BRONI AND ANOTHER vs. ANTWI AND ANOTHER [1997-98] 1 GLR 337

CASES REFERRED TO

(1) Attorney-General v Corporation of Birmingham (1880) 15 ChD 423, CA.

(2) Yeboah v Bofour [1971] 2 GLR 199, CA.

(3) Cropper v Smith (1864) 26 ChD 700

NATURE OF PROCEEDINGS

APPEAL by the defendant-appellants to the Supreme Court from the decision of the judicial committee of the National House of Chiefs declining jurisdiction to entertain the defendants’ appeal against the decision of the Eastern Regional House of Chiefs in a chieftaincy dispute on the ground that the misdescription of the defendants as “the respondents” and the plaintiffs as “the appellants” in the notice of appeal had rendered the defendants’ appeal incurably defective. The facts are sufficiently stated in the judgment of the court delivered by Aikins JSC.

COUNSEL

Asamoah Totoe for the defendant-appellants.

Frimpong-Boadu for the plaintiff-respondents.

JUDGMENT OF AIKINS JSC

Aikins JSC delivered the judgment of the court. On 26 November 1996 this court allowed the appeal in the above cause, and reserved its reasons. We now give our reasons for the judgment.

The applicants before this court were the defendants in a chieftaincy suit, which had been filed in the Akyem Abuakwa

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Traditional Council. They had been sued by the plaintiffs, Opanin Kwasi Antwi and Lt Col (Rtd) Isaac Osei Agyare. The judicial committee of the traditional council dismissed the claim of the plaintiffs, who then appealed against that judgment to the Eastern Regional House of Chiefs. The house overturned the decision of the traditional council and gave judgment for the plaintiffs. Aggrieved by that decision, the defendants appealed to the National House of Chiefs.

The notice of appeal that was filed in the National House of Chiefs contained the correct title of the case, namely Baffour Atta Yaw and Madam Akua Broni as the defendants-respondents-appellants and Opanin Kwasi Antwi and Lt Col (Rtd) Isaac Osei Agyare, the plaintiffs who won the case in the Eastern Regional House of Chiefs, were described as the parties directly affected by the appeal. The name and address of counsel for the appellants were given as: Yaw Barimah & Co, Afisem Chambers, H/No Bt/D44, Fuller Road, Koforidua. But strangely enough, Yaw Barimah & Co signed as solicitors for the plaintiffs-appellants-respondents and the notice, addressed to the registrar of the Eastern Regional House of Chiefs, was copied to the defendants-respondents-appellants of Kwaben. Incidentally, Opanin Kwasi Antwi, the first plaintiff, is described in the title to the notice of appeal as head of the Mmbaduam division of the Agona royal family at Kwaben.

On 18 June 1991 the registrar of the Eastern Regional House of Chiefs, Mr D F Boateng, invited the parties to his office to settle the records of appeal. The plaintiffs were invited as the respondents and the defendants as the appellants. Under rule 19, (1)-(4) of the Chieftaincy (National and Regional House of Chiefs) Procedure Rules, 1972 (CI 27) the following conditions were imposed, namely the appellants were asked to deposit ¢150,000 to meet the cost of the preparation and submission of the record of proceedings to the National House of Chiefs, Kumasi and to enter into a bond in the sum of ¢250,000 with two sureties to be justified to cover any costs that might be awarded by the judicial committee of the National House of Chiefs in favour of the respondents.

On behalf of the appellants (ie Baffour Atta Yaw and two others) Messrs Adu-Amponsah and C K Ofori executed a bond to

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the respondents Opanin Kwasi Antwi and another in the sum of ¢250,000. The records show that the registrar of the Eastern Regional House of Chiefs personally served the notice of appeal in the case upon the plaintiffs-respondents, Opanin Kwasi Antwi and Lt Col (Rtd) Osei Agyare, on 31 May 1991, and on 13 August 1991 the said registrar certified that the appellants, Baffour Atta Yaw and Madam Akua Broni, had duly and punctually complied with the condition of appeal imposed on them in the cause.

When the appeal came up for hearing at the National House of Chiefs on 11 August 1994, counsel for the respondents raised a preliminary legal objection that the notice of appeal was defective because the contents of the notice showed the respondents as the appellants whereas they had not appealed. The house upheld the objection, and it is against this ruling that the appellants have appealed to this court. Only one ground of appeal was filed. It reads as follows:

“The judicial committee of the National House of Chiefs had power under rule 23(3) of the Chieftaincy (National and Regional House of Chiefs) Procedure Rules, 1972 (CI 27) or in the alternative, under Order 28, 12sic(1) of the High Court (Civil Procedure) Rules, 1954 (LN 140A) to amend the defect in the notice of appeal filed by the appellants against the judgment of the Eastern Regional House ·of Chiefs. The committee therefore erred in striking out the appeal on the ground that it had no jurisdiction to entertain it.”

Learned counsel for the appellants submitted that Yaw Barimah and Co, solicitors for the appellants, who prepared the notice of appeal obviously in error typed “respondents” as “appellants” in paragraph (1) of the notice of appeal, signed the notice as “solicitors for the plaintiffs-appellants-respondents”, and directed copies of the notice to be served on the “defendants-respondents-appellants—Opanin Kwasi Antwi, Lt Col (Rtd) Isaac Osei Agyare, of Kwaben”, the very persons they had referred to in the notice of appeal as “the persons directly affected by the appeal.” He further submitted that in the face of the foregoing it cannot be said that these errors were other than bona fide.

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Section 23(3) of CI 27 empowers the house when hearing an appeal to amend any defect or error in the record of appeal, but at the end of the day the house refused to exercise any jurisdiction in the matter, and ruled as follows:

“We agree with the submission that the appeal is not properly before this court because the notice of appeal discloses that the one who won at the regional house has rather appealed. This is not the case and the defect is so fundamental that we cannot cure it under section 23(3) of CI 27.

Since there is no proper appeal before us we cannot exercise any jurisdiction.”

The power that the National House of Chiefs can exercise under section 23(3) of CI 27 is also given to any court or judge by virtue of Order 28, r 12 of the High Court (Civil Procedure) Rules, 1954 (LN 140A). It states:

“12. The Court or a Judge may at any time, and on such terms as to costs or otherwise as the Court or Judge may think just, amend any defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determing the real question or issue raised by or depending on the Proceedings.”

Under rule 1 of this Order, the time for making amendments is stated to be “at any stage of the proceedings”, and the amendment may be allowed before, or at, or after the trial, or even after judgment or on appeal. Such an application for amendment may be made as soon as the necessity arises, and as a general rule the court will allow an amendment even up to the last moment; provided (i) no surprise results; (ii) it does not enable a party to set up an entirely new case or to change completely the nature of the case; (iii) it is not sought to add new parties; (iv) it will not do any injury to the opponent’s case or prejudice him in some way which cannot be compensated by costs or otherwise; (v) the application be made bona fide; and (vi) the proposed amendment will not cause undue delay or is not irrelevant or useless or would not merely raise a technical point. However, a court will not grant leave to amend the pleadings after final decree or entry of judg-

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ment: see Attorney-General v Corporation of Birmingham (1880) 15 ChD 423, CA; and Yeboah v Bofour [1971] 2 GLR 199 at 217-218, CA.

We think therefore that the house had power to grant amendments in order to correct clearly obvious clerical errors in the face of the record with a view to doing real justice, as the application was made bona fide and will not do any injury to the opponents’ case or cause injustice to them or prejudice them in some way which cannot be compensated by cost or otherwise. We agree with learned counsel for the appellants that since the errors were merely misdescriptions of the respondents as “appellants” and were procedural and not fundamental errors, the house should have exercised its powers under section 23(3) of CI 27 and Order 28, r 12 of LN 140A to grant the amendments sought and not refused to exercise any jurisdiction in the matter.

By its action the house would appear to punish the applicants for mistakes they made in the preparation of their appeal papers by deciding otherwise than in accordance with their rights. We would agree with Bowen LJ when he stated in the case of Cropper v Smith (1884) 26 ChD 700 at 710, CA which was applied in Yeboah v Bofour (supra):

“I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace . . . It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.”

In the instant case, it was clear that in the Eastern Regional House of Chiefs judgment was given against Barima Kwakye Abadid II, Baafour Attah Yaw and Madam Akua Broni as defendants-respondents, and Baffour Atta Yaw and Madam Akua Broni, dissatisfied with the judgment, filed a notice of appeal in the

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National House of Chiefs. Subsequently on 18 June 1991 when the parties appeared before the registrar of the Eastern Regional House of Chiefs, Koforidua to settle the record of appeal, they were recorded and signed by the registrar as follows: “Plaintiffs-Appellants-Respondents—All present. Defendants-Respondents—Appellants All present.” Opanin Kwasi Antwi and Baffour Attah Yaw were recorded as spokesmen for the appellants and the respondents, respectively:

“Antwi: I want all documents filed in the cause of the proceedings by the parties, exhibits and notice of appeal to be included in the preparation of the record of appeal to the National House of Chiefs, Kumasi.

Yaw: I agree to the above.”

Thereafter the appellants executed a bond for costs in the appeal, and the registrar certified that he had served the notice of appeal on the respondents, namely Opanin Kwasi Antwi and Lt Col (Rtd) Osei Agyare, and that the appellants, Baffour Atta Yaw and Madam Akua Broni had duly and punctually complied with the conditions of appeal imposed on them in the cause. What else did the National House of Chiefs want to satisfy themselves that it was rather the ones who lost the case in the lower house who had appealed? We think the house’s attitude was simply to punish Baffour Attah Yaw and Madam Akua Broni for mistakes they made in the preparation of their notice of appeal by deciding otherwise than in accordance with their rights.

In the circumstances we allowed the appeal, set aside the order of the National House of Chiefs refusing to amend the errors. We ordered that all necessary amendments should be made as prayed for, for the purpose of determining the real issue or question raised by or depending on the proceedings, and the case sent beck to the National House of Chiefs for hearing of the appeal on its merits.

DECISION

Appeal allowed.

LSNA

Endnotes

1 (Popup – Footnote) sic same in original.