SHARDEY v. ADAMTEY AND SHARDEY v. MARTEY AND ANOTHER (CONSOLIDATED)
[1972] 2 GLR 380
COURT OF APPEAL
Date: 3 JULY 1972
BEFORE: AZU CRABBE J.S.C., LASSEY AND ARCHER JJ.A.
CASES REFERRED TO
(1) Khoury v. Khoury [1971] 1 G.L.R. 348, C.A.
(2) Tormekpey v. Ahiable, Court of Appeal, 27 January 1970, unreported; digested in (1970) C.C. 44.
(3) The Reward (1818) 2 Dod. 265; 165 E.R. 1482.
(4) Re Pritchard; Pritchard v. Deacon [1963] Ch. 502; [1963] 2 W.L.R. 685; 107 S.J. 154; [1963] 1 All
E.R. 873, C.A.
(5) Kofie v. Attu, West African Court of Appeal, 17 June 1948, unreported.
(6) James v. Smith [1891] 1 Ch. 384; 63 L.T. 524; 39 W.L.R. 396; affirmed 65 L.T. 544, C.A.
(7) MacFoy v. United Africa Co., Ltd. [1962] A.C. 152; [1961] 3 W.L.R. 1405; [1961] 3 All E.R.
1169, P.C.
(8) Anima v. Ahyehye (1955) 1 W.A.L.R. 40, P.C.
(9) R. v. Bolton (1841) 1 Q.B. 66; Arn & H. 261; 4 Per. & Dav. 679; 10 L.J.M.C. 49; 5 J.P. 370; 5 Jur.
1154; 113 E.R. 1054.
(10) Moore v. Tayee (1932) 1 W.A.C.A. 242; affirmed (1934) 2 W.A.C.A. 43, P.C.
(11) Parsons v. Loyd (1772) 3 Wils. 341; 2 Wm.Bl. 845; 95 E.R. 1054.
(12) East End Benefit Building Society v. Slack (1891) 60 L.J.K.B. 359.
(13) Benn v. Hagan (1922) D.Ct. ‘21-’25, 16.
(14) Gyebu v. Lagos (1956) 2 W.A.L.R. 138.
(15) Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C.
(16) Kojo Pon v. Atta Fua (1927) P.C. ‘74-’28, 95.
NATURE OF PROCEEDINGS
RULING of the Court of Appeal in an application for leave to go into execution. The facts are as set out in the headnote are taken from the ruling of Archer J.A.
COUNSEL
W. A. Bossman for the applicant.
E. D. Kom for the respondent.
JUDGMENT OF ARCHER J.A.
The plaintiff in these two consolidated cases obtained judgment against the defendant and the
co-defendant on 30 June 1971 at the Accra High Court, and was granted the following reliefs:
(1) Declaration of title against the co-defendant;
(2) Recovery of possession from both the defendant and co-defendant;
(3) ¢ 200.00 against the co-defendant alone as defendant in the first suit;
(4) ¢ 200.00 against the defendant and the co-defendant in the second suit;
[p.383] of [1972] 2 GLR 380
(5) Perpetual injunction against the defendant and the co-defendant, their servants, agents, grantees,
workmen and all persons claiming through them;
(6) ¢800.00 punitive costs against the defendant and co-defendant jointly and severally.
On 13 August 1971, the defendant and co-defendant filed appeals against the whole judgment while the plaintiff filed a cross-appeal against part of the judgment on 29 September 1971. Accordingly, by the operation of rule 27 of the Supreme Court Rules, 1962 (L.I. 218), as amended by the Court of Appeal (Amendment) Rules, 1969 (L.I. 618), para. 2, the appeals filed commenced to operate as a stay of execution until the court below or this court had otherwise directed.
On 6 April 1972, the plaintiff filed a notice of motion for leave to levy execution and quoted L.I. 618,
para. 2 and rules 27 and 28 of L.I. 218. Before the plaintiff could be heard on the motion, preliminary
objection was taken by the learned counsel for the defendant and co-defendant to the motion on the
ground that the plaintiff’s application should have been made in the first instance to the court below and if the application was refused, then the plaintiff would be at liberty to make a fresh application to this court.
Learned counsel for the defendants relied on two decisions of this court: Khoury v. Khoury [1971] 1
G.L.R. 348, C.A. and Tormekpey v. Ahiable, Court of Appeal, 27 January 1970, unreported; digested in (1970) C.C. 44.
In answer to the preliminary objection, learned counsel for the plaintiff submitted that by virtue of rule 21, this court was seised of all proceedings until the appeal was heard. Rule 21 reads: [His lordship here read the provisions as set out in the headnote and continued:] It was not in dispute that the record of appeal together with all relevant papers had been transmitted to the registrar of the court under rule 15 and therefore it became obvious that the proper forum to hear the application for leave to levy execution was this court. The registrar confirmed this fact of transmission in open court. Rule 15 reads:
“(1) The Registrar of the Court below shall transmit the record when ready together with—
(a) a certificate of service of the notice of appeal;
(b) a certificate that the conditions imposed under rules 12 (4) and 13 have been fulfilled;
(c) five or three copies as the case may be of the record for the use of the Judges;
(d) the docket or file of the case in the Court below containing all papers or documents filed by the parties in connection therewith. (2) The Registrar of the Court below shall also cause to be served on all parties mentioned in the notice of appeal a notice that the record has been forwarded to the Registrar, who shall in due course enter the appeal in the cause list mentioned in rule 3 (1).” [p.384] of [1972] 2 GLR 380 It follows that when an appeal has been entered by the registrar, the court below becomes functus officio not only as regards the judgment in the case but also in connection with all proceedings that may be taken by either party after delivery of judgment. The jurisdiction of the court below is clearly ousted and the mandatory words of rule 21 are that “every application therein shall be made to the Court and not to the Court below.” Rule 21 further directs that applications may be filed in the court below for transmission to the court. Such applications can only mean applications meant for hearing by the court and not by the court below.
On the other hand, before an appeal has been entered, the court below is still vested with jurisdiction to hear post-judgment applications. A judgment creditor may therefore apply to the court below any time before the appeal has been entered in this court, for an order that notwithstanding the appeal filed, he may be at liberty to go into execution. If the court below refuses the application, then he may repeat his application in this court. This is the mandatory procedure laid down by rule 28.
In the present application, the plaintiff could not have applied to the court below for leave to levy
execution because the court below had sent the record together with the relevant docket to this court.
When transmitting the record, the registrar of the court below also sends the docket or file of the case
containing all papers or documents filed by the parties in connection therewith. The court below more or less washes its hands of the case. At the same time, the parties are expected to be notified that the record has been transmitted. It is obvious that all these steps are intended to warn the parties that any further inquiries they wish to make or steps they wish to take in the matter could properly be addressed to the court and not to the court below. There is no doubt that there is always a time lag between the transmission of the record, the compiling of the cause list, and the publication of the cause list in the Gazette, The registrar also keeps appropriate registers in which he enters all appeals and I think his entries in the registers are relevant. Assuming the registrar has sent the cause list for publication in the Gazette but the notice has not appeared in the Gazette, would it be fair, notwithstanding the fact that all the documents are no longer before the court below, to insist that an applicant should make his application first to the court below? What would be the fate of his application if while awaiting the hearing of his application in the court below, the cause list appeared in the Gazette? He would be compelled to withdraw his application, and make a fresh application to this court. I think a more realistic approach should be adopted in such matters to avoid unnecessary costs. The proviso to rule 3 (1) reads: “Provided that the Court may in its discretion hear any appeal and deal with any other matter whether or not the same has been included in such cause list so published.” It seems to me therefore that publication of the cause list in the Gazette is not a sine qua non for the assumption of jurisdiction by this [p.385] of [1972] 2 GLR 380 court in considering applications pending the hearing of the substantive appeals. The publication of the cause list in the Gazette imposes a mandatory statutory duty on the registrar but the absence of publication does not operate as a hindrance in the path of the court. The court has a discretionary power to dispense with the Gazette notice. The court can avoid or over-step the statutory notice. If that is the case,
it would seem odd and unjust to shut out the present applicant because he did not wave in his hand before the court the Gazette notice of the cause list containing the substantive appeal. I also think that it is more desirable and convenient that when all the papers have been sent to the court, the court below should be relieved of further responsibility in the matter, whether or not the cause list has been published in the Gazette, and the court should apply the proviso to rule 3 (1) and hear such applications.
The preliminary objection is based on dicta in the Tormekpey v. Ahiable ruling (supra). In that decision the court stated as follows:
“It seems to us that the present application is plainly misconceived. The applicant has not indicated in his notice of action the rule under which his application is brought, but it is certainly not, and could not be, under rule 28 of the Supreme Court Rules, 1962.”
There is no direction or suggestion in that ruling that in all applications to this court, the specific rule
under which the application is brought must be included in the heading of the motion paper and the
affidavit. In the Tormekpey case, the applicant had applied to the court below for an order to enable him to pay a judgment debt by instalments. When the court below refused the application, he made a fresh application to this court for a similar order. When questioned by the court, the applicant was unable to inform the court under what enactment and under what rule he had made the application. Accordingly, his application was dismissed not because he had failed to mention the rule but because there was no such rule.
The other case of Khour v. Khoury [1971] 1 G.L.R. 348, C.A. relied on as authority for the preliminary
objection is irrelevant. In that appeal, the court after giving judgment for the appellant had ordered the receiver to hand over certain properties to the appellant without stating the period within which the order was to be carried out. The appellant applied to the court below to enforce the order but his application was refused. He then applied to this court for a similar order and the receiver was ordered to hand over forthwith. The court overruled an objection that the applicant had failed to state the enactment under which the application was made because the court had an inherent power to remedy any defect in its orders and also had a statutory power under rule 35 to enforce its orders. It would be seen that the cases of Khoury v. Khoury and Tormekpey v. Ahiable (supra) are totally irrelevant when one considers the facts of the present application.
[p.386] of [1972] 2 GLR 380 The substance of the motion paper and affidavit is that, “Notwithstanding the pendency of the appeal and cross-appeal in these consolidated suits, the plaintiff may be at liberty to levy execution of the judgment.”
Assuming that the plaintiff did not quote the rule of court governing the matter and did not mention rules 27 and 28 as he had done, would it have been proper and just to strike out his application because the heading was silent on the rule? I do not think his failure to cite the appropriate rule would have been fatal.
In the present application, the purpose of his application was clear in the motion paper and affidavit. Rule 27 which he quoted was relevant because that was the statutory stay of execution which his application was meant to oust. Rule 28 was irrelevant because the court below had no jurisdiction in the matter as provided by rule 21 as the appeal had been entered by the registrar. Nevertheless, he did not mention rule 21 in his application and in view of the preliminary objection, the plaintiff applied to amend the heading of his motion to substitute rule 21 for rule 28. The amendment was allowed because it would have been unjust and unfair to have disallowed the amendment which did not in any way transform the purpose or the object of the application. The amendment was so insubstantial that the application for leave to levy execution should have proceeded without any formal application to amend the rules cited. In this respect, the observations of Sir W. Scott in The Reward (1818) 2 Dod. 265 at pp. 269-270 become pertinent:
“the Court is not bound to a strictness at once harsh and pedantic in the application of statutes. The law permits the qualification implied in the ancient maxim, de minimis non curat lex. Where there are irregularities of very slight consequence, it does not intend that the infliction of penalties should be inflexibly severe. If the deviation were a mere trifle, which if continued in practice, would weigh little or nothing on the public interest, it might properly be overlooked.”
In any case, the defendants did not comply with rule 17 which requires notice of preliminary objection to be given, yet the court was gracious enough to listen to the objection.
The citing of rules of court in applications before the court is desirable but I would not say that it is so indispensable that failure to do so should rock the very foundations of the administration of justice.
Judges are not omniscient and, as one judge exclaimed a few centuries ago, “God forbid that any judge should know all the law.” When an application is made and the relevant rule is cited, it enables the court to ascertain whether the application is properly before it and also what powers it has under the rule. There are cases where an application is not governed by any rule of court or by the inherent jurisdiction of the court. In such cases the court has no hesitation in dismissing or striking out the application. But it seems to me that where the substance of an application is clear but the wrong rule has been quoted, an [p.387] of [1972] 2 GLR 380 applicant should be permitted to amend the rule in furtherance of justice. We live in a different judicial age but the maxim de minimis non curat lex goes marching on. In this respect, I wish to quote the lamentation of Lord Denning M.R. over such matters in Re Pritchard; Pritchard v. Deacon [1963] 1 Ch. 502 at p. 518, C.A.:
“My brethren take a different view. They think the defect is fatal, and that the widow must be driven from the judgment seat without a hearing. I greatly regret that this should be so. Quite recently in Pontin v. Wood ([1962] 1 Q.B. 594 at p. 609) Holroyd Pearce L.J. recalled the proud boast of Bowen L.J.: ‘It may be asserted without fear of contradiction that it is not possible in the year 1887 for an honest litigant in Her Majesty’s Supreme Court to be defeated by any mere technicality, any slip, any mistaken step, in his litigation.’ The present case, and some others which I have quoted, show that in this year, 1963, the assertion can no longer be made. We have not followed the handwriting of our predecessors. We have marred our copy-book with blots, and the more’s the pity of it.”
What should be the attitude of the courts in Ghana in 1972? It would have been manifestly wrong to
throw out this application and to have requested the plaintiff to bring a fresh motion; for, in the words of the former West African Court of Appeal in Chief Attua Kofie v. Kobina Attu, 17 June 1948, unreported, “it would be pursuing technicalities to an absurdity to hold that the appellant had to fulfil the formality all over again of filing a fresh motion paper,” in the court below.
The next point is why was the application for leave to go into execution granted subject to certain
conditions. The original rule 27 read:
“An appeal shall not operate as a stay of execution or of proceedings under the judgment or decision
appealed from except so far as the Court below or the Court may order, and no intermediate act or
proceeding shall be invalidated, except so far as the Court below or the Court may direct.”
This provision saddled a judgment debtor with the task of convincing the court that stay should be
granted. The onus of persuasion rested with him. But it seems the new rule introduced by L.I. 618 has eliminated this burden on the judgment debtor and has thrown it on to the judgment creditor. The new rule as provided by paragraph 2 of the Court of Appeal (Amendment) Rules, 1969 (L.I. 618), reads: “An appeal shall operate as a stay of execution or of proceedings under the judgment or decision appealed from except so far as the Court below or the Court may otherwise order.” Notwithstanding this statutory temporary shield, it seems that the legal principles on which stay may be refused have not changed. For instance, where there is a likelihood that the appeal will not succeed, or where the judgment debt and costs, if paid, will be recoverable on account of the ability of the judgment [p.388] of [1972] 2 GLR 380 creditor to repay it. It is not known what the learned trial judge’s attitude would have been if this application had been heard by him as he was more conversant with the facts of the case. The record of appeal was not available to this court. But a perusal of the copy of the judgment attached to the application would indicate that the judgment was based substantially on unequivocal admissions by the defendant and the co-defendant (the same person) in the two consolidated cases. In such a case it would be wrong to deprive the successful plaintiff of the fruits of his litigation. The plaintiff’s application was therefore granted. The damages and costs were to be paid into court within one month and in default the plaintiff was to go into execution.
JUDGMENT OF LASSEY J.A.
I am satisfied that my learned brother Archer J.A. has put on the right foundation in this application the proper and practicable way of applying the relevant rules under consideration, and I entirely endorse his views on the matter.
In my opinion, so long as the substance of the motion filed has in no way been altered as a result of the purported substitution for the correct rule applicable on the motion paper, this court has full power to entertain the oral application to amend once it is satisfied that the appeal has properly been entered in compliance with the rules of court.
It is for this reason that I concurred in the majority decision this court delivered earlier that leave should be granted to enable the applicant to go into execution.
JUDGMENT OF AZU CRABBE J.S.C.
This is an application by the successful party in the court below for an order of this court to go into
execution. The motion paper is headed as follows: “Notice of motion for leave to levy execution L.I. 618; para. 2; rr. 27 and 28 of L.I. 218.” In an affidavit supporting the application, the following relevant facts are alleged:
“(8) On 13 August 1971 the defendant and co-defendant by their solicitor filed an appeal against the whole said judgment. For my part I filed a cross-appeal against a part of the said judgment on 29 September 1971. (9) Both the first and second suits have had a long and chequered career in the courts, more especially the first suit. I have been much embarrassed throughout by creditors who lent me money which enabled me to fight these consolidated suits which took so long to determine. I urgently need all the damages and costs awarded me, and more besides to satisfy my creditors and lawyers. (10) The defendant and co-defendant are doing nothing to pay my said damages and costs by reason of the automatic stay of execution arising on their filing their appeal herein. [p.389] of [1972] 2 GLR 380 (11) By reason of the foregoing matters I pray that this honourable court may be pleased to grant me leave to go into execution for my damages and costs of these consolidated suits.” Rules 27 and 28 of the Supreme Court Rules, 1962 (L.I. 218), as amended by the Court of Appeal
(Amendment) Rules, 1969 (L.I. 618), provide that: [His lordship here read the provisions as set out in the headnote and continued:]
Counsel for the respondent, Mr. Kom, took a preliminary objection to the application based upon the
ground that it has not been alleged in the affidavit of the applicant that he had already made an
unsuccessful application to the court below, as provided by rule 28. Counsel referred us to the case of
Khoury v. Khoury [1971] 1 G.L.R. 348, C.A. where the court at p. 351 said:
“In Tormekpey v. Ahiable (supra) the functions of the Court of Appeal upon an application under rule 28 were stated as follows: ‘Rule 28 can be invoked only by a party who has made an application “in the first instance to the court below” under [any enactment], but it does not confer a right of appeal. An application under rule 28 is therefore a fresh application, and the Court of Appeal, in deciding whether or not to grant it, exercise its discretion in the matter, after assessing the facts and circumstances independently. The court does not sit primarily to review the exercise of a discretion by the court below’.” Mr. Bossman, counsel for the applicant, had no answer to the objection, but he asked leave of the court to amend the heading of the notice of motion by adding rule 21. Personally, I saw no good ground for granting leave to amend. In my view, rule 21 completely changes the fundamental nature of the application before the court, and it is not right to allow an amendment of this sort. The case of James v. Smith [1891] 1 Ch. 384, C.A., is not on all fours with the present case, but is, in my view, very close to it, and gives some assistance in determining the point which arises here. There, the defendant had pleaded section 4 of the Statute of Frauds, 1677 (29 Cha. 2, c. 3). The statute must be pleaded if intended to be relied upon as a defence, though it is not necessary to plead any particular section. At the close of the plaintiff’s evidence in support of the case raised by the statement of claim, the point of law raised by the pleadings was whether it was section 4 or section 7 that applied. Counsel for the plaintiff contended that section 4 of the Statute of Frauds, which had been pleaded, did not apply, and that section 7, which had not been pleaded, could not now be set up as a defence. But counsel for the defendant argued that section 4 was evidently inserted by mistake for section 7, and submitted that this was a case for amendment, since the rules were satisfied if the Statute of Frauds was pleaded—the particular section need not be pleaded.
Similarly, in this case, it could be argued that there is no need to state the particular rule under which the application has been [p.390] of [1972] 2 GLR 380 brought, it being sufficient to head the motion paper “Motion for leave to levy execution.” In dismissing the application for leave to amend in James v. Smith, Kekewich J. said at p.389:
“But then I have a point of pleading here to which my attention was only called at a very late stage so late as, in my mind, to make it exceedingly difficult to allow any amendment. By Order XIX., r. 15, the defendant is bound to plead the Statute of Frauds if he intends to rely on it—but the rule does not oblige him to plead the particular section. Here the defendant has pleaded the 4th section; and it is admitted now that on the 4th section he must fail, and that he must rely on the 7th section. Then I am asked at the last moment to allow an amendment to be made so that his defence may read that he will rely on the 7th section. I have said frequently, and I repeat it, that there is no judge on the Bench who is more willing to allow amendments even at the last moment than I, provided there is no surprise; but I think I should be going too far if I were to allow it in this action, and it would be introducing a laxity which I ought not to introduce. A party relics on a particular section of the statute, and when he finds the authorities to be against him he says, ‘I should like to
rely on something else.’ To sanction that would, it seems to me, make pleading even more loose than it is at present and I think I ought not to allow that amendment. Therefore, although I hold the 7th section of the Statute of Frauds to be applicable, I think it is not properly pleaded, and is not available to the Defendant.”
In this case I think that, even if rule 21 were available to the applicant, we ought not to allow the
amendment sought for the simple reason that we would, in the words of Kekewich J., be introducing a laxity in practice, which we ought not to encourage. A person can only have one bite at the cherry, but he cannot have two cherries at a gulp.
The problem in this case really turns on the answers to two questions. First, is the notice of motion a
nullity which is incurable, or is it a defective notice whose defect can be cured by amendment? Secondly, would the applicant clearly succeed on the proposed amendment? It is not always easy to define the difference between that which is a nullity, and that which is defective or a mere irregularity which can be cured. In MacFoy v. United Africa Co., Ltd. [1962] A.C. 152 at p. 160, P.C. Lord Denning said:
“The defendant here sought to say, therefore, that the delivery of the statement of claim in the long vacation was a nullity and not a mere irregularity. This is the same as saying that it was void and not merely voidable.
The distinction between the two has been repeatedly drawn. If an act is void, then it is in law a nullity.
It is not only bad, but incurably bad. There is no need for an order of the court to set it aside.” [p.391] of [1972] 2 GLR 380 One test which Lord Denning proposed is whether the other side can waive the flaw in the proceedings or can take some fresh step after knowledge of the flaw? Applying this test, it becomes clear that the present application is in violation of the provisions of rule 28, and this cannot be waived. Rule 28 presupposes that a similar application had already been unsuccessfully made in the court below, and it is conceded that the present application is not a repetition of an application before the court below.
In Re Pritchard; Pritchard v. Deacon [1963] Ch. 502, the English Court of Appeal, affirming a decision of Wilberforce J. (as he then was), held that an originating summons issued out of the Pontypridd District Registry was a nullity, because the rules required that it should be issued out of the central office. Upjohn L.J. said at pp. 523-524:
“I do not think that the earlier cases or the later dicta upon them prevent me from saying that, in my
judgment, the law when properly understood is that Ord. 70 applies to all defects in procedure unless it can be said that the defect is fundamental to the proceedings. A fundamental defect will make it a nullity. The court should not readily treat a defect as fundamental and so a nullity, and should be anxious to bring the matter within the umbrella of Ord. 70 when justice can be done as a matter of discretion, still bearing in mind that many cases must be decided in favour of the party entitled to complain of the defect ex debito justitiae.
Lord Denning in MacFoy ([1962] A.C. 152, 160, P.C.) pointed out that a useful test was whether the defect could be waived. I agree with that as a good common-sense test, but I also agree with Mr. Rubin that it cannot be a completely legal test, for until you have decided whether the proceeding is a nullity, you cannot decide whether it is capable of waiver.
The authorities do establish one or two classes of nullity such as the following. There may be others, though for my part I would be reluctant to see much extension of the classes. (i) Proceedings which ought to have been served but have never come to the notice of the defendant at all. This, of course, does not include cases of substituted service, or service by filing in default, or cases where service has properly been dispensed with: see, for example, Whitehead v. Whitehead (orse Vasbore) [1962] 3 W.L.R. 884, C.A.). (ii) Proceedings which have never started at all owing to some fundamental defect in issuing the proceedings. (iii) Proceedings which appear to be duly issued but fail to comply with a statutory requirement: see, for example, Finnegan v. Cementation Co. Ltd. ([1953] 1 Q.B. 688).
Now for the argument on this particular point. The whole question is whether the originating summons has been issued or not.”
I think that the present application falls within category (ii) of Upjohn L.J.’s classification, and that the proceedings in this case had [p.392] of [1972] 2 GLR 380 not been commenced at all owing to a fundamental defect. This court cannot entertain an application under rule 28, until it is shown by the applicant (i) that he had made a similar application to the court below, and (ii) that his application was refused. These are two conditions precedent to the exercise of this court’s jurisdiction in any proceedings under rule 28, and unless these are satisfied the commencement of proceedings pursuant to that rule would be a nullity. “In the generality of cases,” said their Lordships in
the Privy Council case of Elizabeth Anima v. Akwasi Ahyeye (1955) 1 W.A.L.R. 40 at p. 45, P.C.,
“jurisdiction depends on the existence or absence of prescribed circumstances,” and, therefore, the
question whether a court or tribunal has jurisdiction depends upon the facts into which it is to inquire and is determinable “at the commencement, not at the conclusion of the inquiry”: See R. v. Bolton (1841) 1 Q.B. 66 at p. 74. No court can make any effective order in any proceedings which are ab initio a nullity in order to confer jurisdiction upon itself: see Ohene Moore v. Akesseh Tayee (1934) 2 W.A.C.A. 43, P.C.
In Parsons v. Loyd (1772) 3 Wils. 341, Lord de Grey C.J. said at p. 345: “There is a great difference between erroneous process, and irregular, (that is to say void) process, the first
stands valid and good until it is reversed, the latter is an absolute nullity from the beginning, the party may justify under the first until it is reversed; but cannot justify under the latter because it was his own fault that it was irregular and void at first.”
Therefore, the commencement of any proceedings which is not warranted by any law or rule of procedure is void and is a nullity.
It is, however, said that the mistake in stating the correct rule on the notice of motion is a mere
technicality, and that this court ought to allow the amendment sought in order to do substantial justice between the parties. But, it seems to me, with respect, that it is only necessary to state that point in order to confute it.
I would not like to overburden this judgment with authorities, and, therefore, I would illustrate this
principle by referring to only a few relevant cases. In East End Benefit Building Society v. Slack (1891) 60 L.J.Q.B. 359, the question was whether upon an assignment of a judgment debt, the assignee can put into force all the rights and remedies of the judgment creditor against the debtor. Giving judgment in that case, in which the facts are fully stated, Pollock B. said at p. 360:
“He being assignee of the judgment creditor became, by section 25 subsection 6, of the Judicature Act, 1873, assignee of all the legal and other remedies of his assignor, and desired to put them in force. To do this he must comply with any provision that may be contained in the County Court Rules for such a case. Now, order 25, Rule 9 (a) of the Rules of 1889 clearly applies to his case. it provides that where any change has taken place after judgment, by death or otherwise, in the parties entitled to take proceedings to enforce the judgment, the person who alleges himself to be [p.393] of [1972] 2 GLR 380 entitled to execution must apply to the judge or Registrar for leave to issue execution … The assignee of the debt has failed to comply with this rule; the question then arises, can the proceedings be amended? I think not; the case of Brown v. The London and North Western-Railway Co. ((1863) 32 L.J.Q.B. 318) shews that, unless the rules are followed, there is no jurisdiction in the Judge to hear the case. In other words, compliance with the rules is a condition precedent.”
See also Benn v. Hagan (1922) D.Ct. ‘21-25, 16: Gyebu v. Lagos (1956) 2 W.A.L.R. 138; and Mosi v.
Bagyina [1963] 1 G.L.R. 337, S.C.
In Kojo Pon v. Atta Fua (1927) P.C. ‘74-’28, 95, the learned Lords of the Privy Council said at p. 97:
“Their Lordships wish to say that in cases coming before them from the Dominions of the Crown, their first consideration always is to secure, if possible, that substantial justice is done. That may not always be possible. There may be conditions in the local law or in the rules which preclude the possibility of getting round technical obstacles and doing complete justice.”
In Ohene Moore v. Akesseh Tayee, (supra) on an appeal coming on for hearing before the Provincial
Commissioner, objection was taken that the court had no jurisdiction to entertain the appeal on the ground that the order granting leave to appeal was irregular, the costs of the defendant in the court below not having been paid into the tribunal, nor had any sum of money sufficient to cover such costs been deposited as required by statute. The Provincial Commissioner, however, overruled the objection, and ordered that the plaintiff should at once pay the amount of the costs into his court, and upon such costs having been paid proceeded to hear the appeal and set aside the judgment of the native tribunal, and entered judgment for the plaintiff with costs. The defendant appealed to the West African Court of Appeal which set aside the decision of the Provincial Commissioner, and Deane C.J. said in the course of his judgment (1932) 1 W.A.C.A. 242 at p. 245:
“Had the appeal been properly before the Court any defect with regard to the conditions attendant on it might have been got round—but it was not, and in my opinion the only proper course for the Commissioner to take was to strike out the appeal and allow the appellant to obtain proper leave and then to hear it.”
The plaintiff also appealed unsuccessfully to the Privy Council, where their Lordships said in (1934) 2
W.A.C.A. 43 at p. 45, P.C.: “But the objection lies in limine, in that the Provincial Commissioner had no jurisdiction at all; . . . It is quite true that their Lordships, as every other Court, attempt to do substantial justice and to avoid technicalities;
but their Lordships, like any other Court, are bound by the statute law, and if the statute law says there shall be no jurisdiction in a certain event, and that event [p.394] of [1972] 2 GLR 380
has occurred, then it is impossible for their Lordships or for any other Court to have jurisdiction.”
In this case I cannot see any means of circumventing the technical obstacle which rule 28 has set up—the conditions precedent which form the indispensable foundation of the court’s jurisdiction. In my view, the purported notice of motion for leave to levy execution was fundamentally defective, and it cannot be cured by amendment of the rule under which it was originally brought. In fact there is nothing before this court which it can amend.
Finally, the application for leave to amend the notice of motion, assuming for the purpose of argument that this court has jurisdiction, demands the exercise of the court’s discretion, and it must, therefore, be shown that the exercise of that discretion to allow the amendment must result in success for the applicant.
Rule 21 reads [His lordship here read the provisions as set out in the headnote and continued:] It is plain that this court only becomes seised of the whole proceedings of the appeal after an appeal has been entered. At what stage in the proceedings is an appeal said to be entered? The first step in an appeal is for the losing party in the court below to file a notice of appeal, setting forth the grounds of the appeal, in the registry of the court below. And where an appeal lies by special leave only, an application for that purpose is made either to this court or to the court below within fourteen days from the date of the judgment against which the leave is sought. If leave is granted, the appellant files his notice of the appeal as already indicated above. It then becomes the duty of the registrar of the court below to serve copies of the notice of appeal on persons mentioned in the notice of appeal. Thereafter, the registrar of the court below summons the parties before him to settle the record of appeal, and when this is concluded, the registrar shall direct the appellant to deposit, within a fixed time, a sum of money or give security therefor by bond with one or more sureties for the due prosecution of the appeal, and for any costs which may be ordered to be paid by the appellant. Rule 15 states as follows:
“(1) The Registrar of the Court below shall transmit the record when ready together with —
(a) a certificate of service of the notice of appeal;
(b) a certificate that the conditions imposed under rules 12 (4) and 13 have been fulfilled;
(c) five or three copies as the case may be of the record for the use of the Judges;
(d) the docket or file of the case in the Court below containing all papers or documents filed by the parties in connection therewith. (2) The Registrar of the Court below shall also cause to be served on all parties mentioned in the notice of appeal a notice that the record has been forwarded to the Registrar, who shall in due course enter theappeal in the cause list mentioned in rule 3 (1).” [p.395] of [1972] 2 GLR 380 It seems plain from rule 3 (1) that an appeal is “entered” when the registrar of this court publishes in the Ghana Gazette a cause list at least two weeks before the date appointed for the hearing of the first of the causes and matters contained in such list. This stage in the proceedings is only reached after due compliance with rule 15 (1).
In this case the only evidence, so far disclosed, in the affidavit of the applicant, is that both the defendant and co-defendant have filed an appeal, and that the applicant has also filed a cross-appeal. There is not a shred of evidence before this court that rules 12 (4), 13 and 15 (1) have been complied with. Further, the facts alleged in paragraph (9) of the applicant’s affidavit show that the applicant is impecunious and is not in a position to refund the damages and costs in the event the appeal succeeds in this court. In these circumstances, it has not been shown that the exercise of the court’s discretion to allow the amendment must result in success for the applicant, and the amendment should be refused.
It is for the above reasons that I dissent albeit with respect from the decision of the other members of the court, and I would, for my part, refuse leave to amend the notice of motion, and would dismiss the application for leave to go into execution.
DECISION
Application granted.
