DIVISION: IN THE SUPREME COURT
DATE: 8TH APRIL, 1963
BEFORE: VAN LARE, MILLS-ODOI AND AKUFO-ADDO JJ.S.C.
CASES REFERRED TO
(1) Craig v. Kanseen [1943] 1 K.B. 256; [1943] 1 All E.R. 108; 112 L.J.K.B. 228; 168 L.T. 38, C.A.
(2) Kofi Forfie v. Kwabena Seifah [1958] A.C. 59; [1958] 1 All E.R. 289, P.C.
(3) Amoabimaa v. Badu (1957) 2 W.A.L.R. 214, W.A.C.A.
(4) Concession Enquiry No. 471 (Ashanti); African Woods Ltd. v. Administrator of Stool Lands
[1962] 2 G.L.R. 24, S.C.
(5) Ghassoub v. Dizengoff [1962] 2 G.L.R. 133, S.C.
(6) Anlaby v. Praetorius (1888) 20 Q.B.D. 764; 4 T.L.R. 439; 57 L.J.Q.B. 287; 58 L.T. 671, C.A.
(7) MacFoy v. United Africa Co., Ltd. [1961] 3 All E. R. 1169, P.C.
NATURE OF PROCEEDINGS
APPEAL against a refusal by Crabbe J., sitting in the High Court, Sunyani, to set aside an order for the
issue of a writ of possession made by Mr. Commissioner Christian in the High Court, Sunyani, for the
enforcement of a judgment of the Goaso Native Court
COUNSEL
Victor Owusu for the appellant.
No appearance by or on behalf of the respondent.
JUDGMENT OF AKUFO-ADDO J.S.C.
The appellant was the defendant to an action instituted by the respondent in the Native Court of
Goaso/Ahafo in Asante in 1958 in respect of a piece of farm land which she, the respondent, alleged had
been unlawfully occupied by the appellant. The Native Court of Goaso/Ahafo entered judgment in favour
of the respondent for “possession of the disputed land with costs to be taxed.” The appellant appealed
from that judgment to the Asantehene’s Appeal Court which affirmed the decision of the trial native
court. A further appeal to the High Court, Sunyani, was dismissed by Scott J. on the 12th May, 1959.
On the 14th September, 1959, Mr. H. K. Prempeh (then at the Bar) applied to the High Court, Sunyani, on
a motion ex parte on behalf of the respondent “for an order of this court for writ of possession to be issued for the enforcement of a judgment of the Goaso Native Court as varied by the Asantehene’s Appeal Court and confirmed by the Land Court, Sunyani, and for
any further order or orders as to this court may seem fit.”
(The variation of the judgment by the Asantehene’s Appeal Court referred to in the terms of Mr.
Prempeh’s application quoted above did not affect the judgment for possession given in favour of the
respondent by the Goaso/Ahafo Native Court and it is of no importance in this appeal).
The application was heard by Mr. Howard Christian, then a Commissioner of Assize and Civil Pleas, who
ordered as follows: “Leave granted as prayed,” meaning no doubt that the respondent was free to proceed
[p.340] of [1963] 1 GLR 337
with the execution of the order for possession made by the Goaso/Ahafo Native Court by the issue out of
the High Court, Sunyani, of a writ of possession. A writ of possession was subsequently issued out of the
High Court, Sunyani, and executed in September 1959.
On the 1st December, 1960, Mr. Victor Owusu, counsel on behalf of the appellant, applied to the High
Court, Sunyani, by motion on notice to the respondent, “asking this Honourable Court to set aside the writ
of possession issued to the plaintiff.”
The grounds put forward by the appellant’s counsel in support of the application to set aside the order for
the issue of the writ of possession were: (a) That the order was irregular because it was obtained ex parte,
and (b) That the High Court had no jurisdiction to order the issue of the writ, because the decree for
possession was made by the Goaso/Ahafo Native Court which was the proper court in which to issue out
the writ. For the respondent it was contended by her counsel that the application, being one for the review of an
order made by Mr. Howard Christian, could be heard by Mr. Commissioner Christian only and that in any
case it was incompetent for being out of time under the provisions of Order 39, rr. 1 and 8 (3) and that the
order for the issue of the writ was regularly made in accordance with the provisions of Order 47, r. 1 (1)
of the Civil Procedure Rules, 1954. Crabbe J. (as he then was) heard the application and on the 23rd January, 1961, refused it in the following terms:
“This is an application to set aside a writ of possession issued to the plaintiff-respondent by an order made by
H. J. Christian, Esq., Commissioner of Assize and Civil Pleas (as he then was). It is a peculiar kind of
application and it does not state the Order of the Supreme Court (Civil Procedure) Rules, 1954, under which
this court is being moved.
If this is an appeal from the decision of the Commissioner of Assize and Civil Pleas then the High Court has
no jurisdiction to entertain such appeal.
If it is an application for a review of Mr. Christian’s order of the 4th September, 1959, then the applicant is
out of court, because under Order 39, r. 2 such application should be made to the same judge who made the
order. This application is clearly misconceived and it is refused.”
This appeal which has been brought against Crabbe J.’s refusal to set aside the order for the issue of the
writ is founded on the following grounds:
“(a) The learned judge erred in dismissing the application for the reasons he gave because the application
was neither an appeal nor one for a review but an application to set aside wholly irregular proceedings
obtained ex parte and by default when it should have been on notice and in accordance with the
procedure laid down by Order 47 and Order 70, rr. 1 and 2.
(b) That the Land Court has no jurisdiction sitting as an appellate court to issue a writ of possession in
respect of a decree for possession ordered by a native trial court. The judgment of the Land Court did
not order possession to be given to anybody.
[p.341] of [1963] 1 GLR 337
(c) That the order of possession issued by the Land Court gives the plaintiff a much bigger portion of
land than that proved by her and awarded by the native trial court, and therefore the writ is bad and
should be set aside.”
Learned counsel’s contention in this court that the reasons assigned by the learned judge of the court
below for refusing the application are untenable appears to me to be well-founded, but his further
contention that the order for the issue of the writ was irregular by reason of its having been obtained ex
parte and in alleged contravention of the rules of Order 47 is wholly wrong. The irregularity of the
proceedings for the order complained of does not emanate from the fact of the order having been obtained
ex parte, for Order 47, r. 1 specifically gives the High Court the power in an appropriate case to make an
order on an ex parte application, and reference in the rules of Order 47 to the service of “notice of the
proceedings” are references to the proceedings which culminated in the judgment or order for possession
and not to the proceedings relating to the application for leave to issue out a writ of possession. Whereas
in this case the party against whom the writ was sought did appear at the trial and defended the suit, there
was no question of serving him with notice of the proceedings (that is the proceedings of the trial at
Goaso/Ahafo court) the object of such notice being to bring to the knowledge of the party affected the
existence of the judgment or order for possession. Such a notice is only called for where the party
affected, although sued, did not appear at the trial and therefore did not know of the result of the action,
or where a third party is in possession of land in the right of the party against whom an order for
possession has been made.
If therefore the court below had jurisdiction to make the order for the issue of the writ of possession then
the procedure followed in this case would be regular as one sanctioned by Order 47, and the most
important point which counsel has raised for consideration is whether the High Court had power or
jurisdiction in the circumstances of this case to act under Order 47.
In my view the High Court acts under Order 47 only where, either in its original or in its appellate
jurisdiction, it has itself made an order or given a judgment for the recovery or delivery up of possession.
The High Court does not decree or order possession or give judgment for the recovery or delivery up or
possession where it, in its appellate jurisdiction, merely affirms a decree or order or judgment for
possession made by a lower court.
It follows therefore that Mr. Commissioner Christian sitting in the High Court, Sunyani, had no
jurisdiction to order the issue of the writ of possession, and the order is therefore void. That being the
case, what remedy was open to the appellant who was affected by the order?
In considering this point it is necessary to state that the learned judge misconceived the nature of the relief
sought by the appellant by his application to have the order set aside. While the learned judge was right
[p.342] of [1963] 1 GLR 337
in saying that he could not sit on an appeal against the order of Mr. Commissioner Christian nor entertain
an application for the review of the learned commissioner’s order, the application before him was neither
in the nature of an appeal nor one that called for the exercise of appellate jurisdiction and it certainly was
not one for a review of the order. It must be said, however, in passing that the judge’s misconception of
the nature of the relief sought was contributed to in no small measure by junior counsel who held brief for
Mr. Owusu at the hearing of the application and who was apparently unable to specify the foundation for
the relief sought by him.
The law, as I have always understood it, is that where a court or a judge gives a judgment or makes an
order which it has no jurisdiction to give or make or which is irregular because it is not warranted by any
enactment or rule of procedure, such a judgment or an order is void, and the court has an inherent
jurisdiction, either suo motu or on the application of the party affected, to set aside the judgment or the
order. The law does not limit the exercise of this inherent jurisdiction, as it does in the case of a review, to
the judge who actually gave the judgment or made the order. The jurisdiction is vested in the court qua
court, and may be exercised, but not necessarily, by the judge who gave the judgment or made the order.
In the English case of Craig v. Kanseen1 the plaintiff obtained judgment in his action on the 12th January,
1937, and on the 18th January, 1940, an order was made giving the plaintiff leave to proceed to
execution. The summons upon which the order was made was not served on the defendant. Subsequently
a master on an application by the defendant, set aside the order as being irregular, but on appeal to a judge
in chambers the latter reversed the decision of the master on the ground that the order should have been
challenged by an appeal and not by an application to set it aside. On further appeal to the Court of Appeal
that court held that the order being one not warranted or sanctioned by any law or rule of procedure was a
nullity and not a mere irregularity, and that the party affected was entitled ex debito justitiae to have it set
aside. Lord Green M.R. in his judgment, after considering a number of cases on the subject, said2:
“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 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.”
This statement of the law was approved and applied by Her Majesty’s Privy Council in the Ghanaian case
of Kofi Forfie v. Kwabena Seifah.3 In that case Mr. Spooner, president of the Chief Commissioner’s
Court, Asante, heard an appeal and gave judgment on the 10th May, 1949. It
[p.343] of [1963] 1 GLR 337
turned out that on that date, unknown to Mr. Spooner then, his appointment as the president of the Chief
Commissioner’s Court had been revoked by the Governor, and that meant that the judgment delivered by
him on the 10th May, 1949, was delivered entirely without jurisdiction, although the actual hearing of the
appeal by him was in order. Mr. Spooner was subsequently re-appointed president by the court and he
summoned the parties to appear before him on the 29th May, 1949, and on that date he set aside the
judgment of the 10th May, 1949, and re-delivered it, founding his action on the power of review vested in
him by Order 41 of the Third Schedule to the Courts Ordinance (now repealed).4
The West African Court of Appeal before which the matter came on appeal held that as the judgment of
the 10th May, 1949, was a nullity, the purported review and the judgment of the 29th May, 1949, were
also a nullity. On further appeal Her Majesty’s Privy Council5 held that apart altogether from the existence of any
power of review expressly vested in a court or a judge, a court had the inherent jurisdiction to set aside
any orders made by it which were void either because such orders were made without jurisdiction or
because they were fundamentally defective in not being authorised by any law or rule of procedure. Their
Lordships of the Privy Council stated that the fact that Mr. Spooner attributed his authority for the
procedure adopted by him to the power of review vested in him by Order 41 aforesaid did not detract
from the legality of his action if it should turn out that he could not properly review his previous void
judgment under the said Order 41, because in any case he had the inherent power to correct his errors.
In the case of Amoabimaa v. Badu6 the West African Court of Appeal, purporting to act under section 8
of the West African (Appeal to Privy Council) Order in Council, 1949,77 on the application of the
would-be appellants to the Privy Council (the defendants in the action) for an order for stay of execution
of a judgment for the recovery of possession of land, ordered possession of the land to be delivered to the
plaintiffs in terms of the judgment upon the condition that the plaintiffs gave security for the due
performance of such orders as the Privy Council might make in the appeal. The defendants’ application
for stay of execution was filed on the 31st July, 1956 and final leave to appeal to the Privy Council had
been granted on the 27th July, 1956. Section 8 of the West African (Appeal to Privy Council) Order in
Council, 1949,8 empowered the West African Court of Appeal.
“when granting leave to appeal, either to direct that the said judgment shall be carried into execution or that
the execution thereof shall be suspended pending the appeal, as to the Court shall seem just, and in case the
Court shall direct the said judgment to be carried into execution, the
[p.344] of [1963] 1 GLR 337
person in whose favour it was given shall, before the execution thereof, enter into good and sufficient
security, to the satisfaction of the Court, for the due performance of such Order as His Majesty in Council
shall think fit to make thereon.” The application was actually heard, and the aforesaid order made, on the 30th October, 1956. On the 28th November, 1956, the West African Court of Appeal differently constituted considered its powers under
section 8 aforesaid and concluded that it had no power to act under that section when an application for
stay of execution was made after the grant of final leave, that is the court could only act at the same time
as it granted leave to appeal.
On the strength of this decision the plaintiffs in the Amoabimaa case applied to the West African Court of
Appeal (differently constituted from the court that made the order of the 30th October, 1956) on the 28th
January, 1957, to have set aside the court’s order of the 30th October, 1956. In setting aside that order
Coussey P. reading the ruling of the court said99:
“As we have already held, as set out in the ruling above referred to, that this court may give directions as to
execution or otherwise of the judgment appealed from only at the time that final leave to appeal is granted, it
follows that the order made herein on October 30, 1956, upon an application filed four days after the grant of
leave to appeal was irregularly made. 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.”
In the case of Concession Enquiry Number 471 (Ashanti); African Woods Limited v. The Administrator
of Stool Lands,10 Simpson J. sitting in the High Court, Kumasi, had declined to sign a certificate of
validity which two judges (Mr. Commissioner Christian and Mr. Commissioner Gwira) sitting in the High
Court, Kumasi, had previously ordered to issue on the ground that the two learned commissioners in
making the orders aforesaid acted without jurisdiction in that the concession did not fulfil the
requirements necessary for its validity under the Concessions Ordinance.11 Objection on appeal was
taken to Simpson J.’s refusal to sign the certificate of validity in that in basing his refusal on the grounds
stated above the learned judge was arrogating to himself an appellate jurisdiction over the orders of the
learned commissioners or a power of review of the said orders neither of which, it was contended for the
claimant-appellants, he was competent in law to do.
Simpson J. in refusing to implement the orders of the learned commissioners said, “In my opinion the
proceedings before him [i.e. Mr. Commissioner Gwira] were a nullity and I am unable to issue a
certificate of validity in accordance with an order made in such proceedings.”
[p.345] of [1963] 1 GLR 337
This court upheld Simpson J.’s ruling on the ground that what he did was neither hearing an appeal from
the orders of the learned commissioners nor reviewing such orders, and that since his jurisdiction to issue
the certificate of validity and the learned commissioners’ jurisdiction to order the issue of it depended on
whether or not the statutory requirements under the Concessions Ordinance had been complied with he
was right in satisfying himself of his jurisdiction and in so doing to determine whether the learned
commissioners had jurisdiction to make the orders. It should be noted that the effect of Simpson J.’s
refusal to sign the certificate of validity was to set aside the orders of the two learned commissioners, but
this he had the right to do in the exercise of the court’s inherent jurisdiction to set aside its own void
orders. In the recent case of Ghassoub v. Dizengoff12 heard by this court Mr. Commissioner Christian sitting in
the High Court, Kumasi, on the hearing of a registrar’s summons issued in pursuance of Order 62 of the
Civil Procedure Rules, 1954, of the High Court entered judgment for the plaintiff in complete disregard of
the rules of procedure. The defendant’s application to another judge of the High Court, Kumasi, to set
aside that judgment was refused mainly on the ground that the defendants had not acted timeously. On
appeal to this court, this court in its judgment of the 12th November, 1962, held that inasmuch as the
order for judgment was not warranted or sanctioned by any law or rule of procedure that order was
without jurisdiction and therefore void; and that the defendants who were affected by the void order for
judgment were entitled ex debito justitiae to have that order set aside. This court further held that there
was no time limit in which an application could be made to set aside the order, for no lapse of time could
render valid that which was void ab initio. Subsequent to the ruling of Crabbe J. on the 23rd January, 1962, which forms the subject-matter of this appeal, the appellant applied to the learned judge for special leave to appeal from that ruling, and
although the proceedings upon that application have no immediate relevance to the determination of this
appeal it seems necessary to make reference to those proceedings in order to clear up some apparent
confusion regarding the nature of irregularity that calls for the exercise of the court’s inherent jurisdiction
in setting aside its void orders. In the application for special leave to appeal learned counsel for the appellant, on being asked under what rule of procedure he made his original application to have the order set aside, stated that the application
was made under Order 70, r. 1 of the Civil Procedure Rules. Upon that basis the learned judge, in refusing
the application for special leave to appeal, held that the original application to set aside the order had not
been made within a reasonable time.
It is not easy to appreciate why counsel for the appellant relied on Order 70, r. 1 for his original
application to set aside the order, for that provision was wholly inapplicable to the circumstances of this
matter.
[p.346] of [1963] 1 GLR 337
Order 70, it should be noted, is headed “Effect of non-compliance,” and the provisions thereof are
applicable only to a case of irregularity, often called “a mere irregularity,” arising out of failure on the
part of a party to comply with some specific rule as opposed to an irregularity in the court doing
something which has no warrant in law or in the rules of procedure. The former irregularity which does
not render void any proceedings based thereon, but which is merely voidable, is capable of being waived,
and setting aside any order arising out of such an irregularity is a matter for the court’s discretion,
whereas the latter class of irregularity renders void any order or judgment emanating therefrom, and
setting aside such an order or judgment being ex debito justitiae a court or a judge has no discretion in the
matter but is under a legal obligation to set it aside.
In Anlaby v. Praetorius13 Lopes L.J., dealing with an argument based on Order 70, r.1 said:
“I entirely agree that Order 70, r. 1, does not apply here. It was meant to apply where a party had made some
blunder in his proceedings, as by delivering a pleading too late; but the present case seems to me altogether
outside the operation of r. 1, because the judgment was entered prematurely, without any right whatsoever.
To obtain that judgment was a wrongful act, not an act done within any of the rules. The defendant is
therefore entitled ex debito justitiae to have it set aside.”
An example of a voidable irregularity falling within the purview of Order 70, r. 1 and one that calls for
the exercise of the court’s discretion when an application is made to it to set aside will be found in
MacFoy v. United Africa Company Ltd.,14 a Sierra Leonean case decided on appeal by Her Majesty’s
Privy Council. In that case the plaintiff delivered a statement of claim during the long vacation which
according to the relevant rule of procedure in Sierra Leone could not be done without the court’s
direction. The defendant failed to deliver a defence and the plaintiff proceeded to obtain judgment in
default of pleading. On appeal to the West African Court of Appeal the defendant took the point that the
judgment must be set aside because the delivery of the statement of claim in the long vacation was a
nullity, and the judgment founded thereon was therefore a nullity. The West African Court of Appeal
refused to set aside the judgment, and Lord Denning, delivering the advice of the Privy Council, affirming
the decision of the West African Court of Appeal, said15:
“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. It is automatically
[p.347] of [1963] 1 GLR 337
null and void without more ado, though it is sometimes convenient to have the court declare it to be so.
And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. So will this judgment collapse if the statement of claim was a nullity. But if an act is only voidable, then it is not automatically void. It is only an irregularity which may be waived. It is not to be avoided unless something is done to avoid it. There must be an order of the court setting it aside: and the court has a discretion whether to set it aside or not. It will
do so if justice demands it but not otherwise. Meanwhile it remains good and a support for all that has
been done under it. So will this statement of claim be a support for the judgment, if it was only voidable
and not void.” The learned Lord went on to say16:
“. . . the delivery of a statement of claim in the long vacation is only voidable. It is not void. It is only an
irregularity and not a nullity. It is good until avoided. In this case, the statement of claim not being avoided,
it took effect at the end of the long vacation and the time for defence then began to run. Likewise when the
plaintiffs signed judgment in default of defence, that too was voidable but not void. It was not a nullity. It
was therefore a matter for the discretion of the court whether it should be set aside or not.”
It should be noted that it is not always easy to draw the line separating a mere irregularity from what is a
nullity, but that difficulty does not detract from the primary necessity for a clear judicial appreciation of
the two classes of irregularity. From the cases referred to herein the law may be summarised thus:
(1) Where a judgment or an order is void either because it is given or made without jurisdiction or
because it is not warranted by any law or rule or procedure, the party affected is entitled ex debito
justitiae to have it set aside, and the court or a judge is under a legal obligation to set it aside. No
judicial discretion arises here.
(2) The power of the court or a judge to set aside any such judgment or order is derived from the
inherent jurisdiction of the court to set aside its own void orders and it is irrespective of any
expressed power of review vested in the court or a judge; and the constitution of the court is for this
purpose immaterial.
(3) There is no time limit in which the party affected by a void order or judgment may apply to have it
set aside.
(4) The provisions of Order 70 apply to such an irregularity as does not render void any proceedings
based thereon; such an irregularity is only voidable and may be waived; an application to set it
aside must be made within a reasonable time. In this case the court or a judge has a discretion to set
aside the offending order, and may impose conditions for any orders made upon an application to
set it aside.
[p.348] of [1963] 1 GLR 337
It follows from the premises that Crabbe J. was fundamentally wrong in refusing to set aside Mr.
Commissioner Christian’s order for the issue of the writ of possession.
I would therefore allow the appeal and set aside the ruling of Crabbe J. of the 23rd January, 1961,
together with the order as to costs, and in pursuance of the powers vested in this court by rules 31 and 32
of the Supreme Court Rules, 1962,17 I would set aside the order of Mr. Commissioner Christian of the
14th September, 1959, and declare null and void the writ of possession issued in virtue of that order and
all acts done in pursuance thereof.
JUDGMENT OF VAN LARE J.S.C.
I agree.
JUDGMENT OF MILLS-ODOI J.S.C.
I also agree.
DECISION
Appeal allowed.
J D.
