HIGH COURT, ACCRA
DATE: 30 October 1970
ABBAN J
NATURE OF PROCEEDINGS
MOTION by the defendant for an order to strike out a writ of summons either under Order 25 of the Supreme [High] Court (Civil Procedure) Rules, 1954 or under the court’s inherent jurisdiction.
COUNSEL
H.V. A. Franklin for the applicant.
J.E. Quashie-ldun for the respondent
JUDGMENT OF ABBAN J.
In this application, the defendant is asking for an order striking out the writ of summons or dismissing the suit either under Order 25, r. 4 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), or under the court’s inherent jurisdiction on the ground that both the writ and the statement of claim do not disclose any reasonable cause of action. The writ of summons states as follows:
“The Plaintiffs’ claim against the defendant is a declaration that until rules regulating civil appeals to the Supreme Court have been made, the defendant is not entitled to go into execution against the plaintiffs for the balance of the judgment debt awarded to the defendant by the Court of Appeal in C.F.A.O. v. Zacca.
In the alternative, the plaintiffs claim against the defendant an order that the defendant furnish good and sufficient security to the plaintiffs to cover the whole of the said judgment debt and costs before the plaintiffs are called upon to satisfy the said balance of the judgment debt.
[p.163] of [1971] GLR 161
And the plaintiffs also claim an injunction restraining the defendant from going into execution pending the hearing of the plaintiffs’ appeal by the Supreme Court or until the defendant furnish a good and sufficient security to the plaintiffs to cover the said judgment debt and costs.”
From the pleadings and from the affidavits filed herein, the following facts are not in dispute. That is, the plaintiffs sued one S. Zacca in the High Court, Kumasi, suit No. D.C. 215/62 for certain sums of money alleged to be the balance of instalments due on a hire-purchase price and cost of labour done and materials alleged to have been sold to the said S. Zacca.
On the application of the said S. Zacca, the present defendant-applicant was joined as a third party to that quit. The defendant-applicant, as a third counterclaimed for damages against the plaintiffs for unlawful seizure of the tractor by the plaintiffs, the, tractor being the subject of the said hire-purchase agreement. The High Court, Kumasi, heard the case and gave its judgment. Both the plaintiffs and the defendant-applicant (as the third party) however appealed against the said judgment of the High Court, Kumasi, to the then Court of Appeal. The defendant-applicant’s main ground of appeal was against the damages awarded as being inadequate. On 15 August 1969, the Court of Appeal in its judgment (Zacca v. C.F.A.O. unreported; digested in (1969) C.C. 156) dismissed the plaintiffs’ appeal and allowed the applicant’s appeal on the question of damages. That is, the Court of Appeal increased the damages to the tune of N¢49,600.00 in favour of the defendant-applicant with costs assessed at. N¢194. 00,
After this judgment, the solicitors for the plaintiffs and the solicitor for the present applicant had discussions as to the payment of the judgment debt and costs. Since the plaintiffs intended at that time to apply to the full bench of the then Court of Appeal for a review of the judgment of 15 August 1969, the solicitor for the defendant-applicant herein agreed and accepted N¢30,000.00 out of the judgment debt “as a deposit against the total judgment debt” pending the, hearing and the outcome of the said application for a review.
It must be pointed out that this arrangement for the payment of the N¢30,000.00 as a deposit took place before the passing of the Constitution, 1969, even though the amount was paid after the Constitution had come into existence. The Constitution came into existence on 22 August 1969 and up to that date the plaintiffs had not filed their said application. The plaintiffs, however, in or about June 1970, filed motion before the present Court of Appeal for a review of the judgment of 15 August 1969. The application was heard and dismissed on the 20 June 1970. In the mean time the defendant-applicant filed his writ of fi.fa. in the High Court, Kumasi, intending to go into execution against the plaintiffs for the sum of N¢19,000.00 being the balance of the judgment debt. In consequence thereof, the plaintiffs issued out the present writ of summons and the material parts of their statement of claim are paragraphs (5), (6), (7), (8)
[p.164] of [1971] GLR 161
and (9) and they read as follows:
“(5) After the payment and in view of the provision in the Constitution for the creation of a Supreme Court, the plaintiffs considered the possibility of filing an appeal against the judgment of the Court of Appeal as soon as it was constituted and rules therefor made. The fact was made known to the respondent’s solicitor.
(6) In view of the fact that by June 1970 the said court had not been constituted nor rules made, the plaintiffs filed a motion for review which was heard by the Court of Appeal (A copy of the ruling of the court is attached hereto marked A).
(7) It is the plaintiffs’ intention to file an appeal to the Supreme Court as soon as it is possible to do so.
(8) The defendant-judgment-creditor who has been paid more than half the judgment debt is a foreigner, has no fixed or visible assets in this country and who may leave this jurisdiction at any time.
(9) Under these circumstances it will be impossible to recover both the deposit and the balance due of the judgment debt if the appeal succeeds.”
In view of the undisputed facts as stated, supra, counsel for the defendant-applicant, briefly submitted that this court has no jurisdiction to make the declaration sought in the writ of summons. Similarly, counsel contended that this court cannot grant the alternative relief neither can it grant an interim injunction restraining the defendant-applicant from going into execution in respect of the judgment of the Court of Appeal. Counsel further submitted that in any case, even though the plaintiffs may have the intention to appeal to the Supreme Court that court has no jurisdiction to entertain the appeal. Counsel for the plaintiffs in his reply, argued that both the alternative relief, and the claim for injunction depended on the declaration being sought. Counsel therefore submitted that the defendant cannot take objection against the writ simply because a declaratory judgment or order is being sought. In the circumstances counsel contended that the action can be maintained. He also submitted that the Supreme Court is competent to entertain the plaintiffs’ appeal intended to be filed.
I think the most important question for me to decide is whether the plaintiffs still have a right of appeal to the Supreme Court in respect of the judgment of the old Court of Appeal. The judgment in question was delivered on 15 August 1969, when the Constitution, 1969, had not come into being and at a time the then Court of Appeal was the final court of appeal in the land. Since the plaintiffs after this judgment never applied to the full bench of the old Court of Appeal for the review. I am of the opinion, that the matter was finally closed on 22 August 1969 the day the Constitution came into force and that the plaintiffs cannot now claim to have a right of appeal to the Supreme Court as created by the Constitution. The appellate jurisdiction of the Supreme Court as provided under article 105(1) of the Constitution is exercisable only in respect
[p.165] of [1971] GLR 161
of appeals from the Court of Appeal as established by the Constitution and cannot be exercised in connection with appeals from the then Court of Appeal which was in existence immediately before 22 August 1969.This is made quite clear in article 172 of the Constitution which deals with interpretation. “Court” has been interpreted in article 172 to mean “a Court of competent jurisdiction established by or under the authority of this Constitution.” It also defined “judgment” to include orders or decrees of such a court. It follows that the words “Court of Appeal” in article 105(1) do not refer to the old Court of Appeal and the word “judgment” in that article does not include judgments of the Court of Appeal which was in existence immediately before 22 August 1969.
The plaintiffs would have been in a different position and the Supreme Court would have definitely entertained their said appeal if after their appeal had been dismissed on 15 August 1969, they had filed motion for review by the full bench of the old Court of Appeal and such an application had been pending before the court at the time the Constitution came into being.
Section 13 (2) of Schedule I, the Transitional Provisions of the Constitution, provides: “Where at the commencement of this Constitution there is any matter for review before a full bench of the Court of Appeal in being immediately before any such commencement, that matter for review shall be deemed to be an appeal pending before the Supreme Court as established under the provisions of this Constitution.”
Since the plaintiffs had not such motion for review pending before the full bench of the then Court of Appeal on 22 August 1969, the plaintiff cannot hitherto invoke the aid of section 13 (1) of Schedule I, of the Transitional Provisions of the Constitution. It is therefore clear that whether the rules regulating civil appeals to the new Supreme Court are made or not, the plaintiffs have no right of appeal to the said court; and that so far as this intended appeal is concerned, the doors of the Supreme Court will remain perpetually closed against them.
The plaintiffs brought the present action on the presupposition that the new Supreme Court can entertain appeal from the old Court of Appeal. Now that I have held otherwise, it follows that there is no legal basis for instituting the action and the action is grossly misconceived. In the result, I hold that both the writ and the statement of claim do not disclose any good or sufficient cause of action. Indeed the action is manifestly frivolous and vexatious. Consequently I am compelled to dismiss the action and the same is accordingly dismissed. The defendant will have his costs assessed at N¢200.00.
DECISION
Application granted.
Action dismissed.
B. T. A.
