HIGH COURT, CAPE COAST
Date: 17 DECEMBER 1973
EDWARD WIREDU J
NATURE OF PROCEEDINGS
APPEAL against an interlocutory ruling of a district court refusing to strike out the plaintiff s action as being vexatious and frivolous. The facts are sufficiently stated in the judgment.
COUNSEL
Sampson for the plaintiff.
Agbesi for the defendant.
JUDGMENT OF EDWARD WIREDU J
On 5 June 1973, the plaintiff-respondent to this appeal (hereafter referred to simply as the plaintiff) caused to be issued out of the Swedru District Court Grade II a summons against the defendants claiming 0850 damages. The present appeal was brought by the first defendant. The nature of the plaintiff s claim is rather a strange one and runs through some six paragraphs as follows:
“(1) The plaintiff is the father of Miss Rose Amusah of Agona Kwanyarku to whom the first defendant in accordance with Agona native custom paid and performed the marriage since eight years ago.
(2) That the first defendant had stayed with the said Rose Amusah as wife and has had two children with her.
(3) On Saturday 17 February 1973, George Kwami and B. K. Kwadzo (both defendants herein) came to plaintiff’s house at Kwanyarku to divorce Rose Amusah with two bottles rum (schnapps and Gordons) without prior knowledge of neither Rose Amusah nor plaintiff and also did not assign reasons for such divorcement.
(4) As such the first defendant agreed to come together with his wife Rose Amusah to plaintiff at Kwanyarku on 11 March 1973 to settle any misunderstanding between them.
(5) The defendants refused by a letter dated 7 March 1973 to return with the wife on 11 March 1973 as promised.
(6) This act by the defendants constitutes disrespect, waste of time and deceit on plaintiff’s person as father-in-law in accordance with the Agona customary marriage and therefore claims damages of eight hundred and fifty cedis (0850.00) from defendants for such disrespect, deceit and waste of time.”
The court notes for 22 June 1973 show that the second defendant had not been served. The plea of the first defendant however was taken. He pleaded not liable to the plaintiff s claim. The proceedings of that day further show that a submission was made on behalf of the defendant to strike out the plaintiff s action as being vexatious and frivolous. It was further contended that the plaintiff s claim should not be entertained as it was intended to bring the administration of justice into disrepute. Counsel further contended that to entertain such an action would be to encourage an abuse of the court’s process.
[p.73] of [1974] 1 GLR 71
The trial magistrate in his ruling did not appear to have considered the legal submissions made on behalf of the defendant. He overruled same as follows: “The first defendant to comply with Order 2, r. 9 by giving notice of his intention to contest the suit to attach thereto affidavit stating the grounds of his defence. The counsel’s submission is overruled. Suit adjourned to Friday, 6 July 1973, for hearing.”
The defendant obviously felt himself aggrieved by this ruling, and on 22 June 1973, filed an appeal against the same on the ground that the trial magistrate erred in ruling that the writ of summons disclosed a cause of action to be tried. When the appeal came before me on 22 November 1973, it was conceded that the plaintiff s claim was vexatious and frivolous and that it disclosed no reasonable cause of action. But it was contended on his behalf that the ruling appealed against being interlocutory, leave was required under section 19 (4) of the Courts Act, 1971 (Act 372). Learned counsel for the plaintiff contended therefore that the defendant not having obtained leave to appeal, he was out of court.
For the defendant it was contended firstly that section 19 (4) did not lay down any mandatory rule to be followed. Learned counsel argued that the governing phrase “may appeal” made leave optional. Learned counsel further contended that section 19 (4) was procedural in nature and should be read subject to Order 70 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A).
An examination of some previous enactments (i.e. section 29 (c) of the Courts Act, 1960 (C.A. 9), and paragraph 27 (c) of the Courts Decree, 1966 (N.L.C.D. 84), governing appeals show that where leave is a condition precedent then the need to ask for leave is mandatory. I am of the view that the leave required by section 19 (4) of Act 372 is mandatory and the governing phrase “may appeal” is an option which an aggrieved party to an interlocutory order may exercise in deciding whether to appeal or not. Once the option favours appealing against the order, leave becomes mandatory. There is no doubt that the ruling appealed from is interlocutory. This being so the defendant’s appeal is out of court in so far as it was filed without leave.
This brings me now to the second leg of the appellant’s counsel’s submission that section 19 (4) of Act 372 being procedural should be construed subject to Order 70 of the Rules of Court. The Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 70, r. 1 reads as follows:
“Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the Court or a Judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or Judge shall think fit.”
[p.74] of [1974] 1 GLR 71
A cursory examination of the provisions of the above order shows that it is concerned primarily with rules prescribed under the Supreme [High] Court (Civil Procedure) Rules and whilst it is the accepted practice to read both Act 372 and the said High Court Rules (supra) together so as to ensure uniformity in the hearing of cases, it is also the accepted rule of law that where a particular section of Act 372 conflicts with a provision of the High Court Rules (supra) the latter must give way as the former is the substantive law. Where there is also some inconsistency between the two, the provisions of the rules of court become void to the extent of the inconsistency. But I doubt whether section 19 (4) strictly construed can be said to be a procedural rule as contended by learned counsel for the defendant similar to those provided under the Court Rules. Order 58 of the Supreme [High] Court (Civil Procedure) Rules (supra) which governs appeals from district courts to the High Court provides the procedure to be followed where a right of appeal exists. It does not itself confer that right. Section 19 of Act 372 is the substantive law generally conferring a right on an aggrieved person to appeal. Subsection (4) lays down the condition precedent to entitle one to exercise his right of appeal against interlocutory orders. It is after this condition has been satisfied that the provisions of Order 58 of the rules come into play. I am therefore of the view that the correct way of looking at the operation of the provisions of Order 70 in relation to appeals from district courts is where some provisions of Order 58 itself have not been complied with and to that extent only. In my judgment therefore counsel’s contention that section 19 (4) of Act 372 should be construed subject to the provisions of Order 70 of the rules of court is rejected as untenable. This finding seems to dispose of the present appeal against the defendant but there remain two matters of some significance which deserve consideration before deciding the fate of this appeal. These are (a) the view taken by the trial magistrate that the defendant was bound to comply with Order 2, r. 9 of the Courts Ordinance, Cap. 4 (1951 Rev.), Sched. II and (b) the injustice caused to the defendant by section 19 (4) of Act 372.
In the first place the nature of the plaintiff s claim is not a debt or liquidated claim within the language of Order 2, r. 9 of the Courts Ordinance, Cap. 4 (1951 Rev.), Sched. II. It is an unliquidated claim which requires evidence and therefore cannot be placed on the undefended list so as to demand compliance with rule 9 of Order 2 (supra). This clearly shows that the dismissal of the defendant’s objection on the ground of non-compliance with rule 9 was without any legal justification. Granted even that the plaintiff s claim can be properly described as liquidated within the meaning of the above rule, despite the revocation of Order 19 of Cap. 4, Sched. II by the Rules of Court (Amendment) Rules, 1954 (L.N. 140), r. 5 there exists an inherent right in every court to discourage
[p.75] of [1974] 1 GLR 71
frivolous and vexatious actions which tend to abuse the process of the court.
Secondly it was conceded on behalf of the plaintiff that his claim in the court below was unmaintainable but the effect of non-compliance with the mandatory provisions of section 19 (4) of Act 372 (supra) has prevented the defendant from having his complaint adjudicated upon. He is being asked now to go back to relitigate on a matter which is unjusticiable. This will also have the adverse effect of wasting his time, money and energy on frivolous litigation. This is in itself a defeat to the ends of justice. It is submitted that in a situation like this where there is a conflict between justice and the law, justice should prevail. I am doubtful whether I can justifiably adopt this method since the jurisdiction of this court to entertain the appeal is itself dependent on compliance with the provisions of section 19 (4) of Act 372. Here I may seek some consolation in the saying elsewhere that a statute like this behaves as a tyrant which shows no mercy and when its axe falls it does so with all force making all void. In the light of the above observation it looks as if I have no choice but to dismiss the appeal for non-compliance with the mandatory provisions of section 19 (4) of Act 372.
The appeal is therefore hereby dismissed but the case will not be remitted back to the trial court. Instead, I will exercise my revisionary powers under article 114 of the Second Republican Constitution, 1969, the provisions of which are echoed with some variations in section 20 of Act 372 to set aside the order appealed from and dismiss the plaintiff s action as being frivolous and as disclosing no reasonable cause of action.
DECISION
Appeal dismissed, but ruling of district court set aside.
S. O.
