REPUBLIC vs. HIGH COURT, CAPE COAST; EX PARTE KORTE [1999-2000] 1 GLR 397

CASES REFERRED TO

(1) Republic v Circuit Court Judge; Ex parte Dzakah [1984-86] 1 GLR 741.

(2) Republic v Judicial Committee of the Ahanta Traditional Council; Ex parte Bosomkorasic(1) II [1982-83] GLR 231.

(3) Barclays Bank (Ghana) Ltd v Ghana Cable Co Ltd [1998-99] GLR 1, SC.

(4) B v W [1979] 1 WRL 1041, [1979] 3 All ER 83; 123 SJ 536 HL.

(5) Attorney-General v Birmingham, Tame and Rea District Drainage Board [1912] AC 788.

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(6) Tuffuor v Attorney General [1980] GLR 637, CA.

(7) Azorblie v Ankrah [1984-86] GLR 561, CA.

(8) Asare v The Republic [1968] GLR 37, CA.

(9) Aidoo v Commissioner of Police (No 2) [1964] GLR 344, SC.

NATURE OF PROCEEDINGS

APPLICATION by the applicant to the Supreme Court for an order of certiorari to quash the ruling of the High court, Cape Coast granting a stay of execution of an order for ejectment that the applicant-landlord had obtained against the respondent-tenant at the Community Tribunal, Agona Swedru. The facts are sufficiently stated in the judgment of Charles Hayfron-Benjamin JSC.

COUNSEL

S K Amoah for the applicant.

Somuah Asamoah for the respondent.

JUDGMENT OF CHARLES HAYFRON BENJAMIN JSC.

I have had sight of the opinion of my learned and respected brother Acquah JSC and I agree with him that the application be granted. However, as I have a different approach to the conclusions, I have decided to make my contribution since the matter concerns the practice and procedure of the community tribunals vis-à-vis High Courts.

This is an application for an order of certiorari to issue to the High court, Cape Coast to bring up to this court in order to have quashed the ruling of that court dated 24 June 1998. The applicant states three grounds on which he prays in aid the exercise of the supervisory jurisdiction to quash the said ruling as:

(a) Breach of the rule of natural justice.

(b) Error of law on the face of the record.

(c) Lack of jurisdiction.

The basis of the application was that the applicant is the owner and landlord of a block of stores No 328, Agona Swedru. On 17 October 1997 the applicant caused a writ of summons to be issued against Benjamin Eshun, the interested party (hereinafter referred to as the respondent) for arrears of rent and ejectment from a store occupied by the respondent in the above-numbered premises. It would appear that the writ of summons was filed in the community tribunal because the same was placed on the “undefended list.” On being

[p.400] of [1999-2000] 1 GLR 397 served with the said writ of summons, the respondent went to the community tribunal and paid the amount stated on the writ to the registrar, presumably in satisfaction of the applicant’s claim. The respondent went to the registrar before the “return date” and collected back the money he had apparently paid in satisfaction of the applicant’s claim from the registrar. No reason is given for the registrar’s conduct in paying the money back to the respondent. On the “return date” the community tribunal upon the case coming on gave judgment for the applicant and ordered the respondent to vacate the store room on or before 5 June 1998.

The respondent promptly appealed and applied by motion for a stay of execution pending the hearing of his appeal which had been filed in the High Court, Cape Coast. That application was heard and dismissed on 12 June 1998. It would appear once again that the application for stay of execution was filed at, heard and dismissed by the Community Tribunal, Agona Swedru.

The respondent renewed his application for stay of execution; but the application was filed in the High Court, Cape Coast. The applicant admits he was served with this motion but that he could not attend court on the date to which the application had been fixed. The applicant did not file an affidavit in opposition. On that date, 24 June 1998, when the application came up for hearing, the matter was stood down to enable the respondent to file a supplementary affidavit. This supplementary affidavit was not served on the applicant and the learned High Court judge proceeded to hear the motion which was thereupon granted.

The applicant complains that he was not served with the supplementary affidavit and was therefore denied the opportunity to react to the contents of that affidavit before the motion was heard and granted. The applicant further contends that the non-service of the supplementary affidavit makes the ruling amenable to certiorari.

The respondent on his part submits that prior to the action in the Community Tribunal, Agona Swedru in which judgment was delivered against him, there were some legal skirmishes between the parties in the High Court, Accra and a series of correspondences between their lawyers concerning the matter whether the applicant had agreed to sell the store to him. In his statement of case which largely covered the genesis of this litigation, the respondent concluded by submitting, inter alia, that he was right in filing his

[p.401] of [1999-2000] 1 GLR 397 appeal in the High Court, Cape Coast rather than at Agona Swedru since both towns were in the same region and the courts were equally vested with jurisdiction to entertain his appeal. In his submission, in going to Cape Coast, he had merely “elected” to approach a forum which was open to him. His choice was therefore not violative of any law. The respondent further contended that having filed his appeal in the High Court, Cape Coast, he was entitled upon the refusal of his application for stay of execution by the Community Tribunal, Agona Swedru to renew the same in the High Court, Cape Coast, in accordance with the rules of court. In the submission of the respondent, the applicant had not demonstrated that there was an error appearing on the face of the record to warrant any interference by this court. There was no breach of the rules of natural justice.

In this application, the issue for determination is, in my respectful opinion, very simple. It must be conceded by both parties that broadly speaking, section 21 of the Courts Act, 1993 (Act 459) is most apposite. Section 21(3) of Act 459 reads:

“(3) An appeal under this section against a decision of a Community Tribunal shall, subject to any transfer directed by the Chief Justice, be made to the Judge of the High Court exercising jurisdiction over the area of jurisdiction of the Community Tribunal.”

Thus for the purposes of this application, the fact that there are two High Courts in the same region does not mean that a prospective appellant may elect in which High Court and in what town he may prefer his appeal. There must be appointed by legislative instrument or other binding statutory instrument designating a judge of the High Court to exercise “jurisdiction over the area of jurisdiction of the Community Tribunal.” My researches, however, reveal that the existing legislative instrument (LI 1574) while it marks the areas of the jurisdiction of the community tribunals, does not address the matters concerned with the application of section 21 of Act 459. Consequently, as presently constituted, when any such situation occurs, the High Court of convenience must be the court nearest to the area of jurisdiction of the community tribunal within the region. I make reference to the High Court within the region in which the community tribunal operates because LI 1574 classifies these

[p.402] of [1999-2000] 1 GLR 397 tribunals by regions. The problem then is one of convenience. Therefore where, as in this case, the community tribunal and the High Court are situatesic(2) in the same town, an aggrieved party must lodge his appeal in the High Court situate in the same town. The promulgators of Act 459 were not unmindful of the possibility of such a problem arising and therefore gave the Chief Justice the power of transfer in order to enable the ends of justice to be satisfied. In my respectful opinion, the prospective appellant is not put to his election. His duty is to file his appeal in the High Court nearest to the community tribunal within the region and, where inconvenient, apply to the Chief Justice for the transfer of the appeal to any other High Court. It was not open to the respondent to elect in which of the High Courts—Cape Coast or Agona Swedru—in which to prefer his appeal. The High Court, Agona Swedru was the venue for his appeal and her lordship should have been put on her inquiry as to the propriety of the appeal and the subsequent application for stay of execution before her. There was, in my respectful opinion, no jurisdiction to entertain the application and I would grant the order sought.

This application has brought to the fore certain efficiencies in the establishment of the community tribunals as affect the presentation of appeals from the tribunal in terms of section 21 of Act 459. Clearly, there ought to be some legislative instrument clearly spelling out the areas of jurisdiction of these tribunals and the judge or court to which civil appeals may be brought.

JUDGMENT OF AMPIAH JSC.

I have had the privilege of reading beforehand, the opinions of my learned brothers and I agree that the application be granted. Although the Constitution, 1992 establishes one High Court in Ghana, for administrative purposes there are created in each region of Ghana one or more High Courts. Administratively, therefore, the jurisdiction of the High Court has been restricted to matters within a particular High Court so created. For example, in suits involving land, jurisdiction has, subject to an order of transfer by the Chief Justice, been vested in the High Court in the area where the land is situated. By section 21(3) of the Courts Act, 1993 (Act 459) appeals from the community tribunals to the High Court are to go to the High Court exercising jurisdiction over the area of the particular community tribunal, subject of course to any transfer by the

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Chief Justice. Since the court is not told of any transfer order from the Chief Justice, the High Court, Agona Swedru and not the High Court, Cape Coast, had jurisdiction in the matter.

I would advise that as the exercise of a jurisdiction which a particular court has not would render null and void proceedings in that matter, it is incumbent on the judge who has been called upon to exercise a jurisdiction to make sure, save in debatable situations, that he has jurisdiction before he embarks on exercising that jurisdiction.

JUDGMENT OF ADJABENG JSC.

This is an application for an order of certiorari to have brought into this court and quashed, an order of the High Court, Cape Coast dated 24 June 1998 staying execution of the judgment of the Community Tribunal, Agona Swedru dated 5 March 1998, pending the determination of an appeal filed at the High Court, Cape Coast against the said judgment.

The applicant, who was the plaintiff in the suit at the Community Tribunal, Agona Swedru contends in this application that the order of the High Court, Cape Coast staying execution of the judgment of the community tribunal, ought to be quashed on three grounds. First, that he the applicant, was not given a hearing in that a supplementary affidavit filed by the applicant in the motion before the High Court, Cape Coast on the day of the hearing of the motion at the High Court, had not been served on him before the hearing went on. The applicant, however, admits that even though he had been served with the motion for stay of execution, including the original affidavit in support, he never filed an affidavit in opposition, neither did he put in an appearance at the hearing nor sent a message explaining his absence at the High Court, Cape Coast. Counsel for the interested party submits that in these circumstances, the applicant cannot complain that he was denied a hearing. Counsel cites in support Republic v Circuit Court Judge; Ex parte Dzakah [1984-86] 1 GLR 741 and Republic v Judicial Committee of the Ahanta Traditional Council; Ex parte Bosomkora II [1982-83] GLR 231.

It is clear from a search made by counsel for the applicant and exhibited with this application, that the applicant was served with the motion for stay of execution about a week before the hearing. Yet, the applicant chose not to react to the motion in any way. He also failed to attend the court hearing or to explain his absence. He has

[p.404] of [1999-2000] 1 GLR 397 thus left everything in the hands of the court. His inaction can also be interpreted to mean that he did not intend to oppose the application. Can he then blame the court for proceeding with the hearing? I do not think so. If the court were to have put the interested party in the witness-box and to have taken oral evidence from him instead of he swearing the supplementary affidavit which the applicant is complaining about, the applicant would not have been able to cross-examine him as he was not there. How then can he complain of not having been given a hearing? As the High Court, Sekondi rightly held in the case of Republic v Judicial Committee of Ahanta Traditional Council; Ex parte Bosomakora II (supra) as stated on the headnote:

“In the instant case, hearing notices were served on the applicant on two separate occasions and yet he failed to appear. These showed that the applicant was given sufficient notice and was aware of the hearing date. He could not therefore complain that the case was tried without him.”

Again, I agree with the High Court, Ho, when it held in the case of Republic v Circuit Court Judge; Ex parte Dzakah (supra) that where both parties were aware of or had been served with hearing notices and yet one party failed to appear at the trial, the party who failed to appear could be said to have deliberately abstained from taking advantage of an opportunity to be heard and no breach of the audi alteram partem rule could be said to have occurred.

In the application before us, therefore, the failure of the applicant to react to the application for stay of execution before the High Court, Cape Coast, which had been served on him, as earlier explained, precluded him from claiming that he was denied a hearing. The High Court’s order cannot therefore be impugned on that ground. If this was the only ground on which the ruling of the High Court, Cape Coast can be challenged, I would not have hesitated in dismissing the application. But this was not the case. The ruling of the said court is also being challenged on the grounds of lack of jurisdiction and of error of law on the face of the record.

In respect of these other grounds, I agree with the opinions of my learned brothers Charles Hayfron-Benjamin JSC just read, and Acquah JSC, about to be read, that having regard to section 21(3) of

[p.405] of [1999-2000] 1 GLR 397 the Courts Act, 1993 (Act 459), it was wrong for the High Court, Cape Coast to assume jurisdiction in the matter when there is a High Court at Agona Swedru which has jurisdiction over the Community Tribunal, Agona Swedru, from which the matter emanated. On that ground, therefore, I agree that the application be granted.

JUDGMENT OF ACQUAH JSC

This is an application for certiorari to quash the ruling or order of the High Court, Cape Coast (Mrs Agyeman-Bempah J) dated 24 June 1998 wherein she stayed execution of the judgment of the Community Tribunal, Agona Swedru in civil suit No 386/97 titled: Marwan Kort v Benjamin Eshun. In that suit, the Community tribunal entered judgment for Marwan Kort, the plaintiff, with ¢100,000 costs and ordered Benjamin Eshun to yield vacant possession of the premises on or before 5 June 1998.

Although there is a High Court at Agona Swedru, Benjamin Eshun, claiming that the High Court, Agona Swedru would not be fair to him, lodged an appeal against the above decision at the High Court, Cape Coast and followed it up with a motion to stay execution of that decision. It is the ruling on this motion by the High Court, Cape Coast on 24 June 1998 which the applicant seeks to quash in this court on grounds of breach of natural justice, error of law on the face of the record and lack of jurisdiction.

Now, the application for stay of execution was, of course, on notice to Morwan Kort, the plaintiff-judgment-creditor. He was duly served but was not in court on 24 June 1998 when the motion was heard. But the record of proceedings of that day, exhibited as MK 4, shows that at the hearing, the High Court stood the application down for a supplementary affidavit to be sworn to, because as stated in the record, “it became apparent that the true background of this case was not effectively deposed to and so the applicant had to file a supplementary affidavit in support this morning.” Fair enough. But the judge went on to rely on the supplementary affidavit which had not been served on the respondent. After which, she granted the application for stay with cost of ¢200,000.

Once the application for stay was not brought ex parte, and the procedural rules do not so permit, the judge committed a blatant error in refusing to allow the supplementary affidavit to be served on the applicant. The fact that the applicant was absent that day was no excuse, and does not empower the judge to adopt the course of

[p.406] of [1999-2000] 1 GLR 397 action she took. It must be pointed out that the judge was perfectly entitled to hear the motion without the supplementary affidavit, as that motion had already been served on the other party. The error committed by the judge was her reliance on and use of the supplementary affidavit which had not been served on the other party. Such a failure to let the applicant be served, is an unjustifiable error on the face of the record, and a denial of the right of the applicant to respond to the contents of the supplementary affidavit, especially as the judge realised that the main affidavit did not disclose “the true background of this case.”

I concede that the courts have power, if permitted by the rules to hear certain applications ex parte: see Barclays Bank Ghana Ltd v Ghana Cable Co Ltd [1998-99] SCGLR 1. But in the instant case, the application was for stay of execution and the rules prescribe that they should be made on notice, as it was done. The judge could therefore not deny the respondent (the applicant in the instant case) the right to be served and respond to any of the papers filed by the applicant (the respondent in the instant case) in support of his case. In B v W [1979] 1 WLR 104, HL where the court acted on a document not disclosed to the appellant, the resulting judgment was quashed.

Next, as stated earlier on, there is a High Court of Justice at Agona Swedru which exercises jurisdiction over the lower courts, including the community tribunal, in that area. And except where the Chief Justice has exercised his power of transfer to have that appeal transferred from the High Court, Agona Swedru to the High Court, Cape Coast, the latter court cannot be the proper forum to entertain the appeal and its accompanying motion for stay of execution. Section 21 (1) and (3) of the Courts Act, 1993 (Act 459) provides:

“21. (1) A person aggrieved by a decision or order of a community Tribunal in a civil cause or matter may appeal against the decision or order to the High Court …

(3) An appeal under this section against a decision of a Community Tribunal shall, subject to any transfer directed by the Chief Justice, be made to the Judge of the High Court exercising jurisdiction over the area of jurisdiction of the Community Tribunal.”

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Thus where the defendant, according to him, had doubts that justice would not be fairly meted out to him, what he ought to have done was to have petitioned the Chief Justice for a transfer of his appeal. But in the absence of a transfer order, the defendant cannot on his own file his appeal at the High Court, Cape Coast and further, move the court to stay execution of the judgment of the Community Tribunal, Agona Swedru. Of course, this is an issue the High Court Judge, Cape Coast ought to have raised suo motu, because as Lord Loreborn LC said in Attorney-General v Birmingham Tame and Rea District Drainage Board [1912] AC 788 at 795: “A Court of law has no power to grant dispensation from obedience to an Act of Parliament.”

For the above reasons, I will grant the application to quash the ruling of the High Court, Cape Coast dated 24 June 1998. And l hereby so do.

JUDGMENT OF ATUGUBA JSC

The facts of this matter have been related in the rulings that have preceded mine. As to the complaint of non-service of the supplementary affidavit on the applicant, I have had very anxious thoughts and my mind veered at first to the cogent reasoning of my brother Adjabeng JSC. However, I am finally of the view that the supplementary affidavit formed part of the application before the High Court, that is to say, the motion paper and the original supporting affidavit. That being the case, since the application had to be served on the applicant, then every part of it ought to be served on him, if it is to be used against him. The supplementary affidavit was an appendage of the original affidavit and cannot have any independent legal existence of its own. The failure to serve the supplementary affidavit on the applicant meant that the applicant had been served with a fragmented application, which was irregular and therefore an error of law on the face of the record.

In so far as the question of jurisdiction is concerned, I have some observations to make. Section 21 (1) and (3) of the Courts Act, 1993 (Act 459) provides as follows—.

“21. (1) A person aggrieved by a decision or order of a Community Tribunal in a civil cause or matter may appeal against the decision or order to the High Court …

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(2) An appeal under this section against a decision of a Community Tribunal shall subject to any transfer directed by the Chief Justice, be made to the Judge of the High Court exercising jurisdiction over the area of jurisdiction of the Community Tribunal.”

Mark well how the latter provision seeks to pick up a quarrel with the Constitution, 1992. It is provided in article 125(1) of the Constitution, 1992 as follows:

“125 (1) Justice emanates from the people and shall be administered in the name of the Republic by the

Judiciary which shall be independent and subject only to this Constitution …

(5) The judiciary shall have jurisdiction in all matters civil and criminal, including matters relating to this Constitution, and such other jurisdiction as Parliament may, by law, confer on it.”

Closely following upon this is article 12 of the Constitution, 1992 which provides as follows:

“126. (1) The Judiciary shall consist of— (a) the Superior Courts of Judicature comprising— (i) the Supreme Court;

(ii) the Court of Appeal; and

(iii) the High Court and Regional Tribunals.

(b) such lower courts or tribunals as Parliament may by law establish.”

The expression “Judiciary” therefore relates by dint of article 126(1) of the Constitution, 1992 to a system of courts, and not particular judges.: see Tuffuor v Attorney-General [1980] GLR 637, CA and Azorblie v Ankrah IV [1984-861 1 GLR 561, CA. It is well established that jurisdiction attaches to a court and not a judge: see Asare v The Republic [1968] GLR 3, CA and that when it is conferred on a judge as opposed to a court, such jurisdiction is personal to that judge: see Aidoo v Commissioner of Police (No 2) [1964] GLR 344, SC. The effect of section 21(3) of Act 459 is therefore to restrict the right of appeal to the particular judge therein referred to. This conflicts with the provisions of the Constitution,

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1992 I have referred to supra. Section 21(3) Act 459 obviously is meant to avoid inconvenience but should be construed with such modifications as to bring it in line with the Constitution, 1992. Subject to this observation I would also grant the application.

DECISION Application granted.

LSNA

Endnotes

1 (Popup – Footnote) sic same in original. 2 (Popup – Footnote) sic same in original.