The Church of Apostles Revelation Society and Others Vrs. Tehn-Addy and Others (H1/303/2004) [2005] GHACA 13 (08 July 2005);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D. 2005
CORAM - FARKYE, JA [PRESIDING]
ANIM, JA
HEWARD-MILLS, J
CIVIL APPEAL
NO. H1/303/2004
8TH JULY 2005
(1) THE CHURCH OF APOSTLES
REVELATION SOCIETY
(2) APOSTLE JAMES KWAKU AMEGA … PLAINTIFFS/RESPONDENTS
(3) DICKSON OWUSU ABROKWAH
(GENERAL SECRETARY) TADZEWU
V E R S U S
(1) REV. APOSTLE A.N. TEHN-ADDY
(2) REV. APOSTLE C.K.M. DOVLO
(3) REV. APOSTLE L.K. NUTSUAKO
(4) REV. APOSTLE O.K. GBEKU
(5) REV. APOSTLE M. AKUNOR
(6) REV. APOSTLE C.K. ATTIPOE … DEFENDANTS/APPELLANTS
(7) REV. APOSTLE J.G. FUMMEY
(8) REV. APOSLTE I.K. AXOLU
(9) REV. APOSTLE R.K. ZENEGBA
(10) REV. APOSTLE C.M. GBEKU
(11) REV. APOSTLE R.K. ALENYO
(12) REV. APOSLTE F.S.K. KUADEY
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J U D G M E N T
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ANIM, JA - This is an appeal from the ruling of the High Court, Fast Track Division, presided over by Mr. Justice R. Asamoah dated 5th February 2004.
On or about the 8th December 2003 the Plaintiff/Respondents hereinafter referred to as (“the Plaintiffs”) issued out a writ against the Defendants/Respondents hereinafter referred to as (“ the Defendants”). The indorsement on the write reads as follows:-
“The Plaintiffs claim against the Defendants jointly and severally:-
- An Order setting aside the purported removal notice on the 2nd
Plaintiff dated the 23rd August2002 and any subsequent one for
breach of natural justice and due process.
- Perpetual injunction restraining the Defendants, by themselves
or by their agents from interfering with the 2nd Plaintiff’s right
to perform the functions of a leader in accordance with the
constitution, by-laws and regulations of the 1st Plaintiff Church.
The brief facts of the case are that the 2nd Plaintiff is the Leader of the 1st Plaintiff Church whilst the 3rd Plaintiff is the General Secretary of the 1st Plaintiff Church. The 2nd Plaintiff became the Leader of the 1st Plaintiff Church following the death of the Founder Mawu i.e. Ame C.K.N. Wovenu on 10th April 1999.
According to the Plaintiffs the conduct of affairs of the 1st Plaintiff is governed by the Church’s constitution, promulgated in 1967 and the A.R.S. By-laws, Rules, Ordinances and Regulations through a Governing Body and the 2nd Plaintiff, as Leader, has oversight responsibility of direction and initiation of project services to the Church.
The Defendants are Apostles of the 1st Plaintiff Church. By a letter dated 23rd August 2002 signed by the Defendants, they purported to remove the 2nd Plaintiff as Leader without reference to the Governing Body which is the highest regulatory Authority in the 1st Plaintiff Church and without regard to the Constitution, Rules and Regulations of the 1st Plaintiff.
The Plaintiffs contend that by the said letter the Defendants breached the rules of natural justice by failing to prefer charges against him and they also failed to afford him the opportunity to defend himself.
Consequent upon the said letter dated 23rd August 2002, the Plaintiffs allege that the Defendants embarked on a series of machinations to undermine the authority of the Leader and also to interfere in his duties and functions as the Leader of the 1st Plaintiff Church.
It is this state of affairs which propelled the issuance of the writ on 8th December 2003. It is significant to note that the Plaintiffs, on the same day i.e. 8th December 2003, filed a Motion on Notice pursuant to Order 50 rule 7 of L.N. 140A (now repealed) for an Order of Interim Injunction against the Defendants. On 11th December 2003, leave was granted by the Fast Track High Court for the writ and Statement of Claim and the Motion on Notice to be served simultaneously on the Defendants.
Upon being served with the above-mentioned processes, the Defendants, on 17/12/2003, filed Notice of entry of conditional appearance. On the same day they additionally filed a “Motion on Notice of An Order to Report Pendency of suit to Chief Justice to cause Transfer of same – Section 105 of the Courts Act 1993 Act 49” on the basis that all the Defendants were resident in the Volta Region. (See paragraph 5 of the affidavit in support).
The Plaintiff opposed the Application on the grounds that:-
- At the time there was only one Fast Track High Court in Ghana which
is situated in Accra and in any event;
- The 1st, 5th, 11th and 12th Defendants reside and work in the Greater Accra
Region aside their Church activities.
On 5th February 2004 the Learned trial judge dismissed the Defendants’ application.
Aggrieved by and dissatisfied with this ruling the Defendants have appeal to this Court. In the Notice of Appeal filed on 12/2/04 the following grounds of appeal were set out for determination:-
“(a) The Ruling is against the weight of the affidavit evidence before
the Court.
- The trial judge, with respect, erred when he dismissed the Appellants’
application on the basis that the Chief Justice had already entered the
action in the Fast Track Division of the High Court, Accra and with any
regard to the rules as to venue provided for in L.I. 1107.
(d) The trial judge, with respect, erred when he dismissed the application of
the Appellants herein on the basis that the bare allegation by the Plaintiffs/
Respondents in their affidavit in opposition without even the mention of
which the Defendants were so resident in Accra was not denied in the
supplementary affidavit of the Appellants when it was quite obvious that
the burden of proving such an allegation rested squarely on the Plaintiffs/
Respondents who had made the bare assertion in their said affidavit and more
so when there was ample evidence disclosed in the Exhibits attached to the
application that the presents appellants were at the High Court in Ho.
- Further or other grounds of appeal to be filed upon receipt of the record of
Proceedings.”
Significantly, no additional grounds of appeal have been filed. Furthermore the Defendants, in their Statement of Case filed on 4th March 200 argued only ground (b) of the Notice of appeal. The Defendants are therefore deemed to have abandoned grounds (a) and (c) of the grounds of appeal and same are dismissed.
In arguing ground (b) Learned Counsel for the Defendants contended that the trial judge erred, that is to say, exercised his discretion wrongly, when he dismissed the Defendants’ application on the basis that the Chief Justice had already entered the action in the fast Track Division of the High Court, Accra, and without any regard to the rules as to venue as provided in L.I. 1107.
According to Counsel, having found as a fact that the Defendants were resident in different Regions, i.e. Greater Accra and Volta Region, the trial judge observed that the applicable rule under L.I. 1107 was Order 5 rule 1(7). Further, says Counsel, His Lordship then proceeded to dismiss the application at page 68 of the record thus:-
“On the 8th of December, 2003 Counsel for the Plaintiffs/Respondents,
Mr. Ebow Quarshie applied to the Registrar of this Court for this suit
to be placed on the Fast Track Court list. Subsequently, the application
was approved by the Chief Justice. I am not sure whether I have the
authority to set aside the approval of the Chief Justice in this matter.
I found that I cannot do so. Besides, L.I. 1107 makes it abundantly
clear in paragraph 1 sub paragraph 7 that “If there are more than one
defendants residing in different regions, the action may be commenced
in any such region. Subject, however, to any of the parties or in his own
motion think fit to make with the view to the most convenient arrangement
for trial of such action.” I consider that when this matter was placed on the
Fast Track list, the Chief Justice considered that the most convenient
arrangement for the trial of this action is by the methods of this court and
no other. The facts show that at least 4 of the Defendants reside in the
Greater Accra Region. But this has not been traversed by the supplementary
affidavit filed by the Defendants/Applicants on the 29th of this month.
In the resort, I will dismiss the application.”
Learned Counsel then submits that the trial judge appears from the above dictum to have relinquished the duty to adjudicate upon the application before him for transfer of the suit. Counsel submits further that Order 5 rule 1(7) of L.I. 1107 entrusted the court with a discretion, in the situation before him, to recommend a transfer to the Chief Justice or otherwise he may order as he considers appropriate pursuant to Order 5 rule 1(8). In support of this proposition Learned counsel cited the cases of QUANSAH VRS. TETTEH & ANOR. [1992-93] 2 GBR 910 CA; AMOAH-ATTAH VRS. KOJO KANKAN & OTHERS (1963) 1 GLR 54; and GENERAL PORTFOLIO VRS. GNPC (1992) 2 GLR 138.
According to Counsel, just like any discretionary power, the power entrusted to the Court by Order 5 rule 1(7) is to be exercised taking into account relevant considerations such as the comparative convenience and costs of the parties should the application for a transfer of the suit to another Region be refused.
Learned Counsel finally submitted that since the basis of the trial judge’s reasoning in not reporting the pendency of the matter to the Chief Justice is wrong, this Court is entitled to interfere with his discretion. And by virtue of the fact that an appeal is a re-hearing, this Court is entitled to consider the facts on record and make the appropriate orders i.e. report the pendency of this matter to the Chief Justice for a transfer to the Volta Region.
Learned Counsel for the Plaintiffs, in resisting these submissions contends that the said ground (b) of the Notice of Appeal is not deducible from the Ruling just cited, since the Learned trial judge sufficiently had regard to, and considered the rules as to venue suo motu as provided for under L.I. 1107 though the Appellants themselves did not bring their application under L.I. 1107 (now repealed).
Counsel contends further that the Learned trial judge did not state that the Chief Justice had determined the forum but that the “Chief Justice considered that the most convenient arrangement for the trial of this action is by the methods of this court and no other.”
Closing his arguments, Learned Counsel said the Plaintiffs have contended all along that the Learned trial judge considered himself bound by some non-existent and erroneous principle of law that once the Chief Justice approved the Plaintiffs’ case for the Fast Track the Chief Justice had determined the forum for the conduct of the action and the trial Court thus relinquished the discretion entrusted to him by Order 5 rule 1 (7) and in its place substituted the Chief Justice’s non-existent discretion.
In the view of Counsel the above contention is an attempt by the Appellants to confuse the issues before the Court. For the Learned trial judge did not in any way substitute the Chief Justice’s discretion with Order 5 rule 1 (7). Rather he considered them distinctly and separately hence the use of the word “Besides” at line 34 of page 68 of the record of proceedings and felt bound by Order 5 rule 1(7) to dismiss to application and it was on that basis that the motion was dismissed and not on an alleged “non-existent discretion of the Chief Justice.”
Counsel finally submitted that the trial judge took into consideration Order 5 rule 1(7) and exercised his discretion properly based on the facts and considered that Greater Accra Region is the proper and convenient forum and thus did not see the necessity to report the pendency of the suit to the Chief Justice, and thus dismissed the application.
I must state that I have not been impressed in the least by Defence Counsel’s proposition that Order 5 rule 1(7) of L.I. 1107 entrusted the Court with a discretion to either recommend a transfer to the Chief Justice or otherwise order as he considers appropriate pursuant to Order 5 rule 1(8).
If my understanding of Learned Counsel’s proposition is impeccable, he seems to invite this Court to hold that in a situation where the Court was faced with a problem bordering exclusively an Order 5 rule 1(7), the trial judge is clothed with two options in deciding the issue i.e. (a) either recommend a transfer to the chief Justice or (b) make an order as he thinks fit having regard to his powers under Order 5 rule 1(8). The authorities in support of this proposition, according to Counsel, are QUANSAH VRS.
TETTEH & ANOR. [1992-93] 2 GBR 910 CA; AMOAH-ATTAH VRS. KOJO KANKAN & OTHERS [1963] 1 GLR 54; and GENERAL PORTFOLIO VRS. GNPC [1992] 2 GLR 138.
Regrettably, the case of QUANSAH VRS. TETTEH supra, relied on by the Appellants does not enure to the benefit of the Appellants but rather tends to support the case of the Respondents. What are the facts of the case? The Plaintiff who claimed to be shareholder of the 2nd Defendant Company issued a writ in the Cape Coast High Court against the two Defendants for a declaration that the purported redistribution of shares was irregular, fraudulent, and of no effect. She sought an order to set aside the redistribution and a further order for the valuation of the 2nd Defendant-Company, for her to be paid off. The Defendants entered conditional appearance and applied for the transfer of the case to Accra on the ground that the 2nd Defendant Company had its registered offices in Accra where both Defendants resided and carried on business. The Plaintiff opposed the application and denied the allegation. The trial judge nevertheless held that the Plaintiff had admitted that the first Defendant lived in Accra, upheld the objection and adjourned the matter sine die for the Chief Justice to effect the transfer. The Plaintiff appealed to the Court of Appeal. The Defendants’ Counsel was not in Court when the appeal was called but applied on the day of judgment and obtained leave of the Court of Appeal to submit a written reply to Plaintiff’s arguments. He filed the written address to which he attached the writ of summons and a letter which never formed part of the record in the Court below:-
Held, allowing the appeal;
“3” Order 5 rule 1(7) of the High Court (Civil Procedure) Rules 1954
(LN 140A) as amended by the High Court (Civil Procedure) (Amended)
Rules 1977 (L.I. 1107) rule 1(7) gave the Court the power, upon an application
or suo motu to determine the forum of convenience where the defendants
reside in different regains. Where all the Defendants resided in one region, no
discretion arose. In the present proceedings both Defendants resided and
carried on business in Cape Coast and the rule did not apply. The appeal ought
to be allowed.”
It is abundantly clear from the above that nowhere did the Court lay down any principle that in a situation where the court was faced with a problem bordering on Order 5 rule 1(7), the trial judge has the option of either recommending a transfer to the Chief Justice or alternatively making an order as he thinks fit in accordance with his powers under Order 5 rule 1(8) . On the contrary, the Court of appeal, speaking through Lutterodt JA took the view that Order 5 rule 1(7) of L.I. 1107 gave the Court the power, upon application or suo motu, to determine the forum of convenience where the defendants resided in different Regions.
Is there any merit in this appeal? In the instant suit, the uncontroverted fact is that four (4) out of the (12) twelve Defendants reside in the Greater Accra Region. Applying the ratio in the above cited case therefore, the Learned trial judge has a discretion to decide the forum convenience which will either be Greater Accra or the Volta Region. It is my view that he rightly exercised his discretion by holding that Greater Accra is the forum convenience.
Significantly, the case of GENERAL PORTFOLIO Ltd. supra, is inapplicable in the instant case since it relates to a situation where all the Defendants resided in the same region but the action was commenced in a different Region.
Furthermore, the case of AMOAH-ATTAH VRS. KANKAN supra, dealt with Order 5 rule 1(d) of the LN 140A in which case the trial judge dismissed the Defendants’ objection to venue on the ground that no hardship will be occasioned by the Defendants.
In the result, I am firmly convinced that the appeal ought to be dismissed and the ruling of the High court appealed from affirmed. The appeal is accordingly dismissed.
S.Y. ANIM
JUSTICE OF APPEAL
HEWARD-MILLS, J - I agree with the main judgment read by Mr. J. Anim. I merely wish to add the following:-
The appellant had obviously not considered the absolute power of the Chief Justice to decide where and before which judge cases should be heard under section 104 of the then regulating Court’s Act of 1993 Act 459. The sections states and I quote:
“Subject to the provisions of the constitution, the chief Justice may by
order under his hand transfer a case from any judge, or Tribunal to any
other judge or Tribunal, and from a Court referred to in this Act to any
other competent Court at any time or stage in the course of proceedings
either with or without application from the parties to the proceedings.
I also quote from the regulating Guidelines of the Fast Track Courts chapter 1(b)
“A writ filed at the Fast Track Registry will not automatically be
placed on the Fast Track list until approved by His Lordship the Chief
Justice.”
On the transfer of cases, the Guidelines state:
“Application for transfer of a case from the general lists to the Fast Track
Court shall be approved by the Chief Justice.”
Following the reasoning in the case of ESSIEN V REPUBLIC [1993-94] 1 GLR 457 once the matter had been approved for hearing at the Fast Track Court there was an irresistible presumption that the Chief Justice had exercised his overriding discretion in the choice of venue. It was an exercise in futility therefore for the applicant to pursue on appeal that the matter should reported to the chief Justice for it to be transferred to the Volta Region.
See also the case of TIMBER CO. LTD. V. AMANING [1987-88] 1 GLR 314.
Further although “multi residency” of the defendants under Order 1(7) of court’s Act LN 140A automatically invokes the exercise of discretion by the court as to which venue is most convenient, residency is not the sole deciding factor, so that the fact that the majority of the defendants reside in the Volta Region does not limit the choice of venue to that region. The judge is given a wide discretion to take other factors into consideration. As decided in INGOS CONSTRUCTION LTD. VRS. BLACKHOOD HODGE (GHANA) LTD. [1981] GLR 347, per Sarkodee J. of blessed memory, the Court must look at all the circumstances and decide, each case turning on its own merits. The relevant questions being “whether great injustice would be suffered,” or whether it is impossible to obtain justice in the region objected to.
As with the exercise of discretion the court will not interfere unless the exercise is seen to be perverse. The onus therefore lies on an objector to prove that the choice of venue is non judicious and contrary to natural justice. Having failed to do so, I agree with the decision of the Court that the appeal be dismissed.
I. HEWARD-MILLS [MRS]
JUSTICE OF THE HIGH COURT
S. T. FARKYE, JA - I agree the appeal should be dismissed.
S.T. FARKYE
JUSTICE OF APPEAL
COUNSEL - EBOW QUASHIE WITH CONSTANTINE KUDZEDZI FOR
RESPONDENTS
ANTHONY FORSON JNR. FOR KIZITO BEYUO FOR APPELLANTS
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