NEE-WHANG v. AMPADU [1972] 2 GLR 79
COURT OF APPEAL
Date: 21 MARCH 1972
Before: BENTSI-ENCHILL J.S.C., JIAGGE AND KINGSLEY-NYINAH JJ.A.
NATURE OF PROCEEDINGS
APPEAL challenging the validity of the ruling of the High Court referring a case before it to a referee
without the prior consent of the parties.
COUNSEL
Joe Reindorf for the appellant.
Dade for the respondent.
JUDGMENT OF JIAGGE J.A.
Jiagge J.A. delivered the judgment of the court. This appeal is brought in order to challenge the validity of the ruling of the High Court, Accra, referring a cause before it to a referee without the consent of the parties. The respondent by his specially endorsed writ instituted an action against the appellant claiming the sum of ¢2,825.20 together with interest as money paid for a consideration that had failed. [p.80] of [1972] 2 GLR 79 The court after hearing the evidence of the parties held: “At this stage, it being palpably clear that the matter is a question of adjustment of accounts, I do hereby refer the case to a referee, Mr. Brew, Senior High Court Registrar, for him to go into the accounts and submit his report to the court . . .” The report of the referee was in due course submitted to the court. The respondent under Order 36, r. 34 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), moved the court to adopt and carry into effect the report of the referee.
At the hearing of the motion counsel for the appellant raised a preliminary objection that the motion was irregular because it failed to comply with Order 36, r. 32 which states:
“Whenever a report shall be made by a referee, he shall on the same day cause notice thereof to be given to all the parties to the trial or the reference before him by prepaid post letter directed to the address for service of each party, who shall in due course of post be deemed to have notice of such report.”
This objection was overruled by the court on the ground that each party had in fact received a copy of the referee’s report; a date was fixed for hearing and on that day counsel on either side was heard in argument on the motion. The court in its ruling carefully considered the referee’s report in its entirety and gave judgment for the respondent for the sum of ¢3,407.20 together with interest calculated at five per cent per annum.
The proceedings in the court below were conducted on the basis that the order referring the case to the referee was a valid one and not once was there any suggestion that the order was irregular and of no effect. The only ground of appeal argued before us was:
“The reference by the learned trial judge of the case to a referee was null, void, invalid and of no effect, since the law of Ghana makes no provision for the exercise of judicial power by referees. The proceedings before the referee were therefore irregular and of no effect, and the judgment or ruling based thereon is consequently itself irregular and of no effect, there having been in effect, no complete trial.” It was submitted by counsel for the appellant that referring a matter of accounts to a referee amounted to a delegation of the judge’s duties to one who had no lawful authority to exercise such powers. Counsel referred to the Supreme Court of Judicature (Consolidation) Act, 1925 (15 & 16 Geo. 5, c. 49), s. 88 (1), where provision is made for the court or a judge subject to the rules of court, to “refer to an official or special referee for inquiry or report any question arising in any cause or matter, other than a criminal proceeding by the Crown” and section 89 makes this provision:
[p.81] of [1972] 2 GLR 79 “(a) If all the parties interested who are not under disability consent; or
(b) If the cause or matter requires any prolonged examination of documents or any scientific or local
investigation which cannot in the opinion of the court or a judge conveniently be made before a jury
or conducted by the court through its ordinary officers; or (c) If the question in dispute consists wholly or in part of matters of account; the court or a judge may at any time order the whole cause or matter, or any question or issue of fact arising therein, to be tried before a special referee or arbitrator respectively agreed on by the parties, or before an official referee or officer of the court.”
Section 90 states the powers of, and makes provisions for the remuneration of, a referee. Counsel referred further to the Administration of Justice Act, 1956 (4 & 5 Eliz. 2, c. 46), s. 9 where
provision is made for the appointment of official referees by Her Majesty on the recommendation of the Lord Chancellor and then submitted that since no substantive legislation in Ghana today provides for inquiries and trial by referees, the appointment of a referee by the court below was irregular and of no effect. Consequently the judgment based on the findings of such referee was also irregular and of no effect.
Under the Courts Ordinance, Cap. 4 (1951 Rev.), s. 15 “The Supreme [High] Court . . . in addition to any other jurisdictions conferred by this or any other Ordinance, shall, . . . possess and exercise all the jurisdiction powers and authorities which are vested in or capable of being exercised by Her Majesty’s High Court of Justice in England . . .” The judicial function of referring a cause or matter to a referee is one of the powers exercised by a judge of the High Court of Justice in England.
Pursuant to the relevant provisions of the Courts Ordinance, Cap. 4 (1951 Rev.), there was subsidiary
legislation in 1954 (Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), Laws of the Gold Coast, Vol. VII (1954 Rev.), p. 160) which provides in Order 33, rr. 10 and 11 as follows:
“10. In any cause or matter in which all parties interested, who are under no disability, consent thereto, and also without such consent in any cause or matter requiring any prolonged examination of documents or accounts or any scientific or local examination, which cannot in the opinion of the Court, having regard to the other business before it, conveniently be made by the Court in the usual manner, the Court may at any time, for reasons stated on the minutes, on such terms as it may think proper, order any question or issue of fact, or any question of account rising therein, to be investigated or tried before a referee, who shall be an official referee, or [p.82] of [1972] 2 GLR 79
other competent person, to be called a special referee, to be agreed on by the parties or appointed by
the Court. In the event of a special referee being appointed he shall receive such remuneration as the
Court or judge may direct. 11. In all such cases the Court shall furnish the referee with such part of the proceedings and such information and detailed instructions as may appear necessary for his guidance, and shall direct the parties, if necessary, to attend upon the referee during the inquiry. The instructions shall specify whether the referee is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his investigation.” Under rule 10 the court in its discretion may appoint a referee to go through accounts between parties without their prior consent. Section 156 of the Courts Act, 1960 (C.A. 9), repealed the Courts Ordinance, Cap. 4 (1951 Rev.). However, the Courts Act, 1960 (C.A. 9), s. 154 (1) made the following savings: “Notwithstanding the repeal referred to in paragraph 95 of this section 156 of this Act, every statutory instrument made under those enactments and in force on the day immediately before the commencement of this Act shall, until such instrument is altered, revoked or otherwise modified under this Act, continue in force as if such instrument had been made under this Act.”
This in effect saved Order 33, rr. 2, 10 and 11 and made them rules under the Courts Act, 1960 (C.A. 9). The Courts Decree, 1966 (N.L.C.D. 84), para. 95 however repealed the Courts Act, 1960, but made the following savings in paragraph 93 (1) as follows:
“Notwithstanding the repeal referred to in paragraph 95 of this Decree, every statutory instrument made or deemed to be made under that enactment and in force on the day immediately before the commencement of this Decree, shall, until such instrument is altered, revoked or otherwise modified or amended under this Decree or any other appropriate enactment, continue in force as if such instrument has been made under this Decree.” The resultant position therefore is that Order 33, rr. 2, 10 and 11 enjoy the status of subsidiary legislation which continues (if I may borrow the words of N.L.C.D. 84, paragraph 93 (1) “in force as if such instrument has been made under this Decree.”
The ruling of the court below referring accounts to a referee was made under Order 33 which, as is shown above, continues in force since it has not been modified or amended. The said ruling therefore is valid.
We find no merit in this appeal and we dismiss it accordingly. Costs are assessed at ¢112.50.
DECISION
Appeal dismissed with costs.
S. E. K.
