HIGH COURT, HO
DATE: 15 MAY 1967
BEFORE: KINGSLEY-NYINAH J.
NATURE OF PROCEEDINGS
RULING on an application for an order of certiorari to quash an order of the Kpandu Local Court, on the ground that the court had no jurisdiction to make the order which set aside an award of arbitration proceedings, since the case had earlier been struck off the court’s lists.
COUNSEL
Aggrey-Gikunoo for the applicant.
I. N. K. Wuaku for the respondents.
JUDGMENT OF KINGSLEY-NYINAH J.
On or about 15 June 1966, the applicant herein (as the plaintiff), sued the first and second respondents herein (as the defendants) before his worship Mr. M. C. B. Agbettoh, the first respondent herein as the presiding magistrate. The claim was for:
“(a) Title to ownership.
(b) Recovery and possession of ‘Bisawuo-Vehoe’ land trespassed unto by the defendants.
(c) £G100 or ¢240.00 damages for trespass committed by defendants thereon …”
The writ then proceeded to describe the extent and boundaries of the parcel of land trespassed upon, as well also as its value. The third and fourth respondents were later joined to the suit as co-defendants. A week later, when the very same matter came up before, the local court magistrate, Mr. M. C. B. Agbettoh (the first respondent herein) a letter was received by the court praying that the matter, then properly before the local court, be taken out for settlement. The proceedings of that day, 22 June 1966, are so important that I here quote them at length: “Note: Both parties in court. A letter dated 22 June 1966 written by the Paramount Chief of the Ve Traditional Area, signed by himself prayed the court that both parties have agreed to settle their differences from the court for settlement before him, the paramount chief and that the court should stop proceeding on the case. Asked if they agreed on what was alleged by the paramount chief in his letter, both parties answered in the affirmative and expressed that they were applying for leave of the court for settlement of their differences out of the court. [p.336] of [1967] GLR 334
Court: The application is granted.
Order: This case is settled out of court and I have directed that it be removed from the list of the court.”
Following this, and on 23 July 1966, the matter was taken out of court to the Ve Traditional Area arbitral board for the settlement agreed upon by both the applicant herein and the defendants and theco-defendants-respondents to this instant application. Both parties having submitted themselves to the jurisdiction of the arbitral board, the matter was duly arbitrated upon by Togbuiga Delume VI, Paramount Chief of the Ve Traditional Area. The arbitration award was duly published on or about 9 August 1966. A few weeks later, however, that is on 16 September 1966, the co-respondents herein who had consented to the arbitration and submitted to the jurisdiction of the board, applied to the very same Kpandu Local Court which had ordered that the very same matter “be removed from the list-of the court,” to set aside the arbitration award and proceedings for irregularities which, the co-respondents claimed, had vitiated and nullified the entire proceedings and award. Without calling any of the arbitrators to answer to the respondents’ charges of irregularities, but relying solely upon the affidavit of complaint lodged by the co-respondents, and what he heard from both sides, the local magistrate allowed the application and ordered, on 16 September 1966, that the arbitration award of the Ve Traditional Area arbitrary court, be set aside.
In this instant application, learned counsel for the applicant has contended that all that ought to be properly done, was so done before the arbitral court, and that since there were no irregularities, as alleged by the respondents, the award of the arbitral court was binding upon both parties to that arbitration. He further urges that the first respondent (the local magistrate) had no authority, right or power, either, to entertain the respondents’ complaint against the arbitration award. And he has furthermore argued that the first respondent wrought an injustice against the applicant because he failed in his duty as a magistrate, to carry out the necessary judicial investigation to determine the truth, or otherwise, of the respondents’ complaint duty he ought, strictly, to have carried — a out before deeming it meet and right to grant the respondents their prayer that the arbitration proceedings and award be set aside. Since, therefore, the local magistrate, as contended by the applicant herein, acted without jurisdiction in setting aside the award of the arbitral court, this High Court ought, by virtue of its jurisdiction and powers, to quash, by certiorari, the order of the Kpandu Local
[p.337] of [1967] GLR 334
Court held under the presidency of the first respondent herein, Mr. M.C. B. Agbettoh.
After carefully considering the facts and the circumstances of this matter against the background of the submissions of both learned counsel herein, I form the decided view that the question for determination in this instant motion is not:
(a) Whether or not the arbitration proceedings and award of Togbui Delume VI were or were not a validly binding arbitration from which it was open to either parties thereto properly to resile; (b) Whether or not the local court magistrate, the first respondent herein, was right or wrong, in omitting to hear the arbitrators before he allowed the instant respondents their application to set aside the proceedings and award.
What I am called upon to decide is, rather:
(a) Whether or not the proceedings before the Kpandu Local Court on the various dates hereinbefore indicated, were regular upon their face.
(b) Whether the first respondent, the local magistrate, had jurisdiction and power to act as he did: that is, in allowing the withdrawal for settlement—removing the matter before him—and then entertaining the same matter again and making an order. It is the duty of every court vested with proper authority to determine disputes between parties, to promote and encourage settlement where every practical consideration urges that course of action: seesection 84 of the Courts Act, 1960 (C.A. 9). Settlements are sometimes requested by the disputants themselves; at other times they are suggested and initiated by the court, and yet at other times, they are asked for by someone other than a party to the suit before the court. In any of these cases, the matter is never said to be settled unless and until both sides to the dispute have expressly agreed upon the terms of the settlement and they are, by all the indications, ready and willing to submit to and abide by the terms thereof.
Where the subject-matter of the dispute is pending before a court of competent jurisdiction, the court has no right or power to strike it out, or to order its removal from the lists of the court unless and until either or both of the disputants have either personally appeared before the court, or else through the medium of a letter duly signed by either or both sides, announced to the court the fact of that settlement and asking that the matter then pending before the court be therefore and accordingly struck off the lists of the court. This instant matter having originated from a local magistrate’s court, now denominated a district court grade II, it becomes pertinent [p.338] of [1967] GLR 334
to have regard to the Local Courts (Procedure) Regulations, 1962 (L.I. 208), reg. 109 whereof provides as follows:
“When at the date of hearing the plaintiff shall inform the Local Court that the cause has been settled out of Court the Local Court shall direct that the cause be struck off the list.”
(The emphasis is mine.) The mere announcement, by the litigating parties of their wish or desire to have their dispute settled out of court without any further step or proceeding factually geared towards and expressly referable to, and actually effecting that settlement, cannot invest any court be it low or high or supreme with authority at that very initial stage when the parties have not even met to start negotiating for the settlement, to remove the suit from the lists of that court.
In my view, therefore, the local magistrate, the first respondent herein, was justified and right when he made the following record: “Court: The application is granted.” But to my mind, as modelled by the facts now before me in general, and by the clear provisions of regulation 109 of L.I. 208 herein-above quoted, more particularly, the order made by the local court magistrate that “This case is settled out of court and I have directed that it be removed from the list of the court,” was wrongly made. He had an absolutely wrong conception, a total misapprehension of what he should have done in accordance with the clear requirements of the law under regulation 109 of L.I. 208. Quite obviously, at the time, and stage of the proceedings when that error was made so blatantly transgressing the law, the matter which had been agreed upon by both parties to be removed out of court, had not been settled out of court by the disputants to warrant and justify that order. It is my opinion that while efforts were being made to effect that settlement consented to by both the applicants and the respondents herein, and until an amicable settlement was reached and the results communicated to the local magistrate, the suit entitled: Togbe Konkong, Divisional Chief of Ve Gbodome. Plaintiff
v.
Akukuma Getse
Tega Getse Defendants
E. S. Azah and Co-Defendants
L. Kekeku[p.339] of [1967] GLR 334 — still remained upon and never, in fact and in law, left the lists of the Kpandu Local Magistrate’s Court — until it was regularly and properly struck off, the irregular order of the local magistrate notwithstanding.
The writ of certiorari, a special remedy, is the ordinary process whereby the High Court brings up for examination the acts of courts of inferior jurisdiction. I have to decide whether the facts and the circumstances of the matter before me, as disclosed upon the affidavits herein, provide sufficient scope for certiorari to lie. When the Paramount Chief of the Ve Traditional Area wrote, and the parties consenting, asked the local court “for leave of the court for settlement of their differences out of the court,” they cannot by any stretch of the imagination, nor yet by any principle of construction or interpretation, be taken to have been informing the local court “that the cause has been settled.” I hold, therefore, that the local magistrate, order whereby he purported to remove the suit from the lists, never amounted to a dismissal of that suit.
To all intents and for all purposes directly pertinent and expressly referable to that matter, the parties were still subject to the jurisdiction of the Kpandu Local Court, their temporary physical absence from the portals of that court notwithstanding. When after 22 June 1966, therefore, the matter went before the first respondent herein, on Friday 16 September 1966, his jurisdiction over the cause was still current and operative, it not having ever been abated or extinguished by that erroneous order of 22 June 1966. The appearance of the respondents before the local magistrate on 16 September 1966, with their complaint against the arbitration and the local magistrate’s presidency over the proceedings of that day when, in the presence of both sides to the dispute, he set aside the award of the Ve Traditional Area Authority Court, were all regular and proper.
I agree with learned counsel for the applicant herein, that where a matter has been struck off, it can only be revived upon an application properly made for its relistment. That is common every day procedure. But let me repeat and emphasise my finding that in this instant case there was absolutely no question of the matter having either been dismissed or struck off. Since the cause was, technically, still, pending before the Kpandu Local Court, I hold that it would have been superfluous for any formal application to have been made by the respondents for a relistment before they launched their application of 16 September 1966. There was no need at all for the cause of action because the doors had never, at any time, been shut and locked against them. From the day whereon the parties were allowed to
[p.340] of [1967] GLR 334
take the matter out for settlement, the doors remained open and ajar, and neither party had need for a key wherewith to gain a fresh entrance.
In effect and very substance, what the respondents did when they went before the local court on 16 September 1966, was to announce to the court that their settlement had broken down. For that, I repeat, they had no need of a key from the court’s janitor, the local court registrar. All they had to do was to push open the door which had been left open for their re-entry, and then walk in to lay their plaint against the arbitrators. I find and hold, therefore, that at all material times, even at the time of that erroneous order, the local magistrate had full and continuous jurisdiction, and that all the proceedings, save as already indicated, were regular. The only trouble in this case is that the local magistrate clearly acted in error and misconceived the clear provisions of L.I. 208, reg. 109.
It is for these reasons that I hold that the special remedy of certiorari cannot avail the applicant and oughtnot, therefore, to lie for: “Where the proceedings are regular upon their face and the interior tribunal had jurisdiction, the superior court will not grant the order of certiorari on the ground that the inferior tribunal had misconceived a point of law.”
See Halsbury’s Laws of England (3rd ed.), Vol. 11, p. 62, para. 119. The application for certiorari therefore fails and it is dismissed with costs to the respondents herein the sum of 25 guineas or N¢52.50. And it is ordered that the entry made by the Kpandu Local Court, that “This case is settled out of court” be hereby amended by the insertion of the words “to be” after the word “is” and before the word “settled,” so that the whole shall properly read: “This case is to be settled out of court.” And it is further ordered that the whole of the following erroneous directive that “I have directed that it be removed from the list of the court” be expunged from the record book which said book is also ordered, as soon as practicable, to be returned to the Kpandu District Court Grade II.
DECISION
Application dismissed.
Local court record book amended.
S.E.K
