domakyaareh (Mrs)

 

(JUSTICE OF APPEAL)

 

 

 

SGD

 

Irene C. Larbi (Mrs) JA         I agree                          Irene C. Larbi (Mrs)

 

                    (JUSTICE OF APPEAL)

 

 

 

SGD

 

Lawrence L. Mensah, JA      I agree                              L. L. Mensah

 

   (JUSTICE OF APPEAL)