REPUBLIC vs. HIGH COURT, KOFORIDUA; EX PARTE OTU [1995-96] 1 GLR 177

CASES REFERRED TO:

(1) Mosi v Bagyina [1963] 1 GLR 337, SC.

(2) R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338; [1952] 1 All ER 122; [1952] 1 TLR, CA; affirming [1951] 1 KB 711; [1951] 1 All ER 268; [1951] 1 TLR 270.

NATURE OF PROCEEDINGS

APPLICATION by the plaintiff-applicant to the Supreme Court for, inter alia, an order of certiorari to quash the decision of the High Court, Koforidua setting aside the judgment of the District Court, Nsawam in his favour and ordering a trial de novo of the case after an inquiry by the High Court under the High Court (Civil Procedure) Rules, 1954 (LN 140A) to amend defects and errors in the record of appeal in an appeal by the defendant-interested party against the judgment of the District Court, Nsawam. The facts are sufficiently set out in the rulings of Aikins and Charles Hayfron-Benjamin JJSC.

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COUNSEL

Awere Awuku for the plaintiff-applicant.

Ansa Otu for the defendant-interested party.

JUDGMENT OF CHARLES HAYFRON-BENJAMIN JSC.

The applicant herein, Samuel Yaw Otu, was the plaintiff in a land case which was commenced in the District Court Grade I, Nsawam in the Eastern Region. It appears that the original defendant, Agnes Yaa Kwaafi was at all times represented by Rev S Odei Asare who claimed first as an administrator and subsequently as the defendant’s “lawful attorney.” Rev Odei Asare by his sworn affidavit in opposition to the present application averred that he was the son of the defendant, his mother, who died in the course of the hearing of the suit in the district court and that he had thereafter applied to be substituted for the mother. By his affidavit the court had so substituted him for his late mother. He was therefore the interested party.

Judgment in the case was delivered in favour of the present applicant on 18 January 1994. On 25 January 1994 the defendant appealed from that decision to the High Court, Koforidua. Having fulfilled the conditions of appeal, he received a certified true copy of the record of proceedings. The interested party—then the defendant-appellant perused the record and “detected that a number of things had been wrongly attributed to [me] in my evidence and which had been used against [me] in the judgment, which to the best of [my] knowledge and recollection, [I] did not say.” The interested party by a series of affidavits and the clever use of the court’s processes managed to bring his objections to the supposed errors and omissions in the record to the notice of the High Court judge, Koforidua.

It appears that subsequently when the appeal was called in the High Court, Koforidua, the learned judge’s attention was drawn to the absence of the case docket from the material before him. In the words of the interested party, the case docket is “the recorded lower court proceedings which should have accompanied the certified true copy and the exhibits.” The court was informed that the case docket had not been transmitted to the High Court, Koforidua along with the certified true copy of the record. The interested party put his reaction to the absence of the case docket and the revelation by the applicant of certain exhibits tersely when in paragraph (11) of his affidavit of 17 November 1995 he swore that:

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“(11) . . . my counsel formally challenged the reliability of the ‘certified true copy’ on the basis of the said exhibits A, B, C and D attached to the applicant’s application in court and requested that the recorded proceedings at the court below be produced for verification and asked the court to order a retrial on the grounds that I could not prosecute the appeal on the basis of the ‘certified true copy’ of the proceedings reliability of which was challenged.”

Upon this supplication, the learned High Court judge decided to embark upon an inquiry to determine how the registrar of the court below “compiled the record of proceedings and why he failed to bring the case docket and its contents to the appellate court.” On 11 July 1995 after due inquiry, the learned High Court judge gave what he termed judgment by the court.

The applicant takes issue on this “judgment” and prays:

“This honourable court for an order of certiorari to quash the judgment the respondent delivered in civil appeal misc 4/95 entitled Otu v Asare, High Court, Koforidua, 11 July 1995, unreported and to prohibit the trial High Court judge from hearing the appeal. . .”

The applicant bases his prayer on four grounds which are:

“(i) The procedure adopted by the respondent in ordering the appeal before him to be heard de novo is wrong in law and is not warranted by a rule of procedure.

(ii) The respondent did not give the applicant a hearing when the respondent granted the appeal and ordered that the suit be heard de novo.

(iii) A domestic inquiry into a loss of a docket was substituted for hearing of an appeal and judgment given by the respondent was based on that inquiry.

(iv) By giving judgment under the circumstances, the respondent is not likely to give a fair judgment when ordered to hear the appeal.”

It seems to me that in this application the issues for determination are whether (i) the learned High Court judge had jurisdiction to embark upon the inquiry; (ii) the learned High Court judge exceeded his jurisdiction; (iii) the learned High Court judge’s decision was not

[p.181] of [1995-96] 1 GLR 177 warranted by any rule of law or procedure; and (iv) the learned High Court judge should be prohibited from hearing the appeal in the event of this court so ordering, on the grounds that he was not likely to be fair.

In my respectful opinion, the learned High Court judge had jurisdiction to embark upon the inquiry. Order 58, r 17 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) which governs the procedure to be adopted in respect of appeals, from the magistrates courts states:

“17. The Court may from time to time amend the grounds of appeal and make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of the appeal; and may direct the Court below to enquire into and certify its findings on any questions which the Court thinks fit to determine before final judgment in the appeal, and generally shall have as full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Court as a Court of first instance, and may re-hear the whole case, or may remit it to the Court below to be re-heard or to be otherwise dealt with as the Court directs.”

(The emphasis is mine.) On the basis of this rule the learned High Court judge had jurisdiction to conduct any inquiry relevant to the appeal with a view to amending any defect or correcting any errors in the record. However, in the instant application, the learned High Court judge exceeded his jurisdiction. The inquiry was to rectify the record. But the learned judge mistook what was clearly an internal inquiry for a determination of the merits. This erroneous approach was exemplified by the opening sentences of his judgment thus: “This is an appeal filed by the appellant on 25 January 1994 against the judgment of his Worship Mr Owusu . . .”

It is clear from the judgment that the learned judge misconceived the scope of Order 58, r 17 of LN 140A. By the terms of that rule he had no jurisdiction to declare the proceedings “unreliable.” Nor could he set aside the proceedings. Section 71 of the Courts Act, 1993 (Act 459) was irrelevant to a consideration of the matter before him. He could not set aside the judgment of the trial magistrate because he was not hearing the appeal on its merits. All in all therefore, the applicant’s

[p.182] of [1995-96] 1 GLR 177 grounds for the application before us were well-founded.

But the complaint is against the decision of a High Court. Now, since the High Court has jurisdiction in all matters “civil and criminal”, unless it can be demonstrated that such jurisdiction has been specifically taken away by statute, its errors are only appealable and not subject to the supervisory jurisdiction of this court.

In the present application, the learned High Court judge certainly breached a rule of procedure. His error was within his jurisdiction and therefore certiorari did not lie to quash his decision. However, to the extent that the rules of the High Court were breached, the decision under attack was void: see Mosi v Bagyina [1963] 1 GLR 337 at 347, SC. It would appear then that the applicant is entitled ex debito justitiae to have the decision set aside. The voidness of the decision having been clearly demonstrated to us in this application, we have no discretion but to set the same aside.

The applicant also prays for an order of prohibition on the ground that the learned High Court judge would be unlikely to give “a fair judgment” if we were to order him to hear the appeal. While the fears of the applicant may be well founded, I think it is a well-settled law that prohibition will only lie where there is a real likelihood of bias in the judge or adjudicating authority. The prayer for an order of prohibition therefore fails.

The applicant therefore succeeds and the appeal will take its normal course in the High Court, Koforidua subject to any objections which the parties may have with regard to the completeness or otherwise of the record of appeal. The appeal shall be placed before another judge.

JUDGMENT OF AMUA-SEKYI JSC.

I agree.

JUDGMENT OF AIKINS JSC.

This is an application for certiorari to bring up and quash the decision of the High Court, Koforidua (Omari-Sasu J) dated 11 July 1995.

The facts of this case are not in dispute. In July 1990 the applicant asked for a writ of summons to issue against the defendant at the District Court, Grade I, Nsawam asking, among other things, for a declaration of title to a piece or parcel of land at Otoase. As the defendant was far advanced in age (about 94 years) she appointed her son, Rev Seth Odei Asare, by a power of attorney to defend the action.

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During the course of the trial, the defendant died, and Rev Asare applied to be substituted for the defendant. On or about 18 January 1994 judgment was delivered in favour of the plaintiff. About a week later, the defendant appealed to the High Court against the judgment.

After fulfilling the conditions of appeal, the parties were each supplied with a certified true copy of the proceedings in the district court. Rev Asare states that upon receipt of his copy, he detected that certain assertions had been wrongly attributed to him as having been said by him in his evidence, and these had formed the basis of the judgment. He made his complaint known to the appellate court by way of affidavits and requested the court to set aside the judgment of the court below. He later filed a motion on notice for an order of injunction, and this motion was fixed for hearing on 29 June 1995.

At the hearing, Rev Asare, the substituted defendant, sought to challenge the certified true copy of the record of proceedings. His counsel, Mr Ansa Otu, submitted that it was improper for the appellate court to proceed with the appeal as there was correspondence on record that the docket in the case was missing, and urged the necessity for the record to be produced to check the authenticity of the certified true copy of the record of proceedings that had been supplied to the parties. Counsel for the respondent, Mr Awere Awuku, urged the court to dismiss the application because the procedure adopted was wrong.

The appellate court ruled as follows:

“Learned counsel for the appellant has invited this court to consider certain matters which have affected the compilation and reliability of the appeal record. These are the correspondence which have been received by the appellant and the court from the registrar of the court below and the circuit court judge. These correspondence have been exhibited . . . According to the appellant, these cast doubt on the accuracy of the appeal record and it is proper that the record of proceedings should be rejected and a retrial ordered…

Whatever the position is, it is on record that according to the appellant the registrar of the court below failed to use the recorded proceedings in the case docket in compiling the appeal record and to ascertain the true position; this court orders that the registrar of the court below be summoned to come to court to testify, after which the parties shall have the liberty to examine him on how he

[p.184] of [1995-96] 1 GLR 177 compiled the record of proceedings and why he failed to bring in the case docket and it’s contents to the appellate court. The circuit court judge, Asamankese—his Honour Judge Gyamera Tawiah should also be summoned to come to testify. Deputy chief registrar is to comply.”

(The emphasis is mine.)

I cannot fathom why the circuit court judge should be ordered to appear before the appellate court to testify to the missing docket! In any event, on the next adjourned date his Honour Judge Gyamera Tawiah never appeared before the court. The registrar did, and testified as to how the court docket was handled. He was cross-examined by the plaintiff, but counsel for the defendant-appellant put no questions to him. Thereafter Omari-Sasu J, the presiding judge, instead of ruling on the application proceeded immediately to deliver judgment as if the appeal had been heard in full. It is recorded:

“Judgment by court This is an appeal filed by the appellant on 25 January 1994 against the judgment of his Worship Mr Owusu read by his Honour Nana Gyamera Tawiah on 18 January 1994. The notice of appeal was filed on 25 January 1994, and according to the registrar—the first court witness—conditions of appeal were fulfilled by the appellant on 25 January 1994 . . .”

It is clear from the foregoing that the learned High Court judge never had occasion to hear the appeal itself, but proceeded to give judgment as if the appeal had been heard and set aside the judgment of the trial magistrate together with “each and all the consequential orders made and any damages or costs or both awarded against the appellant.” He further ordered a retrial of the suit. This is an aberration of the proper procedure and an apparent error on the face of the record. The ruling or judgment is bad on its face. Even though the learned High Court judge had jurisdiction to deal with the matter before him, he decided the question of appeal which was not being deliberated upon by him at the material time. The learned judge had been invited to consider certain matters which had affected the compilation and reliability of the appeal record itself, and which, the appellant avers, had cast doubt on the accuracy of the appeal record. The learned judge had called on the registrar of the court below to testify. It was expected

[p.185] of [1995-96] 1 GLR 177 that thereafter his ruling on that issue would be delivered before proceeding to deal with the appeal. But instead of delivering the ruling aforesaid, he delivered what turned out to be a judgment on the appeal itself as if it had been heard in full.

In the circumstance, I would also allow the application.

JUDGMENT OF AMUAH JSC.

In an appeal coming before the High Court, Koforidua from the District Court, Nsawam, it was noticed that the case docket in which the magistrate wrote down the proceedings was missing and, therefore, the allegation made by the defendant-appellant challenging the record in certain two areas could not be verified. The judge in anguish set aside the judgment appealed from and ordered that the case be heard de novo.

The plaintiff-respondent in the High Court being aggrieved, has applied to the Supreme Court, for an order of certiorari to correct the error committed by the appellate judge.

Under Order 58, r 17 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) when the defendant-appellant began to criticise the record of proceedings transmitted to the High Court, the court ought to have amended the grounds of appeal if it found it necessary, and then directed the court below to take evidence on what the defendant-appellant alleged he said and be cross-examined on it together with the reaction of the plaintiff-respondent. The court below would also be asked to submit to it any finding which the court considers necessary before the final judgment is given.

It is only at this stage when these preliminary measures have been taken either in the High Court by the judge himself or the court below that the High Court becomes seised with full jurisdiction over the whole proceedings and considers the new matter which it has received from the district court along with the whole case and gives final judgment.

There is no doubt the High Court by its ruling setting aside the judgment of the district court and ordering the hearing of the case de novo has fallen into error. A recent case in 1951 departs from the old law. This was R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338, CA. The clerk, Mr Shaw, had been made redundant on the setting up of the National Health Service. He became entitled to compensation and was given a scanty sum. This was because the tribunal went wrong in construing the very complicated

[p.186] of [1995-96] 1 GLR 177 regulations about compensation. They had made an error of law. The question was “whether the Court of Kings Bench can intervene to correct the decision of a statutory tribunal which is erroneous in point of law while keeping within its jurisdiction.” If it does so, can the Kings Bench intervene? The answer given by the Court of Appeal was that the Kings Bench can correct errors of law. So far as the judgment stands, the plaintiff-applicant in this court has got his expectation of reaping the fruits of his victory unduly cut short without sufficient jurisdiction. The High Court failed to take into account an important consideration which it ought to have taken into account and its decision will be quashed on certiorari. I would have issued a mandamus for the case to be heard afresh at the High Court by the same judge who made the erroneous order but in order not to embarrass him, a High Court differently constituted should hear it.

In this case, the High Court decided the case without regard to the rule of procedure. It may be said that he did so in excess of its jurisdiction but nevertheless it is an error of law too apparent on the face of the record and certiorari will lie. The application by the plaintiff-applicant in this court will be granted and a court differently constituted is to hear the appeal afresh.

JUDGMENT OF AKUFFO JSC.

I also agree.

DECISION Application granted.

DRKS