MINERALS COMMISSION vs. COMMISSION FOR HUMAN RIGHTS AND ADMINISTRATIVE JUSTICE [1997-1998] 2 GLR 845

CASES REFERRED TO

(1) Merah v Okrah [1984-86] 1 GLR 400, CA.

(2) Stockton Iron Furnace Co; Re (1879) 10 ChD 335; 48 LJ Ch 417; 40 LT 19, CA.

(3) Abdilmasih v Armah [1972] 2 GLR 414, CA.

PRELIMINARY OBJECTION by the plaintiff at the hearing of an appeal filed by first the defendant against the judgment of the High Court, Accra on the ground that the heading of the notice of appeal filed by the first defendant erroneously referred to the “High Court, Accra” and was also addressed to the “Registrar, High Court, Accra”. The facts are sufficiently set out in the judgment of Benin JA.

Stanley Amarteifio (with him Agnes Ewool) for the appellant.

Oföosu-Quarteyv for the respondent.

Sapong JA. The plaintiff-applicant-respondent (hereinafter refer- ried to as the plaintiff) issued originating summons against the defendant-respondent-appellants (hereinafter referred to as the defendants) for an order compelling the defendants jointly and severally to implement the decision of the plaintiff dated 9 March 1995 that: “The petitioners’ licence should be renewed in the name of Tropical Minerals Co Ltd.” At the end of the day the trial court ordered that the defendants should implement the decision of the plaintiff accordingly.

Against that decision the first defendant has appealed to this court for the decision to be set aside and for an order for trial de novo. At the hearing of this appeal, Mr Ofosu-Quartey for the plaintiff raised a prelimirinary point that the notice of appeal tfiled was headed: “In the Superior Court of Justice, High Court, Accra;” and that it was addressed to the “Registrar, High Court, Accra.” Counsel was therefore of the view that there is no appeal prioperly pending before this court and that the appeal should be dismissed.

Mr Amarteifio, counsel for the first defendant, reacted to the above by saying that the body of the notice of appeal complained of clearly indicates that the appeal was meant for the Court of Appeal and not the High Court. This is a mistake inadvertently made. He called upon this court to operate under rule 19 (2) of the Court of Appeal Rules, 1962 (LI 218) which was operative when the appeal \was filed. and not the Court of Appceal Rules, 1997 (CI

[p.848] of [1997-1998] 2 GLR 845

(19) which came into force on 31 December 1997. And submitted that upon a failure to comply with such a requirement the court is not obligated to dismiss the appeal but may hear the appeal and determine same on its merits.

In this wise, I do say that I have to consider this request to hear the appeal in terms of rules 19 (2) and rule 31 of the said LI 218 which were operative when the appeal was filed. The latter rule deals with the general powers of the court. The two read together convinces me that the first defendant should not be shut out from the court. For if it so happens, the first defendant cannot be heard again for he would be terribly out of time. I therefore hold that the objection be not given the blessing of the court. The first defend- ant should be allowed a hearing on condition that he amends the error.

Essilfie-Bondzie JA. This is an appeal from the judgment of Farkye J delivered on 10 July 1996 in favour of the plaintiff-applicant-respondent (hereinafter referred to as the plaintiff).

On the 24 March 1998 when the appeal came up for hearing, Mr Ofosu-Quartey, learned counsel for the plaintiff, raised a preliminary objection that the appeal is not properly before the court. His ground was that the notice of appeal filed was meant for the High Court and not the Court of Appeal. Consequently, there is no appeal before the Court of Appeal.

In his reply, Mr Amarteiflio submitted that the Court of Appeal can amend the notice of appeal under rule 3 (b) of the Court of Appeal Rules, 1997 (CI 19). He said the body of the notice of appeal clearly shows that the intention was all the time to appeal to the Court of Appeal. But the appeal was addressed to the High Court by error. Besides, the plaintiff has also filed a cross-appeal directed to the Court of Appeal. Mr Amarteiflio consequently appeals to the court to be allowed to amend the notice of appeal to enable the appeal to proceed.

The notice of appeal which was filed on 30 July 1996 reads:

“IN THE SUPERIOR COURT OF JUDCIATURE IN THE HIGH COURT OF JUSTICE

ACCRA –- A. D. 1996

IN THE MATTER OF AN ORIGINATING NOTICE OF MOTION

AND

[p.849] of [1997-1998] 2 GLR 845 IN THE MATTER OF ARTICLE 218 (d) (iii) AND 229 OF THE 1992 CONSTITUTION OF GHANA

AND SECTIONS 9 AND 18 (2) OF THE COMMISSION ON

HUMAN RIGHTS AND ADMINISTRATIVE JUSTICE ACT, 1993 (ACT 456).

BETWEEN

COMMISSIONER, COMMISSION ON HUMAN RIGHTS )

AND ADMINISTRATIVE JUSTICE )

OLD PARLIAMENT HOUSE, ) APP/RESPONDENT

AND

(1) THE CHIEF EXECUTIVE MINERALS COMMISSION ) 1ST RESP/APPELLANT ACCRA (2) THE ATTORNEY GENERAL ) 2ND RESP/APPELLANT MINISTRY OF JUSTICE )

ACCRA )

NOTICE OFAPPEAL

I TAKE NOTICE that the First Respondent-/Appellant herein being dissatistfied with the judgment of His Lordship Justice Farkye, Esq, Justice of the High Court, Accra, dated 10 July 1996, does hereby appeal to the COURT OF APPEAL, ACCRA upon the grounds set out in paragraph 3 herein and will at the hearing of the appeal seek the reliefs set out in paragraph 4 herein and the Appellant further states that the name and address of the person directly affected by the appeal is the one set out in paragraph 5 herein.

2 PART OF THE JUDGMENT/DECISION OF THE LOWER COURT COMPLAINED OF:

The entire Proceedings. Judgment/Decision.

3 GROUNDS OF APPEAL (i) The Learned trial judge erred in law by holding that by virtue of section 9 of the Commission on Human Rights and Admimnistirative Justice (CHRAJ) 1993 (Act 456) the

[p.850] of [1997-1998] 2 GLR 845

Commission on Human Rights and Administrative Justice (The Commissioner) could properly institute an action by originating summons under Order 54A of. thce High Couirt Civil Procedure Rules to enforce recommendations made by the Commissioner under the said Act 456.

4 RELIEFS SOUGHT FROM COURT OF APPEAL (a) Setting aside or reversal of the entire proceedings and judgment of the lower court and conscequential oirdeirs based thereon.

(b) Order for a trial de novo in accordance with Order 2, r Il.

5 PERSONS DIRECTLY AFFECTED BY THE APPEAL The Commissioner, Commission on Human Rights and Administrative Justice, Accra. Dated in Accra 29 July 1996.

TO THE REGISTRAR, HIGH COURT, ACCRA.”

(The emphasis is mine.) It is plain from the heading of the notice of appeal tfiled that reference had been made to the High Court and not the Court of Appeal.

A cursory examination of the notice however, reveals that the appeal was meant for the Court of Appeal and not the High Court. The main body, especially paragraphs 1,2,3 and 4 of the notice of appeal, indicates that the intention of the defendants was all the time to appeal to the Court of Appeal. These paragraphs fuirtheir imply that the appeal was made to the Court of Appeal but that it has been addressed to the High Court in compliance with rule 8 (1) and (2) of ClI 19 which specifically requires that the notice olf appeal should be filed in the registry of the court below. Rule 8 (1) and (2) of CI 19 read:

“8. (1) Any appeal to the Court shall be by way of the ire hearing, and shall hbe brought by a notice referred to in these Rules as ‘the notice appeal’

(2) The Notice of appeal shall be tiled in the Registry of the court below and shall . . .”

In this case the court below is the High Court and therefore the notice was properly addressed to the iregistrair of the High Couirt. In the circumstances, the defendant was not in error when it

[p.851] of [1997-1998] 2 GLR 845 addressed the appeal to the registrar of the High Court and I so hold.

The question then is: Can this court allow an amendment of the heading of the notice of appeal to conform with the main body? I think the answer must be affirmative.

Under rule 31 (a) and (b) of ClI 19 this court has the power to amend any defect or error In the record of appeal so as to permit the real question in controversy to be delivered. Rule 3 1 of ClI 19 provides as follow:

“31. General powers of the Court The Court may —

(a) make any order necessary for determining the real question in controversy;

(b) amend any defect or error in the record of appeal.”

(The emphasis is mine.) It is my opinion that since the courts aire under a duty to avoid undue delay in the prosecution of cases and to do substantial justice, this court can invoke its powers under irule 3!1 of CI 19 to make an amendment either on its own motion or allow the defendant to amend the notice of appeal to conform with the justice of the case. Now, to enable the hearing of the appeal to proceed, the defendant is ordered to file an amended notice of appeal and have a copy served on the plaintiftf. There after, the registrar will fix a date for the appeal to be heard. In the iresult the preliminary objection is overruled.

Benin JA. A preliminary objection was raised as to the com petence of this appeal before this court. The sole ground is that the notice of appeal was not directed to or meant for this court but irather the court below. To appreciate the argument, it is necessary to set out the relevant portions of the notice of appeal tfiled on 30 July 1996. It is headed:

“IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE

ACCRA-AD 1996”

It is followed by the title to the case, then follows the notice itseltf which reads:

“TAKE NOTICE that the First Respondent/Appellant herein bceing dissatisfied with the judgment of His Loirdship Justice

[p.852] of [1997-1998] 2 GLR 845

Farkye, Esq, Justice of the High Court, Accra, dated 10 July 1996, does hereby appeal to the COURT OF APPEAL, Accira upon the grounds set out in paragraph 3 herein and will at the hearing of the appeal seek the reliefs set out in paragraph 4 herein and the Appellant further states that the name and address of the person directly affected by the appeal is the one set out in paragraph 5 herein.”

The addressee of this notice was: “The Registrar, High Court, Accra.” It is the heading and address on this notice which prompted the objection that no appeal is before the court since the notice by its heading and address was meant for the High Court, Accra.

Counsel for the first defendant-respondent-appellant (herein after referred to as the first defendant) urged the court not to dismiss the appeal but to exercise its powers under rule 3 1 (b) of the Court of Appeal Rules, 1997 (ClI 19) to correct the error because the main body of the notice clearly shows the appeal is intended for the Court of Appeal. Next, counsel said the first defendant has taken a fresh step in the matter by filing a notice of intention to cross-appeal. Thirdly, counsel referred to rule 63 of CI 19 and said since the first defendant has shown a clear intention to appeal to this court, the error should be waived by the court in the interest of justice and the first defendant allowed to amend the record for the appeal to be heard.

In a further submission made in writing, counsel for the first defendant made reference to the provisions of the Court of Appeal Rules, 1962 (LI 218) which enactment was in force at the date of the notice of appeal. He contended by reference to rules 8, 9 (2), 3 1 and 64 thereof that the failure to head the notice with the appropriate court was just a part-requirement of the rules which this court has a discretion to correct. It is only a procedural defect which by the decision in Mci-a/ierah v Okrah [1984-86] 1 GLR 400, CA should not render the notice void and that the court has the power to amend the defect or error or could waive same.

From the submissions of counsel for the first defendant he admits the heading of the notice “High Court” instead of the “Court of Appeal” is wrong in the light of rule 8 and civil Form I of LI 218 which was applicable then. But he is saying it does not render the notice void for the reasons he gave in his submissions which I have set out alieadyalready. Does the failure to head a notice of

[p.853] of [1997-1998] 2 GLR 845 appeal with the appropriate court render the notice void? If it is a mere procedural defect as urged by counsel for the first defendant, it will not be void. And so will it not be void if it is an error or mistake which could be cured by amendment or waived by the court.

Was this a procedural defect only? The case of Merah v Okrah (supra) which counsel for the first defendant cited, gives an indication what amounts to procedural defect in the notice of appeal and the consequences arising there from. At 409-410, this is what the court said:

“LI 218 . . . prescribed two sets of rules: one leading to and concerning the filing of the appeal: rule 10; the other regulating the bringing of the appeal thus filed, to a hearing: rules 12 and 13. Rule 10 (3) of Li LI 218 says that: ‘An appeal shall be deemed to have been brought when the notice of appeal has been filed in the registry of the Court below.’ The above rule implies that as soon as the notice is filed, within the proper time and, where applicable, with the requisite leave, there is a properly filed appeal pending. Everything else that the appellant is required to do thereafter does not affect the pendency of the appeal; it only relates to the procedure or mechanics for bringing this appeal to a hearing. The authorities will seem to show that defaults in connection with the first stage are fatal. They affect the notice itself, invalidate it, and render the appeal void . . . Defaults at the second stage, the procedural or ‘mechanical’ ones, only render the appeal voidable. Concerning the first, the court has no discretion but to strike down the appeal as invalid: there is no appeal before the court. The court’s discretion can only be invoked in connection with the procedural defaults, when rules 19 or 64 of LI 218 as appropriate, may be prayed in aid.”

From this decision it would appear that the first defendant could not say failure to insert the correct court is only a procedural defect since it is an integral part of the process of filing the notice of appeal itself. On the other hand, rule 10 of LI 218 (as substituted by (LI 618) under which that conclusion was reached is not applicable to the facts of the present case. The said rule 10 deals with time limits for bringing appeals which by law and the numerous authorities on the subject prevent a court from hearing an appeal not brought within time. The situation we are

[p.854] of [1997-1998] 2 GLR 845 encountered with now is different in the sense that the appeal here was brought within time. Thus, this case does not fall within the two broad classifications set out in the Merah v Okrah case (supra), at least in so far as the present situation was not envisa- ged; that decision was given in the context that everything about the notice of appeal as filed was regular in the light of the rules of court and especially in conformity with civil form. Thus, in my view, Merah v Okrah (supra) is not instructive and, indeed I may add, not helpful to a proper determination of the objection raised here.

Let me move next to the question whether it was an error or mistake which could be cured by amendment. Where a party states something which later appears to have been clearly stated in error or mistake, a court would be within its legitimate rights to allow an amendment especially where no injustice will result to the other side. This is part of the general powers given this court by virtue of rule 31 (b) of the Court of Appeal Rules, 1997 (CI 19). Indeed that power has existed throughout the history of court practice as known in this country. The English rules of court which we followed for a very long time also allowed this power. See Re Stockton Iron Furnace Co (1879) 10 ChD 335, CA. No special circumstances are required to justify the exercise of this power to amend. The justice of each case will have to be the deciding factor.

In this case, as already said, the notice of appeal was headed; “In The High Court of Justice”, yet the body of the motion paper which bears the heading “Notice of Appeal,” says the first defendant is appealing to the Court of Appeal against the decision of the High Court, Accra. Under Part 4 of the notice, the reliefs are stated to be sought from the Court of Appeal. One has to look at civil Form I to appreciate what is required to be stated in the notice of appeal. The heading should bear the name of the court to which the appeal is being made and not the court below. Also the body of the notice should indicate to which court the appellant is appealing. And still Part 4 of the form enjoins the appellant to state the reliefs sought and more importantly for our present purposes, the court from which he seeks those reliefs. The notice of appeal identifies two of these three requirements, namely the body of the notice and the reliefs sought but not the heading as to which court he is appealing. It is my view that this was clearly a mistake or error and it is that type which could be cured by

[p.855] of [1997-1998] 2 GLR 845 amendment, the first defendant having shown clearly on the face of the notice that the appeal is to this court from which he seeks the reliefs set out. No injustice will be caused the plaintiffs since an amendment will not affect any right that has accrued to them,; also it appears they have treated it as a mere irregularity by taking steps to file notice of intention to cross-appeal; but most important it will be plainly unjust to throw out the first defendant whose desire to appeal to this court is plainly manifest even on the face of the notice.

With my holding that the error or mistake could be cured by amendment, it is my further holding that rule 63 of CI 19 should be applied in that the failure to head the notice correctly could and should be waived to enable the appeal be heard on merits. Such errors which cause no harm should not be used to deprive a litigant a right of being heard: see also Abdilmasih v Amarh [1972] 2 GLR 414 at 422.

The next limb of the objection relates to the addressee of the notice. The notice of appeal was addressed to the registrar of the High Court. Counsel for the first defendant sees nothing wrong with this because rule 8 (1) of 218 specifically requires that the notice of appeal should be filed in the registry of the court below. In this case the court below is the High Court and accordingly the said notice must be addressed to the registrar of the High Court below. It is submitted also that to do otherwise would mean that the notice of appeal is being filed in the Court of Appeal rather than in the court below as required by the rule.

I think there is a fundamental misconception in this argument in the sense that the court below is only made a conduit through which the appeal reaches the Court of Appeal. The reasons for this being simply that it is the court below where the case was heard which is charged with the responsibility of compiling the record of appeal and also where applications to stay execution are to be dealt with in the first instance, hence the need to file the notice there. But it is not a notice meant for the court below so it should not be addressed to it; it should be addressed to the court where it is to be heard but the rule only enjoins the appellant to file it with the court below. Unless an enactment says so expressly to the contrary, any paper meant for a particular court which is to hear the case is to be addressed to that court.

Counsel for the first defendant referred to the fact that there is no requirement in civil Form I that this notice be addressed to the

[p.856] of [1997-1998] 2 GLR 845 registrar of the Court of Appeal as compared to civil Form 2 (b), civil Form 6, civil Form 10 and civil Form 12 also in the firsit schedule where there is this requirement. It was therefore submitted, with respect, that “having regard to the fact that in the other forms referred to it is clearly stated that the notice must be addressed to the registrar of the Court of Appeal, if it was the intention of the legislature that likewise notice in the form of civil Form I should also be so addressed it will have stated so.”

This is a fine argument but I am unable to accept it. Let us go through the various forms listed. To begin with, civil Form 2B has the heading “In the Court of Appeal” and it is used where the intending appellant seeks special leave of the Court of Appeal to appeal. It is odd to think such an application should be addressed to the court below. At any rate to appreciate this, let us refer to the earlier form namely, civil Form 2A which is headed “iIN THE HIGH COURT OF JUSTICE” and which is the form used by an intending appellant who seeks special leave of the High Court to appeal. Obviously it cannot be addressed to any other court than the High Court. These two forms clearly show that a party who desires leave to appeal must first go to the High Court before coming to the Court of Appeal, hence the specific requirements of civil Forms 2A and 2B.

On civil Forms 6 and 12, these are the certificates issued by the registrar of the court below certifying that the conditions of appeal have or have not been fulfilled respectively. And obviously even without any specific requirement on the forms he could only address them to the Court of Appeal. Civil Form 10 is used when an appellant intends to withdraw his notice of appeal. The notice of appeal, once filed, is meant for the Court of Appeal, so any withdrawal must be addressed to that court to deal with.

Like civil Form 1, Civil Forms 8, 9 and 13 in particular also do not specifically state the addressee. But it cannot by any means be said that in those sitiiuations covered by those rules the party could be at liberty to address his paper either to the court below or to the Court of Appeal. Civil Form 8 deals with where the respondent intends to seek a variation order on appeal. Civil Form 9 is where a respondent intends to rely upon a preliminary objection and civil Form 3 is where a party informs the court he does not wish to be present or represented at the hearing of the appeal. These forms are designed to expedite litigation and are made pursuant to specific rules and so must be read as one with the particular rules.

[p.857] of [1997-1998] 2 GLR 845

Let me take just one example to illustrate the point I am making. Civil Form 9 is made under rule 17 of LI 218. This provides:

“17. (1) A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days’ notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with four copies thereof with the Registrar within the same time.”

The registrar here, according to rule 1 of LI 218, means the registrar of the Court of Appeal. It is thus absurd to say that if the notice of the objection is to be filed with the registrar of this court, it could be addressed to any other court simply because the form in question does not specifically say it should be addressed to the registrar of the Court of Appeal.

In my view therefore, every paper meant for the Court of Appeal should be addressed to the registrar thereof. But the question to answer is whether failure to address the notice to the registrar of the Court of Appeal renders same invalid. In my view, if other requirements of the notice are satisfied and there is a clear manifestation that the appeal is for thçe Court of Appeal, that defect in the address could also be corrected or cured by amendment. This defect per se cannot render the notice invalid.

For the foregoing reasons, I dismiss the objection which seeks to throw out the first defendant. But the defective notice has to be corrected by amendment and the first defendant will be given time to do that as requested for by counsel. But I think the respondent is entitled to costs for the delay.

Preliminary objection overruled.

SA