OPPONG vs. ATTORNEY-GENERAL AND OTHERS [1999-2000] 2 GLR 402

CASES REFERRED TO

(1) Essilfie v Anafo IV [1992] 2 GLR 654, SC.

(2) Ratnam v Cumarasamy [1965] 1 WLR 8; [1964] 3 All ER 933; 108 SJ 1028, PC.

(3) Revici v Prentice Hall Incorporated [1969] 1 WLR 157; [1969] 1 All ER 772; [1968] 112 SJ 1021, CA.

(4) Darkwa v Kwabi IV [1992-93] GBR 380, SC.

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

(6) Republic v High Court, Kumasi, Ex parte Atumfuwa [2000] SC GLR 72.

(7) Obeng v Boateng [1966] GLR 689, CA.

(8) Harlley v Ejura Farms (Ghana) Ltd [1977] 2 GLR 179 (full bench).

PRELIMINARY OBJECTION by defendants to plaintiff’s action and application to have action struck out on the ground, inter alia, that the plaintiff did not initiate the action by writ as required by the mandatory provision of rule 45(1) of the Supreme Court Rules, 1996 (CI 16). The facts are sufficiently set out in the ruling of Bamford-Addo JSC.

Ward-Brew for the plaintiff.

S Y Anim for the first and second defendants.

Samuel Codjoe for the third defendant.

Ambrose Dery (with him Tanko Amadu) for the fourth defendant

[p.404] of [1999-2000] 2 GLR 402

Bamford-Addo JSC. The plaintiff purported to invoke the original jurisdiction of the Supreme Court under articles 2(1) and 130 of the Constitution, 1992 as well as under rule 45 of the Supreme Court Rules, 1996 (CI 16) by filing an affidavit verifying the facts and particulars and also a statement of the plaintiff’s case on 14 September 1999 without a writ. However, on 30 September 1999, he filed a writ together with a supplementary affidavit in which he stated in paragraphs (2)–(4) thereof as follows:

“(2) That on 14 September 1999, I filed an affidavit verifying the facts and particulars, together with the statement of the plaintiff’s case but inadvertently did not attach the writ to it.

(3) That I am filing the appropriate writ attached hereto to be attached to the said affidavit verifying the facts and particulars together with the statement of the plaintiff’s case.

(4) That I pray that the writ will be attached to the said documents.”

At the hearing, the defendants raised a preliminary objection to the plaintiff’s action and applied for same to be struck out on the ground that the plaintiff did not initiate any action as required by the mandatory provision of rule 45(1) of CI 16 which states:

“45.1 Except as otherwise provided in these Rules, an action brought to invoke the original jurisdiction of the Court shall be commenced by a writ in the Form 27 set out in Part III of the Schedule to these Rules which shall be signed by the plaintiff or his counsel,”

(The emphasis is mine.) Since the requirement in rule 45(1) of CI 16 were not complied with by the plaintiff, no action having been initiated by a writ, the other documents, ie an affidavit and a statement of a case filed on 14 September 1999, were therefore of no consequence and same are null and void. The plaintiff’s request in the supplementary affidavit filed on 30 September 1999, that the said invalid documents should be attached to the writ filed on 30 September 1999 is misconceived. It is not for the registrar of the court to rectify any lapses in the filing of papers for parties which fail to comply with rules of procedure; nor has he any power to do so. Neither can an invalid and void document be resurrected and given life by attaching same to a later valid document. The

[p.405] of [1999-2000] 2 GLR 402 defendant’s submission that there is no case before the court is therefore valid.

With regard to the writ filed on 30 September 1999, the plaintiff should have complied with rule 46(1) and (3) of CI 16 after filing it. The said rule 46(1) and (3) of CI 16 provides:

“46. (1) The plaintiff may file a statement of his case with the writ, or shall in any case within fourteen days of the filing of the writ file the statement of the case.

(3) Where the statement of the plaintiff’s case is not filed within fourteen days of the filing of the writ, the respondent may apply to the Court to have the action struck out.”

This means that fourteen days from the date of the filing of the plaintiff’s writ, it could on an application by the defendant, have been struck out under rule 46(3) of CI 16 since a statement of the plaintiff’s case had not been filed in support thereof. But the plaintiff could, on the other hand, have asked for an extension of time to file the statement of his case under rule 48(4) of CI 16, which provides that:

“(4) Notwithstanding subrule (1) to (3) of this rule a plaintiff may apply to the Court for an extension of time within which to fulfil the conditions to be complied within accordance with these Rules and the Court may, for good sufficient cause shown, grant an extension of the time subject to such conditions as the court may impose.”

However, the plaintiff never took advantage of rule 48(4) to ask for time to rectify his failure to comply with rule 46(1).

In Essilfie v Anafo IV [1992] 2 GLR 654, SC I had the occasion to comment on this issue of the court’s power to grant extension of time. I said at 687 as follows:

“The power of courts to extend time is based on meritorious grounds and is not a license for litigants to hold the machinery of justice in abeyance for as long as they desire, and then to commence the prosecution of their cases on flimsy grounds. Litigation must end sometime and the court’s discretion to extend time should only be used in deserving cases, in that there must be reasonable grounds for asking for an extension of time.”

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See also Ratnam v Cumarasamy [1965] 1 WLR 8, PC and Revici v Prentice Hall Incorporated [1969] 1 WLR 157, CA relied on in Darkwa v Kwabi IV [1962] GBR 38, SC.

Many a time litigants and their counsel have taken the rules of procedure lightly and ignored them altogether as if those rules were made in vain and without any purpose. Rules of procedure setting time limits are important for the proper administration of justice; they are meant to prevent delay by keeping the wheels of justice rolling smoothly. If this were not so, parties would initiate action in court and thereafter go to sleep, only to wake up at their own appointed time to continue with such litigation at their pleasure. If this were allowed, litigation would grind to a halt, a sure recipe for confusion and inordinate delay in the due and proper administration of justice.

In the circumstances of this case, the plaintiff, having made no application to the court for extension of time to file a statement of his case, the defendants are perfectly entitled to apply to have the writ of the plaintiff struck out for non-compliance with rule 45(1) of CI 16. The writ is accordingly struck out.

Ampiah JSC. I agree.

Adjabeng JSC. I also agree.

Atuguba JSC. I agree with the ruling read by the President, Bamford-Addo JSC, in this case, but I desire to add a few words of my own. There is no doubt that all the proceedings filed before the writ was issued in this case are a nullity for the simple reason that they depend upon the existence of a writ. This means that the statement of the plaintiff’s case dated 14 September 1999 and all subsequent papers, including the statement of the defendants’ case based on the said statement of case dated 14 September 1999, are all null and void except as to the preliminary objection raised. The irregularity in these circumstances is not a mere irregularity but a fundamental defect. A fundamental defect renders the proceedings null and void: see Mosi v Bagyina [1963] 1 GLR 337, SC.

It is true that rule 79 of the Supreme Court Rules, 1996 (CI 16) empowers this court to waive non-compliance with the rules in fitting cases. The rule provides:

“79. Where a party to any proceedings before the Court fails to comply with any provision of these Rules or with the

[p.407] of [1999-2000] 2 GLR 402 terms of any order or direction given or with any rule of practice or procedure directed or determined by the Court, the failure to comply shall be a bar to further prosecution of proceedings unless the Court considers that the non-compliance should be waived.”

The scope of this rule was extensively considered by this court in Republic v High Court, Kumasi; Ex parte Atumfuwa [2000] SC GLR 72. There, I said at length that, where the step by a party to proceedings before this court is fundamentally wrong, such error is not within the purview of the rule and cannot be waived. One cannot waive a nullity. Thus in Obeng v Boateng [1966] GLR 689 at 696, Amissah JA held as follows:

“I have noticed that the second defendants filed as statement of claim in third party proceedings to which the third parties filed a defence, although there is no record of their having entered an appearance to the third party notice. The filing of pleadings was premature. I am, therefore, ignoring the pleadings at this stage and ordering that pleadings be properly filed…”

In the circumstances of this case, the fourth defendant (with whom the others associated themselves) per his counsel contended that there is no writ pending in this court. This obviously is right with regard to the proceedings based on the statement of case of the plaintiff, dated 14 September 1999.

The plaintiff, however, filed a writ in this same case dated 30 September 1999 but has not filed any statement of case pursuant thereto. In the circumstances, the defendants are entitled to apply under rule 46(3) of CI 16 to have the action struck out. The defendants’ preliminary objection that there is no writ pending in this court can be construed to mean also that even if there is a writ in this case, the same is not properly before this court. Obviously there being only the bare writ dated 30 September 1999, the court could not embark on the hearing of the action. This state of affairs has been occasioned by the plaintiff’s failure to file a statement of his case. Thus understood, the preliminary objection is a sufficient application within rule 46(3) of CI 16 to have the plaintiff’s action struck out. After all, a preliminary objection aims at having the proceeding to which it relates thrown out of court. Striking out a proceeding is one of the modes of throwing out an improper pro-

[p.408] of [1999-2000] 2 GLR 402 ceeding. Rule 46(3) of CI 16 does not stipulate any particular procedure for applying to have an action struck out. Rule 5 of CI 16 provides:

“5. Where no provision is expressly made by these Rules regarding the practice and procedure which shall apply to any cause or matter before the Court, the Court shall prescribe such practice and procedure as in the opinion of the Court the justice of the cause or matter may require.”

This, however, does not discount the well-established practices of the court: see Harlley v Ejura Farms (Ghana) Ltd [1977] 2 GLR 179 at 214, CA (full bench) where Taylor J (as he then was) said: “In these courts we dispense justice in accordance with three and only three yardsticks: statute law, case law and the well-known practice of our courts.” (The emphasis is mine.) Indeed, Taylor J (as he then was) held that the practice of filing an omnibus ground of appeal with an indication that additional grounds of appeal would later be filed, though not based on any statute, has nonetheless been accepted by both the bench and bar for so long that it would require a statute to abolish it. Indeed, rule 17(1) of CI 16, concerning preliminary points in appeals, gives an indication that the rules of this court have taken statutory notice, if I may so put it, of and support the established practice of this court. The preliminary objection argued in this case could be entertained even if not previously filed. The nullity of the parties’ statements of case in this case does not affect the preliminary point which is severable therefrom, since it could stand independently on its own. In any case, the same also had been raised and argued viva voce before this court. I would therefore uphold the same.

I would, however, observe that rule 48(4) of CI 16 seems to have been intended to relate to the plaintiff rather than the defendant. This is so because it opens with the words “Notwithstanding subrule (1) to (3) of this rule a plaintiff . . .” Subrules (1) to (3) of rule 48, however, concern the defendant but not the plaintiff.

Akuffo JSC. I also agree that the writ be struck out.

Writ struck out accordingly.

LSNA