REPUBLIC vs. HIGH COURT, KUMASI; EX PARTE ACKAAH [1995-96] 1 GLR 270

CASES REFERRED TO

(1) R v Colvin; R v Arthur (1957) 3 WALR 89.

(2) Wiredu v Mim Timber Co Ltd [1963] 2 GLR 167, SC.

(3) Amoah-Atta v Kankan [1963] 1 GLR 54.

(4) Anisminic v Foreign Compensation Commission [1969] 2 AC 147; [1969] 1 All ER 20; [1969] 2 WLR 163, HL.

NATURE OF PROCEEDINGS

APPLICATION by the plaintiff-applicant for, inter alia, an order of certiorari to quash the decision of the High Court, Kumasi wherein it granted an order staying execution of the judgment of the District Court, Bibiani in favour of the plaintiff in a land suit against the defendant-respondent on the ground that the registrar of the district court had disobeyed its order to furnish the parties with copies of the judgment of the district court. The facts are sufficiently stated in the ruling.

COUNSEL

Bodza Lumor (with him Philip Nkrumah) for the plaintiff-applicant.

Frimpong-Buadu for the defendant-respondent.

JUDGMENT OF AMUA-SEKYI JSC

Delivered the judgment of the court. In the colonial period and the years immediately after independence, our court structure was governed by the Courts Ordinance, Cap 4 (1951 Rev), section 22(1) of which gave the Chief Justice power to form territorial judicial divisions in the High Court. It reads:

“22. (1) For the purposes of the administration of justice, the Chief Justice, with the approval of the Governor, may by order under his hand provide for the formation of Judicial Divisions . . . and from time to time may in like manner amend, vary, alter or revoke any such order.”

It was further explained in section 22 (2) of Cap 4 that the judicial divisions were to be separate and distinct from any districts formed by the Governor for administrative purposes and did not need to conform with the boundaries or descriptions of such districts. As to the dispatch of business in the judicial divisions so created, section 23(1) of Cap 4 provided as follows:

“23 (1) With a view to the more convenient distribution of the business of the [High] Court, the Chief Justice may assign any

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Puisne Judge or Puisne Judges to any particular Judicial Division or Divisions . . . for the purpose of exercising jurisdiction therein.”

And it was further explained in section 23 (2) of Cap 4 that a puisne judge who had been assigned to a particular judicial division or divisions might, so long as he remained so assigned, continue to exercise elsewhere within the then Gold Coast the powers and jurisdiction of a judge of such judicial division or divisions even when he was temporarily absent therefrom.

The view that the judicial divisions formed by the Chief Justice under these provisions were autonomous entities, and that the puisne judges assigned to them could not lawfully exercise jurisdiction over other such divisions gained support from the decision in R v Colvin; R v Arthur (1957) 3 WALR 89, where it was held that a contempt of a Divisional Court in the Ashanti Judicial Division could not be tried in the Eastern Judicial Division. But, as Wiredu v Mim Timber Co Ltd [1963] 2 GLR 167, SC reminds us, these judicial divisions were formed “for the purposes of the administration of justice”, and the assignment of particular puisne judges to them was “with a view to the more convenient distribution of the business of the High Court” only. In that case, it was urged upon the erstwhile Supreme Court that a concession inquiry held in the Land Court in the Ashanti Judicial Division was invalid as the land lay within the boundaries of the Brong-Ahafo Judicial Division. In a unanimous decision, the court comprising Adumua-Bossman, Ollennu and Blay JJSC said per Ollennu JSC at 172:

“The High Court under the Courts Ordinance, . . . was just one High Court exercising jurisdiction throughout the land. It was only with a view to more convenient administration of justice that the country was divided into judicial divisions, see section 22(1) of the Courts Ordinance, not for purposes that the jurisdiction of the High Court should be strictly limited to the judicial division in which it was situated, and be completely void of jurisdiction in matters arising in or concerned with land in any other judicial division. Therefore unless a party to proceedings before the court, or the judge himself raised objection to the trial in a judicial division of a cause or matter which could properly have been instituted in another judicial division, the trial of any such cause [p.274] of [1995-96] 1 GLR 270 in a judicial division in which it was commenced, is a valid trial, see Order 5, rule 1 (a) and (e).”

Relying on the statutory provisions and the rules of procedure of the High Court, the Supreme Court upheld the validity of the concession inquiry on the ground that no objection had been taken to the exercise of jurisdiction by the Land Court in Kumasi.

The Courts Act, 1960 (CA 9) repealed Cap 4. Divisional Courts were abolished, as were the judicial divisions in which they exercised their jurisdiction. Since then we have had one High Court of Ghana with jurisdiction throughout the country. The administrative regions set up by the Regions of Ghana Act, 1960 (CA 11), as amended, are not judicial divisions, nor are judges assigned to such regions. This was decided in Amoah-Atta v Kankan [1963] 1 GLR 54, where, relying on Order 5, r 1(d) of the High Court (Civil Procedure) Rules, 1954 (LN 140A) the defendants contended that they ought to have been sued in the Eastern Region where they resided, and not in the Ashanti Region. Dismissing the objection, Apaloo J (as he then was) said at 55-56:

“Order 5 of the Supreme [High] Court (Civil Procedure) Rules [1954 (LN 104A)] presupposes the existence of judicial divisions . . .

The power by which the Chief Justice was enabled to establish separate judicial divisions is contained in section 22 of the Courts Ordinance . . . Section 156 of the Courts Act, 1960 [CA 9], repealed the whole of Cap. 4. It follows that the enabling section by which the Chief Justice established separate Judicial Divisions is gone . . . there is [in the Courts Act, 1960] now no power in the Chief Justice to establish separate judicial divisions and none is now in existence as a matter of law . . . [Therefore] Order 5 is now no more than a useless historical survival. It can no longer have any force . . . I hold that the argument founded on failure to comply with rule 1 (d) of Order 5 fails.”

Apaloo J (as he then was) then referred to a number of English cases and said that the issue was whether Kumasi or Accra was the more convenient forum for the trial of the suit. After examining this issue he concluded that Kumasi was the more convenient forum.

It is in the light of the above that we have to consider the application now before us. It all began when on or about 4 May 1993, the

[p.275] of [1995-96] 1 GLR 270 applicant, Kwasi Ackaah, obtained judgment against the respondent, Adwoa Konama, in a land suit which was tried in the District Court, Bibiani in the Western Region of Ghana. The respondent lodged an appeal against that decision under section 19(3) of the now-repealed Courts Act, 1971 (Act 372) to the High Court and obtained an order staying execution of the judgment pending the final determination of the appeal. The said section 19(3) of Act 372 reads: “(3) A person aggrieved by any decision of a District Court in any civil cause or matter may appeal against the decision to the High Court.” As to venue, section 19(5) of Act 372 provided:

“(5) An appeal under this section against a decision of a . . . District . . . Court shall, subject to any transfer effected by the Chief Justice, be made to the Judge of the High Court for the time being exercising jurisdiction over the . . . District, or other place over which the . . . District . . . Court has jurisdiction.”

The respondent made her appeal to the judge of the High Court, Kumasi.

Counsel for the applicant contends that the judge was not one “for the time being exercising jurisdiction over” Bibiani which is in the Western Region. He submits that the judge “for the time being exercising Jurisdiction over Bibiani is the judge of the High Court, Sekondi. He has therefore brought this application for an order of certiorari to quash the decision of the judge on the ground of want of jurisdiction.

It is significant that while the Inferior Courts Order, 1971 (LI 730) divided Ghana into nine circuits and nine magisterial districts, no instrument was made to carve out separate territorial jurisdictions for judges of the High Court. Bibiani is within the western circuit and the western magisterial district, the boundaries of which are coterminous with the boundaries of the administrative area known as the Western Region. The suit brought by the applicant against the respondent in the District Court Grade 1, Bibiani was one over which any district court and any circuit court in the Western Region could have exercised jurisdiction. In the case of the High Court, it cannot now be doubted that, subject to the power of transfer of the Chief Justice, a judge of the High Court sitting in Kumasi would have had Jurisdiction to hear the suit at first instance even though the land is situated in the Western

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Region. That being so, one may ask, why not the appeal? There being but one High Court of Ghana, any judge of the High Court of Ghana may, subject to any transfer that the Chief Justice may make, exercise appellate jurisdiction over judgments of a district court wherever situated in Ghana. Under Act 372, such a transfer could be made on the Chief Justice’s own volition under section 99, or upon a reference by the High Court judge under section 100. Under the Courts Act, 1993 (Act 459) which came into force on 6 July 1993, they may be made under sections 104 and 105.

It does not appear that counsel who appeared for the applicant before the judge of the High Court, Kumasi raised any objection to the motion for stay of execution being heard at that venue. What his new counsel has now pointed to as indicating an objection to the exercise of jurisdiction is a mere expression of preference in paragraph (9) of his affidavit for the appeal to be heard in Sekondi. Even here, it is to be observed that the type impression of the paragraph is markedly different from that of the remaining eight paragraphs and suggests that it may well have been inserted after the deponent, an illiterate, had been sworn. In the absence of any objection by the parties, Piesare J was entitled to deal with the application for stay of execution.

Unfortunately, what took place when the judge came to deal with the application has given rise to another complaint. It seems the matter first came before him on 7 June 1993 and that on that date he made an order that the registrar of the District Court Grade I, Bibiani should provide the parties with copies of the judgment of the trial magistrate. The intention was, clearly, to assist counsel in arguing the motion. On the next adjourned date, counsel for the appellant who is now the respondent to this application, informed the judge that although the registrar had been served with the order of the High Court he had not complied with it. Counsel for the respondent who is now the applicant before us also expressed dissatisfaction with the alleged refusal of the registrar to release copies of the judgment to the parties. Upon hearing this, the judge proceeded to make a pronouncement on the merits of the application before him. He said: “This court is of the view that the registrar has failed to furnish the parties with copies of the judgment because the court below has some material to hide from this court. The proper step in the circumstances, is to stay that judgment of the court below pending

[p.277] of [1995-96] 1 GLR 270 the final determination of the appeal filed by the appellant. The judgment of the court below is accordingly hereby stayed until the final determination of the appeal filed by the appellant.”

This was most unfortunate. The registrar of the court below was not a party to the proceedings; his conduct in disobeying the order of the court could not be blamed on the respondent to the appeal; and if the court below had anything to hide, it was the court, not the respondent, which ought to be called to account. To make any or all of these a ground for staying execution of the judgment obtained by the respondent was to exercise judicial power in an arbitrary manner.

In Anisminic v Foreign Compensation Commission [1969] 2 AC 147 at 171, HL Lord Reid observed that it was not only where a tribunal acts without jurisdiction that its decision is a nullity, but also where, for example, after lawfully entering upon the inquiry, it refuses to consider something it was required to take into account or bases its decision on matters it had no right to take into account. The latter is precisely what the judge did in this case, and this is sufficient to render the order staying execution a nullity. On this ground, therefore, we would grant the order prayed for in this application and remit the motion for stay of execution to the High Court, Kumasi for hearing before another judge. This is however, without prejudice to any application that may be made to the judge of the High Court or to the Chief Justice for a transfer of the appeal to a different venue.

DECISION

Application granted.

DRKS