REPUBLIC vs. ACHEAMPONG ALIAS NANA NYAN IV; EX PARTE NANA AFFUL EFFRIM IV [1973] 1 GLR 160

CASES REFERRED TO

(1) Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C.

(2) McIntosh v. Simpkins [1901] 1 K.B. 487; 70 L.J.Q.B. 268; 84 L.T. 21; 49 W.R. 241; 17 T.L.R.

195; 45 S.J. 218, C.A.

(3) Alderson v. Palliser [1901] 2 K.B. 833; 70 L.J.K.B. 935; 85 L.T. 210; 49 W.R. 706; 17 T.L.R. 742;

45 S.J. 722, C.A.

(4) Fishmongers’ Co. v. Donington Finance Co., Ltd. [1941] 1 All E.R. 137; 85 S.J. 224, C.A. (5) Attorney-General v. Levandowsky & B.A.S.E. Group [1971] 2 G.L.R. 58, C.A. (6) Armar v. Armar, Court of Appeal, 21 April 1969, unreported; digested in (1969) C.C. 73. (7) In re Pritchard (decd.); Pritchard v. Deacon [1963] Ch. 502; [1963] 2 W.L.R. 685; 107 S.J. 154;

[1963] 1 All E.R. 873, C.A.

NATURE OF PROCEEDINGS

SUMMONS by the respondent asking that an ex parte order granted to the applicant for leave to apply for an injunction in the nature of quo warranto be set aside. The facts are sufficiently set out in the ruling.

COUNSEL

K. K. Dei-Anang for the applicant.

James Mercer for the respondent.

JUDGMENT OF SARKODEE J.

This court presided over by Francois J. during vacation granted the applicant leave to apply for an order of injunction in the nature of quo warranto directed to Isaac Annobil Acheampong, otherwise known as Nana Nyan IV, the respondent herein. The learned judge ordered notices to issue and fixed 17 October 1972 for the hearing of the application.

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Pursuant to the leave granted the applicant filed the notices. Subsequently the respondent filed a summons asking that the order granting leave to the applicant on 6 September 1972 and all subsequent proceedings be set aside for irregularity on the grounds that:

“(a) Order 59, r. 4 (3) has not been complied with:

(b) the affidavits by Kofi Onyemualey sealed herein on 30 August 1972 and 13 September 1972, have not been endorsed in accordance with Order 38, r. 10;

(c) the purported statement filed on 13 September 1972 does not comply with Order 59, r. 2 (2);

(d) the purported statement served with the notice of motion on 13 September 1972, is not a copy of the statement accompanying the application for leave none having been filed as required by Order 59, r. 5 (1);

(e) this honourable court made the order granting leave on 6 September, [sic] without the application being accompanied by a statement as required by Order 59, r. 2 (2).”

With regard to the first ground learned counsel for the respondent conceded that the error was curable by filing the necessary affidavit and therefore did not press that point. In any case affidavits of service sworn to were on the court’s file prior to the hearing of the application for leave.

Counsel then argued the second ground emphasizing that the language of Order 38, r. 10 is mandatory and imperative. In my view this ground is misconceived because the two affidavits complained of adequately supplied information as to who the deponents were and on whose behalf they were filed. In support of ground (e) learned counsel submitted that this court made the order granting leave without the affidavit being accompanied by a statement as required by Order 59, r. 2 (2). He submitted that no statement was lodged at all and therefore a vital jurisdictional foundation was missing. Counsel added that an affidavit however copious it might be could not take the place of a statement. Ground (e) was taken together with (d) and counsel concluded his submissions by stating that this court has power to set aside the proceedings because the order granting leave was void ab initio and relied on Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C.

These are weighty arguments which raise issues deserving serious attention. I shall therefore take a closer look at the cases relied on by learned counsel to support his case: McIntosh v. Simpkins [1901] 1 K.B. 487, C.A., was a case which dealt with Order 25, rr. 13 and 14 (a) of the English County Court Rules, 1889. The rules required that an application for leave for a judgment summons to issue out of the jurisdiction must be made upon an affidavit and that leave was not to be granted unless the judge was satisfied that the evidence before him, if uncontradicted, would justify a commitment. The form of the affidavit was intended to enable the judge to know what were the responsibilities of the person he was asked to commit. The affidavit in that case did not

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contain any of the particulars mentioned in the form in the schedule. Romer L.J. held at p. 492 that, “The affidavit does not meet the conditions laid down in the form, and affords no evidence which would justify the County Court judge in making an order of committal.” The proceedings founded on the affidavit were therefore found to be wrong ab initio.

Stirling L.J. in Alderson v. Palliser [1901] 2 K.B. 833, C.A., held the same view. Also in Fishmongers’ Co. v. Donington Finance Co., Ltd. [1914] 1 All E.R. 137, C.A. judgment obtained on an ex parte application was set aside, irrespective of the merits of the case, on the ground that the order was made on insufficient disclosure of facts. A single thread runs through all these cases; and that is that the defects were all held to be fundamental and went to the root of each case and therefore could not be excused. See Attorney-General v. Levandowsky & B.A.S.E. Group [1971] 2 G.L.R. 58 at p. 67, C.A.

Order 59, r. 2 (2) provides that:

“An application for such leave as aforesaid shall be made ex parte to the Court, except in vacation when it may be made to a Judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought . . . The Court or Judge may, in granting leave, impose such terms as to costs and as to giving security as it or he thinks fit.”

(The emphasis is mine.)

The ex parte application in this case was not accompanied by a statement. There is no doubt that the rule has been infringed. However, whether or not a defect in procedure is fundamental depends on all the circumstances; prejudice to the other party being an important consideration. The Court of Appeal in Armar v. Armar, Court of Appeal, 21 April 1969, unreported; digested in (1969) C.C. 73 in reviewing Order 70, r. 1 held: “If a defect is an irregularity which is curable then the proceedings will be saved under this rule.” Upjohn L.J. in In re Pritchard (decd); Pritchard v. Deacon [1963] Ch. 502 at p. 523, C.A. said:

“. . . the law when properly understood is that Ord. 70 applies to all defects in procedure unless it can be said that the defect is fundamental to the proceedings. A fundamental defect will make it a nullity. The court should not readily treat a defect as fundamental and so a nullity, and should be anxious to bring the matter within the umbrella of Ord. 70 when justice can be done as a matter of discretion . . .”

The whole matter is whether the defect in this case is fundamental. In Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C., Akufo-Addo J.S.C. (as he then was) said this of Order 70 at p. 346 that:

“Order 70, it should be noted, is headed ‘Effect of non-compliance,’ and the provisions thereof are applicable only to a case of irregularity, often called ‘a mere irregularity,’ arising out of failure

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on the part of a party to comply with some specific rule as opposed to an irregularity in the court doing something which has no warrant in law or in the rules of procedure. The former irregularity which does not render void any proceedings based thereon, but which is merely voidable, is capable of being waived, and setting aside any order arising out of such an irregularity is a matter for the court’s discretion, whereas the latter class of irregularity renders void any order or judgment emanating therefrom, and setting aside such an order or judgment being ex debito justitiae a court or a judge has no discretion in the matter but is under a legal obligation to set it aside.”

The affidavit in support of the ex parte application contains all the essential facts necessary to enable the learned judge to come to a proper conclusion. In any event the position of the respondent has not been prejudiced. What is required is that he should be put into possession of the full facts by the statement which has subsequently been filed. I hold therefore that the absence of a statement as required by the rules is not so vital as to render the whole of the proceedings a nullity and so deprive the court of jurisdiction to determine the matter before it. The objection therefore fails and the application will be heard on its merits. Costs at ¢50.00.

DECISION

Summons dismissed.

S.E.K.