HIGH COURT, SEKONDI
Date: 2 JULY 1975
Before: EDUSEI J
CASES REFERRED TO
(1) Ampong v. Frempong [1965] G.L.R. 350, S.C.
(2) Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C.
(3) Amoabimaa v. Badu (1957) 2 W.A.L.R. 214, W.A.C.A.
(4) Craig v. Kanseen [1943] 1K.B. 256; [1943] 1 All E.R. 108; 112 L.J.K.B. 228; 168 L.T. 38; 87 S.J. 48, C.A.
NATURE OF PROCEEDINGS
APPLICATION to set aside the order of the registrar of the High Court, permitting a judgment creditor to go into execution after an appeal had been entered before the Court of Appeal. The facts are sufficiently set out in the ruling.
COUNSEL
James Mercer for the applicant.
Ebow Bentsi-Enchill for the respondents.
JUDGMENT OF EDUSEI J.
This is an application by the defendants-appellants (hereinafter referred to as the applicants) to set aside the order of the registrar permitting the plaintiff-respondent (hereinafter referred to as the respondent) to go into execution. The complaint of the applicants is that since 30 May 1975, the registrar has ordered a writ of possession issued on 3 June 1974 and a writ of fi.fa. No 5/74 issued on 3 June 1974, in respect of costs, to be executed on the applicants, when an appeal in respect of the whole case is
[p.450] of [1975] 2 GLR 448
pending before the Court of Appeal. In fact the appeal has since 21, March 1975 been entered:, see Ghana Gazette No. 16 of 21 March 1975 at p. 189.
Mr. Mercer, counsel for the applicants, has referred the court to rule 21 of the Court of Appeal Rules, 1962 (L.I. 218), which states that as soon as an appeal has been entered, the Court of Appeal becomes seised of the whole case until it is disposed of by that court. Counsel therefore argued that the court below had no jurisdiction to do anything concerning that case. In effect he is saying that in such circumstances the court below has become functus officio in respect of any proceeding affecting the case, and that the proper court to deal with such matters as the respondent desires is the Court of Appeal.
The sequence of events is that on 14 June 1973, the applicants filed an appeal against the judgment, of the High Court which affirmed the appeal of the respondent from the district court. And on 1 April 1974, the High Court granted leave to the respondent to go into execution and on 3 April 1974 another appeal was filed by the applicants against the ruling of the High Court. There is no doubt that the filing of the second appeal made it impossible for the respondent to go into execution even though writs of possession and of fi. fa. had been applied for and issued by the registrar on 3 June 1974. The inability of the respondent to go into execution was the result of the law then in existence that an appeal operated as a stay of execution. Opinions were, however, divided as to whether or not an appeal against a ruling that the judgment creditor could go into execution operated as a stay of execution. Happily, this law which gave rise to frivolous appeals has been repealed and now an appeal does not work as a stay of execution. As soon as a change in the law was effected by the High Court (Civil Procedure) (Amendment) Rules, 1975 (L.I. 1001), the respondent wrote on 30 May 1975 to the registrar to resurrect the writs of possession and fi.fa.
Since the writs, issued on 3 June 1974, were not executed, any letter subsequently sent to the registrar to revive them is, in my opinion, an application to him to set the law in motion by ordering an execution. But before 30 May 1975, the appeal had been entered and the court below, i.e. the High Court in this case, has no jurisdiction to entertain any such application and the proper forum is the Court of Appeal. If the High Court is functus officio, a fortiori, its officials, including the registrar or deputy sheriff, cannot renew the writs on application of the applicants: see Ampong v. Frempong [1965] G.L.R. 350, S.C.
I think there is a common sense reason for rule 21 of L.I. 218. Since the Court of Appeal has become seised of the whole case, the court below may do something that may run counter to anything that the Court of Appeal may possibly do at the same time and this is not good enough for the administration of justice. It is only proper that the appeal court should be free to do whatever in its wisdom is just to do without any interference from the court below.
Counsel for respondent, Mr. Bentsi-Enchill, has, however, raised the point that if Mr. Mercer’s argument that this court being functus officio
[p.451] of [1975] 2 GLR 448
cannot deal with the writs of possession and fi.fa. which, to all intents and purposes, were the creation of the letter of 30 May 1975 to the registrar, then his own application to this court to set them aside should also be dismissed for lack of jurisdiction in this court. This argument is worth considering. I think it is necessary to set out rule 21 of L.I. 218. It runs thus:
“After an appeal has been entered and until it has been finally disposed of, the Court shall be seised of the whole of the proceedings as between the parties thereto, and every application therein shall be made to the Court and not to the Court below, but any application may be filed in the Court below for transmission to the Court.”
There is no dispute that the appeal in this case was entered on 21 March 1975. This means that the court below has become functus officio, and the Court of Appeal becomes seised of the whole proceedings as between the parties thereto, and, until the appeal is. finally determined, “every application therein shall be made to the Court and not to the Court below, but any application, may be filed in the Court below for transmission to the Court.” It does seem that rule 21 of L.I. 218 takes away the jurisdiction of the High Court and any application, for example, for a stay of execution, must be made to the Court of Appeal. But the point for consideration is this: what should a party who is affected by an order made without jurisdiction do? Is he to make an application or appeal to the Court of Appeal, or is he to apply to the High Court, that made the void order, to set it aside?
It is well settled that the person affected can apply to the High Court, whose order is a nullity, to set it aside by the invocation of its inherent jurisdiction. The power of the court or a judge to set aside a void judgment or order is exercisable either suo motu or on the application of the party affected and such power is derived from the inherent jurisdiction of the court: see Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C. In Amoabimaa v. Badu (1957) 2 W.A.L.R. 214 the West African Court of Appeal held at p. 216:
“A judgment or order obtained by some step not warranted by the rules or capable of being sanctioned is wholly void and may be set aside: Smurthwaite v. Hannay ([1894] A.C. 494). It seems to us that the order complained of is a nullity and that the respondents who are affected by it are entitled ex debito justitiae to have it set aside.”
If the court, in the exercise of its inherent jurisdiction, can set aside its own judgment or order that is a nullity, then a fortiori, it can similarly set aside such an order made administratively by its officials. In the English case of Craig v. Kanseen [1943] 1 All E.R. 108, C.A. Lord Greene M.R. after considering a number of cases on the subject, made the position clear when he said at p. 113:
“Those cases appear to me to establish that an order which can properly be described as a nullity is something which the person affected by it is entitled ex debito justitiae to have set aside. So far as
[p.452] of [1975] 2 GLR 448
the procedure for having it set aside is concerned, it seems to me that the court in its inherent jurisdiction can set aside its own order; and that an appeal from the order is not necessary.”
The writs of possession and fi.fa. were brought about by the letter of the applicants written on 30 May 1975 to the registrar of the High Court when two appeals affecting the parties had been entered on 21 March 1975. This means that the registrar’s order on or after 30 May 1975 for the issue of the said writs was made without jurisdiction. This court therefore, in exercise of its inherent jurisdiction, can set aside the said writs and I accordingly do so. In view of the history of this case which originated in the District Court Grade II, Agona Junction, and the subsequent appeals which have now reached the Court of Appeal from the judgments of the High Court, and considering also the present application, it is no wonder that the names of the parties—Afibiyesan and Kow Nya-asemhwe—picturesquely and vividly show that there is no short and easy road to end litigation. It has been quite a terrible match so far between the parties, and it is hoped that the Court of Appeal will finally lay to rest this long-drawn litigation.
However, there will be no order as to costs in this application.
DECISION
Application granted with no order as to costs.
L. F. A.
