BUCKLE AND ANOTHER vs. ASAFO COMPANY [1973] 2 GLR 14

CASES REFERRED TO

(1) Amoku v. Duro (1953) 14 W.A.C.A. 257.

(2) MacFoy v. United Africa Co., Ltd. [1962] A.C. 152; [1961] 3 W.L.R.1405; 105 S.J. 1067; [1961] 3 All E.R. 1169, P.C.

(3) Yeboah v. Taibil (1952) 14 W.A.C.A. 41.

NATURE OF PROCEEDINGS

SUBMISSION on re-hearing of case de novo in the High Court, Cape Coast, in pursuance of an order of transfer made on 9 March 1970 by the late Owusu J. in respect of a land suit brought before the High Court on appeal from the judgment of the Cape Coast Municipal Court B. The facts are sufficiently set out in the ruling.

COUNSEL

A. K. B. Ampiah for the plaintiffs.

J. B. Short for the defendants.

JUDGMENT OF BAIDOO J.A.

This case came to this court on appeal from the judgment of the Cape Coast Municipal Court B dated 30 June 1960. The appeal was fully argued by counsel for the two parties after which the High Court then presided over by the late Owusu J. (of blessed memory), adjourned the matter for judgment. The judgment of the High Court in the appeal was duly delivered by Owusu J. on 9 March 1970. He found as facts:

(1) That the co-plaintiff was not given any opportunity to cross-examine the witnesses who testified in the court below.

(2) That the co-plaintiff was not given an opportunity to adduce any evidence at all and yet the defendants were permitted to make a submission of no case whereupon the court below (i.e. the Cape Coast Municipal Court B) gave its judgment in favour of the defendant.

(3) That there was a shifting quorum of the court panel members who heard the case. Different panel members sitting on different dates heard the evidence in bits.

On these findings Owusu J. properly declared the trial in the court below null and void. This of course meant that there had in law never been any trial of the case which was therefore still pending in the court below. The concluding paragraph of the judgment of Owusu J. was as follows: “For the various reasons, this court has no alternative but to declare the whole proceedings before the Municipal Court B a nullity and to direct that the case be heard de novo in the High Court, Cape Coast.”

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The following three questions must at this stage be answered:

(1) Under what circumstances can a High Court transfer a case pending in the lower court to the High Court for trial there?

(2) Can the High Court order a re-hearing de novo in the High Court where in a case which has come to the High Court on appeal the judge after hearing full arguments gives its judgment declaring the proceedings to be null and void

(3) Does rule 17 of Order 58 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), permit this to be done straightaway or must the parties be referred back before the court below to formally object to the jurisdiction of the court and ask for a transfer to the High Court?

The proceedings were declared null and void on 9 March 1970. The Courts Decree, 1966 (N.L.C.D. 84), was then the relevant legislation in force and to answer the first question paragraph 49 (2) of the Decree must be cited as it is obvious from the circumstances of the case that the reason why Owusu J. ordered the trial de novo to be conducted in the High Court and not in the lower court was that the value of the land in dispute was above the jurisdiction of the lower court. That being the case paragraph 49 (2) of N.L.C.D. 84, should have been strictly complied with. The said paragraph 49 (2) stipulated as follows: [His lordship here read the provisions as set out in the headnote and continued:]

Both counsel for the parties have expressed the view that rule 17 of Order 58 of L.N. 140A gives the High Court ample power to re-hear the whole case afresh. Order 58, r. 17 stipulates as follows:

“The Court may from time to time amend the grounds of appeal and make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of the appeal; and may direct the Court below to enquire into and certify its finding on any questions which the Court thinks fit to determine before final judgment in the appeal, and generally shall have as full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Court as a Court of first instance, and may re-hear the whole case, or may remit it to the Court below to be re-heard or to be otherwise dealt with as the Court directs.”

With all due deference to Owusu J. and learned counsel for the parties, I am of the view that Order 58, r. 17 does not permit the High Court to hear an appeal twice over and give two judgments. The main function of the High Court sitting as an appellate court is to reverse, vary or confirm the judgment of the court below and in discharging that function the High Court has power:

(1) to suspend its hearing of the appeal to enable it in the interim to direct the court below to inquire into and certify its finding on any questions or matters which earlier on escaped the attention of the trial court; or

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(2) to re-hear the case either in whole or in part if it considered that necessary; or

(3) to simply content itself with just listening to the arguments of counsel for the parties as was done in this case.

But once the appeal has been heard and judgment pronounced the High Court is functus officio. It cannot re-hear the appeal as it has been disposed of. If a re-trial is necessary the appropriate court to hear the case is the lower court unless there is a valid order of transfer competently made by either the High Court or the Chief Justice.

It is true that the High Court has jurisdiction to transfer the case from the lower court for trial in the High Court. That jurisdiction is conferred by paragraph 49 (2) of N.L.C.D. 84. But as Coussey J.A. observed in the case of Amoku v. Duro (1953) 14 W.A.C.A. 257 at p. 259:

“The general principle is that whenever jurisdiction is given to a Court by an enactment (in this case section 50 of the Native Courts (Colony) Ordinance) and such jurisdiction is only given on specified terms or conditions contained in the section itself, those conditions must be complied with in order to create and raise the jurisdiction, for if they are not complied with the jurisdiction does not arise.”

Under paragraph 49 (2) of N.L.C.D. 84 the parties must raise the question of the value of the land before the lower court and apply for the matter to be referred to the High Court for determination before the High Court can exercise its jurisdiction by inquiring into the value of the land, and if satisfied that the value is beyond the jurisdiction of the lower court, make an order transferring the case for hearing in the appropriate court having power to deal with the case. I am of the view that the order of the High Court made on 9 March 1970 directing the case to be tried in the High Court was premature and void. Consequently all the subsequent pleadings and processes filed by the parties in the High Court are in law void. This court should not therefore waste its precious time recording evidence as any further proceedings and judgment founded thereon will be declared null and void.

To quote from the observation of Lord Denning in MacFoy v. United Africa Co., Ltd. [1961] 3 All E.R. 1169 at pp. 1172-1173, P.C.:

“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 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.”

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In conformity with the above quoted principle of law, the West African Court of Appeal in the case of Yeboah v. Taibil (1952) 14 W.A.C.A. 41, declared the High Court’s order directing a plan together with pleadings to be filed by the parties null and void. In the circumstances the pleadings filed by the parties are hereby struck out as being null and void. Either party is at liberty to institute a fresh action if so desired.

DECISION

Order accordingly.

S. Y. B.-B.