BOYE-DOE AND ANOTHER vs. TEYE AND ANOTHER [1997-98] 1 GLR 997

CASES REFERRED TO

(1) Bonaker v Evans (1850) 16 QB 162.

(2) Gyambiby v Gyambiby [1961] GLR 88, SC.

(3) Omaboe v Kwame [1978] GLR 122, CA.

(4) Akwei v Awuletey [1960] GLR 231, SC.

NATURE OF PROCEEDINGS

APPEAL by the defendant-appellant to the Court of Appeal from the judgment of the High Court, Accra in favour of the plaintiff-respondent on the ground that he had been denied a hearing because the court had continued and completed hearing the case during the legal vacation in the absence of his counsel in spite of the fact that his counsel had written to inform the court that he would not appear during the legal vacation. The facts are sufficiently stated in the judgment of Baddoo JA.

COUNSEL

T A Nelson Cofie for the defendant-appellant.

Nana Akufo-Addo (with him Philip Addison and Irene Mark Addo) for the plaintiff-respondent.

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JUDGMENT OF BADDOO JA

Baddoo JA delivered the first judgment at the invitation of Essilfie-Bondzie JA. The main complaint of the appellant in this case was that he was denied a hearing and therefore the rules of natural justice, specifically the audi alteram partem rule was breached. Therefore the judgment of the court should be set aside. I therefore intend to set out the facts of the case in a chronological order to ascertain whether or not the appellant was denied a hearing.

On 10 March 1988, the plaintiff (hereinafter called the respondent) issued a writ against the defendant (hereinafter called the appellant) for the following reliefs:

“(a) Damages for trespass against the defendant;

(b) declaration of title to the land the subject matter of the suit;

(c) an order of perpetual injunction against the defendant, his agents, servants and assigns; and (d) costs.”

On 18 October 1988, Nii Ashong Omaboe applied to the court to join the suit as the co-plaintiff and as the person occupying the Osu stool, the owners of the land in dispute. The appellant filed a statement of defence and later amended same on 28 February 1990. Summons for directions were taken on 2 May and the case set down for hearing on 18 May 1990. On that date, 18 May 1990, Rev J R A Bossman applied to join the suit as the second defendant. The application was granted. On 6 February 1992 the respondent opened his case by giving evidence for himself. He continued his evidence and was cross-examined by the appellants. The case was adjourned to 18 March 1992 for further cross-examination. On 18 March 1992 when the first plaintiff witness gave evidence for the respondent he did not complete his testimony and the case was adjourned to 20 March 1992 for further hearing. On that day, 20 March 1992, the first plaintiff witness was cross-examined and the case adjourned to 24 March 1992 because of altercation between counsel for the respondent and counsel for the first appellant. There was no further hearing until 13 April 1992 when the first plaintiff witness continued his evidence through cross-examination. Thereafter the

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case was adjourned to 29 April 1992. On that date the respondent closed his case and the court adjourned to 8 May 1992 for the co-respondent to open his case.

On 8 May 1992 the co-defendant-appellant was absent and so the court adjourned to 18 May 1992 for further hearing. But the court did not sit again until the 16 of June 1992. On that date counsel for the appellant withdrew from the case, and so the court had to adjourn to 20 July 1992 to enable the appellant secure the services of another counsel.

On 21 July 1992 Mr T A Nelson Cofie was engaged as solicitor for the appellant. He promptly filed a motion on notice praying the court to stay the proceedings of the court, pending the response to a petition the appellant had submitted to the Chief Justice. In that petition, the appellant had alleged that a car belonging to the trial judge was being maintained by an engineering company of the respondent. Further, that the trial judge and the respondent had visited the locus in quo without his knowledge. The respondent had also been boasting that he had won the case in advance. He therefore prayed the Chief Justice to transfer the case to another judge. The motion for stay of proceedings was dismissed by the trial judge and the case was adjourned to 4 August 1992 for hearing.

On 4 August 1992 when the court sat, the appellant and his counsel refused to appear on the basis of a letter dated 3 August 1992 written by counsel for the appellant to the registrar of the court. In that letter counsel said:

“The above case came on for hearing on 31 July 1992 when the court expected the defence to open. Due to circumstances this could not be done, and I expect the case to be adjourned to a date after the vacation. The presiding judge, Her Lordship Emelia Aryee, insisted on continuing with the case during the vacation, notwithstanding protests from me.

I wish humbly to state that I have no intention of appearing during the vacation. I think this is a right I am entitled to and I am not abandoning it.

I shall be grateful if you will convey this to Her Lordship.

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Yours sincerely,

(Sgd) T A Nelson Cofie

Solicitor for the defendant.”

With this development, the case was adjourned to 11 August 1992 for directions from the Chief Justice. The court sat on 18 August 1992. The appellant and his counsel were absent but the appellant was represented. The trial judge ordered the case to proceed. The second appellant who was represented by one Addotey, opened his case by giving evidence and being cross-examined by the respondent. At the next adjourned date of 10 September 1992, the second appellant completed his evidence and called one Jonathan Amartei as his first defendant witness. The case was then adjourned to 11 September 1992. On that date, the second appellant called his second witness, the second defendant witness, who gave evidence and was cross-examined. Thereupon the second appellant closed his case. The court adjourned to 18 September 1992 for written addresses. The respondent filed his addresses on 13 November 1992 while the appellants failed to file any addresses.

On 14 September 1994, two years after the close of the case, the judgment of the court was read by Asare Korang J because the trial judge had retired. The judgment upheld the claims of the respondent and granted him the reliefs claimed. The court also dismissed the appellant’s claim and counterclaim and that of the second defendant’s as wholly unmeritorious. Costs of ¢200,000 and ¢ 100,000 were awarded against the appellant and the second defendant respectively.

The appellant, dissatisfied with this judgment, has appealed to this court on the ground that the judgment was wrong in law and offends against the rules of natural justice. The appellant also filed additional grounds of appeal as follows:

“(a) The defendant’s claim could not be prosecuted due to the trial judge’s insistence on hearing the case during the vacation;

(a) The learned trial judge’s conduct in the case resulted in the denial of justice and thus vitiated the whole proceedings;

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(b) The learned trial judge erred when she refused to stay the proceedings until the Chief Justice’s pleasure was known.”

In this court, counsel for the appellant, Mr Nelson Cofie, has urged this court to set aside the judgment of the court below because the appellant was denied a hearing and also the case was tried during the vacation and therefore a nullity.

Nana Akufo-Addo for the respondent has also urged this court to dismiss the appeal as wholly unmeritorious because the appellant was never denied a hearing, since counsel himself refused to take part in the proceedings. Counsel also submitted that the case being canvassed by the appellant lacked any merit to warrant relitigating the whole matter after so many years.

But what are the rules of natural justice? There are two basic principles of natural justice recognised in English law, according to de Smith in his Judicial Review of Administrative Action (3rd ed), p 134. The first is expressed in the Latin maxim nemo judex in causa sua. Literal translation means, an adjudicator or judge should be disinterested and unbiased. The second is that the parties should be given adequate notice and opportunity to be heard. This is the audi alteram partem rule. These two rules are so basic to any judicial proceedings in this country, that any violation will necessarily result in setting aside the decision of the tribunal.

In the case of Bonaker v Evans (1850) 16 QB 162 at 171, Parke B said:

“No proposition can be more clearly established than that a man cannot incur the loss of liberty or property for an offence by a judicial proceedings, until he has had a fair opportunity of answering the case against him.”

But de Smith, Judicial Review of Administrative Action, p 176, has this to say on the audi alteram partem rule:

“What the audi alteram partem rule guarantees is an adequate opportunity to appear and be heard (subject to the proviso that in some situations prior notice may be valid although not in fact received). The rule does not guarantee

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that a hearing or inspection shall never proceed or that action shall never be taken to a person’s detriment unless everyone entitled to appear does in fact appear. There are indeed situations in which it will normally be just to proceed with a hearing in the absence of a person liable to sustain serious detriment by the outcome; but it may still be justifiable in such situations to proceed if that person absented himself without reasonable cause.”

From the facts of this case, can it be said that the appellant had been denied the opportunity of being heard? The truth of the matter was that the appellant had taken part in the proceedings up to the close of the case for the respondents. Thereafter he had the opportunity to go into the witness-box and put his case across. He did not avail himself of this opportunity but rather filed a motion by his counsel, praying the trial court to stay the proceedings until a petition he had sent to the Chief Justice, requesting the case to be transferred to another judge, has been responded to. The application for stay of proceedings was refused and the case was adjourned to 4 August 1992 for further hearing. On that date, 4 August 1992, all the parties were present. Counsel for the respondent was also present. The only person absent was T A Nelson Cofie, counsel for the appellant. His absence was explained by a letter he had written to the court on 3 August 1992 protesting about the decision of the court to proceed with the trial during the legal vacation, and indicating that he would not take part in the proceedings during the vacation.

The learned judge proceeded with the trial and heard the evidence of the second defendant on 18 August 1992, 10 September 1992 and 11 September 1992. The appellant though absent, was represented at times by a representative. Written addresses were filed on 13 November 1992 and judgment was delivered almost two years later on 14 September 1994. From these facts, it is my considered opinion that the appellant was never denied the opportunity to be heard.

Where a trial court of competent jurisdiction has given hearing notice to the parties in a suit and counsel for one party refuses to attend court on the grounds that it was the legal vacation, but the party is present or represented, the court could proceed without the

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counsel, and a plea that his client has been denied a hearing will not succeed: see Gyambiby v Gyambiby [1961] GLR 88, SC and Omaboe v Kwame [1978] GLR 122, CA. In the latter case, Apaloo CJ delivering the judgment of the court said, as stated in the headnote:

“It would be unjust to the respondent if the court were to give itself power to vacate a judgment regularly obtained by him in accordance with its own rules when the other party, while present at the hearing chose for reasons of his own not to meet his opponent’s case. It could hardly be the respondent’s fault that the appellant’s lawyer was absent from court.”

In this case the respondents and the second defendant were present at all times. The appellant though absent was represented by a representative. If counsel for the appellant had refused to take part in the proceedings because it was the legal vacation, the appellant was at liberty to engage the services of another counsel who would be prepared to come to court during the vacation. The defiant attitude exhibited by the appellant towards the court, by sending a representative to the court instead of attending himself, clearly demonstrated that he knew the court would proceed with the trial. He therefore cannot claim that he was denied the opportunity to be heard.

Having come to the conclusion that the rules of natural justice had not been violated as to warrant the setting aside of the judgment of the court below, I shall now proceed to examine whether the judgment could be supported having regard to the evidence adduced at the trial.

The subject matter of the suit was land situated at Mamobi, which land is vested in the Osu stool. The Supreme Court in the case of Akwei v Awuletey [1960] GLR 231, SC held that the Osu Mantse was the proper person to make a valid grant of Osu stool lands. Thus in this suit we have to examine the root of title of the parties to see whether they derive title from the proper source. The appellant in his pleadings claimed first that he derived his title through his father Zachoeus T Doe, who had been in possession of the land since 1954. Then again he claimed that the land was [p.1005] of [1997-98] 1 GLR 997 bought from one Adokwei Saka, a caretaker, for the sum of £8 in 1954. He had no document except a receipt for £8 from the said, Adokwei Saka, to support his claim. The respondents on the other hand base their claim from a grant obtained from the acting Osu Mantse. They tendered exhibits A and B which are indentures to support their claim.

It is my view that since the respondents are claiming their title through the Osu Mantse whose rights over Osu lands have been vindicated by the Supreme Court, the appellants cannot establish a better title: see the case of Adu v Ankumah [1972] 1 GLR 22.

For this reason, I do not see any justification for setting aside this judgment of the High Court. I shall therefore dismiss this appeal. Costs of ¢1 million to the respondent.

JUDGMENT OF ESSILFIE-BONDZIE JA.

I agree.

JUDGMENT OF GBADEGBE J.

I also agree.

DECISION Appeal dismissed.

LSNA