STATE v. ASANTEHENE’S DIVISIONAL COURT B1; EX PARTE KUSADA [1963] 2 GLR 238

DIVISION: IN THE SUPREME COURT

DATE: 5TH JULY, 1963

BEFORE: KORSAH C.J., ADUMUA BOSSMAN AND CRABBE JJ.S.C.

CASES REFERRED TO

(1) Hope v. Hope (1854) 4 De G.M. & G. 328; 43 E.R. 534

(2) Kistler v. Tettmar [1905] 1 K.B. 39; 74 L.J.K.B. 1; 92 L.T. 36; 21 T.L.R. 24, C.A.

(3) Porter v. Freudenberg [1915] 1 K.B. 857; [1914-1915] All E.R.Rep. 918

(4) R. v. Williams; Ex parte Phillips [1914] 1 K.B. 608

(5) R. v. Stafford Justices; Ex parte Stafford Corporation [1940] 2 K.B. 33; 109 L.J.K.B. 584; 162 L.T. 393; 56 T.L.R. 623, C.A.

(6) Pole v. Leask (1863) 33 L.J.Ch. 155; 8 L.T. 645, H.L.

(7) Boyle v. Sacker (1888) 39 Ch.D. 249; 58 L.J.Ch. 141; 58 L.T. 822, C.A.

(8) Tanham v. Nicholson (1872) L.R. 5 H.L. 561

(9) Nelson v. Pastorino & Co. (1883) 49 L.T. 564

(10) MacFoy v. United Africa Co. Ltd. [1962] A.C. 152; [1961] 3 W.L.R. 1405; [1961] 3 All E.R. 1169, P.C.

(11) Craig v. Kanssen [1943] K.B. 256; [1943] 3 All E.R. 108; 168 L.T. 38, C.A.

(12) Brakowa v. Awuakyewa (1956) 2 W.A.L.R. 164, W.A.C.A.

(13) Brakowaah v. Awuakyewah [1961] G.L.R. 164, S.C.

(14) In re J. Wigfull & Sons ‘Trade Marks [1919] 1 Ch. 52; 88 L.J.Ch. 30; 120 L.T. 78; 35 T.L.R. 26, C.A.

(15) Dankwa v. Fuller (1957) 3 W.A.L.R. 168, C.A.

(16) R. v. Ashford, Kent, Justices; Ex parte Richley [1955] 1 W.L.R. 562; [1955] 2 All E.R. 327

(17) R. v. West Suffold Compensation Authority; Ex parte Hudson’s Cambridge & Pampisford Breweries Ltd. [1919] 2 K.B. 374; 88 L.J.K.B. 1022; 121 L.T. 88

(18) R. v. Sheward (1880) 9 Q.B.D. 741; 49 L.J.Q.B. 716, C.A.

(19) R. v Secretary of State for War; Ex parte Price [1949] 1 K.B. 1; 64 T.L.R. 528

(20) In re Mansergh (1861) 1 B. & S. 400; 121 E.R. 764

(21) R. v. Nicholson [1899] 2 Q.B. 455; 81 L.T. 257; 15 T.L.R. 509, C.A.

[p.243] of [1963] 2 GLR 238

(22) R. v. Richmond Confirming Authority; Ex parte Howitt [1921] 1 K.B. 248; 124 L.T. 345; 37 T.L.R. 62

(23) R. v. Surrey Justices (1870) L.R. 5 Q.B. 466

(24) R. v. Brighton Borough Justices; Ex parte Jarvis [1954] 1 W.L.R. 203; [1954] 1 All E.R. 197

(25) Bradshaw v. Warlow (1886) 32 Ch.D. 403; 55 L.J.Ch. 852; 54 L.T. 438

(26) R. v. Akiwumi; Ex parte Dako (1957) 3 W.A.L.R. 137, C.A.

(27) Anane v. Efriyea (1940) 6 W.A.C.A. 169

(28) R. v. South Holland Drainage Committee (1838) 8 Ad. & El. 429; 112 E.R. 901

(29) Jay v. Budd [1898] 1 Q.B. 12; 66 L.J.Q.B. 863; 77 L.T. 335, C.A.

(30) In re Busfield; Whaley v. Busfield (1886) 32 Ch.D. 123; 55 L.J.Ch. 467; 54 L.T. 220, C.A.

(31) Johnson v. Taylor [1920] A.C. 144, H.L.

(32) Eboe v. Eboe [1962] 1 G.L.R. 453, S.C.

(33) R. v. Wood (1855) 5 E. & B. 49; 119 E.R. 400

(34) Colonial Bank of Australia v. Willan (1874) L.R. 5 P.C. 417; 43 L.J.P.C. 39; 30 L.T. 237

(35) R. v. Bedfordshire County Council; Ex parte Sear [1920] 2 K.B. 465; 89 L.J.K.B. 425. 123 L.T. 50; 36 T.L.R. 369

NATURE OF PROCEEDINGS

APPEAL from a refusal of an application filed on the 30th May, 1961, for a writ of certiorari made to Apaloo J., in the High Court, Kumasi. The facts are as stated in the headnote.

COUNSEL

Victor Owusu for the appellant.

Dr. de Graft-Johnson for the respondent.

JUDGMENT OF KORSAH C.J

[His lordship stated the facts as contained in the headnote and continued:] The procedure regulating an application for the writ of certiorari is provided by the Supreme [High] Court (Civil Procedure) Rules, [1954],1 Order 59, r. 3 thus:

“Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any enactment; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the Court or Judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”

Under special circumstances, the court or a judge may enlarge the time limited for making the application under Order 64, r. 6 of the above-mentioned rules. The said Orders 59 and 64 of our rules of court are replicas of the English Rules of Supreme Court, by virtue of which an application for an order of certiorari is either granted or refused.

[p.244] of [1963] 2 GLR 238

The learned judge of the court below, upon an ex parte motion by the applicant made the following order on the 5th June, 1961, “Court: I think on the facts of this case I ought to exercise my discretion and I enlarge the time for bringing this application. I also grant leave to apply for an order of certiorari.” At the subsequent hearing of the application pursuant to the above order, counsel for the respondent contended that leave had been wrongly granted contrary to Order 59, r. 3. In reply counsel for the appellant stated that “time had already been enlarged by the court.” It is obvious from the record that no application for an extension, supported by affidavit setting out the facts upon which the extension might be granted had been filed at the time the extension was granted or at any time during the hearing before the court. But it appears that at the hearing of the ex parte motion for leave, counsel for the applicant verbally applied for an extension.

While it is correct to say that, if the power is conferred, a judge may exercise his discretion, it should be remembered that such discretion should be exercised judicially; if therefore the conditions imposed therewith have not been fulfilled, it is open to the party aggrieved by the exercise of such discretion, to raise the matter in the course of the proceedings, as well as on appeal.

In any case the application for an order for certiorari to remove the proceedings and judgment of Asantehene’s Court B1 delivered on the 30th May, 1950, to the High Court to be quashed was duly heard, and the court declined to make the order upon the grounds set out in the judgment thus: “I find it impossible to believe that he would not have communicated this fact to Mallam Sallow in Nigeria. It is plain the latter did nothing. The evidence shows that Mallam Sallow’s deportation was lifted at some unspecified date. He then returned to this country and lived here for six years, two of which he spent in Kumasi. Again he did nothing about this judgment about which he must have known. Although he lived in the house in dispute before his deportation, when he returned to Kumasi, he resided in another house which he owned. Larnyo is dead but there is no evidence when he died. Mallam Sallow also died about 22 months ago and the applicant chose to bring this application at a time, when to his knowledge, all the witnesses who had personal knowledge of these matters are no more.

In my judgment, such evidence as there is and the probabilities of this case show that Sampson Larnyo conducted the litigation which culminated in the judgment sought to be quashed with Mallam Sallow’s full knowledge and consent.

It follows, therefore, that the judgment of the Asantehene’s Divisional Court B1 dated the 10th May, 1950, was valid and is binding on Mallam Sallow’s heirs and successors. I hold therefore that the consequential order made by the local court magistrate on the 20th February, 1961, based on the aforesaid judgment is equally valid. The application for an order of certiorari accordingly fails and is dismissed with 25 guineas costs to the respondent.” [p.245] of [1963] 2 GLR 238

In this court, counsel for the appellant has argued that the only point of the appeal is whether service on Larnyo the agent for the purpose of collecting rent was proper service within rules 41 to 46 of the Native Courts (Ashanti) Procedure Rules, 19492. It is further contended that the court having extended the time, the issue as to whether the extension was granted in accordance with the provisions of the Supreme [High] Court (Civil Procedure) Rules, 1954,3 Order 59, r. 3 is not a matter which could be raised on appeal. To which counsel for the respondent has replied that the application for extension was not properly before the High Court; that such an application could be made only upon motion on notice, and that no application for leave could be filed until the extension of time had been granted; that in the absence of reasons for the delay the learned judge did not exercise his discretion judicially. The purpose of filing an affidavit in support of an application is to enable the court to verify the facts alleged as reasons for delay. Furthermore, the application for leave was not in proper form, because it was not accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which the relief is sought, also an affidavit testifying the facts relied on. In my view the contention of the respondent’s counsel raises objections in limine which must precede considerations for the grant of leave, and in as much as the appellant has failed to comply with the conditions precedent (a) for the application for an extension of time, and (b) for the application for leave to apply for the writ of certiorari, the High Court should not have entertained the application. It will be observed that the sole ground for the application for the writ of certiorari, is that the Asantehene’s Divisional Court B1 had no jurisdiction because the applicant’s father was represented by his agent. It is of interest to note that there has been no suggestion that the court was not a competent court which at the time had jurisdiction to entertain all suits relating to title to land or ownership of any real property in Kumasi. Nor is it suggested that at the material time Mallam Sallow had any other agent managing his real properties in Kumasi. In the course of the proceedings before the Asantehene’s Court no suggestion was made that Larnyo had no authority to represent Mallam Sallow. If that question had been raised the court would have been obliged to determine that issue before proceeding with the hearing. No objection was taken, but Larnyo conscious of his authority to represent the defendant, merely asked for an adjournment to inform his principal of the suit; at the request of Larnyo as agent for Mallam Sallow, the court adjourned the hearing for the said agent to obtain further instructions concerning the case. After the said adjournment, the hearing of the case commenced and both parties were heard before judgment was delivered on the 10th May, 1950. It has not been suggested by the applicant, that his father was not aware of the proceedings, or that his father, at any time during his life, denied the authority of Larnyo his

[p.246] of [1963] 2 GLR 238 real property agent to defend the suit on his behalf. I am clearly of the opinion that this is a matter in which the maxim omnia praesumuntur rite esse acta would apply in support of the view that the court was satisfied that not only was Larnyo the agent, but that after service he had brought the matter to the notice of his principal before the hearing commenced. Until this view is disproved, the authority of Larnyo cannot now, after the expiration of ten years, and after the death of both the principal and agent, be impugned. In any event these questions do not arise until the appellant has satisfied the court that his application was properly before the High Court.

In practice, as it is observed in numerous judgments, it is acknowledged that the object of service of the writ is only to give notice to the party on whom it was made, so that he might be aware of, and able to resist that which was sought against him and where that had been done, as in the case through his local agent, so that the court was perfectly satisfied that notice of the writ had reached him, everything had been done that could be required. Thus in Hope v. Hope, it is stated that44:

“But the rule of this Court differs in this respect from that of a Court of law. Personal service, or service at the dwelling-house, may be impossible, because the Defendant may be abroad; and yet it might be very unfit that he should not be litigated with in the same manner as if he were here, as he might have agents competent to represent and actually representing him in this country. Therefore, in cases where a Defendant is abroad, the question is, whether there is any person here who may be fitly served, and service upon whom may be treated as equivalent to service upon the absent person himself. Now, this has been allowed in a variety of cases; for instance, where there has been an agent in this country managing all the affairs of a Defendant who is abroad, and regularly communicating with him upon his affairs, or where he has an agent here specially managing the particular matter involved in the suit. In such cases, the Court has felt that it might safely allow service upon the agent to be deemed good service upon the person abroad, because the inference is irresistible that service so made upon the agent is service on a person either impliedly authorized to accept that particular service, or who certainly will communicate the process so served to the party who is not in this country to receive it himself” In Kistler v. Tettmar,5 Matthew L.J. said:

“It was argued for the judgment debtor that the rule requiring personal service of an order, before a writ of attachment can be issued for disobedience of it, admitted of no exception; and consequently that in this case no writ of attachment could issue even although the judgment debtor was well aware of the existence of the order, and was evading the service of it. This is a somewhat startling proposition, for, after all, the only object of the rule requiring personal service is that the party should know what the order was and the consequences of disobeying it. I do not think that there is any authority for this proposition, which would lead to a manifest absurdity, namely, that the Court would be rendered powerless to enforce [p.247] of [1963] 2 GLR 238 its order if the person against whom the order was made chose to lock himself up, and so prevent personal service upon him. My brother Stirling has referred to an authority which establishes that there is no such absolute rule as is contended for; and that the general rule that there must be personal service is subject to an exception, and, where the existence of the order has been brought to the knowledge of a person who is evading personal service in the usual way, the Court can enforce its order by attachment. Per Lord Reading C.J. in Porter v. Freudenberg,6 “The terms of this rule are of very wide application, and give a very wide discretion which we are not inclined to limit.” And mere technicalities have been disregarded. In any event, the conduct of the appellant has precluded him from obtaining a writ of certiorari not only by reason of his delay but also by his failure to give satisfactory reasons why the writ should be granted. In such a case as this, the grant of the writ is discretionary.

In the case of R. v. Williams; Ex parte Phillips,7 Channell J. said:

“The Court is of opinion that this rule should be discharged. No objection was taken to the jurisdiction of the Court below at the hearing before that Court; that being so, it is the rule of this Court not to grant a writ of certiorari except upon an affidavit which negatives knowledge on the part of the applicant when he was before the Court below of the facts on which he bases his objection. That rule is established on good grounds. It applies equally whether the objection is on grounds which make the act of the justices voidable or void. When objection to a conviction is taken merely by a member of the public and not by a party more particularly aggrieved the granting of a certiorari is discretionary; where the objection is by a party aggrieved, then, as a rule, the writ issues ex debito justitiae; but a party aggrieved may by his conduct preclude himself from taking objection to the jurisdiction of an inferior Court. Statements to that effect may be found in Short and Mellor’s Crown Office Practice, 2nd ed., p. 48, and in the older work of Corner on the same subject: see at p. 90. The passage in Short and Mellor is based on the authority of Blackburn J. in Reg. v. Justices of Surrey (1870) L.R. 5 Q.B. 466 at p. 473. In the words of that learned judge, “Where the party grieved has by his conduct precluded himself from taking an objection, the Court will not permit him to make it as in Reg. v. South Holland Drainage Committee 8 Ad. & E. 429”. Rowlatt J. also said8 :

“I am of the same opinion. If the applicant claims as a member of the public the answer to his application is that the writ is discretionary and should not be granted in the present circumstances. If he takes up the position of a party aggrieved, then Reg. v. Justices of Surrey shews that he can by his conduct debar himself from his right ex debito justitiae. It is a very salutary rule that a party aggrieved must either shew that he has taken his objection at the hearing below or state on his affidavit that he had no knowledge of the facts which would enable him to do so.

The applicant cannot claim to have had any legal interest in the property during his father’s lifetime; he does not claim to have had either

[p.248] of [1963] 2 GLR 238 a vested or reversionary interest in the property in 1950, when according to him his father was the sole owner, and therefore could have disposed of it in whatever way he liked. It is not even alleged in his application that his father died intestate by reason of which he by virtue of being one of the sons would have acquired a vested interest in the property. It cannot be said that at the time the judgment was delivered he could be described as an aggrieved person. Even if he had been an aggrieved person, that would not prevent the court in its exercise of its discretion to refuse to make the order. Green M.R. said in R. v. Stafford Justices; Ex parte Stafford Corporation9:

“In the present case the circumstances are indeed remarkable. Before examining them, I should perhaps make two short references to the authorities which have been cited before us in support of my statement of what I conceive to be the law. In the first place, in Reg. v. Sheward (1880) 9 Q.B.D. 741, 742, a decision of this Court, Bramwell L.J. stated in terms: ‘The granting of a certiorari is discretionary.’ In Reg. v. Surrey Justices, L.R. 5 Q.B. 466, a decision of the Divisional Court of the Court of Queen’s Bench, Blackburn J., delivering the judgment of the Court, said at p. 473: ‘Where the party grieved has by his conduct precluded himself from taking an objection, the Court will not permit him to make it as in Reg. v. South Holland Drainage Committee (1838) 8 Ad. & E. 429.’ It is true that he goes on to say: ‘In other cases where the application is by the party grieved, so as to answer the same purpose as a writ of error, we think that it ought to be treated, like a writ of error, as ex debito justitiae; but where the applicant is not a party grieved (who substantially brings error to redress his private wrong), but comes forward as one of the general public having no particular interest in the matter, the Court has a discretion, and if it thinks that no good would be done to the public by quashing the order, it is not bound to grant it at the instance of such a person.’ Then towards the end of the judgment, he says: ‘Therefore we think that, in exercising our discretion, we must see whether the present applicant is in the condition of a person grieved, applying for the certiorari to remove an order made without jurisdiction which affects his interests; and we think he is’. I do not read the observations in that judgment with reference to the right of the party aggrieved ex debito justitiae as being in any way inconsistent with what I have stated. It merely means that unless there is something in the circumstances of the case which make it right to refuse the relief sought, the Court will grant it, and that that is the way in which the Court will and must on ordinary principles exercise its discretion.

Now it appears from that case, and the case of the South Holland Drainage Committee, that the conduct of the applicant is something that may be looked at, and the fact that delay also is a relevant consideration appears in the case of Reg. v. Sheward, to which I have already referred, and also, I think, in the case of Rex v. Glamorganshire Appeal Tribunal; Ex parte ricker [1917] W.N. 27; 115 L.T. 930, 932.” In my opinion the High Court was perfectly right in the view it took and in refusing leave for certiorari to issue. This appeal must therefore be dismissed with costs.

[p.249] of [1963] 2 GLR 238

JUDGMENT OF CRABBE J.S.C.

I have found myself in entire agreement with the conclusion of my Lord the Chief Justice, and only desire to add some observations on points.

The only ground on which the application was founded was that Mallam Sallow was not personally served with the writ of summons in the case entitled Amadu Baba v. Mallam Sallow per S. Larnyo which was heard and determined by the Asantehene’s Divisional Court B1.

The law and practice with regard to the service of process in Ashanti at the time of the litigation was contained in the Native Courts (Ashanti) Procedure Rules, 1949.1010 The preliminary procedural requirement which was contingent on the court’s exercise of its jurisdiction was stated in rule 46 in these terms: “The Native Court shall not take any action which is dependent upon process having been served unless service is admitted by the person concerned or service has been proved.”

It was not disputed that Mallam Sallow was outside the Gold Coast (now Ghana) at the time the action was instituted in the Asantehene’s Court, and there was no evidence that personal service of the writ on him was proved. Consequently, counsel for the appellant, Mr. Owusu, has contended that the Asantehene’s Divisional Court B1 had no jurisdiction to determine the suit and therefore the whole proceedings were a nullity.

It is a fundamental principle in the administration of justice that a party ought not to be condemned, punished or deprived of his property in any judicial proceeding, unless he has had the opportunity of being heard or he be represented. Certiorari is a very special remedy and if it can be shown that some requirement of the law has not been complied with, it would be a ground for asking that the proceedings of an inferior court be quashed on the ground that it has no jurisdiction to hear the case. Although there was no proof of service in the manner prescribed under rule 45 of the Native Courts (Ashanti) Procedure Rules, 1949,11 the Asantehene’s Divisional Court B1 proceeded to hear the case after two adjournments on the assumption that the defendant, Mallam Sallow, was being properly represented by his agent, Sampson N. Larnyo. With regard to this representation by S. N. Larnyo, the learned judge of the court below found the following facts:

“At page 28 of exhibit A appears a copy of a letter which Mallam Sallow wrote to the headman of the Hausa community through the district commissioner. It purported to have been written from Makum Ghagamu, Nigeria and was dated the 7th July, 1949. In that letter, Mallam Sallow referred to the house in question and in paragraph 5 asked that rents due on the house be ‘paid to me through my agent in the person of Sampson N. Larnyo, etc.’ Page 1 of the proceedings shows that on the return date, Larnyo was not in court. The court noted as follows: ‘Defendant absent and sent a letter asking for a month adjournment to enable him communicate with Mallam Sallow in Nigeria.’ Owing to the fact that an order of interim injunction was sought the court adjourned from the 24th to the 30th

[p.250] of [1963] 2 GLR 238

January, 1950. Again on the latter date, Larnyo was still absent. The record shows that he wrote asking for adjournment on the 9th February, 1960. On that date, he appeared and the injunction was granted. On all other subsequent days when the case was called, he was present until judgment was finally delivered on the 10th May.”

The learned judge then made the following inference from the facts:

“It seems to me plain that he must have got into touch with Mallam Sallow and had been authorised by him to prosecute the action on his behalf. He was acting, it seems to me, in the best interest of his principal.” Further the learned trial judge said: “On the 9th May, 1950, Sampson L. Larnyo gave evidence. He said he was representing Mallam Sallow. Judgment was given against him the next day. I find it impossible to believe that he would not have communicated this fact to Mallam Sallow in Nigeria.”

In my view the inferences and conclusions of the learned judge are in accord with common sense, and I find myself in entire agreement with him. It seems to me on a careful reading of exhibit A (a letter tendered by the plaintiff in the Asantehene’s Divisional Court B1) that the agency of Mr. Sampson N. Larnyo was not limited to the collection of rents as it is being contended in his court. In my judgment Mallam Sallow appeared to have appointed Mr. Larnyo as his general agent in connection with his affairs in this country, and there can be no doubt that Mr. Larnyo kept him informed about matters concerning the house in dispute. In Pole v. Leask,12 Lord Cranworth said:

“No one can become the agent of another person except by the will of that person. His will may be manifested in writing or orally, or simply by placing another in a situation in which, according to ordinary rules of law, or perhaps it would be more correct to say, according to the ordinary usages of mankind, that other is understood to represent and act for the person who has so placed him . . .

This proposition, however, is not at variance with the doctrine, that where one has so acted as from his conduct to lead another to believe that he has appointed some one to act as his agent, and knows that that other person is about to act on that behalf, then, unless he interposes, he will, in general, be estopped from disputing the agency, though in fact no agency really existed . . .

Another proposition to be kept constantly in view is, that the burden of proof is on the person dealing with any one as an agent, through whom he seeks to charge another as principal. He must shew that the agency did exist, and that the agent had the authority he assumed to exercise, or otherwise that the principal is estopped from disputing it.”

If therefore the evidence shows that Mr. Larnyo had in fact, or must have had, the authority of Mallam Sallow to litigate on his behalf, or that Mallam Sallow knew that Mr. Larnyo was litigating about his house without authority and did not intervene then he would be deemed to have [p.251] of [1963] 2 GLR 238 lost his right to certiorari by acquiescence or implied waiver. This is on the principle that a defendant who has argued the case on the merits cannot be heard to say that he was not properly served: see Boyle v. Sacker.13 The cases cited and relied on by counsel for the appellant are, in my view, distinguishable from the present case. There it was neither proved nor admitted that process had been served upon the plaintiffs nor upon any body at all. But here service was effected on the agent of the defendant who appeared on the return date and asked for an adjournment in order to contact the defendant. The court at the next sitting granted another adjournment at the request of the agent; this indulgence was granted no doubt to enable the agent to get in touch with his principal. Then at the third hearing the agent, Mr. Larnyo, appeared and submitted to an order and was appointed a co-receiver with the plaintiff’s representative for the purpose of collecting rents from the house and depositing them at the Kumasi Divisional Treasury pending the determination of the case.

But a substantial question which counsel for the appellant has asked the court to determine is whether the service of the writ of summons on Mr. S. N. Larnyo was valid within rule 46 of the Native Courts (Ashanti) Procedure Rules, 1949.14 The purpose of serving a writ on, or giving notice of the hearing of a case to, a party in a case is so that the party may have the opportunity to appear or be represented in order to assert or defend his rights. The essence of service of any process is that it should be communicated to or should reach the person to whom it is addressed and in my view it would be absurd to hold that service on Larnyo whom Mallam Sallow had held up as a person having authority to manage his affairs including the house, the subject-matter of dispute, was not an effective service. Thus in Hope v. Hope,15 Cranworth L.C. said: “According to the rules of law, service ought either to be made personally, or at least by leaving notice at the dwelling-house of the party. But the rule of this Court differs in this respect from that of a Court of law. Personal service, or service at the dwelling-house, may be impossible, because the Defendant may be abroad; and yet it might be very unfit that he should not be litigated with in the same manner as if he were here, as he might have agents competent to represent and actually representing him in this country. Therefore, in cases where a Defendant is abroad, the question is, whether there is any person here who may be fitly served, and service upon whom may be treated as equivalent to service upon the absent person himself. Now, this has been allowed in a variety of cases; for instance, where there has been an agent in this country managing all the affairs of a Defendant who is abroad, and regularly communicating with him upon his affairs, or where he has an agent here specially managing the particular matter involved in the suit. In such cases, the Court has felt that it might safely allow service upon the agent to be deemed good service upon the person abroad, because the inference is irresistible that service so made upon the agent is service on a person either impliedly authorized to accept that

[p.252] of [1963] 2 GLR 238 particular service, or who certainly will communicate the process so served to the party who is not in this country to receive it himself. The object of all service is of course only to give notice to the party on whom it is made, so that he may be made aware of and may be able to resist that which is sought against him; and when that has been substantially done, so that the Court may feel perfectly confident that service has reached him, everything has been done that is required.”

It seems to me clear that where a person has appointed another as his agent or representative for a general purpose that other becomes his alter ego and service of a process upon him becomes an effective service upon the principal creating the agency. Personal service is not required in these circumstances except when a person is to be made criminally responsible. Thus in Tanham v. Nicholson,16 service of a notice on the tenant’s daughter who was managing the tenant’s business at the time was held to be prima facie evidence of service on the tenant. In Nelson v. Pastorino & Co.,17 a writ was served on a wrong person, and it was contended that the fact of the action being commenced did actually come to the knowledge of the person to be served, and therefore the non-compliance with the rules as to service be not strictly regarded, but that the service, such as it was, be deemed to be substituted service. In rejecting this contention Pearson J., said18:

“In his case also, however, the only service has been through Federico Pellas. It is said that that writ did, without any doubt, find its way to him, and that he does in fact know that an action has been commenced against him. But no one is bound to take any notice of a writ which has been improperly served, and there is no evidence before me that Federico Pellas represented Giacomo. There has, therefore, been no proper service. There was no real difficulty in the way of serving Giacomo Pastorino, for he was here in England from the 22nd Jan. to the 4th Feb. this year. Now, in many cases I know it is enough to say that the party is out of the jurisdiction, and there, the case being of a pressing nature, we cannot serve him, but he has agents, and it will be enough to effect service upon them. In pressing cases the court has allowed that to be done.” In my judgment Nelson v. Pastorino & Co. (supra) tends to show that service on an agent or representative is valid and cannot be ignored.

In my judgment when Mr. Larnyo, the alter ego of the defendant, appeared before the Asantehene’s Divisional Court B1 and fought the case on the merit he must be deemed to have admitted service of the writ of the summons in the case. Therefore, the requirement of rule 46 of the Native Courts (Ashanti)

Procedure Rules, 194919 was satisfied.

This conclusion which I have arrived at is in my opinion sufficient to dispose of this appeal. But in view of certain important and interesting points raised during the arguments I would now consider the case from

[p.253] of [1963] 2 GLR 238 the point of view of the appellant that the proceedings before the Asantehene’s Divisional Court B1 were a nullity and therefore without jurisdiction for the reason that Mallam Sallow was not served with the writ of summons. The first question is whether failure on the part of the respondent to serve Mallam Sallow personally made the proceedings thereafter absolutely void or only voidable. The distinction between the two situations was clearly drawn by Lord Denning in MacFoy v. United Africa Co. Ltd.,20 when he said: “If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. So will this judgment collapse if the statement of claim was a nullity. But if an act is only voidable, then it is not automatically void. It is only an irregularity which may be waived. It is not to be avoided unless something is done to avoid it. There must be an order of the court setting it aside: and the court has a discretion whether to set it aside or not. It will do so if justice demands it but not otherwise. Meanwhile it remains good and a support for all that has been done under it.” There can be very little doubt that the native court would have no jurisdiction to adjudicate “unless service is admitted by the person concerned or service has been proved.”21 Unless this condition was fulfilled the proceedings before it would be void and the case of Craig v. Kanssen22 seems to me to be in point. In that case it was held that failure to serve process where service of process is required renders null and void an order made against the party who should have been served. The court can set aside such an order in its inherent jurisdiction and it is not necessary to appeal from it. Lord Greene, after reviewing a number of authorities, stated in the course of his judgment23: “Those cases appear to me to establish that a person who is affected by an order which can properly be described as a nullity is entitled ex debito justitiae to have it set aside.” These observations of Lord Greene are in accord with the decision in Brakowa v. Awuakyewa24 and Brakowaah v. Awuakyewah2525 on which counsel for the appellant placed great reliance.

If there was no service on Mallam Sallow in accordance with rule 41 of the Native Courts (Ashanti) Procedure Rules, 1949,2626 then the Asantehene’s Divisional Court B1 adjudicated without jurisdiction and their decision in the case was therefore void. It was a nullity and incurably bad.

[p.254] of [1963] 2 GLR 238

Therefore a person who is aggrieved by such a decision is entitled ex debito justitiae to an order of certiorari to have it quashed, unless he has by his own conduct precluded himself from obtaining it or unless there is something in the circumstances of the case which makes it right to refuse the relief sought. In R. v. Williams; Ex parte Phillips, Channell J. said27:

“A party may by his conduct preclude himself from claiming the writ ex debito justitiae, no matter whether the proceedings which he seeks to quash are void or voidable. If they are void it is true that no conduct of his will validate them; but such considerations do not affect the principles on which the Court acts in granting or refusing the writ of certiorari”. “It is therefore necessary to examine the whole case and determine whether the applicant has by his conduct debarred himself from his right ex debito justitiae. In his application for leave for an order of certiorari the appellant alleged in a statement verified by an affidavit that he is the son of Mallam Sallow and thereby purported to disclose his right as a person aggrieved. It was further alleged in the statement as follows: “6. The said Mallam Sallow was not served personally with the writ of summons but Amadu Baba somehow brought in one Mr. Larnyo, the then caretaker of the premises, to represent the said Mallam Sallow.

7. The case was heard by the said court and judgment was given in favour of Amadu Baba.

8. It is submitted that the said Larnyo had no authority to present the said Mallam Sallow and therefore the proceedings before the Asantehene’s Court B1 were a nullity.

9. On or about the 20th February, 1961, the local magistrate sitting at the Magistrate’s Court Division 2 heard a motion in the case of Amadu Baba v. Mallam Sallow per his agent N. Larnyo whereby the said magistrate substituted the name of Mallam Mutawakiliu chief of Zongo for the plaintiff herein relying on the judgment, copy of the order is hereto attached and marked exhibit A.

10. It is submitted that the procedure so taken is most irregular, the said Mallam or the said Sampson N.

Larnyo were all dead at the material time.

11. As a result the said Mallam Mutawakiliu has instituted action against the applicant for possession in the Local Magistrate’s Court, Kumasi which matter is still pending.

12. The applicant will contend that since the judgment in 1950 is a nullity and consequential order based on that judgment is also null and void.

13. In the interest of justice this humble application is made by way of certiorari for the order made by the magistrate on the 20th February, 1961, and any subsequent proceedings to be brought before the High Court to be examined and quashed and for such order or orders as to honourable court may seem meet in the premises.”

An applicant seeking the special remedy of certiorari must set his tackle in order otherwise the court will refuse to exercise its discretion in his favour. In all applications an affidavit verifying the facts relied upon [p.255] of [1963] 2 GLR 238 must accompany the statement. The facts should be clearly stated in the affidavit, not the statement verified by affidavit: see Griffits’ Guide to Crown Office Practice (1947), p. 74. The affidavit in this present application contains practically no facts. Moreover, there is nothing either in the statement or in the affidavit to show that the appellant did not know of the proceedings which culminated in the judgment of the 20th May, 1950, or that he was unaware at the time that Mallam Sallow had not been served with the writ of summons. In my judgment failure to state these facts in an affidavit would preclude the appellant from claiming the order ex debito justitiae. Thus in R. v. Williams; Ex parte Phillips,28 Channell J. made this relevant statement:

“This special remedy will not be granted ex debito justitiae to a person who fails to state in his evidence on moving for the rule nisi that at the time of the proceedings impugned he was unaware of the facts on which he relies to impugn them. By failing so to do a party grieved precludes himself from the right to have the writ ex debito justitiae and reduces his position to that of one of the public having no particular interest in the matter. To such a one the granting of the writ is discretionary.”

Under Order 59, r. 3 of the Supreme [High] Court (Civil Procedure) Rules, 1954,29 an application for leave for an order for certiorari will have to be made within six months from the date of the judgment, order, conviction or proceeding which is sought to be quashed. But under Order 64, r. 6 of the said rules, however, the court has power to enlarge or abridge the time within which to apply for the order. The present application was undoubtedly out of time, and without asking for an extension of time the applicant filed a motion ex parte for an order of the High Court granting leave for an application for an order of certiorari. Under the rules of court the applicant was not entitled to a hearing until the time of filing the application had been extended. Having been permitted, however, by the court to argue the motion under this irregular procedure counsel for the applicant suddenly realized that he had to ask for an enlargement of the time and he said: “Although we are late we ask for extension of time under Order 70. I mean Order 64, r. 6. I am asking the court to extend the time and grant leave.” The court accordingly enlarged the time for bringing the application and also granted leave to apply for an order for certiorari. In my view the granting of the applications for an extension of time and for leave to apply for an order of certiorari is open to very serious objections. In the first place although a judge has an unfettered discretion under the said Order 64, r. 6 to enlarge time that discretion is not at large; it cannot be used at will or at whim. It must be exercised in accordance with the rules of law and practice and after careful consideration of the evidence and with reference to relevant considerations. An applicant applying for extension of time must state good grounds on which the court should grant his application. He cannot get an order for the extension

[p.256] of [1963] 2 GLR 238 just for the asking. Thus In re J. Wigfull & Sons’ Trade Marks,30 Swinfen Eady M.R. said: “In my judgment, where an application is made to enlarge the time for appeal, there must be some proper grounds for supporting it. It is not enough to say the time has expired; it expired more than two years ago, and therefore I cannot appeal without the time being enlarged; because it has expired, therefore I ask that it may be enlarged. That alone is no ground.”

I think these observations apply equally to an application for an extension of time to apply for an order of certiorari, and indeed to all applications under Order 64, r. 6. The court would generally require very strong evidence to relax the time limit imposed in Order 59, r. 3. In this case no ground was stated on which the time could be extended except that the application was late. In my view there was no ground whatsoever on which the court below could enlarge the time for the appellant to enable him to apply for leave for an order of certiorari. It must be observed that in granting the oral application for extension of time the learned judge of the court below appears to have been persuaded only by the fact that the defendant, Mallam Sallow, was not served with the writ of summons rather than by an explanation of the delay for the application. No doubt the allegation of failure to serve the writ would be a prima facie evidence which entitled the applicant ex debito justitiae to an order for certiorari. But his right was conditional upon giving a satisfactory explanation for the delay. This he never did. In the second place the application for an extension of time was made without notice to the parties to be affected. Order 64, r. 6 under which the court below extended the time does not direct that notice should be given to any party affected in an application for enlargement of time. In Dankwa v. Fuller,31 the Court of Appeal had to consider a section of an enactment (now repealed) which empowered the court to extend time but was silent as to whether notice should be given to the party affected. It was held that in the absence of an express enactment or provision the court was not bound to direct service or notice on the respondent although it was desirable that it should do so.

But certiorari is a special remedy, and a person who intends to apply to the court for an extension of time must give notice to the person who would be affected if the order or judgment challenged were quashed. In R. v. Ashford, Kent, Justices; Ex parte Richley,32 the applicant applied ex parte for leave (which was granted) to apply for certiorari more than six months after the date of the justices’ order. The respondent was not given notice of the application and she did not appear at the hearing on that occasion. In refusing the application for certiorari Lord Goddard C.J. [p.257] of [1963] 2 GLR 238 took the opportunity to state the practice with regard to applications for leave to move for orders of certiorari. He said33:

“R.S.C., Ord. 59, r. 4 (2), provides that motions for certiorari must be made within six months of the making of the order which it is sought to quash. The court has power, of course, to extend the order, and the present case is one in which it would be right to apply for the order to be extended. But where a person intends to apply to the court for an extension of time he must give notice to the person whom he would serve in the ordinary way as one who would be affected if the order challenged were quashed, that he intends to apply for an extension because the person affected has a right to be heard and to object to such an extension. He very likely has what I will call a vested interest in the upholding of the order. In the same way as if you go to the Court of Appeal out of time you have to give notice of motion for the time to be extended and as you have to do so in this court when justices have not stated a case within the requisite time, so, if you are going to move for certiorari out of time, you must give notice to the person who would be made in the ordinary way a respondent to the motion in order that he may be heard as to whether or not it is a fit case in which to extend the time.” The applicant in this case failed to give notice in accordance with the general practice and he thereby deprived the respondent of the opportunity of opposing the application for leave. Even when at the hearing of the substantive motion counsel for the respondent submitted that leave had been wrongly granted counsel for the applicant retorted. “Time has already been enlarged by the Court.” There the matter ended for the learned judge of the court below did not appear to have made any comment on the objection raised by counsel for the respondent. If the applicant is a person aggrieved, then in the absence of special circumstances he would be entitled ex debito justitiae to an order of certiorari. But the court still has a discretion to refuse an order of certiorari, and it will do so on the ground that the applicant has been guilty of conduct disentitling him to the relief which he claims: see R. v. West Suffold Compensation Authority; Ex parte Hudson’s Cambridge & Pampisford Breweries Ltd.34 also R. v. Stafford Justices; Ex parte Stafford Corporation.35 In examining the conduct of the applicant the delay in bringing the application is a relevant factor to consider: R. v. Sheward36 see also R. v. Secretary of State for War; Ex parte Price37. The delay in making this application is without doubt unprecedented; it was brought ten years after the judgment of the Asantehene’s Divisional Court Bl. The maxim is, vigilantibus et non dormientibus jura subveniunt. In my view the applicant is guilty of conduct which ought to prevent the court from granting him any relief. In the course of the argument in

[p.258] of [1963] 2 GLR 238

In re Mansergh,38 Crompton J. said: “Besides, even if we thought the court martial wrong, we ought not, in the exercise of our discretion, to interfere with proceedings that took place three years ago,” and Blackburn J. ended his judgment with the following remarks39:

“I therefore entertain exceeding doubt if we could grant this certiorari . . . But if we could, then comes the question of discretion; and, looking at the length of time which has elapsed, and the futility of the proceeding, I think this is not a case in which we ought to exercise our discretion to grant the writ.” The ultimate question that arises in this case is whether the appellant was the one to apply for the order for certiorari. He was not a party to the proceedings before the Asantehene’s Divisional Court Bl or the local court. However, in his statement accompanying the application he stated that he is one of the sons of the late Mallam Sallow and that he and the other sons of Mallam Sallow live in the house in dispute. As I have already pointed out earlier in this judgment the order for certiorari is granted ex debito justitiae to persons aggrieved, and for this purpose “persons aggrieved” have been defined as those who “have a peculiar grievance of their own beyond some inconvenience suffered by them in common with the rest of the public.” See: R. v. Nicholson.40

The appellant has not disclosed the capacity in which he has brought the application neither has he shown that he has a peculiar grievance of his own beyond some inconvenience suffered in common by the rest of the Hausa community in Kumasi.

The applicant for an order of certiorari must be either a person aggrieved or a person who has a real or substantial interest in the proceedings sought to be quashed: see R. v. Richmond Confirming Authority; Ex parte Howitt.41 The appellant therefore having failed to bring himself within either category must be deemed for all practical purposes to be a stranger to the proceedings.

The question then is whether the appellant has any locus standi in this application which seeks to impugn the proceedings of the Asantehene’s Divisional Court B1 and the local court. In R. v. Surrey Justices,42 the question that arose was who was the person to apply for the writ of certiorari, and Blackburn J. said: “In the very analogous case of prohibition a distinction is taken, thus expressed by Cockburn, C.J., in Forster v. Forster 4 B. & S. at p. 199; 32 L.J. (Q.B.) at p. 314: ‘I entirely concur in the proposition that, although the Court will listen to a person who is a stranger, and who interferes to point out that some other court has exceeded its jurisdiction, whereby some wrong or grievance has been sustained, yet that is not ex debito justitiae, but a matter upon which the Court may properly exercise its [p.259] of [1963] 2 GLR 238 discretion, as distinguished from the case of a party aggrieved, who is entitled to relief ex debito justitiae, if he suffers from the usurpation of jurisdiction by another court.”

This proposition was recently reinforced by Lord Goddard C.J. by way of an obiter dictum in R. v. Brighton Borough Justices; Ex parte Jarvis,43 when he said:

“I would add that, although I am not necessarily deciding it, the other licensees may not be interested persons; if they are not, the only difference would be that then the issue of certiorari would be discretionary and not as of right.”

The real test in this case is not whether there was some irregularity at the trial but whether it is a proper case in which the court ought in the exercise of its discretion to grant the relief sought. This discretion would only be exercised in favour of a stranger on exceptional grounds.

The delay here had been an extreme one and, as the judgment of the court below pointed out, and rightly in my view, the action before the Asantehene’s Divisional Court B1 was of such a nature as would have excited considerable interest among the Zongo community in Kumasi. Another person who considered himself interested in the house, the subject-matter of the action, was on his application joined as co-defendant. The appellant took no such step to join in the suit, and in his application for certiorari he has not alleged in any affidavit, not even in his statement, that he was unaware of the proceedings. In all the circumstances of this case I think the learned judge of the court below was right in refusing to grant the application for an order of certiorari.

This appeal must therefore fail.

JUDGMENT OF ADUMUA-BOSSMAN J.S.C.

It is with profound regret that I have been unable to agree with the learned Chief Justice and my brother Crabbe in their majority decision that the appeal should be dismissed; but, needless to say, in disagreeing with them, I do so with the utmost deference. The appeal has raised a number of questions of considerable importance, including the following, namely: (i) the authority of the courts (other than the local courts) in the exercise of their civil jurisdiction, to entertain oral application for enlargement of time, although the normal and more usual procedure is by written application in the form of a motion with supporting affidavit; III. the jurisdiction of the Supreme Court to review on appeal judgments and/or orders other than final and interlocutory ones; the scope of the jurisdiction of the courts of first instance (other than local courts) over persons resident out of the jurisdiction of Ghana;(iv) the scope of the jurisdiction of the local courts over persons resident outside the territorial limits of their respective areas of authority whether within or without Ghana; (v) the circumstances in which service of process other than personal service can be lawful; and (vi) the circumstances in which an [p.260] of [1963] 2 GLR 238 agent may be properly or lawfully served with a summons for and on behalf of his principal. It seems to me that these are all questions of great import and involving far-reaching implications and therefore particularly challenging to the candid and honest views of each member of the panel which heard the appeal, and I am therefore impelled to express my views.

The appeal is against the ruling of Apaloo J. in the High Court, Kumasi in the above-named certiorari proceedings whereby the court dismissed the application for the order of certiorari. The proceedings commenced with an ex parte motion filed by counsel on behalf of the appellant, Iddi Kusada of Kumasi, for the pre-requisite leave to apply for the said order. At the hearing of the motion counsel explained briefly the grounds on which the order was sought and the reason for delay in making the application, and then applied for an extension of time in respect of the motion before the court. He stated as follows: “I brought this application under Order 59, but I am out of time by r. 3 of that Order. The reason (or ground) for this certiorari application is that the native court acted without jurisdiction. Although we lived in the house for ten years, an alleged judgment obtained in 1950 for possession is being sought to be enforced against us. As I said the judgment was obtained without jurisdiction. Although we are late, we ask for extension of time; Order 64, r. 6. I ask the court to extend the time, and grant leave.” The learned judge held that: “On the facts of this case I think I ought to exercise my discretion and enlarge the time for bringing this application. I also grant the applicant leave to apply for the order of certiorari.” In this appeal counsel for the respondent, Dr. de Graft-Johnson, has raised the point that there was no proper application before the learned judge, and therefore he should not have granted the pre-requisite leave at all. In his further submission, the proper procedure is that where the application is out of time, a motion on notice should first be filed praying for an extension of time within which to apply for the pre-requisite leave; and that it is only when the court has dealt with the motion and granted the enlargement of time prayed for, that the motion for leave to apply can be filed; that in the instant case there being no motion for an extension of time, with supporting affidavit before the learned judge, there was nothing before him in respect of, or upon which, he could exercise his discretion and grant the extension of time which was applied for without notice to the respondent and merely by oral application. That contention, which raises an important point or question of procedure, is partly well founded and partly not. It is well founded in so far as it contends that the correct procedure is to give notice of the intended application for extension of time to the respondent. The point was directly dealt with by Lord Goddard C.J. in R. v. Ashford, Kent, Justices; Ex parte Richley,44 where he stated as follows: “There is one matter on which I want to say a word of general application with regard to orders of certiorari. R.S.C., Ord. 59, r. 4 (2), provides, as the Crown Office Rules had done for a long period, that applications for [p.261] of [1963] 2 GLR 238 leave to apply for orders of certiorari must be made ‘not later than six months after the date of the proceeding’ which it is sought to quash. The court has power under R.S.C., Ord. 64, r. 7, to extend the time … but a person who intends or is required to apply to the court for an extension of time must give notice to the person whom he would serve in the ordinary way and who would be affected if the order challenged were quashed. Thus an applicant for extension of the time limited by R.S.C., Ord. 59, r. 4 (2), must give notice to the person who in the ordinary way would be made respondent to the motion in order that he may be heard on the question whether or not it is a fit case in which to extend the time.”

The learned Lord Chief Justice did not, however, add that in default of giving notice the proceedings become fatally defective or a nullity, and indeed authority is against the proposition. The authority is Bradshaw v. Warlow,45 a case where the Court of Appeal dealt with the general principle governing applications outside the prescribed period and Cotton L.J. enunciated the rule of practice as follows:46 “But where a motion or an appeal can be brought on, and it is objected that it is out of time, the [applicant or] Appellant can always apply at the same time for an extension of time. But then the Respondent ought to have notice that such an application will be made in order that he may have an opportunity of adducing evidence on the question whether an extension of time should be permitted.”

Passing on to deal with what should be done when no notice has been given, he stated as follows:47 “In the present case no notice was given of an intention to apply for such an indulgence, and we therefore asked the Respondent whether he wished the case to stand over for the purpose of bringing evidence on the point.”

It appears therefore that the respondent’s right to adduce evidence against the grant of the indulgence is preserved to be exercised by him at the earliest opportunity. The same authority is, however, against the respondent’s counsel’s argument that an oral application for extension of time at the hearing of the formal motion for leave is incompetent. In that case a defendant against whom judgment for default of appearance was given and who had a limited time within which to apply to set it aside, filed his application for setting aside, outside the prescribed period, and at the hearing of the motion, made oral application for an extension of time. The learned judge dealing with the matter took the view that a separate and distinct formal motion for an extension of time should first be filed and dealt with, and he gave the defendant permission to give a short notice of such an application for an extension of time. The defendant did not file the motion for the extension of time, but appealed. All three judges (Cotton, Lindley and Lopes L.JJ.) constituting the Court of Appeal, expressed the opinion that the judge in the court below was wrong and that the oral application for the extension of time was in order. Cotton [p.262] of [1963] 2 GLR 238

L.J.’s views have already been set out supra. Lindley L.J. said,48 “But I also entertain a clear opinion that the Judge had power to enlarge the time. I also agree it was not necessary to make a separate application for an enlargement of time.”

Lopes L.J. said:49

“I think the decision of the Vice-Chancellor was erroneous. He refused to consider the application for an enlargement of time, on the ground that it should have been the subject of a separate motion. But I think the application ought to have been entertained at the time, and the Court might have postponed the case for the purpose of adducing evidence if that had been applied for by the other side.”

In the light of that authority it appears to me that notwithstanding that the learned judge had granted the ex parte application for an extension of time and the pre-requisite leave, it was still open to the respondent at the first available opportunity to apply to exercise his undoubted right of adducing evidence to show or establish how in the particular circumstances of the case the applicant was not entitled to the indulgence of an extension of time, and apply for the discharge of that order. He had that opportunity as from the date of service of the motion for certiorari right up to the date when the parties appeared before the court on that motion, on which occasion he raised the point that leave was wrongly granted. He should have followed up with an application to adduce evidence to impugn the grant of an extension of time. He did not do so, with the result that the order remains undischarged; and is an order which is not appealable as an interlocutory order made in the course of an action or suit, see R. v. Akiwumi; Ex parte Dako50 and Dankwa v. Fuller.51 In the circumstance that the order of enlargement of time as well as the order granting leave are not appealable, for the reason above stated, they are not open to review by this court under its powers conferred by Supreme Courts Rules, 1962,52 r. 30 which provides that: “No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the Court from giving such decision on the appeal as may be just.” (See Anane v. Efriyea,53 where under the same provision contained in the rules in force in 1940 the West African Court of Appeal reviewed an interlocutory order against which no appeal had been made). They therefore remain binding, subsisting orders between the parties.

Learned counsel for the respondent next called attention to certain alleged defects and irregularities about the form of the application for the order of certiorari. As to these, it is sufficient to say that counsel in the court below was content to overlook and not to raise objection to any of them, when by raising objection the necessary amendments (if any) might have been made. He allowed the application to be considered and dealt

[p.263] of [1963] 2 GLR 238 with on the merits, and it does not seem to me that the objections are now open to him, unless there be any defect or irregularity which lie in limine, which later state of things he has not suggested exists. The learned judge in the court below found no defect or irregularity serious or fatal enough to prevent him from dealing with the application for the order of certiorari on the merits, and in that I am satisfied he was right.

By far the most important point raised and argued in the appeal is the question whether, having regard to the fact that the judgment sought to be quashed was given as far back as the 10th May, 1960, and a period of eleven years had elapsed before the proceedings resulting in this appeal were commenced by the filing of a motion on the 30th May, 1961, whatever right the applicant may have to the certiorari sought, is not, in effect, barred by the admittedly long delay in applying. That delay in applying for certiorari can operate to disentitle the applicant to it, is, of course, clearly enough established; and therefore that question raised in the instant case would undoubtedly have been of decisive importance, had not the learned judge in the court below himself, having felt satisfied that: “On the facts of this case I ought to exercise my discretion and enlarge the time,” as he expressly declared, duly granted the necessary enlargement of time. The statement of facts made to the learned judge by counsel for the applicant upon which he decided to exercise his discretion in the applicant’s favour was this: “Although we [meaning the applicant and other children of Mallam Sallow] lived in the house for ten years an alleged judgment which was obtained in 1960 for possession is being sought to be enforced against us.” That statement constituted the substance of the allegations in the affidavit in support of the application for leave. In respect of his acceptance of the aforesaid statement of facts upon which the learned judge based his grant of an extension of time, counsel for the respondent has contended with much fervour that the applicant did not expressly allege that he was not aware of the Asantehene’s Court judgment about thetime it was delivered; and that indeed, the litigation resulting in the judgment must have caused no little excitement among the residents of the Kumasi Zongo, that it is unreasonable to believe that the applicant was unaware of it. It seems to me, however, that it was made sufficiently clear by the applicant’s counsel’s statement to the court that “an alleged judgment is now being sought to be enforced” that applicant was not aware of the judgment, for if it were otherwise, how could counsel speak of the judgment as “an alleged judgment.”

At any rate Apaloo J. obviously understood it in that sense; and to hold now that he should not have understood it in that sense were to do him gross injustice, by, in effect, charging him with faulty comprehension and understanding in that he had taken and understood the statement in a sense in which it was incapable of being understood. That charge obviously cannot be made, and the position which thereby results must be that the learned judge properly understood the statement in a sense in which it was reasonably capable of being understood and thereafter exercised his judicial discretion by reason of it. [p.264] of [1963] 2 GLR 238

With regard to the concluding portion of the respondents counsel’s contention to the effect that the circumstances of the 1950 litigation in the Asantehene’s Court about no less a premises than the Kumasi Zongo chief’s residence must have been such that it is reasonable to assume that the applicant and all other residents in the Zongo became aware of it, my view is that it is basically wrong in any judicial proceedings to assume any material fact in favour of any party, especially when that party can so easily adduce evidence to establish the fact categorically in the proper judicial form. The idea of basing the decision of any material fact on unsafe assumptions and doubtful conjectures, appears to me to offend blatantly against elementary justice. In my opinion, therefore, learned respondent’s counsels contention that the applicant not only failed to allege that he was unaware of the 1950 litigation, but that in any event, it is unreasonable to hold that he was so unaware of the litigation is without substance and must be rejected. It seems to me to be reasonably plain that the applicant sufficiently indicated his unawareness of the 1950 litigation to the learned judge for how else could he have said, “I ought to exercise my discretion and I enlarge the time”; and that in the circumstances the learned judge properly exercised his discretion. The important point however is this, namely, that as the indulgence was obtained on an ex parte application, it became open to the respondent to apply for a discharge of the order by adducing evidence by affidavit or otherwise showing cause against the grant of the order. On the occasion, therefore, when the parties met before the learned judge for the hearing of the motion for certiorari, i.e., the occasion when the respondent’s counsel submitted that: “Application ought to have been made within six months; I submit therefore that leave was wrongly granted,” if instead of that objection, he had availed himself of his undoubted right to adduce evidence towards disproving that allegation on which the learned judge founded his enlargement of time, and applied for a review and discharge of that enlargement order, in all probability the learned judge might have discharged the order, assuming the respondent did disprove the applicant’s allegation aforementioned.

He did not however avail himself of the opportunity to impugn the order of enlargement and the learned judge feeling, as he declared in his judgement, that “the ends of justice required it,” left his order unreviewed and undischarged and set down the motion for certiorari for hearing on the merits. Were his order aforesaid open to review, then the authorities brought forward to show that the courts do not encourage applications for certiorari made after long lapse of time from the date of the judgments or orders sought to be quashed, would require most serious consideration.

Having regard however to the situation that not only the order enlarging time but also that granting leave to apply for certiorari are both not subject to review because they are interlocutory orders made in the course of a suit, as already pointed out earlier in this judgment, it appears to me that the only matter properly open or outstanding for consideration

[p.265] of [1963] 2 GLR 238 in this appeal is whether, on the ground on which the learned judge disallowed the motion for certiorari, he was right or wrong. But it seems to me further, that even the order granting enlargement of time were open to review by this court, since the respondent did not, in the court below adduce any evidence by affidavit or otherwise to disprove the applicant’s allegation that he did not have knowledge of the litigation in the Asantehene’s Court and the resulting judgment until February 1961, the situation must remain the same, namely, that only the merits of the judgment of the court below fall to be considered. This must be so, because all the authorities which decide that delay might, or will, bar the relief sought, have this criterion in common, namely, that the tardy applicant indisputably had knowledge of the adjudication which he seeks to have quashed and of all surrounding circumstances, yet choose, reprehensibly, to delay and thereby puts other interested parties in a position in which, if the relief sought be granted, the latter will be prejudicially affected or incur loss. The case of R. v. Stafford Justices; Ex parte Stafford Corporation54 and two earlier cases referred to in it will, I think, illustrate this proposition more clearly.

In the early case of R. v. South Holland Drainage Committee,55 it was laid down that: “On application for a Certiorari, the Court will take into consideration the conduct of the party applying.” [His lordship then reviewed the facts of that case and continued:]

In a subsequent case of R. v. Sheward,56 certiorari was applied for to bring up and quash the proceedings upon an inquisition before the sheriff as to the amount of compensation to be awarded to a claimant under the Lands Clauses Consolidation Act, 1845, on the ground that the jury in assessing compensation had taken into consideration matters which were not legally the subject of compensation. It was proved that the applicants who knew quite well the time allowed under the Act for applying to set aside an award had allowed five months to expire without taking any objection to the proceedings. Certiorari was refused on the ground that the time allowed for setting aside an award made under the provisions of the Act had expired before application for certiorari was made. Bramwell L.J. who with Baggalay and Brett L.JJ. constituted the court which heard an appeal from the Divisional Court’s refusal of the writ, said,57 “I think this appeal must be dismissed. The granting of a certiorari is discretionary … The Company must take the consequences of the delay.”

Then came the R. v. Stafford Justices; Ex parte Stafford Corporation,58 in the material facts of which, culled from the statement of facts of the report, were these: A building estate company (referred to shortly as the builders) were owners of land in the area of authority of the Stafford Corporation, over which a public footpath existed. Being desirous of developing the land as building estate they gave written notice dated the

[p.266] of [1963] 2 GLR 238

20th March, 1937, to the corporation of their desire to divert the public footpath to the extent of about 387 yards. On the 27th April, 1937, the council of the corporation resolved that it was expedient that the footpath should be diverted, and authorised their surveyor to apply to two justices of the borough to review the footpath after which on the 30th April, 1937, the justices gave their certificate that the footpath might be diverted with advantage to the public. Thereafter on the 5th October, the council applied for and obtained an order of the Quarter Sessions directing that the new footpath should be set out and appropriated for use as a public footpath in lieu of the existing footpath which was then to be diverted and stopped up. Subsequently on the 3rd January, 1938, the justices made a further certificate that the new footpath had been set out and appropriated as ordered and was then completed and put into good condition. The certificate was duly enrolled at the Quarter Sessions on the 18th April, 1939. The corporation, pursuant to leave obtained on the 31st March, 1939, issued notice of motion for certiorari to remove into the King’s Bench Division the certificate of the two justices dated the 3rd January, 1938, to be quashed, on the ground that in fact the new footpath had not been completed and put into good condition having regard to the fact that a great part of its width had not been laid out, and that in giving the certificate the justices had exceeded their jurisdiction. At the time of the second view by the justices on the 3rd January, 1938, the new footpath had not been made up to the proper width of 30 to 36 feet, but a strip of four feet wide had been coated with ashes to form a temporary footpath. There was evidence that the corporation’s surveyor was then aware of the condition of the substituted footpath, although the town clerk only became aware of it in consequence of a letter received on the 26th November, 1938, contending on behalf of the builders that the corporation must make up and complete the substituted highway. A Divisional Court of three dismissed the motion holding that the court ought not in the exercise of its discretion to grant certiorari, in view not only of the long lapse of time between the date of the certificate and the date of application to the court, but also of the fact that during that time a number of houses had been built upon part of the site of the old diverted footpath while the corporation stood by. The judgment of the Court of Appeal dismissing the appeal was delivered by Greene M.R. In the course of what, with great respect, might be called a highly instructive judgment, he referred to the two earlier cases to which reference has hereinbefore been made and expounded as follows59:

“Now it appears from . . . the case of the South Holland Drainage Committee 8 Ad. & E. 429, that the conduct of the applicant is something that may be looked at, and the fact that delay also is a relevant consideration appears in the case of Reg. v. Sheward 9 Q.B.D. 741 . . .

Bearing those principles in mind, it becomes necessary to examine a little further the history of this case. The certificate was granted as long ago as January 3, 1938. It was enrolled on April 5, 1938, and, of course, all this was done at the instance of the council themselves, who were the persons [p.267] of [1963] 2 GLR 238 who were conducting the proceedings, at the request of the builders. It is not disputed that on January 3, and before and after that time, the physical condition of the part of the road in question was well known to the borough surveyor; in fact, it is impossible to suppose the contrary … Knowing that, if he had appreciated the true meaning of s. 91 of the Highways Act, he would no doubt have realized that the matter was not yet ripe for a certificate by the justices. But, apparently, he did not realize that that was the legal position . . . He assumed apparently that the new substituted way had been completed and put into good condition and repair. Nevertheless, it must, I think, clearly be taken that the council through their appropriate officer, namely, the borough surveyor, knew the relevant facts with regard to the condition of this road, and that knowledge must be imputed to the council through the whole of the subsequent history. The fact that that knowledge did not find its way to another officer of the council, whose duty it was to advise the council on matters of law, appears to me to be irrelevant . . .

Now it appears that since January 3, 1938, the builders have proceeded with their operations and have built houses across the site of the old footpath, and that those houses were built with the knowledge and consent of the council. It was not until November 26,1938, or an interview a few days before that date, that the council appear to have become alive to the matter, because on that date a letter was written by the then solicitors to the builders to the town clerk, referring to a contention put forward at the interview by the surveyor that the liability for making up and completing the diverted public footpath should fall on the builders and not on the local authority. It was contended on the other side that the liability lay on the council. Then it was realized that there were difficulties in maintaining the council’s proposition so long as the certificate of the justices stood, and in the result the present application was made on, I think, March 31, 1939, that is to say, nearly five months later than the date in November, 1938, when the point was raised.

Quite apart from what had happened before that, it seems to me that that delay of five months before applying to the Court is, in the circumstances, quite unwarrantable . . . I should have considered myself that that circumstance alone was one which ought to prevent the Court from granting any relief on the facts of the case; but it is not necessary to rely on that alone. The delay, looking at the delay by itself, must in my judgment be carried back, not to November, 1938, but to January of that year, when the full facts as at the date of the granting of the certificate were known to the council through their surveyor. That delay is a very long one, but in the interval the council had, by their conduct, encouraged and permitted the builders to do something which, if the old highway had never been stopped up, was entirely illegal . . . The position would be really a ridiculous one, if this Court, at this stage, and in the light of what has happened, were to take a course which would result in re-opening that old footpath as a public highway, with all the consequences which flow from its status as a public highway. It seems to me that this state of affairs having been brought about with the full knowledge of the council, and indeed with their actual consent, so far as regards the building of the houses, it is quite impossible for the Court to grant relief which will have the effect of quashing that certificate.”

It is impossible not to be forcibly struck and impressed by the strong emphasis and stress which is laid on the element of knowledge on the part of the applicant of all the material circumstances leading to that of which he complains, throughout the learned Master of Rolls’ review of the facts [p.268] of [1963] 2 GLR 238 of the case in his instructive judgment, and I put that forward as my excuse not only for setting out that review of the facts in extenso, but putting in italics the passages dealing with that element of knowledge of the circumstances.

In another part of his judgment, the learned Master of Rolls dealt with the question of the degree to which an applicant for certiorari may be entitled to it, by reason of the kind of applicant that he is, i.e., whether one having a private and personal interest, or rather a merely public and impersonal interest, in the adjudication sought to be quashed, and he cited the pronouncement of Blackburn J. in R. v. Surrey Justices,60 where he (Blackburn J.) stated as follows:

“In other cases where the application is by the party grieved, so as to answer the same purpose as a writ of error, we think that it ought to be treated, like a writ of error, as ex debito justitiae; but where the applicant is not a party grieved (who substantially brings error to redress his private wrong), but comes forward as one of the general public having no particular interest in the matter, the Court has a discretion, and if it thinks that no good would be done to the public by quashing the order, it is not bound to grant it … therefore we think that, in exercising our discretion, we must see whether the present applicant is in the condition of a person grieved, applying for the certiorari to remove an order made without jurisdiction which affects his interests; and we think he is.” Commenting on this proposition, the learned Master of Rolls observed that61 “It merely means that unless there is something in the circumstances of the case which make it right to refuse the relief sought, the Court will grant it, and that is the way in which the Court will and must on ordinary principles exercise its discretion.” Discussing the position of the applicants in the Stafford Corporation, he said,62 “I do not find it necessary to take up time discussing the question whether the borough council are or are not parties aggrieved . . . I am prepared to assume that they are such parties,” and the application therefore was considered on that basis. In the instant case therefore the question does arise as to what type of applicant is before the court. As to this, having regard to the learned judge’s decision that “the judgment of the Asantehene’s Divisional B1 Court dated the 10th May, 1950, was valid and is binding on Mallam Sallow’s heirs and successors” and the undisputed fact that the applicant is a son of Mallam Sallow, and the evidence was unchallenged that according to Mohammedan law children inherit the property of their father, it is plain that the applicant has a direct personal or private interest in the learned judge’s adjudication and is “a person aggrieved”. On that basis, which was the same basis on which the Stafford Corporation application was considered, and in the light of the principles exemplified by that case, [p.269] of [1963] 2 GLR 238 it seems to me the onus rested on the respondent to disprove the applicant’s allegation that he did not know of the judgment of the 10th May, 1950, before February 1961, and to establish categorically that the applicant did, somehow or other, have knowledge of the said judgment earlier than the date he gave. The respondent, however, elected not to adduce any evidence by affidavit or otherwise, by reason whereof the learned judge having accepted the applicant’s allegation when he stated that:

“I think on the facts of this case I ought to exercise my discretion and I enlarge the time for bringing this application,” left that decision undischarged and subsisting of full force and effect at date hereof. In the circumstances the case fell within that class which Greene M.R. described as one in which there is nothing “in the circumstances of the case which make it right to refuse the relief sought, [and] the Court will grant it, and that that is the way in which the Court will and must on ordinary principles exercise its discretion”63 provided the ground of the application, namely, that the proceedings and judgment are without jurisdiction and void, be made out.

Turning then to consider whether the ground on which the application was based, namely, that the Asantehene’s Court acted without jurisdiction, was made out or not, it appears too plain for serious argument, in my view, that that ground was more than satisfactorily made out, and that the learned judge was palpably in error in his conclusion that: “the judgment . . . dated the 10th May, 1960, was valid.” That judgment was not valid, but on the contrary, completely without jurisdiction and therefore null and void for the following reasons: firstly, on the assumption (which however was an erroneous one) that the Asantehene’s Court had jurisdiction over the suit, upon the admission that the summons was never served upon the defendant named therein, it would seem to be indisputable that the court never became properly and lawfully seised of the suit nor ever became legally entitled or justified to try it. The specific provisions of rule 9 of the Native Courts (Ashanti) Procedure Rules, 1949,6464 operative as from 1st January, 1950, which governed the trial were that:

“If the defendant in a civil cause does not appear when the cause is called on the return day, the Native Court unless there is some good reason for adjourning the hearing (and in that case the reason shall be recorded and the hearing day fixed) shall ascertain whether service of the process is proved and, if it is, may hear the cause and give judgment on the evidence of the plaintiff alone. If service is not proved a new return day shall be fixed and the process altered accordingly.”

The foregoing clearly enough indicate that it is the defendant named in the writ who must be served. But it is argued that the defendant was sued “per” an agent and the agent was served and the circumstances show that the defendant must have known of the suit so the trial was regular and the judgment valid. As to that argument, in the first place, surely it is, as pointed out by no less a legal luminary than Halsbury L.C. in Jay v.

[p.270] of [1963] 2 GLR 238

Budd,65 recognised the general proposition that, whether a defendant does or does not already know of the existence and nature of the litigation, he has a right to formal information thereof by being served with summons to appear.”

In the second place, it is to be remembered that section 20 of the Native Courts (Ashanti) Ordinance,66 prescribed appearance by parties in person and permitted only limited representation in the case of: “the husband, or wife, or guardian, or any servant, or the master, or any inmate of the household of any plaintiff or defendant who shall give satisfactory proof that he or she has authority in that behalf … to appear for such plaintiff or defendant.” The agent concerned in the instant case, proved by the available evidence to be a friend who was authorised to collect rents from the defendant’s houses and possibly to look after the houses for him, not only did he not come within the class of persons entitled to represent him, but was not proved by any evidence from the plaintiff or the agent himself to have any authority to represent the defendant in litigation over any of the houses.

In the third place, unlike the Supreme Court where rules of procedure expressly provided for the cases in which the agent of a defendant may be served in certain limited instances without an order of the court, (but generally speaking only by order of the court) in the case of the traditional courts the available procedure rules did not contain any provisions for service on agents. At any rate, there were no provisions which can possibly justify that which took place in the instant case, namely service on an agent for the defendant without any order of the court allowing that form of service. In the Supreme Court then, and the High Court now, the instance where service on an agent will be deemed service on the defendant, was specifically provided for by express provisions, i.e., Order 10, r. 9 of the Civil Procedure Rules in force in 1950,67 which provided that:

“Where the suit is against a defendant residing out of but carrying on business within the jurisdiction of the Supreme Court in his own name or under the name of a firm through an authorised agent, and such suit is limited to a cause of action which arose within the jurisdiction, the writ or document may be served by giving it to such agent, and such service shall be equivalent to personal service on the defendant.” We have become so used to serving summonses on the agents of the firms and companies, actually by virtue of the foregoing provisions, that we tend to forget the rule which permits such service; and it would seem as though the learned judge in the court below had this form of service in mind when he held that service on the defendant’s agent was in order, apparently forgetting that there were no similar provisions made for service through an agent in the procedure rules made for the traditional courts at the relevant date in 1950. In the Supreme Court, outside the class of cases especially provided for by the rule set out (supra), it was also possible,

[p.271] of [1963] 2 GLR 238 where there is difficulty in effecting personal service, to obtain an order for substituted service through an agent: see Order 3, r. 5.68

It is this latter form of service by order of the court through an agent, which formed the subject of discussion by Cranworth L.C. in Hope v. Hope69 The statement of facts in the report discloses that the defendant was in France when a bill in Chancery was filed on the 4th November, 1853 and upon the solicitors acting for her in another matter in Ecclesiastical court in England refusing, or at least demurring, to accept service of the bill for her; “On the 22nd November 1853, an order for substituted service upon them was obtained . . . and on the 26th November a notice of motion [together with the bill] was served upon them in pursuance of the ex parte order for substituted service.”70 In due course when the motion, which was for an interim order of custody of infants, children of the parties, came up for argument, and the point was raised by defendant’s counsel challenging the legality of the service through the solicitors, the learned Lord Chancellor ruled that the service was regular and valid, and took advantage of the occasion to discuss the principles upon which the courts proceeded to allow other than personal service, stating as follows:71

“The first question to be considered is, whether the parties are properly before me, or, in other words, whether Mrs. Hope has been properly served: in short, whether the order made by Master of the Rolls in November last, for substituting service upon Mrs. Hope, was a proper order or if not a proper order, whether her subsequent conduct has not disqualified her from objecting to it as irregular. I may here observe that the right to direct substituted service depends now not merely on the practice of this Court, but upon recent statute, the 15 & 16 Vict. c. 86, the fifth section of which expressly empowers the Court to order substituted service to be effected in such manner and in such cases as it shall think fit.

This statue made no alteration; it was only an enunciation by the Legislature of what had always been the practice before. According to the rules of law, service ought either to be made personally, or at least by leaving notice at the dwelling-house of the party. But the rule of this Court differs in this respect from that of a Court of law. Personal service, or service at the dwelling-house, may be impossible, because the Defendant may be abroad; and yet it might be very unfit that he should not be litigated with in the same manner as if he were here, as he might have agents competent to represent and actually representing him in this country. Therefore, in a cases where a Defendant is abroad, the question is, whether there is any person here who may be fitly served, and service upon whom may be treated as equivalent to service upon the absent person himself. Now, this has been allowed in a variety of cases; for instance, where there has been an agent in this country managing all the affairs of a Defendant who is abroad, and regularly communicating with him upon his affairs, or where he has an agent here specially managing the particular matter involved in the suit. In such cases, the Court has felt that it might safely allow service upon the agent to be deemed good service [p.272] of [1963] 2 GLR 238 upon the person abroad, because the inference is irresistible that service so made upon the agent is service on a person either impliedly authorized to accept that particular service, or who certainly will communicate the process so served to the party who is not in this country to receive it himself. The object of all service is of course only to give notice to the party on whom it is made, so that he may be made aware of and may be able to resist that which is sought against him; and when that has been substantially done, so that the Court may feel perfectly confident that service has reached him, everything has been done that is required.” Where service is effected through another, without any express rule of court permitting that mode of service, and without an order for substituted service in that manner, the service is defective and the whole proceedings founded thereon, a nullity. So in Nelson v. Pastorino & Co.,72 the plaintiff issued a writ against a firm, Pastorino & Co. and individually against four persons whom he considered partners of the firm, Giacomo, Federico, Eugenio and Thomas. A copy of the writ was served on Federico at the business place of the firm as his individual copy and two others, one for the firm and another for Giacomo were left with him. Federico was in fact not a partner but the clerk of the firm. The partners entered conditional appearance on behalf of the firm and moved to discharge the purported service on the firm through Federico; and Giacomo who had in fact been out of the jurisdiction at the time of the service, also entered conditional appearance and moved to discharge the purported service on him, through Federico. In fact knowledge of the proceedings was communicated to the firm as well as Giacomo by Federico. As regards the firm, Pearson J. held that the service through Federico was not in accordance with the rule which permitted service on a partner, or at the business place of the partnership in the jurisdiction upon a person having the control and management of the business. With regard to the purported service on Giacomo through Federico, he said this:73

“In his case also, however, the only service has been through Federico Pellas. It is said that that writ did, without any doubt, find its way to him, and that he does in fact know that an action has been commenced against him. But no one is bound to take any notice of a writ which has been improperly served, and there is no evidence before me that Federico Pellas represented Giacomo [in which latter case he would come within the rule where a defendant out of the jurisdiction was carrying on business within the jurisdiction through an agent]. There has, therefore, been no proper service.”

He went on74

“Now, in many cases I know it is enough to say that the party is out of the jurisdiction, and there, the case being of a pressing nature, we cannot serve him, but he has agents, and it will be enough to effect service upon them. In pressing cases the court has allowed that to be done.” This concluding statement indicates sufficiently clearly, I think, that apart from the instance expressly provided for, where a person is outside

[p.273] of [1963] 2 GLR 238 the jurisdiction but is carrying on business within the jurisdiction and a cause of action has arisen against him within the jurisdiction in which instance service of the writ may be served on him through his agent, without a formal order of court; any other service through an agent must be in pursuance of an order of court expressly allowing it – otherwise the service is defective in limine. As therefore it was admitted that in the instant case the defendant being out of the jurisdiction the writ was not served personally on him but was served on a Person alleged to be his agent, even admitting that person was de facto his agent, it appears to me to be too obvious for dispute that there was no proper service, with the result that the whole of the proceedings and judgment constitute a nullity.

But as I indicated earlier the assumption that the Asantehene’s Court had jurisdiction over the suit was, and is, erroneous and misconceived. The reason is that by the terms of section 3 of the Native Courts (Ashanti) Ordinance,75 in force in 1950 by Which traditional courts were created or established, the courts:

“shall exercise jurisdiction within the whole or such part of the division, or within the Confederacy or part of the Confederacy in which they are respectively established as may be defined in the order, over causes and matters arising within their jurisdiction in which all the parties are natives and, subject to the provisions of section 3 of the Tribunals Process Service and Execution Ordinance, reside or are within the area of the Court.”

Section 3, is followed by section 7, providing that:

“Every Native Court shall have full jurisdiction and power, to the extent set forth in the order establishing it and subject to the provisions of this Ordinance in all civil and criminal cases in which all the parties are natives and the defendant was at the time when the cause of action arose resident or being within the jurisdiction of the Court . . .”

By the terms of the sections above set out, it seems clear that a would—be defendant must at least be in the area of the court at the time he enters into the contract or commits the tortious act (in this instance, wrongly collecting rents from the house in dispute, as alleged) before the court’s jurisdiction over him can possibly arise.

Section 3 (1) of the Tribunal Process Service and Execution Ordinance76 a mentioned in section 3 of Cap. 80, provided that:

“Where any offence is committed or any civil cause or matter arises within the jurisdiction of any Tribunal and the defendant is in any part of the Gold Coast outside the jurisdiction of such Tribunal he may, wherever he may be found, and notwithstanding that he does not ordinarily reside within the jurisdiction of such Tribunal be summoned . . .”

This obviously has no bearing on the facts of the instant case where the defendant was in Nigeria outside the Gold Coast at the material time.

The statutory provisions set out above by which the traditional courts were vested with the right and power to exercise jurisdiction only over persons within the jurisdiction at the time the cause of action arose in a

[p.274] of [1963] 2 GLR 238 civil cause, or the offence was committed in a criminal cause, are merely in accordance or in conformity with an old and well established principle.

The principle was stated in In re Busfield; Whaley v. Busfield77 by Cotton L.J. in these words: “generally Courts exercise jurisdiction only over persons who are within the territorial limits of their jurisdiction,” and also in Johnson v. Taylor,78 by Lord Haldane who said that it is “the old principle that by the law of England jurisdiction depends, broadly speaking, on presence within the jurisdiction.” See also Eboe v. Eboe,79 where this court held that except in a limited number of cases specially provided for by and under Order 11, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954,80 the court has no jurisdiction to order service upon the defendant in Nigeria, and that an order for service in a case which did not come under the said Order 11, r. 1, was without jurisdiction and all the subsequent proceedings were a nullity. It is said that through an agent the defendant was wrongly collecting rents from a house within the jurisdiction. In that state of affairs the plaintiff could sue the agent personally within the jurisdiction. But if he decides to proceed against the defendant resident in Nigeria, then it is the Supreme Court which had jurisdiction in the matter by virtue of section 15 of the Courts Ordinance,81 which conferred on the court which provided that “all the jurisdiction powers and authorities which are vested in or capable of being exercised by Her Majesty’s High Court of Justice in England,” and the rules of procedure made under the said Ordinance, Order 9, r. 1 that: “All suits relating to land … or for any injuries thereto … shall be commenced and determined in the Judicial Division in which the land. . . is situated . . . “ and Order 10, r. 10, that:

“Service out of the jurisdiction may be allowed by the Court whenever the whole or any part of the subject-matter of the suit is land . . . or other property situate within the jurisdiction, or any act, deed, will or thing affecting such land . . . or property; and whenever the contract which is sought to be enforced . . . or otherwise affecting any such suit, or for the breach whereof damages or other relief are or is demanded in such suit, was made or entered into within the jurisdiction; and whenever there has been a breach within the jurisdiction of any contract, wherever made, and whenever any act or thing sought to be restrained or removed, or for which damages are sought to be recovered, was or is to be done, or is situate within the jurisdiction.”

In short, then, where a defendant was resident outside the jurisdiction away from the country altogether at the material time in 1950, it was the Supreme Court which had jurisdiction over him to the extent and/or in respect of matters set out in Order 10, r. 10; and as, even in the case of the Supreme Court, express statutory authority was required to empower the

[p.275] of [1963] 2 GLR 238 court, how much more necessary it must be that similar statutory authority should be available to empower a traditional court having only limited jurisdiction, to exercise jurisdiction over a person resident abroad. It seems, reasonably plain therefore that there being no such statutory authority available to a traditional court, it has no jurisdiction over persons resident abroad outside the country, for the very obvious reason that it cannot effect service on them. Accordingly, it seems to me too clear for argument or dispute that the judgment sought to be quashed is undoubtedly without jurisdiction and therefore null and void. It was in respect of such proceedings and judgment, that, in a case exactly similar to the instant case in the one respect that the summons was, by mistake, not served on the defendant because it was not sent to the address for service, namely, Craig v. Kanssen,82 Greene M.R. expressed himself as follows: “In my opinion, it is beyond question that failure to serve process where service of process is required goes to the root of our conceptions of the proper procedure in litigation. Apart from proper ex parte proceedings, the idea that an order can validly be made against a man who has had no notification of any intention to apply for it has never been adopted in this country. It cannot be maintained that an order which has been made in those circumstances is to be treated as a mere irregularity and not as something which is affected by a fundamental vice … In the present case, as appears from the affidavit of service, the summons was not sent to the address for service of the defendant, so the rule was not complied with and the alleged service mentioned in the affidavit was no service at all. It was clearly a mistake and there can be no suggestion of bad faith, but there was no warrant or justification in the Rules of Court for obtaining the order of January 18, 1940 [a judgment by default] in such circumstances. That order is a nullity, and it must be set aside.” Lord Denning’s description of the nature of such a judgment is that83:

“It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad.” With regard to certiorari proceedings in respect of such judgment, in, R. v. Wood,84 where the applicant was convicted for breach of a by-law made by a local board and the court found that the by-law was ultra vires the enabling Act, Campbell C.J. held as follows:

“We think that, if The Local Board exceeded their powers in making the by-law, the justice exceeded his power in convicting, and that a certiorari may go, it being open to us to inquire as to the validity of the by-law . . . The by-law therefore is in excess of the authority given by the statute; and the magistrate has acted without jurisdiction; the certiorari therefore must go”.

[p.276] of [1963] 2 GLR 238

It is noteworthy that the court held the applicant entitled to the order, in this cause where the ground of the application was absence or excess of jurisdiction, despite the fact that there was a provision in the enabling statute purporting to deprive the court of its power to entertain certiorari proceedings in respect of convictions under the enabling Act. But perhaps a more appropriate and relevant authority is Colonial Bank of Australia v. Willan,85 where the proceedings challenged were civil proceedings. In that case Sir James W. Colvile delivering the judgment of the Privy Council pointed out that:

“‘There are numerous cases in the books which establish that, notwithstanding the privative clause in a statute, the Court of Queen’s Bench will grant a certiorari; but some of these authorities establish, and none are inconsistent with, the proposition that in any such case that Court will not quash the order removed, except upon the ground either of a manifest defect of jurisdiction in the tribunal that made it, or of manifest fraud in the party procuring it.” Lastly in R. v. Bedfordshire County Council, Ex parte Sear,86 where the council ordered compulsory acquisition without the pre-requisite consent of the Board of Agriculture as required under the enabling Act, and certiorari was sought, Avory J. observed that,87 “the applicant is personally aggrieved and not merely as a member of the public, there is no evidence of the alleged waiver, and the applicant is therefore entitled to the writ ex debito justitiae, if he succeeds on the merits.”

Even so it seems to me that the applicant demonstrably succeeds on the merits in the instant case, and is entitled ex debito justitiae to the order sought. I would therefore allow the appeal, set aside the judgment of Apaloo J. and substitute for it an order granting the issue of an order of certiorari to bring up the judgment of the Asantehene’s Divisional Court B1 dated the 10th May, 1950, to be quashed, and thereby allow justice to have its proper course by making it possible for the dispute about the house to be properly tried after due notice to the applicant and all interested parties.

DECISION

Appeal dismissed.