OKOFOH ESTATES LTD vs. MODERN SIGNS LTD AND ANOTHER [1995-96] 1 GLR 310

CASES REFERRED TO

(1) Republic v Owusu-Addo; Ex parte Agyemang, High Court, Kumasi, 24 October 1969, unreported; digested in (1970) CC 10.

(2) Republic v Owusu alias Buor; Ex parte Anane alias Baffour II, Supreme Court, Accra, 25 July 1995, unreported.

(3) Gbogbolulu v Hodo (1947) 7 WACA 164.

(4) Republic v High Court, Ho; Ex parte Evangelical Presbyterian Church, Ghana (EP Church) [1991] 1 GLR 39, SC.

(5) Ghana Muslims Representative Council v Salifu [1975] 2 GLR 246, CA.

(6) Harlley v Ejura Farms (Ghana) Ltd [1977] 2 GLR 179, CA.

(7) Wenlock v Moloney [1965] 1 WLR 1238; [1965] 2 All ER 871; 109 SJ 496, CA. (8) Attorney-General (Duchy of Lancaster) v London and North Western Railway Co [1892] 3 Ch 274;

62 LJCh 271; 67 LT 810, CA.

(9) Armah v Government of Ghana [1968] AC 192; [1966] 3 WLR 828; [1966] 3 All ER 177, HL; reversing sub nom R v Brixton Prison Governor; Ex parte Armah [1968] AC 192; [1966] 2 WLR 23; 110 SJ 468; sub nom Kwesi Armah, Re [1966] 2 All ER 1006, DC.

(10) Anisminic v Foreign Compensation Commission [1969] 2 AC 147; [1968] 2 WLR 163; [1969] 1 All ER 208, HL.

(11) Timitimi v Amabebe (1953) 14 WACA 374.

(12) Republic v High Court, Accra; Ex parte Eastwood Ltd [1995-96] 1 GLR 689, SC. (13) Republic v Court of Appeal, Accra; Ex parte Gyamfi, Supreme [p.315] of [1995-96] 1 GLR 310 Court, Accra, 21 July 1981, unreported.

(14) Republic v Court of Appeal, Accra; Ex parte Aduhene, Supreme Court, 21 July 1981, unreported. (15) Tottenham, In re; Tottenham v Tottenham [1896] 1 Ch 628; 65 LJCh 549; 74 LT 376. (16) Republic v Accra Special Court; Ex parte Akosah [1978] GLR 212, CA.

(17) Republic v High Court, Accra; Ex parte Asakum Engineering Construction Ltd, Supreme Court, Accra, 1 December 1992, unreported.

(18) Walsall Overseers v London and North Western Railway Co (1878) 4 App Cas 30, HL. (19) R v Nat Bell Liquors Ltd [1922] 2 AC 128; 91 LJPC 146; 127 LT 437, PC.

(20) R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338; [1952] 1 All ER 122; [1952] 1 TLR 161, CA; affirming [1951] 1 KB 711; [1951] 1 All ER 268; [1951] 1 TLR 270.

(21) R v Paddington and St Marylebone Rent Tribunal; Ex parte Kendal Hotels Ltd [1947] 1 All ER 448; [1947] WN 103; 176 LT 330, DC.

(22) R v Christian (1842) 12 LJ(IXIC) 26.

(23) R v Cheshire Justices; Ex parte Heaver (1912) 108 LJ 375.

(24) R v Bolton (1841) 1 QB 66; [1835-42] All ER Rep 71; Aru & H 261.

(25) Darbah v Ampah [1989-90] 1 GLR 598, CA.

(26) Nti v Anima [1984-86] 2 GLR 134, CA.

(27) Davy v Garrett (1878) 7 ChD 473; 47 LJCh 218; 38 LT 77, CA.

(28) Republic v James Town Circuit Court Judge; Ex parte Annor [1978] GLR 453. (29) Republic v High Court, Accra; Ex parte Ploetner [1984-86] 2 GLR 107, SC.

(30) Vinson v Prior Fibres Consolidated Ltd [1906] WN 209; 51 SJ 81.

(31) Huntly (Marchioness of) v Gaskell [1905] 2 Ch 656; [1904-7] All ER Rep 625; 75 LJCh 66, CA. (32) Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210;

[p.316] of [1995-96] 1 GLR 310 [1881-85] All ER Rep 949; 54 LJQB 449, HL.

(33) Shackleton v Swift [1913] 2 KB 304; [1911-13] All ER Rep 570; 82 LJKB 607, CA. (34) Reichel v Magrath (1889) 14 App Cas 665; 59 LJQB 159; 54 JP 196, HL.

(35) Willis v Howe (Earl) [1893] 2 Ch 545; 62 LJCh 690; 69 LT 358, CA.

(36) Dyson v Attorney-General [1911] 1 KB 410; [1908-10] All ER Rep Ext 1079; 81 LJKB 217, CA. (37) Amoako v Amados [1975] 1 GLR 401.

(38) Lazarus Estates Ltd v Beasley [1956] 1 QB 702; [1956] 2 WLR 502; [1956] 1 All ER 341, CA; reversing [1955] JPL 880.

(39) University of Cape Coast v Anthony [1977] 2 GLR 21, CA.

(40) Republic v Cape Coast District Magistrate Grade II; Ex parte Amoo [1979] GI;R 150, CA. (41) Republic v High Court Registrar, Kumasi; Ex parte Yiadom I [1984-86] 2 GLR, 606, SC. (42) Republic v Court-of Appeal, Accra; Ex parte Sidi [1987-88] 2 GLR 170, SC.

(43) Republic v High Court, Ho; Ex parte Evangelical Presbyterian Church of Ghana [1991] 1 GLR 323, SC.

(44) Republic v High Court, Kumasi; Ex parte Khoury [1991] 2 GLR 393 at 402, SC. (45) Republic v High Court, Koforidua; Ex parte Otu [1995-96] 1 GLR 177, SC.

(46) Dei XI v Darke XII [1991] 2 GLR 318, SC.

(47) Republic v Asamankese District Magistrate; Ex parte Ide Zabramah [1972] 1 GLR 398.

NATURE OF PROCEEDINGS

APPLICATION by the plaintiff-applicant to the Supreme Court for, inter alia, an order of certiorari to quash the ruling of the High Court, Accra granting the defendant-respondents’ motion for summary judgment in an action for, inter alia, declaration of title to a plot of land. The facts are sufficiently set out in the rulings of Akuffo and Aikins JJSC.

COUNSEL

Zwennes for the plaintiff-applicant.

E D Kom (with him Catherine Hodasi) for the first respondent.

[p.317] of [1995-96] 1 GLR 310

Ekow Awoonor (with him Eugene Glover Tay) for the second respondent.

JUDGMENT OF AKUFFO JSC

Akuffo JSC delivered the first ruling at the invitation of Aikins JSC. This is an application for an order that:

“The proceedings and the ruling or judgment of the High Court of justice per Essilfie-Bondzie JA sitting in the High Court, dated 1 February 1996 in suit No L 567/95 be brought up to this court for the purpose of being quashed and that the same be quashed and further that this court do order that the said action in the High Court suit No L 567/95 proceed to trial in the normal course.”

The grounds for the application are set out in the applicant’s notice of motion and as additional grounds in paragraph (4) of the applicant’s statement of case. In sum, the applicant is challenging the validity of the judgment on the grounds of breach of the rules of natural justice; lack of jurisdiction; and an apparent error of law on the face of the record. The first respondent filed an affidavit in opposition to the application, and, also, filed a notice of preliminary objection contending that the application was not properly before the court on three grounds. The first respondent also filed a statement of case in reply to that filed by the applicant. The second respondent, who is a grantee of the first respondent, entirely relied upon and adopted the affidavits and submissions made on behalf of the first respondent. The application came on for hearing on 18 June 1996 at which arguments for and against the preliminary legal objection were heard and the objection was overruled for the reasons now stated herein.

The first ground for the objection was that, since there is no suit pending in this court with the title “Okofoh Estates Ltd v Modern Signs Ltd” in which an interlocutory application is being made, the title of the application is wrong and should have read “Republic v Additional High Court Judge; Ex parte Modern Signs Ltd.” In support of this, counsel for the first respondent referred us to the case of Republic v Owusu-Addo; Ex parte Agyemang, High Court, Kumasi, 24 October 1969, unreported; digested in (1970) CC 10, and to Janet Daniels’ “Practitioners’ Guide to the Effective Use of Ghana Law Reports” (1971) 3 RGL 5. In his counter-argument, counsel for the applicant submitted that the jurisdiction of the Supreme Court is not predicated

[p.318] of [1995-96] 1 GLR 310 on the title of the suit nor can non-compliance with practice notes be fatal to any cause or matter. Counsel for the applicant also submitted that, in any event, since the Supreme Court Rules, 1970 (CI 13) make no specific prescriptions on the procedure for certiorari or other prerogative writs, there can be no justification for dismissing the application on such a purely technical ground.

In Ex parte Agyeman (supra), Mensa Boison J (as he then was) had held as stated in the headnote in respect of title of applications for prerogative order:

“The title of such applications should normally state the nature of the order sought, the statute under which jurisdiction arises or the cause which gave rise to the application and the names of the parties to the proceedings. It is to reduce time and space that the applications are normally headed ‘Republic v. AB; Ex parte AY.”’

In Janet Daniels’ Practitioners’ Guide to the Effective Use of Ghana Law Reports (supra) at p18, to which reference was made by counsel for the first respondent, it is stated that the heading, as prescribed in the dictum quoted above, is the only acceptable way of heading such applications and that registrars are authorised to refuse to accept for filing any documents which are incorrectly headed. However, as can be clearly seen, the said dictum enunciates what is the normal practice in applications made to the High Court where there are prescribed procedural rules for such applications. Furthermore, as the learned judge pointed, out the normal mode for the heading of applications for prerogative orders is grounded in the convenience of time and space.

The statement cannot be taken as a statement of the legal sine qua non in applications before this court. Moreover, although where there are specific rules of procedure they must be complied with, and although this court, in matters such as this, has generally followed the High Court (Civil Procedure) Rules, 1954 (LN 140A) because CI 13 makes no specific prescriptions for the procedure to be applied in applications for the exercise of this court’s supervisory jurisdiction, there cannot be any serious doubt that for this court to decline jurisdiction simply because a matter has not been headed in what is considered the normal manner, will be to take technicalities to an absurd level. As was recently confirmed in this court by my learned brother Kpegah JSC in the case of Republic v Owusu alias Buor; Ex parte Anane alias Baffour II, Supreme Court, Accra, 25 July 1995,

[p.319] of [1995-96] 1 GLR 310 unreported the maxim de minimis non curat lex remains as applicable today as it ever was. Furthermore, as has been emphasised time and again by this and other courts, “It is the duty of Courts to aim at doing substantial justice between the parties and not to let that aim be turned aside by technicalities . . . “ see Gbogbolulu v Hodo (1947) 7 WACA 164 at 165.

This is a court of final resort and, in the absence of specific prescriptions in CI 13 or any other relevant statute, it is my opinion that what is more important is whether the application has any substance, regardless of the form in which it has been intituled. In my respectful view, the wrong heading of an application to this court for an order of certiorari cannot in any material manner derogate from the nature of the application itself. The more relevant question is, therefore, whether or not, despite its title, this court has the legal power to entertain the application before it. The answer is quite clear and it is grounded in the Constitution, 1992, arts 132 and 161, ie the definition of “supervisory jurisdiction” as well as section 55 of the Courts Act, 1993 (Act 459).

I will next take the third ground for the objection, since that also dealt with a matter of procedure, ie that because no statement had been filed with the notice of motion, the application violates the Practice Note given by this court in Republic v High Court; Ex parte Evangelical Presbyterian Church, Ghana (EP Church) [1991] 1 GLR 39, SC. In that case, the question of what ought to be the proper procedure for the filing of applications and documents was discussed and the court, perceiving the need for further directives to “guide the profession with regard to the exercise by the court of its supervisory jurisdiction”, directed, inter alia, that, in applications invoking the supervisory jurisdiction of the court, a statement must accompany the application, which statement must set out, not only the reliefs being sought and the grounds therefor, “but also a full statement of the applicant’s case, clearly argued, as is done in appeals.”

It appears that the applicant’s statement did not accompany the notice of motion, in the sense that it was not filed on the same date as the motion. However, it was filed before the first respondent raised this particular objection. It, therefore, seems to me that the gravamen of this ground for objection relates, not so much to the timing of the statement, but to the fact that, although the statement sets out the

[p.320] of [1995-96] 1 GLR 310 reliefs sought, as well as the grounds therefor and a summary of the proceedings before the High Court, it contains no arguments or submissions of the applicant’s case. Indeed, it would appear from paragraph (5) of the said statement that it was the intention or expectation of counsel for the applicant that the case for the applicant would be orally argued at the hearing of the application. It is my view, however, that, despite the fact that the applicant’s statement of case seems to have left out the full arguments of the applicant’s case, the grounds for the application were so formulated in the statement as to make the applicant’s case quite apparent. Furthermore, the applicant had also filed a list of authorities wherein had been summarised the legal points relied upon.

Certainly, it is possible to conclude that the documents filed by the applicant have been sufficient enough as to enable the first respondent file a reply thereto. Furthermore, it is clear, from Ex parte Evangelical Presbyterian Church, Ghana (EP Church) (supra) that the main purpose of the directive is to facilitate and expedite matters, as well as to minimise oral argument on the application. Therefore, since it is also quite apparent that, in this case, the applicant’s failure has not occasioned any perceptible hardship or overreaching with regard to the interests of the respondents, the objection on this ground becomes a mere technicality, and it is difficult to perceive in what manner the applicant’s failure to argue its case in full in the statement of case has caused any undue inconvenience or becomes a fatal non-compliance.

The final ground of objection, ie ground (2) of the preliminary objection, is that:

“(2) the Supreme Court, following the House of Lords in R v Governor of Brixton Prison; Ex parte Kwesi Armah [1968] AC 192, has held time and again that where a court is properly seised with a matter and makes a non jurisdictional error of law, the appropriate remedy is an appeal and not certiorari.”

As counsel for the first respondent correctly pointed out, the crux of the applicant’s application herein is that there is an apparent error of law on the face of the record. That being so, this ground of objection raises substantive legal issues which cannot be dealt with without entering into the merits of the application itself. It, therefore, properly

[p.321] of [1995-96] 1 GLR 310 belongs in the respondents’ affidavit or statement of case in opposition to the application, rather than to the question of whether or not the application is properly before the court.

For the foregoing reasons the preliminary legal objection was overruled. This then brings us to the application before us. The relevant background of this application may be summarised as follows:

“(a) by an amended writ of summons issued on 5 September 1995, the applicant sued the respondents claiming for a declaration of title to a certain piece of land at north east Adabraka Akanetso Nii-Man Township Estate, north of the Ring Road, Accra;

(b) an order for the cancellation or rectification or both of the registration in the Land Register, Vol 7, Folio 133 as evidenced by land certificate No GA 1518 in the name of the defendant, Modern Signs Ltd, on the ground that it was procured by fraud or mistake or both and in breach of the provisions of the Land Title Registration Law, 1986 (PNDCL 152);

(c) an order for the delivery up and cancellation of the deed or document of transfer or assignment by which the defendant purported to assign or transfer the title or an interest in the subject matter to Total (Ghana) Ltd on the ground that the same is null and void; and (d) damages for trespass and an order of perpetual injunction.”

The amended statement of claim, was filed with the amended writ. In the said statement of claim, the plaintiff relied upon divers transactions, all of which had been registered in the Land Registry, as substantiation of its claim of the land. The plaintiff, also alleged in the statement of claim that the defendant had obtained the conveyance, registration and certification of title to the land by fraud. A statement of defence was filed on 3 August 1995 and, from the record before us, it does not appear that any amended statement of defence was ever filed after the filing of the amended statement of claim. The statement of defence consisted, primarily, of denials of the material allegations made by the plaintiff. It also contains three main assertions; the first is that, at the time of the purported conveyance by the Nii Odoi Kwao family to a certain Victoria Carboo (one of the applicant’s alleged predecessors in title), the said grantor-family had already divested itself of all title, right and interest in the land to the defendants’ predecessor

[p.322] of [1995-96] 1 GLR 310 in title; secondly, that the said Victoria Carboo had previously conveyed her title to a third party; and thirdly, that the plaintiff has no title to the land and the documents relied upon by the plaintiff did not confer any title to the plaintiff or at all. What is quite clear from the pleadings filed is that each of the parties ultimately trace its claim of title to the land to the Nii Odoi Kwao family.

After filing the statement of defence, the respondents on 6 October 1995 filed a motion on notice which was couched in the following terms:

“MOTION ON NOTICE TO DISMISS SUIT FOR NON-DISCLOSURE OF CAUSE OF ACTION

TAKE NOTICE that this honourable court will be moved by E D KOM, Esq, counsel for the defendant applicants herein on the hearing of an application to dismiss suit for non-disclosure of cause of action and for further or other orders as to this honourable court may seem fit.”

The motion was accompanied by the affidavit of one Kurt Vorlap, an official from the first respondent. The material portions of the affidavit are the depositions contained in paragraphs (3)-(10), which read as follows:

“(3) That the defendant-company derived its title from Kobina Amua-Sekyi and Mrs Beatrice Dadson as per indenture dated 18 December 1991 attached herewith marked exhibit A.

(4) That the defendant’s first vendor acquired his title from the Nii Odoi Kwao family as per indenture dated 12 February 1945 and registered as No 128/45 attached and marked as exhibit B.

(5) That I am advised by counsel and verily believe the same to be true that all instruments registered under the Land Registry Ordinance, Cap 133 are by section 30 of the Land Registry Act, 1962 (Act 122) deemed to be registered under the Act.

(6) That the defendant’s second vendor derived her title also immediately from Nii Odoi Kwao family as per vesting assent dated 8 October 1990, registered as No 1976/1991 attached and marked as exhibit C.

(7) That the second vendor’s predecessor in title is Nii Odoi Kwao family as per indenture dated 20 December 1957 which document is registered as 732/1971.

[p.323] of [1995-96] 1 GLR 310

(8) That the defendant-applicant was issued a land certificate No GA 1518 dated 20 January 1992 attached and marked exhibit D.

(9) That the plaintiff-respondent by paragraph (3) of the statement of claim, claims to have derived his title imediately from Nii Odoi Kwao family by a conveyance dated 24 September 1976.

(10) That I am advised by counsel that:

(i) The plaintiff and the defendant have a common vendor, the Nii Odoi Kwao family.

(ii) In September 1976 when the Nii Odoi Kwao family purported to have sold the land in dispute to the plaintiff’s predecessor the family had no right, title or interest in the land in dispute to convey to anybody.

(iii) Since the predecessor in title of the defendant’s title was registered prior to the plaintiff’s the defendant has priority over the plaintiff (sic).”

The motion was opposed by the applicant herein which also caused an affidavit to be sworn to and filed on its behalf. Apart from contending that the plaintiff’s pleadings disclosed a reasonable cause of action and involved triable issues, the affidavit also deposed to the effect that a search had been conducted at the Lands Commission which disclosed no recorded transaction of any conveyance from the Nii Odoi Kwao family to the said Kobina Amua-Sekyi, the search report was exhibited as exhibit A; that there were certain inconsistencies between the measurements and boundaries of the land being claimed by them and those of the land allegedly granted to the said Kobina Amua-Sekyi; that the alleged grant by the said Kobina Amua-Sekyi to the first respondent was a forgery; that there were several other inconsistencies which need to be investigated and that, in view of the multiplicity of grants purported to have been made at various times, there was the need for a composite site plan to be drawn up to disentangle the claims.

The motion was heard by Essilfie-Bondzie JA sitting as an additional High Court judge, who delivered his ruling on 1 February 1996. The learned judge stated in his ruling as follows:

“It is my judgment that the registration of the title of the applicants and the issuance to them of the land title certificate No GA 151 was

[p.324] of [1995-96] 1 GLR 310 effective to vest in them title to the land in dispute. Consequently, the title which they acquired by registration under the Land Title Registration Law, 1986 (PNDCL 152) is valid, indefeasible and immune from the respondents’ adverse claim … the respondents herein cannot hope under any circumstances to establish a better title than the applicants. This means that no useful purpose will be served by allowing evidence to be adduced in this case… In the circumstances, in the exercise of the inherent jurisdiction of the court, I grant the application and hold that the plaintiff-respondents’ suit against the defendant-applicants herein discloses no cause of action. I hereby dismiss it and give judgment in favour of the defendants.”

From the various documents filed in the present application and the oral submissions made on behalf of the applicant before us, it is clear that the core ground for the application for certiorari is that there is an apparent error of law on the face of the record in that, whereas the application before the High Court came under Order 25, r 4 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) the learned judge proceeded under the inherent jurisdiction of the court and admitted and relied upon affidavits and extrinsic evidence in the form of exhibits.

The most cursory glance at the ruling or judgment being challenged shows clearly that the learned judge did, indeed, make copious use of the affidavits filed by the parties and relied heavily on the same. Thus, as a further example, the judge stated in his ruling as follows:

“In this case, the applicants have annexed to their application their title deeds or indenture, exhibit A—which reveals that they derived their title from Kobina Amua-Sekyi and Mrs Beatrice Dadson. They have also exhibited another indenture, exhibit B—which depicts that their first vendor, Kobina Amua-Sekyi acquired his title from Nii Odoi Kwao family on 12 February 1945. It is also noteworthy that the applicants’ second vendor also derived her title immediately from the Nii Odoi Kwao family as per vesting assent attached to the application and marked exhibit C. The second vendor’s predecessor in title is shown as being Nii Odoi Kwao family as per indenture dated 20 December 1957 which document is registered as 732/1971 … So that the issue

[p.325] of [1995-96] 1 GLR 310 this court has to decide is one of law, namely which of the titles of the parties demonstrated to the court has priority over the other within section 26 of the Land Registry Act, 1962 (Act 122).”

The applicant, therefore, submitted that the learned judge had no jurisdiction to try contentious issues raised upon the basis of affidavits as he did and that the judge had erroneously regarded the affidavits, filed by the applicant therein, to be pleadings in the matter.

As is evident from the terms of the respondent’s notice of motion in the High Court, there was no indication of the rule under which it applied to the court for the dismissal of the suit. However, it is the respondent’s position that nowhere in its motion was any reference made to Order 25 of LN 140A, nor did the High Court deal with the application under the said Order. Rather, according to learned counsel for the first respondent, the application was made to the inherent jurisdiction of the court, and the judge had, without doubt, proceeded on the application under the inherent jurisdiction. Counsel, therefore, submitted that it was within the judge’s competence to deal with the application in the manner that he did.

The procedure under which the court dealt with the application in the High Court is of crucial importance in this application. This is because it has been clearly held time and again that there is a fundamental difference between proceedings under Order 25, r4 of LN 140A and proceedings under the inherent jurisdiction of the court, and each type of proceedings mandates substantially different procedural practices. This was made clear in the cases of Ghana Muslims Representative Council v Salifu [1975] 2 GLR 246, CA and Harlley v Ejura Farms (Ghana) Ltd [1977] 2 GLR 179, CA wherein the case law on the practice was extensively discussed by the Court of Appeal. In the first of these cases, Mr Joe Reindorf, acting on behalf of the respondents therein, had submitted to the Court of Appeal that the second plaintiffs, in the trial court, had not shown that they had any cause of action against the defendants therein. Delivering the judgment of the court, Azu Crabbe CJ said at 260-261:

“. . . there are two methods by which the court can deal with Mr. Reindorf’s second submission; first, under the inherent jurisdiction of the court; and secondly, under Order 25, r. 4 of the High Court (Civil Procedure) Rules, 1954. The practice in each [p.326] of [1995-96] 1 GLR 310 case is well-settled. The practice under the first is clearly expressed by Lord Herschell in Lawrance v. Lord Norreys (1890) 15 App. Cas. 210 at p. 219, H.L. as follows:

‘It cannot be doubted that the Court has an inherent jurisdiction to dismiss an action which is an abuse of the process of the Court. It is a jurisdiction which ought to be very sparingly exercised, and only in very exceptional cases. I do not think its exercise would be justified merely because the story told in the pleadings was highly improbable, and one which it was difficult to believe could be proved.’

Order 25, r 4 reads:

‘The Court or a Judge may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Judge may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.’ It seems obvious that Mr. Reindorf’s appeal here is to rule 4.”

In the second of the above-cited cases, ie Harlley v Ejura Farms (Ghana) Ltd (supra), the application of the respondents had been made under Order 25, r 4 of LN 140A and under the inherent jurisdiction of the court. Azu Crabbe CJ discussed the applicable practice under the two methods and proceeded, at 194, to cite with approval the explanation of the practice as enunciated by Danckwerts LJ in the case of Wenlock v Moloney [1965] 2 All ER 871 at 874, CA as follows:

“The practice under the former rule, R.S.C., Ord. 25, r.4, and under the inherent jurisdiction of the court, was well settled. Under the rule it had to appear on the face of the plaintiff’s pleading that the action could not succeed or was objectionable for some other reason. No evidence could be filed. In the case of the inherent power of the court to prevent abuse of its procedure by frivolous or vexatious proceedings or proceedings which were shown to be an abuse of the procedure of the court, an affidavit could be filed to show why the action was objectionable . . . but, as the procedure

[p.327] of [1995-96] 1 GLR 310 was of a summary nature, the party was not to be deprived of his right to have his case tried by a proper trial, unless the matter was clear.”

(The emphasis is mine.)

The matter is further explained in Halsbury’s Laws of England (4th ed), Vol 37 at paras 432 (under the heading “Striking out pleadings disclosing no reasonable cause of action or defence” and 435 (under the heading “Striking out under the court’s inherent jurisdiction”). In the latter paragraph it is stated as follows:

“. . . So under its inherent jurisdiction the court may strike out the whole or part of the indorsement on a writ or stay or dismiss an action which is frivolous or vexatious or an abuse of process or which must fail or which the plaintiff cannot prove and which is without a solid basis . . .”

Additionally, in discussing the proper mode for making the application, it is stated in paragraph 436 that: “The summons or notice of motion must specify precisely what order is being sought and precisely what is being attacked . . . Moreover, the grounds of objection must be clearly stated in the summons or notice of motion. The applicant is entitled to rely on all or any of the grounds specified in the appropriate rule of court. The application may be made, and frequently is made, both under these grounds and under the inherent jurisdiction of the court, and a properly drawn application should invoke both powers. This is not merely a matter of form, but of substance, since if the application is based only on the ground that the pleading or indorsement does not disclose a reasonable cause of action no evidence is admissible, it is therefore good practice and sound sense expressly to invoke in the summons or notice of motion the other powers contained in the rules of court and the court’s inherent jurisdiction.”

(The emphasis is mine.)

The question that necessarily arises at this point, therefore, is what was the substance of the application made to the High Court by the respondent herein? Was it made under Order 25, r 4 of LN 140A or

[p.328] of [1995-96] 1 GLR 310 under the inherent jurisdiction of the court, or both powers? My understanding is that the purpose of the Order is to prevent claims which on the face of the pleadings disclose no cause of action or which are shown to be frivolous or vexatious. Under the inherent jurisdiction of the court, on the other hand, the purpose is to give the court the power to use summary means to prevent abuse of its process. In the first procedure, only the pleadings may be considered by the court; in the second procedure, the court may take into account affidavits and extrinsic evidence. It, therefore, seems to me that, in view of the clear differences in the established practices and procedures for invoking the two powers, the two cannot be considered to be interchangeable or simultaneous, unless they are both specifically applied for.

Consequently, in a situation such as this, where the notice of motion before the High Court made no clear reference to the rule or procedure under which the application was being made, it becomes necessary for the court to ascertain first which of its powers is being invoked and therefore which procedure is to be applied, and the most practical manner in which it will be possible to discern the properly applicable practice will be to examine the specific words used in formulating the grounds for the application. In this case, the relevant words used in the application are “to dismiss suit for non-disclosure of cause of action.”The application was not asking the court to dismiss the action for being an abuse of the process of the court. Furthermore, in the affidavit in support of the application no allegation or showing of abuse of process was made. Clearly, therefore, and as is apparent on its face, the application was made under Order 25, r 4 of LN 140A. In my respectful view, the fact that the application used the words “dismiss the suit” rather than “strike out the pleadings” is not important in view of the ground assigned for the application, ie “for non-disclosure of cause of action.” The learned judge, in determining the application before him, made no prior determination as to whether the application was under Order 25, r 4 of LN 140A or was under the inherent jurisdiction of the court and, right at the outset, proceeded on the basis that it was an application to the court’s inherent jurisdiction. This, in my view, was wrong.

It is, therefore, my opinion that the application before the High Court, being an application under Order 25, r 4 of LN 140A, the learned judge erred in taking into account extrinsic evidence. As was

[p.329] of [1995-96] 1 GLR 310 stated by Smith LJ in Attorney-General of the Duchy of Lancaster v London and North Western Railway Co [1892] 3 Ch 274 at 278, CA:

“. . . when there is an application made to strike out a pleading, and you have to go to extrinsic evidence to show that the pleading is bad, that rule does not apply. It is only when upon the face of it it is shown that the pleading discloses no cause of action or defence, or that it is frivolous and vexatious, that the rule applies.”

Consequently, there is an error of law which is apparent on the face of the record.

The next question then, is whether or not, by reason of this error of law by the High Court, which is a superior court, the remedy of certiorari lies. Counsel for the first respondent argued, in his preliminary objection, that since the High Court judge was properly seised of the application before him, any error of law on the face of the record is non-jurisdictional and the proper remedy is an appeal and not an order for certiorari. In support of this submission, counsel referred us to the case of Armah v Government of Ghana [1968] AC 192, HL. In that case, Lord Reid at 234, stated as follows:

“If a magistrate or any other tribunal has jurisdiction to enter on the inquiry and to decide a particular issue, and there is no irregularity in the procedure, he does not destroy his jurisdiction by reaching a wrong decision. If he has jurisdiction to go right he has jurisdiction to go wrong. Neither an error in fact or in law will destroy his jurisdiction. Whether or not there is evidence to support a particular decision is always a question of law but it is not a question of jurisdiction. So if the courts could only interfere on the ground of lack of jurisdiction I do not see how they could interfere on the ground that there was no evidence to support the magistrate’s decision.”

(The emphasis is mine.)

Without intending to cause any embarrassment to learned counsel for the first respondent, I believe that it is worth quoting the astute observation made by said counsel, on the above-mentioned dictum, in his article entitled “Non-Jurisdictional Error of Law”, published as Notes & Comments in (1980) 12 RGL 148 at pp 156-158:

“Lord Reid was not dealing with an application for certiorari nor

[p.330] of [1995-96] 1 GLR 310 did he mean to say that once a tribunal or magistrate has jurisdiction to go right he could go wrong and that certiorari on grounds of error of law would not lie . . .

Certiorari lies to quash a judgment, order or ruling where there is non-jurisdictional error of law on the face of the record . . .”

Indeed, in the case of Anisminic v Foreign Compensation Commission [1969] 2 AC 147, HL Lord Reid seems to have seized the opportunity to explain his above-quoted dictum, so as to clear any confusion that it might have caused. At 171, he said:

“It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word ‘jurisdiction’ has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account.”

In this matter we are concerned with a decision of a superior court, and as was stressed in the case of Timitimi v Amabebe (1953) 14 WACA 374 at 376. “. . want of jurisdiction is not to be presumed as to a Court of superior jurisdiction; nothing is out of its jurisdiction but that which specially appears to be so.” Thus, it was enunciated by my

[p.331] of [1995-96] 1 GLR 310 learned brother Charles Hayfron-Benjamin JSC in his ruling on behalf of this court in the case of Republic v High Court, Accra; Ex parte Eastwood Ltd [1995-96] 1 GLR 689, SC that: “The jurisdiction of the High Court can, therefore, only be taken away by specific legislation. If, therefore, there is an error of law appearing on the face of the record of a superior court which warrants intervention by this court by the exercise of our supervisory jurisdiction, it must be such an error as goes to the wrong assumption of jurisdiction or the error is so obvious as to make the decision a nullity.”

(The emphasis is mine.)

In this case, there can be no doubt that the learned judge in the High Court had the jurisdiction to hear the application before him. However, as I have already found, the application was one that came under Order 25, r 4 of LN 140A which did not require him to take into account affidavits and exhibits annexed thereto, the learned judge committed an error and fell beyond the bounds of his jurisdiction in the matter. Having so found, I do not deem it necessary to examine the grounds for the application.

Under the terms of section 5 of the Courts Act, 1993 (Act 459) this court, when exercising its supervisory jurisdiction, has the power to issue such orders and directives as shall be necessary for enforcing or securing the enforcement of its supervisory power. In the circumstances, the more appropriate mode for dealing with this matter will be to make an order setting aside the judgment of the High Court and order that the trial of suit No L 567/95 take its normal course.

JUDGMENT OF AIKINS JSC.

The application before this court is for an order of certiorari to bring up to be quashed, the ruling of the High Court, Accra 1 February 1996. The ruling is that of Essilfie-Bondzie JA sitting as an additional High Court judge. It is titled Okofoh Estate Ltd v Modern Signs Ltd and Total (Ghana) Ltd.

The applicant headed his application thus:

“Okofoh Estates Ltd Republic House, Accra . . . Plaintiff/Applicant v 1. Modern Signs Ltd

[p.332] of [1995-96] 1 GLR 310

2. Total (Ghana) Ltd . . . Defendants/Respondents In the matter of an application by Okofoh Estates for an order of Certiorari and In the matter of the ruling of the High Court, Accra dated 1 February 1996—(Ex parte Essilfie-Bondzie JA sitting as an additional High Court Judge)”

This application was filed with the registry of this court on 22 February 1996. A few days before the applicant filed his statement of case, ie on 2 May 1996, the first respondent’s solicitor filed a notice of preliminary legal objection indicating that the application is not properly before this court because (1) the title of the suit is wrong as it should have been titled “Republic v Additional High Court Judge; Ex parte Modern Signs Ltd; and (2) the appropriate remedy in this case is an appeal and not certiorari. Counsel cited Republic v Owusu-Addo; Ex parte Agyemang, High Court, 24 October 1969, unreported; digested in (1970) CC 10.

On 21 May 1996, Mr Kom filed another notice of preliminary legal objection repeating the two reasons enumerated in his first notice, and added a third reason, namely that the application violates the Practice Note of this court enunciated in Republic v High Court, Ho; Ex parte Evangelical Presbyterian Church, Ghana [1991] 1 GLR 39, SC and submitted that the application be dismissed in limine.

After listening to Mr Kom’s arguments in favour of his preliminary legal objection, and those of Mr Zwennes in opposition, this court unanimously overruled Mr Kom’s objection and reserved our reasons to be incorporated in our ruling in the substantive cause. I now give my reasons for supporting my brethren in overruling the objection.

The procedure for the prerogative writs of which certiorari is apart, is provided under Order 25 of the High Court (Civil Procedure) Rules, 1954 (LN 140A). Order 25, r 2 of LN 140A requires that leave of the court must be obtained before an application for an order of certiorari (and other related writs) is made. An application for such leave is to be made ex parte to the court (except in vacation when it may be made to a judge in chambers), accompanied by (i) a statement setting out the name and description of the applicant: (ii) the relief sought: (iii) the ground on which it is sought: and (iv) affidavits verifying the facts

[p.333] of [1995-96] 1 GLR 310 relied on. Under order 25, r 4 of LN 140A when leave is granted, the application is to be made by notice of motion (except in vacation when it maybe made by summons to a judge in chambers), and served on all persons directly affected.

The procedure was followed in Republic v Court of Appeal, Accra; Ex parte Gyamfi, Supreme Court, 21 July 1981, unreported and Republic v Court of Appeal; Exparte Aduhene, Supreme Court, 21 July 1981, unreported. It was the view of the court, however, that there was no need to ask for leave in the Supreme Court before the substantive application is brought. As such, the leave stage was eliminated, and the court directed that such applications should come directly to the court on notice to the respondents. It further directed that after the reaction of the respondent the application should follow the course set out in the Supreme Court Rules, 1570 (CI 13) for substantive appeals. It is this bit that created the problem in Republic v High Court, Ho; Ex parte Evangelical Presbyterian Church, Ghana (EP Church) (supra) leading to directives in the Practice Note “to guide the profession with regard to the exercise by the court of its supervisory jurisdiction . . .”

The directives as set out at 44 are:

“(i) the statement [of case] accompanying the motion must set out, not only the relief(s) sought and the ground(s) upon which the application is based, but also a full statement of the applicant’s case, clearly argued, as is done in appeals. The motion must, as previously directed, be on notice to all interested parties;

(ii) within fourteen days of the service of the motion (together with all attachments), the respondent must file an affidavit in opposition, if he intends to oppose the application. The affidavit must be accompanied by a statement of the respondent’s case in answer to the applicant’s case, fully arguing all relevant matters;

(iii) if the respondent fails to file an affidavit in opposition within the fourteen days, the applicant may apply to set the motion down for hearing;

(iv) the applicant is entitled, within seven days of the service on him of the respondent’s affidavit and statement, to file a statement in reply, if so advised. Failing which the registrar will set down the motion for hearing at a date convenient to

[p.334] of [1995-96] 1 GLR 310 the court”.

The court further stated that: “Any of the time limited above may, on application, be extended or abridged by the court.”

Mr Kom’s submission is that in the instant application, the applicant failed to comply with the directives stated above, notably that no affidavit or statement of case was attached to the motion. This issue was raised by Mr Kom in his second notice of preliminary objection filed on 21 May 1996, some time after the applicant had filed his statement of case, ie on 9 May 1996 to which was attached a supplementary affidavit of the plaintiff-applicant (hereinafter referred to as the applicant) and a ruling of the High Court, Accra dated 1 February 1996. Both the motion and the statement of case, together with their attachments, were served on the defendant-respondents (hereinafter referred to as the respondents).

It seems to me that the applicant had fully complied with the directives in the Practice Note of this court in Republic v High Court, Ho; Ex parte Evangelical Presbyterian Church, Ghana (EP Church) (supra). It is rather the first respondent who did not comply with item (ii) of the directives—they never filed an affidavit in opposition which was expected to be accompanied by a statement of the first respondents’ case, fully arguing all relevant matters. That ground of the objection fails.

I now come to deal with the first ground of objection. This attacked the title of the suit, namely that the title is wrong and should be intituled Republic v High Court Judge: Ex parte Modern Signs Ltd. Mr Kom relied on a case decided by the High Court, Kumasi, Republic v Owusu-Addo; Ex parte Agyemang (supra) In that case, the presiding judge, Mensa Boison J (as he then was) held that the title of such applications should normally state the nature of the order sought, the statute under which jurisdiction arises or the cause which gave rise to the application and the names of the parties to the proceedings. He further stated that “it is to reduce time and space that the applications are normally headed “Republic v AB; Ex parte XY.”

I do not see anything wrong with this holding. The particulars enumerated therein have been provided in the instant application. It is the format that is different, and this is not fatal to the application. It is pertinent to note that it was during the course of argument before the High Court, Kumasi that the state attorney, who appeared for the [p.335] of [1995-96] 1 GLR 310 respondent, objected to the title of the application for the reason that it savoured of criminal proceedings against the circuit judge in person, because her name “Owusu-Addo” was used. The learned judge then ruled that “the addition of the words “Ex parte Akua Agyemang” should dispel any apprehension that the reference to the judge savoured of criminal proceedings against her in person.” The proper title of course should be Republic v High Court, Kumasi (as the case may be); Ex parte AB (the applicant). In my view, the courts should aim at doing substantial justice between the parties, and not waste their precious time to attend to unnecessary technicalities. Even though the current title is not fatal to the cause, this court has full powers to grant leave under such circumstances to amend the title to conform to the usual titles adopted in cases of this nature. Since no hardship would accrue to either party by the heading of the suit being amended, even at this stage, I would, on my part, order that the title be altered to read “Republic v High Court, Accra; Ex parte Modern Signs Ltd “: see In re Tottenham; Tottenham v Tottenham [1896] 1 Ch 628 and Gbogbolulu v Hodo (1947) 7 WACA 164 at 165. This ground also fails.

The last ground is that the proper remedy in this case is an appeal and not certiorari. In other words, certiorari does not lie. This ground dovetails with the issue in the main cause and I shall deal with it presently. Mr Kom’s point is that even if the High Court judge had made an error, that error is a non-jurisdictional error, and the remedy is an appeal. Mr Zwennes thinks otherwise.

The applicant had sued in the High Court for (a) a declaration of title to the disputed land; (b) an order for the cancellation or rectification or both of the registration of the said land in the land register in the name of the respondents, Modern Signs Ltd, on the ground that it was procured by fraud or mistake or both and a breach of the provisions of the Land Title Registration Law, 1986 (PNDCL 152); (c) damages for trespass; and (d) perpetual injunction restraining the respondents, their agents, servants and workmen from going upon and committing acts of trespass on the said land.

The facts as stated in the statement of claim are that:

“(i) the Nii Odoi Kwao family conveyed the land in dispute to one Victoria Ahia Carboo, the applicant’s predecessor in title by a deed of conveyance dated 24 September 1976 and registered

[p.336] of [1995-96] 1 GLR 310 in the Land Registry;

(ii) the said Victoria Carboo in turn leased the land to one Mohamed El Mamoud by a lease dated 17 July 1977 for a term of 50 years certain, commencing from the same date, and registered in the Land Registry as No 5381/77.

(iii) subsequently the unexpired residue of the lease of 50 years was assigned to the applicant by two assignments variously dated 12 May 1978 and 20 July 1984 and registered in the Land Registry as Nos 3156/1978 and 2712/1984 respectively;

(iv) on or about 8 May 1995 the applicant received a summons at the instance of the first respondents to attend adjudication at the Land Title Adjudication Committee for the determination of a dispute on the said land in respect of which the first respondents had claimed title as a holder of a land certificate on it;

(v) at the Land Title Adjudication Committee hearing on 25 May 1995 the applicant objected to the said land certificate as having been wrongfully procured in breach of section 13 of PNDCL 2 and therefore a nullity. At this stage the first respondents asked the committee to adjourn the proceedings to facilitate a settlement between the parties; and (vi) the first respondents withdrew the action from the Land Title adjudication Committee without the knowledge of the applicants and secretly entered upon the disputed land and hurriedly commenced erection of foundation structure thereon.”

The applicant gave full particulars of the fraud complained of.

In their affidavit attached to their notice of preliminary legal objection, the first respondents averred that they derived their title from one Kobina Amua-Sekyi and a Mrs Beatrice Dadson by an indenture dated 18 December 1991; that their first vendor acquired his title from the Nii Odoi Kwao family by an indenture dated 12 February 1945 and registered as No 128/45; that their second vendor also derived her title from the same Nii Odoi Kwao family per a vesting assent dated 8 October 1990 and registered as No 1976/1991; that their second vendor’s predecessor is the Nii Odoi Kwao family per an indenture dated 20 December 1957 which was registered as No 732/1971, and that their land certificate was registered as No GA 1518 dated 20 January 1992.

[p.337] of [1995-96] 1 GLR 310

Arguing the motion, counsel for the applicant, Mr Zwennes submitted that there is a serious error on the face of the ruling of the court below because with the glaring triable issues arising from the pleadings and processes filed by the parties in that action, the learned trial judge prejudged the matter by dismissing the applicant’s claim summarily without ordering formal evidence to be taken; that their writ disclosed valid cause of action, and the learned judge by not affording them a proper hearing acted contrary to, and in breach of, the rules of natural justice; and that the learned judge acted without jurisdiction in purporting to try the whole case and the issues both of law and fact arising therein as are apparent on the face of the record, and gave judgment solely upon the pleadings and affidavits, and made findings thereon. As a result, counsel submits, the applicants were literally debarred from the judgment seat before they had been heard as required by law.

In reply, counsel for the first respondents, Mr Kom, submitted that the trial judge was right in determining the suit on the issue of priority of title; that he considered the issues raised by the applicant’s counsel and ruled against them; that no useful purpose would be served by the “adduction” of oral evidence, and that the procedure adopted was proper and cannot be faulted. He further submitted that even if the judge made an error, it is a non-jurisdictional error, and the remedy is an appeal and not certiorari.

The issues to consider when a court is dealing with certiorari as a special remedy are (1) whether or not the inferior court or tribunal which dealt with the cause in the first instance acted within its jurisdiction; (2) whether the order or judgment is bad on its face in the sense that it is apparent on the face of it; and (3) whether the court or tribunal acted outside its jurisdiction; or whether it decided some question which was not before it: see Republic v Accra Special Court; Ex parte Akosah [1978] GLR 212, CA; Republic v High Court, Accra; Ex parte Asakum Engineering Construction Ltd, Supreme Court, 1 December 1992, unreported and a string of English decided cases adopted by this court, for example Walsall Overseers v London and North Western Railway Co (1878) 4 App Cas 30, HL (followed by the Privy Council in R v Nat Bell Liquors Ltd [1922] 2 AC 128, PC); R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338 at 353, CA and R v Paddington and St Marylebone

[p.338] of [1995-96] 1 GLR 310

Rent Tribunal; Ex parte Kendal Hotels Ltd [1947] 1 All ER 448, DC. Certiorari would lie to quash the decision of a court on the ground of error on the face of the record if such error went to jurisdiction, or was so obvious as to make the decision a nullity. Jurisdiction used here simply means the power or authority of the court to give a decision on the issue before it, and in that regard the correctness or otherwise of the decision is irrelevant. This court’s duty is to see whether the order is or is not valid on its face, and was made within its jurisdiction.

Where, however, the proceedings are regular on the face of the record and it is clear that the court or tribunal acted within its jurisdiction, a superior court would not grant a writ of certiorari simply on the ground that it has misconceived a point of law or had misconstrued a statute or misdirected itself as to the weight of evidence, neither can certiorari be granted to quash the decision (where the court or tribunal acts within its jurisdiction) on the ground that the decision is wrong in matters of fact: see R v Christian (1842) 12 LJ (LXIC) 26; R v Cheshire Justices; Ex parte Heaver (1912) 108 LJ 375; R v Nat Bell Liquors Ltd (supra) and R v Bolton (1841) QB 66.

Mr Kom has argued that in this case the High Court, Accra was seised with Jurisdiction and if it made a non-jurisdictional error of law the appropriate remedy is an appeal and not certiorari, and cited R v The Governor of Brixton Prison; Ex parte Armah [1968] AC 192. I have no qualms about this state of the law. In fact, in Armah v Government of Ghana [1966] 3 All ER 177 at 187, HL Lord Reid said: “If a magistrate or any other tribunal has jurisdiction to enter on the enquiry and to decide a particular issue, and there is no irregularity in the procedure, he does not destroy his jurisdiction by reaching a wrong decision. If he has jurisdiction to go right, he has jurisdiction to go wrong. Neither an error in fact nor an error in law will destroy his jurisdiction.”

Counsel for the applicant in the instant case is not saying that the High Court had no jurisdiction to go into the matter. All that he is saying is that there is a serious error on the face of the ruling of the court below because with the glaring triable issues arising from the pleadings and processes filed by the parties in that action, the learned trial judge prejudged the matter by dismissing the applicants’ claim

[p.339] of [1995-96] 1 GLR 310 summarily without ordering formal evidence to be taken.

Very serious allegations of fraud had been made against the respondents and full particulars have been given, and also it is on record that the respondents had challenged the applicant’s claim to the disputed land, and had themselves claimed title by virtue of their possession of a land certificate No 1518 dated 20 January 1992, and had requested the Land Title Adjudication Committee to adjudicate on the issue but later had withdrawn from the committee secretly without the knowledge of the applicants. Instead of going into the allegation by means of oral evidence, the trial High Court judge chose to rule on the issue before him by merely examining the pleadings and affidavits before him.

In this case, whether there is fraud or not depends on the facts of the case, and this cannot be ascertained until either the defence has been filed so that the court can deal with the case under Order 25, rr 2 and 3 of LN 140A, or unless the court has heard evidence. Here the defence never filed a statement of defence, at least this was not done before the respondents filed their notice to dismiss the suit for non-disclosure of cause of action. It is necessary that the court should afford the parties reasonable opportunity to be heard on any such ground. In other words, where fraud is pleaded, it is necessary that it should be proved; particulars must also be given, and where no particulars are given, it must be taken that no fraud existed or the averment amounted to a mere denial: see Darbah v Ampah [1989-90] 1 GLR 598, CA.

At common law fraud had to be distinctly alleged and proved, and not allowed to be inferred from the facts. Where no particulars are given or no evidence on fraud is led, the trial judge should not be expected to make any finding of fraud against the other party: see Nti v Anima [1984-86] 2 GLR, 134, CA and also the dictum of Thesiger LJ in Davy v Garrett (1878) 7 ChD 473 at 489, CA.

It is trite law that where a court makes a speaking order, ie one in which the grounds and the reasons therefor are adequately and clearly stated, and the said grounds are found to be patently erroneous in law on the face of the record, a superior court can quash the order on certiorari. The mere attachment of their indentures, exhibits A and B, a vesting assent, exhibit C and a land certificate, exhibit D (which had been challenged at the Land Title Adjudication Committee by

[p.340] of [1995-96] 1 GLR 310 the applicants) does not displace the allegation of fraud made by the applicants (the respondent therein). In the result, there is no proof of the propriety or genuineness of the documents tendered by the respondents because there was no evidence on which the court could come to a decision that the respondent (the applicant therein) properly and legally owned the disputed land. As he so fundamentally misconstrued the purport of the exhibits to the affidavit, the learned judge committed an error of law, and since the error is apparent on the face of the record, the application of certiorari would be granted: see Republic v James Town Circuit Court Judge; Ex parte Annor [1978] GLR 453 and Republic v High Court, Accra; Ex parte Ploetner [1984-86] 2 GLR 107, SC.

Learned counsel for the applicant also argued that the lower court proceeded to adjudicate on issues which he found to have arisen in the pleadings upon affidavits filed apparently under Order 25, r 4 of LN 140A and submitted that affidavit evidence does not lie. He supported his contention with Harlley v Ejura Farms (Ghana) Ltd [1977] 2 GLR 179 at 183, CA. He further submitted that by so doing the applicants were driven from the judgment seat without being heard.

Mr Kom has argued that the learned High Court judge did not deal with the case before him under Order 25, r 4 of LN 140A. I am unable to agree with him. If the judge did, what is wrong with it? Mr Kom himself did not state the authority under which he filed his notice before that court. Applications to the High Court to strike out pleadings are brought specifically under the inherent jurisdiction of the court or under Order 25, r 4 of LN 140A. It seems to me that it is not necessary to head the motion paper “application under Order 25, r 4 of LN 140A and the inherent jurisdiction of the court.” What is necessary is the formulation of the grounds. If they are properly formulated, the inherent jurisdiction will be invoked as well as that given by Order 25, r 4 of LN 140A. I seek guidance from the English case of Vinson v Prior Fibres Consolidated Ltd [1906] WN 209.

Order 25, r 4 of our LN 140A follows verbatim the former English Order 25, r 4 as follows: “The Court or a Judge may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being

[p.341] of [1995-96] 1 GLR 310 shown by the pleadings to be frivolous or vexatious, the Court or a Judge may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.”

Part of the inherent Jurisdiction is also covered by Order 25, r 4 of LN 140A and this has been explained in a number of English decisions like Marchioness of Huntly v Gaskell [1905] 2 Ch 656, CA; Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210, HL; Shackleton v Swift [1913] 2 KB ‘304, CA and Reichel v Magrath (1889) 14 App Cas 665, HL. The cases note that the court has inherent jurisdiction to strike out pleadings which are frivolous and vexatious and an abuse of the process of the court or are oppressive proceedings. Mr Kom’s motion and arguments were founded on the ground that the applicant’s suit or writ of summons discloses no cause of action. His arguments were not geared towards demonstrating that the action is frivolous and vexatious and therefore an abuse of the process of the court. This means that he was not invoking the inherent jurisdiction of the court. It would seem that he proceeded strictly under the first part of Order 25, r 4 of LN 140A which enjoins the court to strike out where no reasonable cause of action is shown.

The power under the inherent jurisdiction is discretionary, and in my view, there is a very substantial difference between proceedings under the inherent jurisdiction and proceedings under Order 25, r 4 of LN 140A. It seems to me that under the rule, in an application to set aside the writ and statement of claim, the court is simply to decide the issue by examining the writ and the statement of claim and nothing else. If, on the other hand, the application is founded on the inherent jurisdiction which is discretionary, then all the facts can be gone into and evidence by way of affidavits touching the facts supported by documents are admissible: see Vinson v Prior Fibres Consolidated Ltd (supra) and Willis v Earl Howe [1893] 2 Ch 545 at 551, CA. I do not therefore see the unnecessary nervous excitement of Mr Kom over Order 25, r 4 of LN 140A. His motion paper and arguments were geared towards it and the trial judge proceeded under that accordingly.

It is not easy to affix a precise meaning to the term “reasonable cause of action” used in Order 25, r 4 of LN 140A. In point of law, and consequently in the view of a court of justice, every cause of action is a reasonable cause, but some sort of meaning must be assigned to the term “reasonable.” I would not like to go into details here as

[p.342] of [1995-96] 1 GLR 310 arguments were not centered on this. But looking at the applicant’s writ and statement of claim, I find it difficult to hold that it is clear that the plaintiff (ie the applicant herein) had no reasonable cause of action. The only evidence before the learned judge was affidavit evidence, and if the only grounds on which a statement of claim is said to disclose no reasonable cause of action are, as Mr Kom contends, that:

“(i) the plaintiff and the defendant have a common vendor, Nii Odoi Kwao family;

(ii) in September 1976 when the Nii Odoi Kwao family purported to have sold the land in dispute to the plaintiff’s predecessor the family had no right, title or interest in the land in dispute to convey to anybody; and (iii) since the predecessor in title of the defendant’s title was registered prior to that of the plaintiff, the defendant has priority over the plaintiff,” when the plaintiff in his pleadings before the High Court averred that “the defendant-company wrongfully and/or fraudulently procured a purported conveyance of the plaintiff-company’s land as well as registration thereof in the land register and the land certificate from the Registrar of Lands”, and gave full particulars of the fraud complained of, pointing out anomalies apparent in the defendant-company’s documents of title which it was relying upon, then I doubt whether affidavit evidence was admissible. I have come across cases where affidavits have been used to show that an action was vexatious or an abuse of the process of the court but not, as far as I know, where “it has involved the trial of the whole action when facts and issues had been raised and were in dispute”: see Wenlock v Moloney [1965] 1 All ER 871 at 873, CA.

I would say, adopting the dictum of Fletcher Moulton LJ in Dyson v Attorney-General [1911] 1 KB 410 at 419-420, CA that:

“our judicial system will never permit a plaintiff to be ‘driven from the judgment seat’. . . without any court having considered his right to be heard, excepting in cases where the cause of action was obviously and almost incontestably bad . . . an order of this kind ought not to be made where there is any reasonable ground for argument as to the maintainability of the action.”

[p.343] of [1995-96] 1 GLR 310

In the circumstances, I am also of the opinion that there are very good grounds for granting certiorari. I will grant it.

JUDGMENT OF EDWARD WIREDU JSC.

This is a concurring opinion to that just read by my sister Sophia Akuffo JSC which I have had the opportunity and privilege to read beforehand. The facts of this case have been eruditely set out in her opinion and I will endeavour not to repeat same unless where I consider appropriate.

I indorse her conclusion on both the issue of the preliminary objection raised in this application by learned counsel for the respondents and the success of the application on the merits. To me the issue raised for consideration in this application which has been brought under article 132 of the Constitution, 1992 is fundamental. Certiorari jurisdiction exists at common law and constitutional law as recognised under article 132 of the Constitution, 1992. Under article 132 of the Constitution, 1992 this court has supervisory jurisdiction over all courts and over any adjudicating authority and may, and in the exercise of this supervisory jurisdiction issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory power.

It is trite law that where a right exists at both the common law and the same right is also statutorily or constitutionally conferred, the rights under the statutes or the Constitution must be treated as an addition to the common law right, unless there is a conflict between the common law rights and the provisions of the statutes or of the Constitution, in which case the common law ought to give way to the statutory or constitutional provisions. It is my considered respectful view that the present application is competently before us under the constitutional provisions of article 132 of the Constitution, 1992.

The issue for determination before this court is not merely whether the High Court has jurisdiction to entertain an application to dismiss an action under its inherent jurisdiction to prevent an abuse of its process or to summarily dismiss a suit for disclosing no reasonable cause of action against the defendant. The issue, as I see it, is whether it was competent for the High Court to have dismissed the plaintiff’s action summarily under it’s inherent jurisdiction on the material available before it and to deny the plaintiff a hearing on the merits.

In the case of Amoako v Amados [1975] 1 GLR 401 when I had the

[p.344] of [1995-96] 1 GLR 310 occasion to consider the circumstances under which the High Court could competently and legitimately strike out a pleading or stay or dismiss an action under its inherent jurisdiction and under Order 25, r 4 of the High Court (Civil Procedure) Rules, 1954 (LN 140A), I held:

“Order 25, r. 4 of LN 140A was usually invoked along with the inherent jurisdiction of the court to strike out a pleading or part of an endorsement of a writ or to set aside the service of it or to stay or dismiss all proceedings before or at the trial which were considered obviously frivolous and vexatious or an abuse of the court’s process. Under its inherent jurisdiction, the court would prevent a party seeking to raise anew substantially the same question already decided by a court of competent jurisdiction in prior proceedings between him and another party. Such a fact might be brought before the court by affidavit; but if there was a matter of fact fit to be investigated (which the plaintiff was not estopped from proving) the court would refuse to stay action. The appropriate time to invoke the summary process under Order 25, r.4, was after the close of pleadings or on summons for directions.”

On the face of the materials presented before the High Court the plaintiff alleged “fraud” against the defendant and particulars were given. An allegation of fraud goes to the root of every transaction. A judgment obtained by fraud passes no right under it and so does a forged document or a document obtained by fraud not pass any right. An allegation of fraud if denied needs to be investigated and proved. This can be done only by taking evidence. A denial of an allegation of fraud raises a triable issue which a court cannot determine summarily.

In the instant case, the allegation of fraud ought to have alerted the High Court that it could not competently determine the case before it without going into the allegation. The summary way in which the court dismissed this case erroneously denied the plaintiff a hearing. A denial which amounted to a violation of a fundamental rule of natural justice. It was not within the competence of the High Court on the available materials before it to have dismissed the plaintiff’s action summarily.

Mindful of this court’s powers under article 132 of the Constitution, 1992 this is a proper case to make an order setting aside the judgment of the High Court and order that the case be sent down to the High Court for pleadings to take their normal course.

[p.345] of [1995-96] 1 GLR 310

JUDGMENT OF CHARLES HAYFRON-BENJAMIN JSC.

The judgment just read by my learned and respected sister Sophia Akuffo JSC has my approbation and I fully concur in the decision at which she has arrived. I, however, make this short contribution more for emphasis than for amplification of her very able disquisition. The applicant, the plaintiff in the High Court, filed an amended writ of summons together with an amended statement of claim in which by paragraph (9) thereof the applicant (then the plaintiff) pleaded fraud and gave particulars. The amended writ and statement of claim were filed on 5 September 1995. On 16 November 1995 the respondents (the defendants in the High Court) filed a “MOTION ON NOTICE TO DISMISS SUIT FOR NON-DISCLOSURE OF CAUSE OF ACTION.” The so-called “affidavit or Kurt Vorlop of Accra” only took swipes at the plaintiff’s statement of claim and concluded that “the plaintiff’s writ of summons as disclosing no cause of action.” In my respectful opinion, in the face of the plea of fraud, the respondents, then the defendants, were playing on the sensibilities of the learned judge. That the learned judge fell for this unmeritorious procedure was due mainly to the fact that his attention was not drawn to this very important plea of fraud.

Fraud, of course is an issue of fact and when alleged in a pleading must be proved by tested oral evidence which tends to establish it. In the English case of Lazarus Estates Ltd v Beasley [1956] 1 All ER 341 at 345, CA Denning LJ (as he then was) wrote:

“No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever . . .”

It seems to me that the learned judge was in grave error in considering the procedural point and leaving the substantive issue unattended to. There was a patent error of law going to the jurisdiction of the court at that stage of the proceedings and in the face of the plea of fraud, to determine that there was no cause of action. These errors entitled the applicant to have the judgment and proceedings quashed.

[p.346] of [1995-96] 1 GLR 310

JUDGMENT OF ATUGUBA JSC.

I have had the privilege of reading beforehand the judgments of my sister Sophia Akuffo and my brother Edward Wiredu JJSC and they coincide with the conclusion I had also reached on this matter. The facts are fully set out in her analytical and well reasoned judgment. I however desire to add a few words of my own.

One of the objections raised by Mr Kom is: “The title of the suit is wrong and it should be intituled: “Republic v Additional High Court Judge; Ex parte Modern Signs Ltd.” I agree with the reasons for overruling this and the other preliminary objections given by my sister Sophia Akuffo JSC. I would, however, add that it is necessary that parties adhere to the usual title given to applications of that sort. That title conforms with the one contended for by Mr Kom, save that, it is the name of the applicant and not the person directly affected by the application that is set out after the name or description of the person or body to whom the order, when granted, should issue. This is borne out by the titles to some of the cases on certiorari to which I will refer hereinafter.

The formulation of this title has gained root in the practice and as it is based on the prerogative origin of the remedies of the supervisory jurisdiction including certiorari, the same should be preserved. In the case of default, the remedy should be an amendment. As Apaloo JA (as he then was) said in University of Cape Coast v Anthony [1977] 2 GLR 21 at 37-38, CA “. . . a long line of authorities establish that the court, suo motu can amend either an endorsement on the writ or the title of the case to conform with the evidence and the justice of the case . . .” Since the supervisory jurisdiction in the country has undergone statutory expansion, in terms of the reliefs that can be granted (not being limited to the Orthodox prerogative orders), I see no reason why the same title cannot be adopted mutatis mutandis, when applying for any relief under the supervisory jurisdiction. The Practice Note in Republic v High Court, Ho; Ex parte Evangelical Presbyterian Church, Ghana (EP Church) [1991] 1 GLR 39 at 44, SC did not expressly cover this aspect, hence my views thereon. The title to that case also supports my views as to what is the correct formulation for invoking the supervisory jurisdiction of this court.

Mr Kom also contended that “where a court is properly seised with a matter and makes a non-jurisdictional error of law the appropriate remedy is an appeal and not certiorari.” The contention is right only in

[p.347] of [1995-96] 1 GLR 310 a situation where the error is not apparent on the face of the record. The scope of certiorari is not restricted to jurisdictional errors. One of the best formulated decisions on the scope of certiorari is the case of Republic v Cape Coast District Magistrate Grade II; Ex parte Amoo [1979] GLR 150 at 159, CA where Anin JA (as he then was) said:

“I have no doubt whatsoever that the High Court is competent to quash by certiorari the judgments and orders of inferior tribunals on the grounds of either want or excess of jurisdiction; breach of the rules of natural justice; error of law on the face of the record; and fraud, perjury or duress in procuring a decision.”

In his concurring judgment Apaloo CJ said at 160:

“As is well known, the remedy of certiorari is a useful tool in aid of justice and ought to be used to correct defects of justice whether they arise from illegality, fraud, breach of the rules of natural justice, error on the face of the record and the like. I am not even prepared to say that the category of cases in which this useful remedy can or should be used is closed.”

As far as error on the face of the record is concerned, the following cases decided by the Supreme Court are in point: In Republic v High Court Registrar, Kumasi; Ex parte Yiadom I [1984-86] 2 GLR 606 SC, holding (2) in the headnote states:

“Certiorari lay, apart from jurisdictional situations, to correct errors of law apparent on the face of the record. Even if the decision sought to be quashed was an error of law, it was in the circumstances of the case, a latent error not a patent error and could not on the authorities be a proper foundation for certiorari; such latent errors properly belonged to appeals.”

See also, Republic v High Court, Accra; Ex parte Ploetner [1984-86] 2 GLR 107, SC; Republic v Court of Appeal, Accra, Ex parte Sidi [1987-88] 2 GLR 170, SC; the judgment of Osei-Hwere JSC in Republic v High Court, Ho; Ex parte Evangelical Presbyterian Church of Ghana [1991] 1 GLR 323 at 341, SC (though a dissenting one); the judgment of my brother Edward Wiredu JSC in Republic v High Court, Kumasi; Ex parte Khoury [1991] 2 GLR 393 at 402 SC and the recent decision of this court in Republic v High Court, Koforidua; Ex

[p.348] of [1995-96] 1 GLR 310 parte Otu [1995-96] 1 GLR 177, SC.

Applying these principles to the present case, one finds that the the learned trial judge in his ruling, stated as follows: “Before dealing with the above matters in detail, I will first examine the question of inherent jurisdiction of the court by which the applicant has brought the instant application.” It is quite obvious and as demonstrated by my sister Sophia Akuffo JSC, that the learned trial judge thereby fell into a patent error on the face of the record. There was nothing in the formulation of the application before him to show that the applicant invoked the inherent jurisdiction of the court. My sister Sophia Akuffo JSC has demonstrated how that jurisdiction can be invoked and that on the authorities, the distinction between the inherent jurisdiction of a court to dismiss an action as being an abuse of the process and the jurisdiction to strike out pleadings for non-disclosure of a cause of action under Order 25, r 4 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) is one of the substance.

In Dei XI v Darke XII [1991] 2 GLR 318 at 331, SC Osei-Hwere JSC said that a court may lack jurisdiction “where there may be absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry.” Therefore in Republic v Asamankese District Magistrate; Ex parte Ide Zabramah [1972) 1 GLR 398, Quashie-Sam J (as he then was) quashed a conviction based on a charge that did not state any particulars of the offence whatsoever, remarking at 402, “. . . this is a gross irregularity or error on the face of the record for which certiorari would amply lie to quash the conviction.” I have already indicated the complete absence of anything in the motion in the court below to indicate that the court’s inherent jurisdiction was invoked ab initio. There are other grounds of error in the proceedings, but I have said enough to enable me reach my concurring decision. In short, by a patently wrong legal view of the application before him, the trial judge acted ultra vires, thereby denying the applicant natural justice.

Although there was initial doubt, in the case law, as to whether despite the statutory provisions as to the supervisory jurisdiction of the High Court and the Supreme Court, in a certiorari application, the court can only quash or make additional orders, some of the cases I have already alluded to, for example the Sidi case (supra) warrant not only the quashing of the ruling of the trial court in this case but also a [p.349] of [1995-96] 1 GLR 310 direction that the pleadings “take their normal cause” as made by my brother Edward Wiredu JSC. DECISION Application granted.

Case sent back to High Court for trial.

DRKS