IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
KUMASI - A.D 2016
ADWOA OWUSUWAA - (Plaintiff/Respondent)
NANA ADU AMEYAW, THE EFFIDUASE STOOL, CHRISTIAN COUNCIL AND YAW-(Defendants/ Applicants)
DATE: 23RD NOVEMBER, 2016
SUIT NO: C5/12/16
JUDGES: JUSTICE FRANCIS OBIRI
NYAMAH POKU FOR PLAINTIFF/RESPONDENT
GABRIEL KODZI FOR 1ST AND 2ND DEFENDANTS/APPLICANTS
On 23-06-2016, the defendants/applicants hereinafter called the applicants filed a motion on notice for review of a decision of this Court dated 14th June 2016. The said decision was given by this Court differently constituted and presided over by his Lordship Justice Paul Richardson who is now on retirement.
The motion filed on 14th June 2016 was in respect of the court refusal to set aside an order of interim injunction it granted against the applicants, their agents, servants, assigns, privies etc and any other person whatsoever called from in any way trespassing, alienating, disposing of, or granting any interest, right or title or dealing with the land in dispute in anyway until the final determination of the case. The injunction order was made on 15th March 2016.
When the motion for review by the applicants came up for hearing on 16th November 2016, before me, Counsel for the plaintiff/respondent hereinafter called the respondent raised a preliminary objection on point of law in respect of the competency of the motion for review by the applicant in this case.
Counsel raised two main grounds in his submission. He contended as follows:
(a) That this Court has no jurisdiction to review its decision in anyway.
In the view of the respondent's Counsel, there is no law which now allows this Court to review its decision. Therefore, the applicants’ motion for review filed on 23rd June 2016 should not be entertained by this Court.
Counsel cited the case of the Republic V High Court (Commercial Division) Tamale, Ex parte Dakpemzobogunaa Henry Kaleem (substituted by Alhaji Alhassan I Dakpema)
(Dakpemanaa Alhassan Mohammed Dawuni-Interested Party) (2015) 89 GMJ 175 SC
Learned counsel submitted that by that decision, the High Court does not have any review power under Order 42 of CI 47. Therefore, the applicant’s application should be dismissed in limine. In other words, per respondent counsel submission, this court lacks capacity to entertain the motion for review filed by the applicants.
(b) That even if this court has jurisdiction to entertain the application, the applicants application is out of time per the rules of court. Therefore, the court should not consider the merits of the application.
In opposing the preliminary legal point, counsel for the applicant submitted that, the Court has power to review its decision under C.I 47 and secondly, their application is within time per the rules of court. He also added that, the injunction order obtained by the respondent was wrong in law.
It is now my duty to give my opinion one way or the other. Before I will go into the merits of the submission, I wish to digest the historical antecedents of this case. The respondent issued a writ of summons against the applicants on 9th February 2016 for the following reliefs:
(a) Declaration of title to all that piece of cocoa farm located at a place commonly known and called Nsutam-Nkwanta on Effiduase Stool land measuring 32.05 acres bounded by the properties of Opanin Badu, Mr. Nyanor, Madam Akua Praa, Kwasi Nsiah, Kwadwo Num, Yaw Kyeremeh, Kwaku Duah and shares common boundary with Effiduase Asamang Main road.
(b) Recovery of possession.
(c) General and special damages for trespass.
(d) An order of perpetual injunction restraining the defendants, their agents, servants, assigns, privies, and or any other person howsoever called whether by themselves, their servants, workmen or agents or otherwise from in anyway trespassing, alienating; disposing of or granting any interest, right or title to or otherwise, undertaking any development or dealing with or in any manner interfering with the land, the subject matter of this Suit.
The respondent filed motion ex-parte for interlocutory injunction on the same day the writ was issued, which was on 9th February 2016. The motion ex-parte for interlocutory injunction was granted on 11th February 2016. The ex-parte motion for interlocutory injunction was thumbprinted by respondent (then applicant), the purported jurat however, does not mention the name of the person who might have read and explained the contents of the document to her in Twi before she thumbprinted. This was clearly in breach of Section 4 of the Illiterate Protection Ordinance, Cap 262 and such a document is invalid and inadmissible in Court.
See: Nortey (No.2) V African Institute of Journalism and Communication & Ors (2013-2014) 1 SC GLR 703.
The ex-parte motion for interlocutory injunction was repeated on notice on 23rd February 2016. In this instance too, the plaintiff now respondent in this application thumb-printed but there is no name indicating that, it was a known person who read and explained the document to her before she thumb-printed contrary to the provisions in Section 4 of the Illiterate Protection Ordinance, Cap 262. The motion on notice for interlocutory injunction was filed and served on the applicants (then defendants) on 26th and 29th February, 2016. The motion was granted on 15th March 2016 against the applicants, their agents, and servants etc. who were restrained in the interim from doing anything on the land or interfering with it in any way until the final determination of the case. The order for the interlocutory injunction was served on the 1st, 2nd, 3rd and 4th defendants on 8th and 9th June 2016, as per affidavit of service commissioned on 14th June 2016.
In the meantime, the 1st and 2nd defendants (now applicants) filed a notice of appointment of solicitor
on 23rd March 2016. Counsel for 1st and 2nd respondents followed it with motion on notice to set aside the injunction order dated 15th March 2016.
When the motion on notice to set aside the injunction order came up for hearing, on 12th May 2016, counsel for plaintiff raised preliminary objection to the application. It was upheld on 13th June 2016 which refused to set aside the injunction order dated 15th March 2016. This present motion for review of the order refusing to set aside the injunction order was struck out for want of prosecution on 28th July 2016.
The applicants filed another application on 1st August 2016 for the court to relist the motion on notice for review of the Court’s order refusing to set aside the injunction order which said order is dated 13th
June 2016. On 20th October 2016, the motion for review of the order refusing to set aside the injunction order was relisted by this court. It was when the substantive motion for review of the order refusing to set aside the injunction order came up for hearing on the 16th November 2016 that counsel for the respondent raised the preliminary objection to the competency of the Court to hear the application on the grounds stated above. I now wish to deal with the grounds for and against the objection by the respondent counsel.
In cases of preliminary objection to applications, it is to prevent the court from hearing the said application on its merits. This may be either on the grounds of irregularity, or for non-compliance with some legal provision or for some other good or sufficient reason. In such cases however, the irregularity or the defect must be apparent on the face of the notice of the motion so that, the person objecting may not have to condescend to the affidavit or other documents supporting the motion to back his objection.
That is, counsel objecting to the application is not permitted to refer to the affidavits and the exhibits. However, if the objector may have to refer to the exhibits on record, then procedurally, the objector may have to wait for the motion to be moved. And when he is called upon to reply, he may have liberty to refer to the documents filed before the court in respect of the motion he is objecting.
Again in cases of preliminary objection, the objector is given the right to begin and to have the last words after the other side has replied.
See: The Trustees of the Synagogue Church of All Nations V Agyeman (2010) SCGLR 717.
In this objection, learned Counsel for the respondent argued that, the Court has no jurisdiction to review its decision under Order 42 of C.I 47. In Halbury’s Law of England (3rd ed.) Vol. 9, at page 350-351 jurisdiction has been defined as the “authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limit of this authority is imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means”.
See: Yeboah V Mensah (1998-99) SCGLR 492 SC
Edusei V Attorney General and Another (1996-97) SCGLR 1
Edusei (No.2) V Attorney General (1997-98) SCGLR 753
This means that, an issue of Jurisdiction can be raised at anytime of the trial and even for the first time on appeal. Jurisdiction is therefore central to the core of the Courts power to decide case on its merits. Jurisdiction therefore touches on the competence of the Court to hear a case rather than the rights of the parties in the subject matter of litigation. It is therefore the position of the law that, if an action will succeed on a plea of statute of limitation; lack of jurisdiction of the Court, lack of locus standi; then the trial Court or even an appellate Court should not proceed to determine the merits of the case irrespective of the evidence.
See: Stephens V Apoh (2010) 27 MLRG 12 CA.
Again, if the point of law involved a procedural point or is on jurisdiction, or on an act which is illegal and can disposed off the case without evidence, then it can be raised at any time.
See: Assemblies of God Church V Obeng (2006) 5 MLRG 21 CA Kowus Motors V Check Point Ghana Ltd (2009) SCGLR 230. Attorney General V Faroe Atlantic Co. Ltd (2005-06) SCGLR 271. Frabina Ltd V Shell Ghana Ltd (2011)1 SCGLR 429
Applying the above principles to this case, it means that if the respondent counsel objection as to the lack of jurisdiction of this Court to review her decision is successful, the Court will not proceed to look at the merits of the application at all.
In this case, counsel relied heavily on Ex parte Dakpemzobogunaa Henry kaleen (Substituted by Alhaji Alhassan 1 Dakpema) (supra) in respect of ground one of his objection. I have read carefully the said case.
My opinion is that, the issues in the said case are distinguishable from this application on the following grounds: (a) an issue in the said case was as to whether one high court judge has power to vary an injunction order made by a High Court judge and not necessarily for review. (b) The court itself after discussing the issue of review of the High Court concluded that it was an obiter and not a ratio. And therefore does not create a judicial precedent. The court therefore refused to strike out Order 42 of C.I 47 as unconstitutional or against any other statute.
My humble view is that, if the Supreme Court had decided as a ratio that, the High Court has no power to review its decision under Order 42 of C.I 47, the Supreme Court would have expressly struck down Order 42 of C.I 47 from our procedural rules, just like how the Supreme Court recently struck out Section 96 1(7) of Act 30 as unconstitutional in the case of Martin Kpebu V The Attorney General which is an unreported judgment of the Supreme Court with Suit No. 51/13/205 dated 5th May 2016.
The Black’s law dictionary, 9th Edition defines obiter dictum as judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential if Order 42 of C.I 47 has not been declared as unconstitutional, then what is its legal effect as against the obiter decision in Ex parte Dapkemzobogunaa Henry Kaleem. (supra). The law is that where there are calls on the Court as to which authority to comply with, obeisance is due to statute rather than a decision of a higher Court however exalted. Or put differently, where a statute conflict with case law, the statute prevails.
See: Baah III V Attorney General (2012) 49 GMJ 57 at 68 CA Edusei V Diners Club of Suise SA (1982-83) GLR 809
I am therefore of the view that, Order 42 of C.I 47 which talks about the review powers of both the High Court and the Circuit Court is still valid under the law. Let me add that, the primary duty of the Court is to expound the law and its application and not necessarily to expand it. A Court must therefore decide what the law is and not what it might be.
For the above reasons, my view is that, Ex parte Dakpem Zobogunaa Henry Kaleem substituted by Alhaji Alhassan I. Dakpema is distinguishable from this case on many grounds.
For the reasons articulated above, the first ground of the preliminary objection that this Court has no power of review under Order 42 of C.I 47 crumbles and same is dismissed. The ambit of the review jurisdiction of the High Court under Order 42 of C.I 47 is one of the legally permissible modes for correcting patent mistakes or errors of law on the face of record or for some other sufficient reasons which in the view of the Court is similar to patent legal errors. This may include Orders which may even be plain nullities on their face.
See: Munji (Substituted by) Mumuni V Iddrisu (2013-2014) 1 SCGLR 429
Republic V High Court (Commercial Division) Accra;Ex parte Double Crown Investment Ltd. (Granada Hotel Ltd-Interested Party) (2009) SCGLR 524
On ground two of the preliminary objection, the respondent Counsel contended that, the applicant application is out of time. Indeed time limits in Court processes are very important in the administration of justice.
In Doku V Presbyterian Church of Ghana (2005-2006) SCGLR 700, the Supreme Court commenting on importance of time limits in Court processes held at 701 as follows ''It is not nothing that rules of Court procedure stipulates time limits. Because it is in the public interest that there shall be an end to litigation; the Rules of the Supreme Court have set time limits to guide litigants with a view to achieving certainty and procedural integrity. Otherwise, in the case of appeals, any litigant may conveniently take his or her time to decide when to resurrect the litigation of suits in which decisions have been given. Thus time limits are too important for this court to ignore even if it had any discretion in the matter; and although one might empathise with the appellant’s prayer for this court to take into account the rules of equity to prevent the respondent from taking undue advantage of the weakness or necessity of the appellant, the court cannot craft new rules to suit the appellant situation nor will the end of justice and equity be served in any attempt on the courts part to do so.'' Time limit in court processes is also important to keep the wheels of justice rolling smoothly. It is also to prevent the inordinate delays in the administration of justice which may lead to chaos, and confusion.
See: Oppong V Attorney- General and Others (2000) SCGLR 275
Indeed, C.I 47 has also set time limits for review of its decisions Under Order 42 rule 2(2) of C.I 47, application for review should be made within 14 days from the date on which the judgment or the order in respect of which review is sought is entered or made.
In this case, the motion to set aside the injunction was dismissed on 13th June 2016. The motion for review of the said order dated 13th June 2016 was filed on 23rdJune 2016. Clearly that was within the 14 days period allowed by the rules under Order 42 rule 2(2). The motion for review was in respect of the dismissal of the motion to set aside the injunction. And the said Order was made on 13th June 2016. This means that, the applicants were within time when they filed the motion on 23rd June 2016.
For the above reasons, ground two of the preliminary objection is also dismissed.
By this, this court should have ended here and hear the motion on review on its merits but that may be to the contrary. I have gone through the records and I realised that, the affidavit in support of the original motion on notice for injunction was thumbprinted. But there is no name as to the person who read and explained it to the deponent (that is the plaintiff herein) before she thumb-printed.The law is that, such a defect is fundamental and goes to the root of the application. It has been settled by a number of authorities that, a document thumb-printed by an illiterate cannot be relied upon without a jurat.
See: In re Kodie Stool; Adowaa V Osei (1998-99) SCGLR 23
Therefore, this Court erred when it is relied on the said affidavit which was attached to the motion for injunction to grant same.
Again, going through the documents before the court, I have come across some searches which were conducted by counsel for the 1st and 2nd defendant. One was filed on 2nd March 2016. The first question was ''whether or not the 1st and 2nd defendants have been served with plaintiff's writ of summons and the accompanying statement of claim". And the answer was No. (Emphasis mine)
Another search was also filed on behalf of the 1st and 2nd defendants on 8th April 2016. The first question was ‘whether or not the 1st and 2nd defendants have been served with the Plaintiff's writ of summons and the accompanying statement of claim. And the answer was "No proof of service". (Emphasis mine)
The second question was whether or not the 3rd and 4th defendants have been served with the writ of summons and accompanying statement of claim as well as the motion for injunction. The answer was that ''only the motion for injunction was served with documents attached. From the documents before this court, there is no affidavit of service of the plaintiff writ of summons and the statement of claim on the defendants. The 1st applicant re-echoed this in his affidavit in support of the motion to set aside the injunction filed on 13th April 2016. In paragraph 5 of the motion, he stated that “the plaintiff motion (for injunction) was granted even though the writ of summons together with the statement of claim was not served on us."
The same averment was repeated in paragraph 5 of the motion for review filed on 23rd June 2016. From the two searches on record, which have been answered by the Registrar of this court, I am convinced that, the defendants have not been served with the plaintiff’s writ of summons. No wonder the defendants have not entered appearance as of now. If that is the case, then what is its legal effect? Going through the judicial anatomy of this country, I came across some cases which have addressed such situation. In the case of Barclays Bank of Ghana Ltd V Ghana Cables Co. Ltd (1998-SCGLR 1 at 6 the Supreme Court held per Acquah JSC (as he then was) as follows "after a writ of summons or any process initiating legal action has been issued, is for the defendant to be served personally with copy thereof or notice of the said writ if permissible unless the solicitors of the defendant undertakes to accept service on behalf of the defendant. As Francios JA (as he then was) pointed out in Ofori V Lartey (1978) 1 GLR 490 at 492 CA. ‘‘It is trite that proceedings against a party are deemed to commenced only after service of a writ or notice on that party''. In the same case, of Barclays Bank V Ghana Cables (supra) Kpegah JSC said at page 19 as follows. “The procedure in our courts requires that, every writ of summons be personally served on the defendant unless the court, taking into account the exigencies of the case, otherwise directs. For it is a cardinal principle of our jurisprudence that a person must be made aware of the rights being assisted against him before he can be condemned or his own rights compromised''.
A court therefore has no jurisdiction to proceed against a party who has not been served with a writ of summons either personally or through substitution or through his lawyer.
See: Republic V High Court (Commercial Division) Accra, Ex parte Millicom Ghana Ltd (Superphone Co. Ltd - Interested Party) (2009) SCGLR 41 . This means that, lack of service of a writ is fundamental and goes to jurisdiction of the Court. Such a defect cannot be waived under Order 81 of CI 47. Consequently, a judgment or order obtained upon such non service is a breach of natural justice and is a nullity. Such an order must be set aside ex debito justitiae.
See: In re Kumi (decd) Kumi V Nartey (2007-2008) SCGLR 623.
Republic V High Court Accra, Ex parte Salloum & Ors (Senyo Coker - Interested Party) (2011) 1 SCGLR 574
Republic V High Court; Ex parte Allgate Company Ltd (Amalgamated Bank Ltd - Interested Party) (2007-2008) 2 SCGLR 1041
Friesland Frico Domo alias Friesland Foods BV. V Dachel Co. Ltd (2012) 1 SCGLR 41
It is therefore my humble view that, since the injunction was dependent upon the writ; the effect of the non-service of the writ will equally affect the injunction order made by the court on 15th March 2016. The injunction cannot stand on its own without the writ. Therefore, once the applicants herein have not been served with the writ as of today 23rd November 2016, any order made consequent upon the writ is a nullity. It is therefore my ruling that, the injunction order was a nullity. The law is also settled by a number of authorities that if an order or judgment is a nullity, it does not matter how it was brought to the notice of the court and no discretion arises in such cases. Consequently, when a court by itself has noticed an invalid order, as in this case, no rule of law or constitution of the court can prevent the court from setting aside such an order.
See: Merchant Bank (Ghana ) Ltd V Similar Ways Ltd (2012)1 SCGLR 440 at 448.
Network Computer System Ltd V INTELSAT Global Sales and Marketing Ltd (2012)1 SCGLR 218
If a court order is void as in this case in respect of the injunction order, then time will not run in respect of such judgments. Anytime such a nullity is brought to the notice of the court, either suo muto or through a party, same has to be set aside.
See: Republic V High Court (Fast Track Division) Accra, Ex parte Speedline Stevedoring Co. Ltd (Dolphyne-Interested Party) (2007-2008) 1 SCGLR 102.
Having come to this conclusion, it is my humble and respectful view that, the injunction order made by this Court differently constituted which was predicated on the respondent writ of summons was a nullity. Consequently, I proceed to set aside the injunction order made by this Court on 15th March 2016. And same is hereby set aside.
Let me conclude by borrowing the words of Dotse JS.C in the case of Mass Products Ltd V Standard Chartered Bank & Anor. (2014) 69 GMJ 39 at 62 SC where he stated as follows “If the people of Ghana from whom justice emanates and is only administered on their behalf by the judiciary, reference article 125 (1) of the 1992 Constitution, cannot have justice in the law courts, then people might lose confidence in the courts or the judiciary and thereby be tempted to take the law into their own hands. If this happens, it may be a recipe for chaos, disaster and confusion. The courts exist to stem the tide against people taking the law into their own hands”.
Again, let me add that, the law should not be a product or slave of logic or intellectual hair splitting, but must serve broader normative purposes in the light of its social, political and economic role. On this philosophical note, I rest my pen.