ACQUAH vs. APAA AND ANOTHER [1999-2000] 2 GLR 17

CASES REFERRED TO

(1) Ameteve v Head of Adjovan Clan, Court of Appeal, 7 August 1970, unreported.
(2) Amoabimaa v Badu (1957) 2 WALR 214.

(3) Craig v Kanseen [1943] All ER 108; [1943] KB 256; 112 LJ KB 238, CA.

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

[p.19] of [1999-2000] 2 GLR 17 (5) Republic v Ghana Ports and Harbours Authority; Ex parte Otoo, Supreme Court, Accra, 11 April 1995, unreported.

(6) Mechanical Lloyd Assembly Plant Ltd v Nartey [1987-88] 2 GLR 598, SC.

(7) Republic v High Court, Accra; Ex parte Darke [1992] 2 GLR 440, SC.

(8) Benneh v The Republic [1974] 2 GLR 47, CA (full bench).

(9) CFAO v Zacca [1972] GLR 366, CA.

APPLICATION for review of ruling of the Supreme Court given on 26 June 1992, dismissing an application for inter alia the substitution of the applicant for the deceased appellant and for the relistment of the appeal deemed to have been struck out under rule 13 of the Supreme Court Rules, 1970 (CI 13). The facts are sufficiently set out in the ruling of Charles Hayfron-Benjamin JSC.

J E Yeboah for James Ahenkora for the applicant.

Asamoah for B J da Rocha for the respondents.

Charles Hayfron-Benjamin JSC. This is an application on behalf of Ebusuapanyin Kojo Aquah of Gomoa Abaase “for an order for the review of the ruling of the court given on 26 June 1992 (sic) in this matter.” The ruling against which the complaint is lodged was given upon the dismissal of an application by Ebusuapanyin Kojo Acquah wherein the applicant by motion sought two prayers: First, the applicant sought to be substituted for the former – as it now turns out – the late Ebusuapanyin Kwa Nana in the appeal which had been filed in the Supreme Court against a judgment of the chieftaincy tribunal of the National House of Chief in favour of the respondent; and second, for a relistment of the appeal deemed to have been struck out under rule 13 of the Supreme Court Rules, 1970 (CI 13) and liberty to file a statement of case. Their lordships concluded that the application was “unmeritorious” and “the other reliefs are consequently affected and these applications would be refused.”

Ordinarily this court would not entertain an application for review unless such an application was brought within the ambit of the rules of this court, now clearly spelt out in the Supreme Court Rules, 1996 (CI 16). But in this case the applicant, by his statement of case prepared on his behalf by counsel, raises an import- [p.20] of [1999-2000] 2 GLR 17 ant issue worthy of consideration. Thus, wrote counsel, in his statement of case:

“The refusal of the application on this ground was clearly in error and occasioned great miscarriage of justice, for upon the death of Kwa Nana and with no one having been substituted for him, on whom was that notice served?”

To buttress this rhetorical conclusion, counsel argued that if their lordships had carefully examined the record, they would have noticed that by 20 August 1991 when the registrar of this court issued the notice to strike out and directed the said notice for service on Kwa Nana, the said Kwa Nana was already dead, and in the submission of counsel “therefore could not have taken any step in this case.”

Counsel for the respondent does not appear to take issue with the applicant on the date of death of Ebusuapanyin Kwa Nana. Counsel is content to restate the principles on which hitherto this court has granted or refused applications for review. Counsel concludes that this court has been consistent “in refusing to let a review be used for re-arguing the applicants case.” The application, in counsel’s submission, “is wholly unmeritorious and an abuse of the process of the Supreme Court.”

Counsel for the respondent is generally right on his statement of the principles on which this court will review its judgments, rulings and orders. The applicant does not however appear to rely on the principles of review but uses this principle as a vehicle on which to present his case that non-compliance by an officer of this court with the rules of court has occasioned a grave miscarriage of justice and that ex debito justitiae he should be relieved from the adverse effect of the errors of this officer. There is no doubt that every court has inherent jurisdiction to correct the errors of its officers. Consequently, if this court is of the view that its officers have not complied with the rules of court then it should have no difficulty in vacating the erroneous process. The argument of counsel for the applicant impels me to examine the law on the matter. The relevant rule under consideration is rule 13(2) of CI 13 which reads:

“(2) Where the appellant does not file the statement of his case in accordance with the provisions of the preceding sub-rule the appeal shall be deemed to have been struck out and the Registrar shall so inform the parties.”

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(The emphasis is mine.) It is clear from the wording of the rule that it is essential that the parties be so informed of the striking out of the appeal. I think that in the light of our decisions on extending time, it is only sensible that a party whose appeal has been struck out should know when it was so struck out. In the present application, even though the appeal was deemed to be struck out after the period limited by the rules for filing the statement of case, it must be conceded that at the time when the registrar issued the notice that truly Kwa Nana, the appellant, was dead. Kwa Nana, it was submitted by counsel for applicant and not denied by the respondents, died on 31 May 1991.

Now, what was the effect of Kwa Nana’s death on the attempted service of the notice striking out the appeal. In Ametewe v Head of the Adjovia Clan, Court of Appeal, 17 August 1970, unreported, the Court of Appeal per Azu Crabbe JA (as he then was) stated thus:

“In our view an appeal court cannot give judgment in a case pending before it where the parties before it are non-existent at the time of the hearing of the appeal and there has been no substitution or where the parties have not been properly served with (Form VII) in accordance with rule 15(2).”

It is clear that there was no service of the notice because Kwa Nana was dead. The service of the notice, in the absence of a substituted party, is still pending. The dictum of Azu Crabbe JA (as he then was) cited supra, indicates quite clearly that if the parties or one of them does not exist, an appellate court cannot pronounce judgment; nor can an appellate court give judgment where all the rules precedent to the assumption of jurisdiction have not been complied with. In the instant application the registrar had not fully complied with the rules and the appeal even though deemed to have been struck out was indeed pending. In the Ametewe case (supra), the court evolved the principle with which I have been dealing by reference to some well-known dicta in cases which for the sake of brevity I would cite from the report. In Amoabimaa v Badu (1957) 2 WALR 214 at 216, Coussey P said:

“A judgment or order obtained by some step not warranted by the rules or capable of being sanctioned is wholly void and

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may be set aside: Smurtwaite v Hannay. It seems to us that the order complained of is a nullity and that the respondents who are affected by it are entitled ex debito justitiae to have it set aside.”

See also Craig v Kanseen [1943] 1 All ER 108, CA. And in Mosi v Bagyina [1963] 1 GLR 337 at 347, SC Akufo-Addo JSC (as he then was) after reviewing some of the relevant authorities, summarised the law as follows:

“(1) Where a judgment or an order is void either because it is given or made without jurisdiction or because it is not warranted by any law or rule or procedure, the party affected is entitled ex debito justitiae to have it set aside, and the court or a judge is under a legal obligation to set it aside. No judicial discretion arises here.

(2) The power of the court or a judge to set aside any such judgment or order is derived from the inherent jurisdiction of the court to set aside its own void orders and it is irrespective of any expressed power of review vested in the court or a judge; and the constitution of the court is for this purpose immaterial.

(3) There is no time limit in which the party affected by a void order or judgment may apply to have it set aside.”

I also accept the principles set out in the above cited case.

In this case even though the appeal was deemed to have been struck out, notice thereof was never and indeed has never been served on either the appellant because he was dead or on any person substituted for him because no one had been substituted.

The object of rule 13(2) of CI 13 is to notify all the parties mentioned in the notice to strike out that the appeal has been struck out. Consequently, even though I fully concurred in our ruling of the 24 June 1992, I am of the view that in the light of the material presented to us and the objection raised to our ruling, the applicant is entitled ex debito justitiae to have our ruling set aside and I accordingly set it aside. I will therefore grant the application and order that Kojo Acquah be substituted for the late Ebusuapanyin Kwa Nana, and further order that the appeal be restored to the list. The applicant as appellant is given 21 days within which to file his statement of case.

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Bamford-Addo JSC. I agree.

Kpegah JSC. I have read the ruling just delivered by my respected brother Charles Hayfron-Benjamin JSC and I agree with his reasoning and conclusion and have only a few words to add.

The death of a party, where the action survives, puts all legal processes in the action on hold. The action, for all purposes, becomes extinct and can only be resurrected by substitution. This is the only legal process a person can legitimately take in such a situation as the action is only a phantom action. See Republic v Ghana Ports Authority; Ex parte Otoo, Supreme Court, Accra,. 11 April 1995, unreported.

In the instant case, the purported service of the notice on a person who was in fact dead clearly does not satisfy the requirements of rule 13(2) of the Supreme Court Rules, 1970 (CI 13) which requires the notice of the case being struck out be served on “the parties.” The purported service was therefore null and void.

In the case of Nartey v Mechanical Lloyd Assembly Plant Ltd [1987-88] 2 GLR 598 at 638, Taylor JSC tried to point out some situations which could be considered as exceptional circumstances necessitating a review. These situations, which are by no means exhaustive, are:

(i) Matters discovered after judgment; these must be relevant, exceptional and capable of tending to show that if they had, been timeously discovered, their effect would have influenced the decision;

(ii) cases falling within the principle enunciated in Mosi v Bagyina [1963] 1 GLR 337, SC—that is, where a judgment is void either because it is not warranted by any, law or rule of procedure; and

(iii) the class of judgments which can legitimately be said to have been given per incuriam because of failure to consider a statute or case law or fundamental principle of procedure and practice relevant to the decision and which could have resulted in a different decision.

As pointed out by me in Republic v High Court, Accra; Ex parte Darke [1992] 2 GLR 440 at 468, the categories of exceptional circumstances can never be closed and the examples found in the reports are but instances.

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I think where the registrar or officers of this court take a step not warranted in law or by the rules of procedure which induces us to give a decision which results in a miscarriage of justice in respect of a party, this court can vacate its decision through the review process. I will consider such a situation to fall under the principle of Mosi v Bagyina (supra) The party affected is entitled ex debito justitiae to have it set aside.

I will therefore grant the application for review.

Adjabeng JSC. I agree.

Acquah JSC. I agree.

Atuguba JSC. This application prays for a review of the ruling given by this court on 26 June 1992, wherein it dismissed the applicant’s motion for substitution and an order of re-listment in respect of an appeal to this court which was deemed statutorily struck out for failure by his predecessor to file a statement of his case as required by rule 13(2) of the Supreme Court Rules, 1970 (CI 13). He also sought liberty to file a statement of his case out of time.

It is quite clear for the statement of his case that when the registrar of this court issued notice under rule 13(2) of CI 13, dated 19 August 1991, for service on the parties, the applicant’s predecessor had already died on 31 May 1991. He had, however, earlier been served with notice that the record of appeal was ready on 20 February 1990. It meant that for failure to file the required statement of his case within three weeks thence, his appeal was deemed statutorily struck out under rule 13(2) of CI 13. By then he was alive.

In those circumstances, what was the consequence of the non-service of the notice to the effect that his appeal was deemed to have been struck out? The phrase “deemed to” be something or the like is a familiar one and has been construed to mean that one is required to take something for what it is really not: see Benneh v The Republic [1974] 2 GLR 47, CA (full bench) where it was held that the expression “be deemed to be forfeited to the state” in relation to certain assets meant the title thereto was divested by the force of the action and became automatically vested in the State.” It is therefore clear that the effect of rule 13(2) of CI 13 in providing that: “Where the appellant does not file the statement of

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his case in accordance with the provisions of the preceding sub-rule the appeal shall be deemed to have been struck out and the registrar shall so inform the parties” is that such appeal stands struck out as at the date when the non-compliance materialised and at no other date. It is also clear that the duty of the registrar under that rule does not arise until the appeal stands struck out. It is therefore clear that the effect of the non-service of the consequential notice to the parties which is only to “so inform the parties,” meaning that the parties should be told that the appeal has been struck out, is not to prevent the appeal standing as struck out. The applicant cannot have any better rights than those of his predecessor.

If the appeal can be said to be still pending despite the statutory striking out of the same, I can only understand that to mean “pending’ in the sense that some step can still be taken in it. That a case is still pending even though determined long ago, in that sense, is hardly in doubt. But in my humble opinion such pendency has the restricted meaning ascribed to it by Azu Crabbe JSC (as he then was) in CFAO v Zacca [1972] 1 GLR 366, CA and not the wide sense sometimes given to it. In that sense the case pends in a residual manner, that is to say only in so far as consequential steps, such as execution or, as in this case, the service of the notice that the appeal has been struck out pursuant to rule 13(2) of CI 13 can be taken. For the purpose of having such service effected, I think an application for substitution can be brought after the death of a party. This will not entail peremptory relistment of the appeal unless good reasons are shown in support of a conjoined prayer for relistment.

The true effect of failure to serve a party with the notice that the appeal is struck out under rule 13(2) of CI 13 is that in an ensuing application for relistment and leave to file a statement of case out of time, the intervening period between the non-service and such application should not be held against the applicant.

In this case the ruling of this court dated 26 June 1992 can be set aside because that ruling was based on merits of the conjoined prayer for relistment, whereas no order for substitution for the applicant’s predecessor had been made. Indeed, the application for substitution dismissed as a consequential effect of the dismissal of the application for relistment. But the application for relistment should rather have depended upon the fate of the application for substitution and not the other way round. The ruling based on such

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premises was a nullity and I would also set it aside: see Mosi v Bagyina [1963] 1 GLR 377, SC.

I therefore concur in the allowance of this application, so far as it relates to a prayer for substitution.

Akuffo JSC. I also agree.

Application for review granted.

LSNA