IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
KUMASI - A.D 2016
ROSEMARY QUANDOH - (Plaintiff/Applicant)
W. B. IMPEX LTD AND ROYAL V. V. I. P. - (Defendants/Respondents)
DATE: 16TH NOVEMBER, 2016
SUIT NO: C5/7/12
JUDGES: JUSTICE FRANCIS OBIRI SITTING AS HIGH COURT JUDGE
YAW BOAFO ACHEAMPONG FOR APPLICANT
KWAKU YEBOAH APPIAH FOR RESPONDENT
Let me begin this ruling by quoting the words of Jesus Christ in Mathew 7: 7 where he said “Ask and it will be given to you; seek and you will find; knock and the door will be opened to you”. The same quotation is also found in Luke 11:9.
In this case however, the plaintiff/applicant hereinafter called the applicant did not ask for recovery of possession to the disputed land during the trial of the case. She is however before this court in respect of this motion praying the court to review its judgment which was given on 24th June, 2016. The court at that time was differently constituted with His Lordship Justice Paul K. Richardson as the presiding Judge.
To appreciate the intricacies of this case, I wish to recap the reliefs upon which the judgment was given. The applicant issued a writ of summons in this case against the defendants/respondents hereinafter called the respondents in this court. And per her amended writ of summons filed on 10th April, 2015, the applicant claimed against the respondents as follows;
A declaration of title to all that piece and parcel of land more particularly described as Ghana Railway Company Land at Asafo Market, Kumasi.
) General damages for Trespass.
Perpetual Injunction restraining the defendants, their agents, servants, employees, workmen and all those claiming through them from interfering with the plaintiff’s ownership, possession and control of the land in dispute.
The respondent resisted the action by filing a statement of defence and also counterclaimed against the applicant for the following reliefs;
A declaration that, the defendants have an equitable right to be on the land by virtue of the temporary permit granted to them by KMA.
A declaration that, the indenture of lease dated 1st March 2009 and made between the Ghana Railway Company and the plaintiff is void and of no effect.
Any further order as shall be just in the circumstances of this case, and in particular an order for perpetual injunction restraining the plaintiff, her servants, privies, assigns and any other person claiming through her and on her behalf from in anyway interfering with the defendant’s right to the said land or otherwise dealing with it in any way adverse to the defendants’ rights.
At the conclusion of the case, the trial judge gave judgment for the applicant on 24th June 2016 which is attached to this application and marked as exhibit ‘DD3’.
The trial judge concluded his judgment by finding for the applicant in the last paragraph of page 6 as follows:
“I shall give judgment for plaintiff for damages for trespass. And so I enter judgment for plaintiff for the reliefs she claims. I award costs of GH¢ 6000 as general damages in her favour. I award cost of GH¢ 5000 in favour of plaintiff.”
After the conclusion of the case, the respondents filed notice of appeal against the judgment of the court on 25th July 2016. They followed it up with motion for stay of execution pending appeal. It was filed on 25th July 2016. It was dismissed on 15th September 2016 after it had been moved by the respondents.
The applicant on the other hand filed entry of judgment on 29th September 2016 and added “Recovery of possession of title to all that piece and parcel of land more particularly described as Ghana Railway Company land, Asafo Market, Kumasi”.
The respondents however filed a motion to strike out the applicant entry of judgment on 29th September 2016. The respondents’ application was premised on the fact that, the relief for recovery of possession was never included in the applicant’s list of reliefs endorsed on her writ of summons. The court granted the prayer of the respondents and accordingly struck out the entry of judgment of the applicant on 12th October 2016.
In the meantime, the applicant filed a motion on 4th October 2016 for extension of time within which to file an application for review of the judgment of this court dated 24th June, 2016. The said application was granted on 17th October 2016. It was the leave granted to the applicant which has given birth to this present application.
The motion for the review of the judgment was filed on 18th October 2016. The motion was supported by affidavit. I wish to quote the relevant paragraphs in this ruling.
12. That the writ of summons was not endorsed for a relief of recovery of possession.
13. That even though the writ was not endorsed for a relief for recovery of possession, the relief for recovery of possession was clearly established on the evidence on record and was emphasized in the judgment.
14. That the plaintiff/applicant is advised and verily believe same to be true that, since on the evidence and in the judgment of the Honourable court, a positive finding was made that the plaintiff/applicant possession had been interfered with by the defendants/respondents and in spite of the fact that, the relief for the recovery of possession was not endorsed on the writ of summons, the Honourable court could still grant relief in favour of the plaintiff/applicant.
15. That the plaintiff/applicant is further advised and verily believe same to be true that, where a party does not ask for a specific relief, the Honourable Court, where it considers it necessary in the interest of Justice, can grant such relief not expressly asked for.
16. That inspite of the fact that the writ of summons did not include a relief for recovery of possession, in the light of the judgment of the Honourable court, the said relief should have been granted by the Honourable court.
17. That the plaintiff/applicant is advised and verily believe same to be true that, the grant of the instant application will ensure that substantial holding of the Honourable Court in the judgment will not be reduced into a pyrrhic victory for the plaintiff/applicant.
18. That the plaintiff/applicant is advised and verily believe same to be true that, the grant of the instant application will prevent the situation where the plaintiff/applicant has to return to Court in a fresh suit to secure a formal declaration of recovery of possession.
19. That the plaintiff/applicant is advised and verily believe same to be true that, the refusal of the instant application would lead to engendering circuitry of actions putting the plaintiff/applicant to expenditure of money, time and energy in foisting another round of litigation on the plaintiff/applicant.
20. That the plaintiff/applicant is further advised and verily believe same to be true that since the reliefs were clearly established on the evidence on record, and there is/was no surprise or unjust denial on the part of the defendant/respondent to meet the matters concerned, the instant application must be granted.
The respondents resisted the application for the review by filing affidavit in opposition on 26th October 2016. I wish to quote the relevant paragraphs in this ruling.
4. The defendants/respondents have been advised and verily believe same to be true that the instant application has no merit.
5. The defendants/respondents are further advised and verily believe same to be true that the instant application is incompetent.
6. That the instant application does not meet the standard set under the High Court Civil Procedure Rules (C. I. 47) for applications of this nature.
9. That it would be unfair and unjust at this stage to review the judgment to include the relief of recovery of possession when that was not an issue at the trial.
10. That if the relief of recovery of possession was part of the reliefs and had been an issue at the trial, the defendants/respondents would have adequately been put on notice to mount the requisite and appropriate defence to that relief.
11. That the grant of the instant application will be unjust and unfair.
When the motion came up for hearing on 2nd November 2016, Counsel for the applicant repeated all the averments in the affidavit in support. Applicant counsel added that, the application should be granted on the following grounds:
First, the trial judge made a determination on the face of the judgment that it is the plaintiff/applicant who has the right to be on the land.
Secondly, since the trial judge awarded damages for trespass against the defendants, it means, the court can grant a relief for recovery of possession for the applicant.
Again, it would be unjust to ask the applicant to issue a fresh writ only for recovery of possession.
According to applicant counsel, there is no appeal pending against the judgment of the court in true legal sense, since the motion on notice to amend the notice of appeal was filed before the court of appeal which in the view of Counsel for the applicant is wrong.
The applicant counsel further argued that, the recovery of possession was although not set down for trial but same can be borne out of the evidence before the court.
Counsel for the applicant cited the following cases in support of his submissions.
Hanna Assi (No. 2) V GIHOC Refrigeration and Household Products Ltd (No. 2) (2007 – 2008) SCGLR 16
Republic V High Court, Kumasi, Ex- Parte Boateng (2007– 2008)1 SCGLR 404
NTHC V Antwi (2009) SCGLR 117
He also cited Article 126(4) of the 1992 Constitution.
In opposing the application, Counsel for respondent prayed the court to dismiss the application on the following grounds:
First, the applicant has not brought the application within the ambit of Order 42 r 1 of C. I. 47.
Secondly, the grounds canvassed by the applicant do not satisfy the requirements for the court to exercise her discretion in her favour.
Again, learned counsel argued that, the applicant has not canvassed any special circumstances to warrant the grant of this application and therefore, the application should be dismissed.
Counsel for the respondent added that, the Hanna Assi case, (supra) should be distinguished from this case in the sense that, in the Hanna Assi case (supra) the Supreme Court reviewed the entire evidence on record which is not so in this case.
Respondent counsel also submitted that, what counsel for the applicant should have filed for should have been motion for amendment and not motion for review.
He added that, at the time the matter was been heard, the applicant knew that the defendants were in possession. Therefore, she ought to have included recovery of possession which she failed to do.
Another point the respondent counsel made was that, even if the appeal and its offshoot application for leave to amend the grounds of appeal are not proper, same should not be determined by this court.
He concluded that, the appeal will have a major impact on the relief being sought by the applicant in this application.
Respondent counsel also cited the case of Hanna Assi (No 2) V Gihoc (No 2) (supra), Republic V High Court Kumasi, Ex-Parte Boateng (supra)
George Osei Tutu Darkwa V Management Development and Productivity Institute (2013) 67 GMJ 99 CA
It is these arguments for and against the application that I have to give my opinion one way or the other.
In this application, much emphasis has been placed on Order 42 of C. I. 47. I will therefore like to quote Order 42 rules 1 and 2 of C. I. 47.
Order 42(1) provides “A person who is aggrieved
by a judgment or order from which an appeal is allowed, but from which no appeal has been preferred or
) by a judgment or order from which no appeal is allowed ;
may upon the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within that person’s knowledge or could not be produced by that person at the time when the judgment was given or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason; apply for a review of the judgment or order.
42(2) also provides “a party who is not appealing against judgment or order may apply for a review of that judgment or order notwithstanding the pendency of an appeal by any other party, except where the ground of appeal is common to the applicant and the appellant, or where, being the respondent, he can present to the Court of Appeal the case on which he applies for the review”.
What I understand Order 42 rule 1 (1) of C. I. 47 to mean is that, there are three conditions any one of which if it exists will give rise to review of a judgment or decision by the court.
Where the person has discovered new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the judgment or order was given or made.
) Where there is some mistake or error on the face of the record.
Where some circumstances exist sufficient to support a review of judgment or the order.
Therefore, this court will examine the case of the applicant per the affidavits in support vis-à-vis her counsel’s submissions to determine whether any of the grounds exist.
Counsel for the applicant in this application also made reference to Article 126 (4) of the 1992
Constitution. It provides as follows:
126(4): “In the exercise of the judicial power conferred on the judiciary by this Constitution or any other law, the Superior Courts may, in relation to any matter within their jurisdiction issue such orders and directions as may be necessary to ensure the enforcement of any judgment, decree or order of those courts.”
This constitutional provision therefore clothes this court with jurisdiction to exercise such powers which are necessary, in respect of giving directions concerning orders or decrees.
This application seems to be hinged on two legs. On one leg is the contention by the applicant that, the court should review the judgment of the court which was then presided over by His Lordship Justice Paul K. Richardson. In line with that argument is a prayer that the court should review the judgment by way of amending the reliefs the applicant sought to include recovery of possession of the property in dispute which was not sought during the trial.
On the strength of that argument is the principle which was settled in the case of
In Re Gomoa Ajumako Paramount Stool, Acquah V Apaa & Anor (1998 – 99) SCGLR 312 where it was held that
“In appropriate circumstances, a court of law can grant a relief not sought for by a party; however any such relief must, first, be supported by evidence on record; and secondly, not be inconsistent with the stand and claim of the party in whose favour the relief is granted.”
On the other leg of the application is the one which is urged on by the respondents that, since the applicant did not ask for recovery of possession of the property in dispute, same cannot be granted to her. On the strength of this argument is the principle which was articulated in the case of Nyamaah V Amponsah (2009) SCGLR 361, holding 1 at 362 as follows;
“It is the duty of a trial court to make pronouncement on the reliefs that a party seeks. Therefore, the trial court is to ensure that the issues it set down for determination would aid it in making justifiable decisions on reliefs sought. Consequently, a judge who makes an order for a relief not sought for by a party can be held to have exercised an irregular jurisdiction”.
See also Twum V SGS Ltd (2011) 30 GMJ 92 CA.
Amoyaw V Amoyaw (1999 – 2000) 2GLR 124 CA
Allotey V Quarcoo (1981) GLR 208 CA
Dam V Addo & Bros (1962) 2 GLR 200 SC
The proponents of this principle argue that, in a situation where a relief is not asked for by a party, it will not be just to grant same. To such school of thought, this is because in that case, no issue was joined between the parties. And therefore, a trial judge has no business amending the endorsement of a writ on his own or through a motion for review to include such a relief. In that respect, a trial judge is not to make pronouncement on any relief not sought before the court.
The proponents of the first position argue however that, if from the record of proceedings, such relief is born out of the evidence, then; the interest of justice will be served if such a relief is granted. In this ruling, the court may have to examine the judgment and decide one way or the other.
Let me say at this juncture that, although Baiden V Ansah (1973) 1GLR 33 has held that an application for review can only be dealt with by the judge who made the order. See also Order 42 r 4 of C. I. 47. In this case however, the trial judge, His Lordship Justice P. K. Richardson who delivered the judgment is on retirement. It will therefore be a nullity for him to hear this application.
I have examined the judgment of this court dated 24th June, 2016. On Page 6, of the judgment, His Lordship Justice Richardson adjudged in the last paragraph as follows.
“I shall give judgment for the plaintiff for damages for trespass. And so I enter judgment for plaintiff for the reliefs she claims”.
In this case, the reliefs the applicant asked the Court were declaration of title to the land in dispute and perpetual injunction to restrain the defendants, their agents, servants, employees, workmen and all those claiming through them from interfering with the plaintiff’s ownership, possession and control of the land in dispute. And it was these reliefs which the trial judge granted in favour of the applicant.
Now the question which begs to be answered is as follows. If the defendants/respondents have been restrained perpetually from having anything to do with the land, then what is the business of the respondents been on the land? In this case, there is no stay of execution pending or one which has been granted against the judgment of the court dated 24th June, 2016. Therefore, one wonders why the respondents are still on the land. In my view, the respondents’ continuous stay on the land will amount to further trespass on the land. One may even argue that, the respondents’ continuous stay on the land will amount to disobeying the orders of the court in the judgment that, the respondents and all their agents, assigns, etc are not to interfere with the applicant’s possession and control of the land.
Another question which begs to be answered is that, if the respondents have been restrained perpetually from having anything to do with the land and the applicant cannot recover the land, then what happens to the land? I am therefore of the humble view that, since the trial judge restrained the respondents, their privies and assigns from dealing with the land in dispute, then it means he had jurisdiction to grant recovery of possession to the applicant even though same was not asked specifically,
From the record before the Court, the writ was issued in 2014 and judgment was given in 2016. It therefore stands to reason that, if the applicant is to take a fresh writ only for recovery of possession, it is going to take another two years.
If the court is to go by the respondents’ arguments, then the court would be adhering to the very strictest rules of procedure and deny the applicant the prayer she is seeking in this case. In that respect, one would be right by borrowing the words of Benjamin Nathan Cardozo, an American Jurist who was quoted by Abban JSC in New Patriotic Party V Attorney General (1993- 94) 2 GLR 35 at 118 SC as follows “Judges march at times to pitiless conclusion under the prod of remorseless logic which is supposed to leave them no alternative. They deplore the sacrificial rite. They perform it nonetheless, with averted gaze, convinced as they plunge the knife, that they obey the bidding of their office. The victim is offered up to the gods of jurisprudence on the altar of regularity.”
However, I think the justice of this case should not be far to be sought.
Indeed it is trite that, litigation must come to an end. In most cases, it is the duty of the courts to aid parties to bring litigation to an end. In all cases, the courts are to ensure flexibility in its proceedings to ensure justice. It was in this direction that the Supreme Court held in the case of Halle and Sonns SA. V Bank of Ghana and Anor (2011) SCGLR 378 per Adinyira JSC at page 384 as follows.
“Although I agree that a Court cannot conduct its business without a code of procedure, I think that the relation of the rules of practice to the work of justice is intended to be that of a handmaid rather than a mistress, and the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what would cause injustice in a particular case.”
This means that in all cases, the aim of the court should be flexible in the application of its rules and in the interest of justice as the applicant is praying in this case.
I understand the review jurisdiction of the High Court under Order 42 of C.I. 47 to be one of the modes permissible to correct patent mistakes or errors of law on the face of the record or for some other sufficient reason, which may be akin to patent legal errors, such as void orders or orders which are plain nullities. See: Munji (substituted by Mumuni) V Iddrisu (2013-2014)1 SCGLR 429.
I went through the little law I know and I came across these cases where the courts have granted relief not sought for by a party.
The Supreme Court in the case of In re Asamoah (Decd);Agyeiwaa V Manu (2013-2014) 2 SCGLR 909 held per Akamba JSC at page 923 as follows.
“This court would not ordinarily grant any relief where a party has not formally asked for. The only instance where a relief has been, so to speak granted without being specifically asked for is in the instance when that relief emerges or is apparent from the evidence on record”.
Again, in Republic V High Court (Human Rights Division) Accra Ex-Parte Akita (Mancel-Egala &
Attorney General Interested parties) (2010) SCGLR 374 at 386 the Supreme Court held per Brobbey JSC as follows.
“In the Hanna Assi [No.2] V Gihoc Refrigeration and Household Products Ltd(No.2) (2007 – 2008)1SCGLR 16 case, this court laid down the rule on doing substantial justice to a party where the facts of the case justify that it should be done. That case held that, the trial court was entitled to grant the relief to the defendant who had not filed a counterclaim on that relief. The basis of the decision was that the evidence on the record justified that conclusion. One has to consider the facts on the record before this court in order to do substantial justice to the parties.”
Also in the case of Ackah V Pergah Transport Ltd & Ors (2010) SCGLR 728 at 742, the Supreme Court held per Adinyira JSC as follows.
“The Court of Appeal, in allowing the appeal made some consequential orders which we have to address. Although the plaintiff in his writ did not ask for an alternative relief, their Lordships were of the view that the first and second defendants ought to refund to the plaintiff the loan of GH¢ 20,000 which the plaintiff obtained from them to make down payment for the house. This is legitimate as it is the court’s duty to do substantial justice and from the circumstances of this case, failure to make such order would have occasioned a great miscarriage of justice.”
My view is that, all these cases cited above fall on all fours with this application. In this case, the judgment was delivered on 24th June, 2016. This means that, the time for appeal has elapsed. It would therefore not be fair to shut the door on the applicant to obtain a relief which is borne out of the judgment before me.
Indeed the court should not be insensitive to the just claims of parties. Otherwise, it would subvert the very administration of justice and therefore undermine the hallowed principle that, a victorious party is entitled to the fruits of his judgment and should not be deprived of his victory without just cause. The path to the shrine of justice must be so wide that people who have genuine claims can run to seek refuge under it.
Modern notion therefore is that, reliefs not sought by a party may be granted by the courts in order to make progress in the judicial edifice. It is also to avoid cost and inordinate delays in the administration of justice. See: Muller V France (2013) 55 GMJ 69 SC.
I must say that this motion has come about as a result of the applicant counsel conduct in the case. This is because, while the case was going on, he knew that the applicant was not in complete possession of the property but he did not take any steps to amend the pleadings at that stage. However, I do not think the court will have to visit the sins of the lawyer on the client although an important step was not taken by the lawyer for the applicant.
See: Republic V Asokore Traditional Council, Ex-Parte Tiwaa (1976) 2 GLR 231
In the Bible, the prophet Ezekiel said in Ezekiel 18:20 as follows: “It is the soul of the sinner who shall die. The righteousness of the righteous shall be upon him and the wickedness of the wicked shall be upon him". See also Ezekiel 18:4.
I have also noticed an application for leave to amend the grounds of appeal filed by the respondents before the court of appeal. Although that is not before me, but what I understand the procedure to be is that, it is only when civil form 6 has been served on the trial court, that the trial court will not have any jurisdiction over the case. Before then, all applications must first be heard by the trial court.
In conclusion, I have examined all the documents filed in this application. I have also read all the authorities cited by both counsel and their submissions. I am of the view that, it will be in consonance with equity and good conscience to grant the application. After all, the respondent and his agents, privies have been restrained perpetually from interfering with the applicant possession and control of the land. I will therefore review the judgment of His Lordship Justice Paul Richardson in this case dated 24th June, 2016 and proceed to amend the applicant’s reliefs to include ‘Recovery of possession of the disputed land.’
To that extent, unlike Ato, the protagonist in Ama Attaa Aidoo’s book “Dilemma of a Ghost” who did not know whether to follow the family or the wife, in this case, there are a plethora of authorities which fortify me to grant the application of the applicant and as I have stated above, review the judgment of this court and accordingly amend the reliefs she sought from this court. I make no order as to cost.