VOLDEN AND OTHERS vs. GHANA GOLDFIELDS LTD [1999-2000] 1 GLR 462

CASES REFERRED TO:

(1) Wiredu v Mim Timbers Co Ltd [1963] 2 GLR 167.

(2) Yaro Transport v Agyare [1989-90] 1 GLR 110.

(3) Wilmot v Wilmot [1981] GLR 521.

(4) Yaro v Duho [1982-83] GLR.

(5) PAS Timber Co Ltd v Amaning [1987-88] 1 GLR 341, CA.

(6) Yartuhor v Brako [1989-90] 2 GLR 432.

(7) Ingos Construction Ltd v Blackwood Hodge (Ghana) Ltd [1981] GLR 347.

NATURE OF PROCEEDINGS

APPLICATION by the defendant to the High Court, Sekondi for an order transferring the suit brought against it by the plaintiff, former employees of the defendant, at that court to the High Court, Tarkwa for hearing. The facts are sufficiently stated in the ruling of the court.

COUNSEL

J Dari for the defendant-applicant.

Haizel for the plaintiff-respondents.

JUDGMENT OF ANSAH J.

The plaintiffs sued the defendant for the following reliefs:

“(1) Payment of twenty month’s salary for sickness they contracted whilst in the defendant’s employment which has at any rate been terminated.

(2) Recovery of expenses by the plaintiffs to recover this sum and interest on the sum of money.”

[p.264] of [1999-2000] 1 GLR 462 The writ of summons was issued in the registry of this court and the statement of claim filed and served on the defendant.

By the present application, the defendant is praying to this court for an order to transfer this suit to the High Court, Tarkwa for Hearing or otherwise dealt with according to law. The grounds upon which the application rested were that the parties and their witnesses as well as counsel for the defendant reside in Tarkwa where there is a High Court. Viewed against this, it became clear that the defendant is saying, a trial at Tarkwa will help reduce expenses by both sides and will also facilitate an expedited hearing and disposal of the suit. On the other hand, the plaintiffs objected to the application saying that this court has Jurisdiction to hear the suit in Sekondi.

The whole question of the venue for the trial is of some crucial importance in our civil procedure. The law is settled that there is only one High Court in Ghana as our Courts Act, 1993 (Act 459) and the Constitution, 1992 make that clear. In connection herewith Wiredu v Mim Timbers Co Ltd [1963] 2 GLR 167; Yaro Transport v Agyare [1989-90] 1 G LR I 10 are cited. Order 5 of the High Court Civil Procedure Rules, 1954 (LN 140A) governed venues of trial in this one High Court in Ghana. That order as amended has a new one inserted by the High Court (Civil Procedure) (Amendment) Rules, 1977 (LI 1107). As was stated by Twumasi J (as he then was) in Wilmot v Wilmot [1981] GLR 521, LI 1107 in amending Order 5, r 1 of LN 140A unambiguously comprehended not only the concept on substantive jurisdiction of the High Court, but also its procedural Jurisdiction with regard to venue. By the provisions of the law, notwithstanding the fact that there is only one High Court in Ghana, a party cannot commence action in any region of his choice Rather, he is obliged to do so in the region specified by the law. Where an action is commenced in the wrong region and an objection is raised tirneously, a report is made to the Chief Justice on the pendency of the suit in the wrong registry and a transfer order is made by him, accordingly: see Order 5, r 1 (10) of LI 1107. That this is the practice and procedure with regard to the venue of trial of actions in the High Court is epitomised by cases like Yaro v Duho [1982-83] 1 GLR 341; PAS Timber Co Ltd v,Amaning [1987-88] 1 GLR 341, CA and Yartuhor v Brako [1989-90] 2 GLR 432.

So far there is no problem when the issue raised relates to the region in which the motion ought to have been commenced. As

[p.265] of [1999-2000] 1 GLR 462

stated, there are specific provisions in LI 1107 to look up to for guidance. The rather difficult area is where the action is commenced in the appropriate appropriate region, and the defendant prays for an order to have the suit transferred from one registry to the other within the region.

It was not too long ago when new High Courts were opened in the districts. Thus district headquarters like Sefwi-Wiawso in the Western Region, Oda and Nkawkaw both in the Eastern Region, Ashanti-Mampong in the Ashanti Region, Hohoe and Denu in the Volta Region, Goase in the Brong Ahafo Region began to have High Courts for the first time. The High Courts moved from the regional capitals to the districts. When that was done, it was for purely administrative purposes. The aim was to move the High Courts to the districts and closer to the people. Parties did not have to travel from the remote parts of the region to the regional centres just to have their suits heard there. Now, they are going to be saved the time, energy and expences involved in so doing. The High Courts in the regional capitals will also have their case load reduced considerably. The end result will be that the administration of justice will be enhanced and rendered more efficient than before. The rationale therefore is that let the parties litigate in the High Courts nearest to them. The issue raised in this application is therefore not so much as whether or not the action was instituted in the appropriate High Court in terms of regions but rather between the High Courts at Sekondi and Tarkwa, which one is the more appropriate venue for the hearing of this suit?

Where, such as in this case, either court has jurisdiction to hear the matter, I think it its within the discretion of the court before which an application is made to transfer the suit to the other court for hearing to determine the application. It is more like the situation in Ingos Contruction Ltd v Blackwood Hodge (Ghana) Ltd [1981] GLR 347. That case offers a useful guide to how the discretion is to be exercised. Sarkodee J said at 348-349 that in so doing:

“The court ought to look at-all the circumstances and decide whether or not to order a transfer of the suit. It seems to me every case must turn on its own peculiar facts but the test to be applied in each particular case, where the defendant applies that the matter be transferred is whether the defendant would

[p.466] of [1999-2000] 1 GLR 462 suffer some injustice if the action was heard in the region where he does not reside or carry on business.”

Save that we are dealing with a case of transfer from one High Court to the other in the same region, the above is apposite to this suit.

In this suit there is no denial of the fact that both parties live in Tarkwa. It is there that the defendant carries on its operations. Tarkwa was where the plaintiffs worked and contracted the diseases in respect of which they took this action. The defence counsel is also at Tarkwa. So that of all the parties and their solicitors, it is only counsel for the plaintiff who resides outside Tarkwa. He is the only person who will have to travel to Tarkwa whereas the rest will not. If on the other hand the application is refused, the three plaintiffs and their possible witnesses, the defendant, its counsel and their possible witnesses shall have to travel the whole distance from Tarkwa to Sekondi at some cost in transportion and time for the trial. It is my considered opinion also that even the plaintiffs themselves will suffer in this wise. On the whole then, more hardship will be caused the defendant than the plaintiffs if this suit is heard in the High Court, Sekondi. The balance of hardship and convenience tilts heavily in favour of the defendant and I shall accede to its application. I hold that it is more expeditious, proper and convenient to have this suit heard in Tarkwa than in Sekondi.

I therefore recommend that this suit for the reasons stated already, be transferred to the High Court, Tarkwa, for hearing. A report is therefore to be made to the Chief Justice and for him to exercise his power of transfer accordingly.

DECISION

Application granted.

LSNA