Yahaya And Another Vrs Summa Holding Coperation And Another (H1/48/2005) [2005] GHACA 19 (15 July 2005);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA-GHANA, A.D. 2005.
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Coram: - Akamba, J.A. [Presiding]
Tweneboa-Kodua, J.A.
Anin-Yeboah, J.A.
H1/48/2005
15th July, 2005.
SHEIK AHMED RUFAI YAHAYA
& 8 ORS. : PLAINTIFFS/RESPONDENTS
VERSUS
SUMMA HOLDING CORPORATION
& 8 ORS. : DEFENDANTS/RESPONDENT
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J U D G M E N T
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ANIN YEBOAH, J.A.:- On the 7/7/2003 the plaintiffs/respondents [referred to in this judgment as the respondents] obtained leave from the High Court, Accra, [Fast Track Division] to issue a writ of summons and statement of claim and serve same out of jurisdiction. The leave was granted by Dordzie, J on the said date and on 10/7/03 the respondents filed the writ of summons together with the statement of claim. In appears the first to fifth respondents are individual whereas the sixth to the ninth respondents are corporate bodies. The action was against the eight defendants and out of the eight only the first defendant was a corporate body.
From the statement of claim which accompanied the writ of summons, the plaintiffs, now the respondents alleged that the first to fifth respondents were
The shareholders of all the shares in the 6th to the 9th plaintiffs companies.
They further claimed that the first to the fifth plaintiffs now respondents incorporated the 9th plaintiff which is Spirax Metals Limited. The statement of claim catalogued several allegations of impropriety against the defendants. The allegations touched on accounts, dividends, breach of promise and conversion fraudulent misrepresentation, negligence, deceit, breach of agreement, issues as to the share structure of the 9th plaintiff, in the form of variation and acquisition of its shares, etc. The writ was also endorsed with a claim for special damages of ¢1,000,000,000.00 by the 9th plaintiff/respondent against the 1st to 6th defendants and other ancillary reliefs in the form of injunctions, accounts and order for determination of dividends due the plaintiffs/respondents in the 9th plaintiff company. Even though the record shows that service was made through couriers, only the 5th defendant entered appearance. It is not clear whether the other defendants entered appearance. However, on the 6/8/03, the fifth defendant who is the sole appellant in this appeal entered appearance under protest. On that same day the fifth defendant [hereinafter called the appellant] conducted a search at the Registry of the trial court to ascertain whether the respondent paid the appropriate filing fees upon the filing of the writ of summons which culminated in this appeal. The search disclosed that a filing fee of only ¢11,851,800.00 was paid for the filing of the writ of summons endorsed with a claim of special damages of ¢1,000,000,000.00. This was a subject of complaint which will be addressed later in this judgment as it has seen a ground of appeal.
On the 20/8/2003, the appellant filed a motion on notice to strike out writ of summons. The basis of the motion could be gleaned from the affidavit in support. The appellant contended in the affidavit that the action was vexatious, irregular and that the issues raised in the statement of claim had already been adjudicated upon the therefore res judicata.
The respondents resisted the application and after hearing arguments the trial judge dismissed the application which has led to this appeal by the appellant herein. Before I proceed to deal with the grounds of appeal upon which counsel for the appellant has relied on to reverse the judgment of the trial court, it is very important that certain procedural irregularities which were ignored by the parties and the trial judge should be addressed.
The first procedural irregularity which appears on the record and which attracted the attention of this court relates to the entry of appearance under protect or conditional appearance by the appellant. Conditional appearance is entered by any defendant basically to dispute the jurisdiction of the trial court, or challenge some irregularity in the issue or service or renewal of the writ or notice of the writ. In our jurisdiction no leave is required to enter conditional appearance entered by the appellant appeared defective. The notice of appearance filed by counsel stated clearly that he was entering conditional appearance for and on behalf of the appellant. The memorandum of appearance which is a statutory form provided for under Order 12 rule 7 of the then existing High Court Rules LN.140A of 1954 ought to have been varied to show that the appellant was entering conditional appearance. For it will be clearly absurd for the memorandum of appearance to be unconditional appearance and the notice to be conditional appearance in form. This irregularity was ignored by counsel for the respondent and as the motion was actually heard on the merits without any objection he [counsel for the respondent] was deemed to have taken a fresh step after filing of an affidavit to oppose the motion and thereby waived the irregularity. This situation could also be cured under Order 70 rule 1 of the High Court Rules, LN.140A as the irregularity was not fatal under the circumstances of the case. More so, a conditional appearance is deemed as appearance for all purposes, except that when entered, the defendant reserves the right to proceed to set aside the issue or service of the writ on grounds of irregularity.
Another irregularity which appeared on the record could be found in the affidavit in support of the motion to strike out the writ of summons. The said affidavit was sworn to by one Adjetey Sowah of Accra who on record was not a party to the suit. The affidavit did not state the place where the said Adjetey Sowah resides, his occupation [if any] and the description of him. For it was provided in the then existing rules of court LN.140A of 1954 Order 38 rule 8 as follows: -
:Every affidavit shall state the description and true place of abode of the deponent.”
Order 38 rule 8 has been replaced by Order 20 rule 4[2] of CI.47 of 2004 as follows:-
“Every affidavit shall be expressed in the first person and shall state the place of residence of the deponent and the occupation of the deponent or, if the deponent has none, the description of the deponent and whether the deponent is or is not employed by a party to the course or matter in which the affidavit is sworn.”
It appears that the new rules in operation demand more particulars from any deponent as regards residence, occupation, and description than the repealed rules. An affidavit lacking in description of the deponent was held to be insufficient in the case of Re Order 24 Ch D.271. In this case the particulars of the deponent who was not a party was not given. His place of residence and occupation if any, were all ignored. As counsel for the respondent waived the irregularity and proceeded to resist the motion with an affidavit in opposition, the effect or non-compliance in my view did not occasion any substantial injury to the proceedings. I, however, think that a timeous objection to a defective affidavit must attract sanctions by was of striking out or an order for amendment of the affidavit. See Hyde vrs. Hyde 59 LT.523.
The motion itself was not free from procedural defects. After entry of conditional appearance a defendant who elects to move to set aside a writ of summons on any irregularity recognized by law was required to move under Order 12 rule 24 of the old rules as was held in the case of Tackie vrs. Baroudi [1977] 1GLR.36 CA. In the application which was filed in this case, the appellant’s grounds as apparent in the supporting affidavit left no one in doubt that the motion was certainly not brought under Order 12 rule 24. The appellant did not indicate on the motion paper the rule under which the application to strike out was brought.
He also did not indicate in the motion paper whether he was invoking the inherent jurisdiction of the court. The appellant’s motion, which in my view was to strike out the writ of summons as being an abuse of the court’s process, vexatious and res judicatam ought to have been brought under Order 25 rule 4 or the courts inherent jurisdiction or both and not under Order 12 rule 24. The appellant could also have pleaded those matters, which, according to him, amounted to abusing the judicial process and the other facts which amounted to vexatious proceedings and comply with Order 25 rule 2 and proceed to set the legal points down for arguments as provided for under Order 25 rule 3. See the cases of Miller vrs. Attorney General [1975] 2 GLR.31 and Appenteng and Ors vrs. Bank of West Africa Ltd. & Ors [1961] GLR.196. Failure of solicitors to indicate the rule under which an application is brought in most cases present difficult problems for judges. It was pointed out in the case Shardey vrs. Adamtey and Shardey vrs. Martey & Another [Consolidated] [1972] 2 GLR.380 CA that failure to cite the relevant rule in an application is desirable but not indispensable, yet when an application is brought and no rule is cited and not brought under the court’s inherent injunction, the court must not entertain such an application. In this case, no rule of court was cited and the court’s inherent jurisdiction was also not invoked. In my respectful opinion to avoid laxity in practice and make proceedings clear, an applicant must indicate the rule under which he has mounted an application and if he is invoking the court’s inherent jurisdiction or both, same must be so stated to avoid the situation whereby judges have to explore the rules to ascertain the relevant rule under which the motion is brought. In my view the opinion of Archer, J.A. [as he then was] in the Shardey’s case must regulate applications in courts. For in the absence of any specific rule an applicant can invoke the court’s inherent jurisdiction to do justice which in appropriate cases the courts do not decline such invitations. Indeed Sir J.E.H. Jacob in Current Legal Problems Vol.23 [1970] in discussing ‘The inherent jurisdiction of the Court’ defined it at page 51 as being ‘the reserve or fund of powers, a residual source of power, which the court may draw on as necessary whenever it is just or equitable to do so and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them”. [Emphasis mine]
Inherent jurisdiction of a Superior Court therefore should be sparingly invoked by an applicant and in my view, if any rules of court permits any party to bring an application, the rule ought to be used instead of resort to the court’s inherent jurisdiction. The opinion of Archer J.A. [as he then was] must be strictly followed to avoid situations in which the rules of court made to regulate steps in proceedings are ignored and the court’s inherent jurisdiction invoked at will.
On the merits, learned counsel for the appellant filed five grounds of appeal. He argued the first and second grounds together. To appreciate his basis of his submissions on these grounds the said grounds are stated as follows:-
a. The trial judge erred in law when he allowed the shareholders of corporate bodies to sue in the same action in which the corporate bodies are the shareholders of the subject matter.
b. The trial judge erred in law when he allowed the shareholders to maintain an action in which the purported damage is against the registered companies.”
Counsel for the appellant’s arguments on these two grounds appear to be simple. According to him, as a corporate body was a plaintiff in the same suit it was wrong for the trial judge to have allowed the shareholders to also sue in the same action. He proceeded to cite the leading case of Salomon vrs. Salomon & Co. [1897] AC.22 HL and urged further that upon incorporation, the company as legal entity should sue and be sued. In the recent Supreme Court case of Morkor vrs. Kuma [East Coast Fisheries Case] [1998-1999] SCGLR 420 SC it was held that as the company is clearly distinct from the shareholders, the company itself mist sue and be sued in respect of wrongs done to the company. The Supreme Court proceeded to strike out the names of the parties who had been made parties improperly under Order 15 rule 6 [2] of the High Court [Civil Procedure] [Amendment] [No.2] Rules 1977 LI.1129. In this case under consideration, this point was raised before the trial judge but it was indeed not considered in his ruling of 7/6/2004. In my opinion the shareholders on the authorities of Appenteng and Ors. Vrs. Bank of West Africa Ltd and Ors [1961] GLR. 196 and the Morkor case [supra] could not sue in respect of the wrongs allegedly done to the company and claim all the reliefs. They could only sue if they demonstrated that the alleged wrong was against their individual rights as the shareholders of the company. I think the learned judge should have considered the application before him as one of misjoinder of the shareholders of the 9th plaintiff/respondent company and proceeded to strike out their names from the suit under Order 15 rule 6 [2] of LI.1129. His jurisdiction to strike out could be exercised under the operative rule at any stage of the proceedings and hear the case to determine the issues between the proper parties to the suit. As the trial judge failed to consider this aspect of the submissions placed before him, he was in error.
Another ground of appeal filed to seek the reversal of the ruling is stated as follows:-
“c. The trial judge erred in law and in fact when he ruled that the parties in suit No. FTC.13/2001 were not the same parties as in FTC 44/2003.”
I thing this ground could be resolved on factual basis. Suit No. FTC 13/2001 had the following title:
- SPIRAX METALS LTD.
- AHMED RUFAI YAHAYA – PLAINTIFFS.
VERSUS
- FRANCIS ESSILFIE
- STEVE KOWAL
- SUMMA HOLDING CORPORATION
Suit No. FTC 44/2003 which is this one on appeal was commenced by nine plaintiffs as against eight defendants as follows:
- SHEIK AHMED RUFAI
- KWASI ESIA MENSAH
- NANA BAFFOE
- PHIDELIA MANARIRI
- GEORGE KWASI ABOAGYE
- FARB INT BUS & COM. LTD.
- SPIRAX LIMITED
- DAWN TO DUSK COMPANY LTD.
- SPIRAX METALS LTD.
VERSUS
- SUMMA HOLDING CORPORATION
- STEVE KOWAL
- DR. OLIVET
- JEFF OLIVET
- FRANCIS ESSILFIE
- HANS JURGEN REINER
- EMMANUEL OHENE NYARKO
- ESTATE OF BEN MENSAH
This was the list of the parties which stood at the time the application which culminated in this appeal was moved before the trial judge. In my view, it does not require any effort after comparing the two suits to conclude that the parties were not the same. It is clear that save SPIRAX METALS LTD and AHMED RUFIA, all the other seven plaintiffs in suit No. 44/2003 were indeed not parties in suit No. FTC 13/2001. In respect of the defendants, save FRANCIS ESSILFIE [the appellant herein], STEVE KOWAL and SUMMA HOLDING CORPORATION, the other defendants were not parties in suit No. FTC 13/2001. The learned trial judge was therefore factually right when he held that the parties in the two cases are not the same. This ground of appeal therefore is misconceived.
The fourth ground of appeal deals with estoppel per rem judicatam. According to counsel, Akoto Bamfo, J.A. in her judgment in suit No. FTC 13/2001 had adjudicated on the matter and dismissed the claims of the plaintiffs in the said suit, and as the reliefs in both suits were the same and the subject matter was also the same the trial judge ought to have dismissed the action. One cannot decide this point without analyzing the procedure which led to the raising of this plea. The law requires that estoppel as a plea must always be pleaded. In G.B. OLLIVANT LTD. vrs. KORSAH [1941] 7 WACA 188 it was held at page 198 as follows:-
“It is a cardinal rule that if a party relies on estoppel he must plead it. Although there were no pleadings in this case, there were openings by counsel and they take the place of pleadings. Counsel for the respondents in his opening, did not mention estoppel and though in his final address he quoted cases of estoppel, this was not, in our opinion sufficient to create a plea which required to be answered, and it was not competent to the learned trial Judge to find that the claimant was estopped by conduct from preferring his claim.”
Odgers on High Court Pleading and Practice, 23rd edition, states the position of the law at page 229 as follows:
“An estoppel must always be pleaded, unless it appears on the face of the adverse pleadings, when it is ground for an object in the point of law; or unless there was no opportunity to plead it, as there was not in COPPINGER V. NORTON [1902] 2 IRR 241.”
In this case the appellant who was the fifth defendant in the court below did not file any statement of defence to plead estoppel of any nature or form as required by law. The law requires that full details of the facts relied on by a party who is pleading estoppel mist be given. In this case as the appellant was relying on estoppel per rem judicatam, he was enjoined by law to have pleaded the judgment, the court from which the said judgment was delivered, the parties or their privies and the subject matter which was involved, the parties or their privies and the subject matter which was involved. As said earlier in this judgment, counsel for the appellant could have after pleading estoppel per rem judicatem sought leave under Order 25 rule 3 of the High Court Rules LN 140A of 1954 and set same down for argument as a legal point. And this is usually done at the close of pleadings or afterwards before evidence is heard on the merits of the case. See Appiah v. Addai [1962] 1 GLR 345 SC.
Another serious lapse which the record revealed as regards the plea of estoppel per rem judicatam is the absence of the full record of proceedings in suit No. FTC 13/2001 which was heard by Akoto-Bamfo, J.A. The law requires that a party who is relying on a plea of estoppel per rem judicatam must tender the full record of proceedings in evidence. The case of Larbi v Kwabena 14 WACA 299 which affirmed this principle of law was applied by this court in Atta v. Amissah & Anor [1970] C.C 73 C.A. I think the rationale behind this principle is that it enables the court before which the plea of estoppel is put forward to ascertain the parties, their privies, if any, the subject matter of the dispute, the court which adjudicated the matter which is being relied upon to support the plea, the evidence if any and the judgment which of course will include the orders made. The full record will also assist the court to ascertain the nature of the estoppel raised. In Poku v. Frimpong [1972] 1 GLR 230 CA it was held as follows :-
“estoppel deriving from a judgment is of two kinds, namely cause of action estoppel and issue estoppel. Where a plea of estoppel per rem judicatam is pleaded it is necessary for a trial judge, in order to avoid confusion, to decide first the nature of the estoppel raised.”
Indeed without pleading the estoppel in the statement of defence [as it was never filed in this case] and without the full record of proceedings the learned trial judge, Akwaah J. was clearly left unassisted in determining the estoppel which was raised in the affidavit in support of the motion. The statement of claim in this case, precisely paragraph 29, made mention of a civil suit brought by the 8th plaintiff against the first, second and fifth defendants herein which was the suit numbered as FTC 13/2001. Paragraph 30 of the same statement of claim talks of interlocutory orders which were made by the court in the said suit and contempt proceeding which was later taken. In my view, these are sketchy materials which do not offer enough assistance to a judge called upon to determine issue estoppel or cause of action estoppel in an attempt to bring an end to any subsequent proceedings between the same parties or their privies. The full record of proceedings in the previous suit would have been very necessary. When the trial judge was thus called upon to determine whether the reliefs in the two cases were the same he delivered himself thus:-
“I have perused the two writs and their respective reliefs and I cannot find any similarity between them. In other words, the reliefs being claimed by plaintiffs in this instant writ are different from those that were claimed in the previous writ.”
In the judgment of Akoto-Bamfo, J.A. in suit No. FTC 13/2001, the learned judge at page 13 thereof in trying to make clear the issues placed before he said as follows :-
“The issues, which call for determination, are whether the Joint Venture was, as relating to the share variation and restructuring, a completed action and is valid in law.”
She then proceeded to examine the provisions of the code and case law on the subject. She was convinced that the shareholding structure was indeed restructured and held that the Corporation, that is Summa Holding Corporation, owned 60% of the shares. She concluded by delivering as follows :
“The 3rd defendant having lent various sums of monies to the company, and the members having mutually agreed to cede 60% of its shares to the 3rd defendant company, it lies ill in their mouth to cry foul, they undertook to procure the doing of all acts, matters and things and execution of all further deeds to give full effect to the provisions of the agreement. I am satisfied on the totality of the evidence before me that the plaintiffs have not led sufficient evidence to entitle them to judgment on their claim; I accordingly dismiss their claim and enter judgment for the defendants on their counterclaim.”
Indeed a careful reading of the judgment does not show whether the learned trial judge dismissed the other reliefs sought on the writ. The endorsement on the writ of summons shows clearly that sixteen reliefs were sought with eight in the form of declarations and the rest being ancillary reliefs. In my opinion, to urge upon this court that Akoto-Bamfo, J.A. disposed of all the matters in controversy in this suit is not supported by the record before this court. It is therefore crucial that estoppel per rem judicatam must be clear when pleaded to avoid the confusion pointed by Azu-Crabbe, J.A. [as he then was] in the case of Poku V. Frimpong [supra]. A court of law has a duty to prevent parties from re-litigating issues that had been already adjudicated upon by the parties or their privies. However, a party who pleads estoppel is duty bound to satisfy the court that all the ingredients are proved. For it was held in Okai VII & Ors v. Awali III & Ors. [1969] CC.126 CA that, “a person against whom a plea of res judicata is raised is under no obligation to furnish his opponent with evidence to enable him establish that plea.” In my view the appellant failed to satisfy the trial judge that the issues or claims had already been adjudicated upon and the reliefs sought in this case had already been resolved or ought to have been brought before the trial judge in the earlier suit to support his plea.
In pleadings in the form of statement of defence was filed by the appellant and evidence led or legal point taken under order 25 rule 3 it would have assisted the trial judge. The procedure by resort to entry of conditional appearance and striking out pleadings on the grounds apparent in this proceedings must be sparingly used.
Another vital point which both counsel in my opinion ignored was the plea of fraud by the respondents in the statement of claim, specifically paragraphs 10 and 12 thereof. Even though no particulars were supplied as required by the rules the plea remains on record and forms part of the statement of claim. It is a cardinal principle of law that no matter how solemn a judgment may be, or regular an act may be, if fraud is urged and successfully proved the whole judgment or the transaction is vitiated.
A court of law is enjoined by law to investigate allegations of fraud urged by parties before it and pronounced on it. To deny a party a plenary trial when he has pleaded fraud in my view runs counter to legal principles unless there is a clear breach of the rules of procedure or the action is struck out in a manner sanctioned by the rules; which I have not found in this case.
The last ground of appeal borders on the non-payment of the appropriate filing fees as required under LI 1540 Civil Proceedings Fees and Allowances Amended Rules of 1992. Upon service of the writ of summons on the fifth defendant, the appellant herein, his counsel caused a search to be conducted at the registry of the trial court to ascertain whether the appropriate filing fees had been paid. The search result showed that an amount of ¢11,851,800.00 was paid in a claim of ¢1,000,000,000.00 before the Fast Track Court, Accra. When this serious breach of the LI 1540 was made known to the trial judge he made an order directing the Registrar to report to him the appropriate filing fee which ought to have been paid. The Registrar’s report indicated that the appropriate fee which ought to have been paid was ¢222,705,080.74 and NOT ¢11,851,800.00. In his ruling which has culminated in this appeal, the trial judge on this aspect of the matter said as follows : “With respect to the question of the filing fee, the Registrar, has presented his report which stated that the plaintiff ought to have paid ¢222,705,080.74 and not ¢11,851,800.00 and this has been accepted by the court.”
He did not consider the effect of the non-payment of the appropriate fees which is a pre-condition for filing of any process in a court of law as it is regulated by an instrument. However there is no evidence on record to show that this serious irregularity was the result of an omission or commission on the part of the filing clerk at the registry or anybody connected with the proceedings for that matter. In my view, I cannot make any order to punish the respondents as there is no evidence of any wrong doing on their part.
However, as the appropriate filing fee sanctioned by law was not paid, I think the trial judge upon discovering it, ought to have stayed the proceedings for the appropriate fee to be paid to the registry. In my view the non-payment of the appropriate fee ought not to be a ground for dismissing an action and a court placed in a position in which the trial judge found himself ought to stay proceedings even under its interest jurisdiction for the defaulting party to comply with the legislative instrument.
Apart from the issue of misjoinder which was not considered by the learned trial judge, I am of the view that this appeal ought to be dismissed as on the authority of the Morkor case [supra], the parties which have been adjudged not to be proper parties could be struck out at anytime for the suit to proceed against the proper parties. The appeal is accordingly dismissed.
ANIN YEBOAH
JUSTICE OF APPEAL
AKAMBA, J.A.: - I agree entirely with the able reasoning and conclusions of my brother Anin Yeboah, J.A. that the appeal be dismissed. I wish however to add for emphasis two issues that the lead judgment had touched. The first is the issue of inappropriate payment of fees for filing writ of summons. It appears counsel are exploiting some lapses in L.I.1540, the Civil Proceedings Fees and Allowances Amended Rules 1992 to falter in their obligations to the revenue authorities. It is trite to state that the wheels of justice grind on fiscal allocations availed it which in turn depends on the citizenry’s discharge of their duties and responsibilities to pay what is due from each. In the instant appeal, the plaintiff/respondent had endorsed a claim for special damages of one billion cedis. He paid a filing fee of ¢11,851,800.00. Upon application of the defendant/appellant, the trial judge ordered the Registrar to ascertain the filing fees paid and if same is inadequate to indicate the appropriate fee. The Registrar confirmed that the plaintiff had paid ¢11,851,800.00 whereas the appropriate fee for the amount endorsed on the writ is ¢222,705,080.74. The short payment is a serious breach of L.I. 1540 which unfortunately does not prescribe a penalty for failure to comply with any of its provisions.
This failure to provide a penalty in the instrument is a serious lapse and calls for another look by the Legislator. Until the Legislator remedies the lapse referred supra, the Courts cannot shut their eyes whilst a virtual fraud is perpetrated on the economy of this country. The courts have a duty, upon discovery of any failure or short payment of the appropriate filing fees, either upon application or suo motu, to order immediate payment of the appropriate fees and/or stay proceedings until the payment is effected by the defaulting party. Judges, especially trial Judges must be appraised of their duty to assist the Revenue by insisting on the payment of appropriate fees for processes initiated before them.
This situation is no different from the provisions under the stamping laws which require payment of stamp duty as a precondition to admissibility of deeds. – See Amonoo v Dee (1975) 1 GLR 305. As my brother Anin-Yeboah has correctly stated in the lead judgment, the payment of the appropriate fees under the Instrument is a precondition to the filing of any process in a court of law.
Therefore when a plaintiff defaults to pay the appropriate filing fee on his/her writ of claim or a defendant upon his/her counterclaim as the case may be, the appropriate step is to order the payment of the full amount within a stipulated period, whilst the proceedings are stayed until the same is complied with. This way the courts will be discharging their duty to all.
The last point relates to the practice whereby counsel fail to indicate the relevant rules by which an application is brought or in some instances reliance is placed upon a rule so cited together with the inherent jurisdiction of the Court. Even though the case of Shardey v Adamtey and Shardey v Martey and Anor (Consolidated) (1972) 2 GLR 380 CA, points out that a failure to cite the relevant rule in an application is desirable but not indispensable, this should not be a license for Counsel to lapse into a complete failure to discharge their duties professionally.
Counsel have a duty to assist the Court, as officers of the Court to do justice and this includes bringing applications based upon proper authority. The other end of the scenario is the situation where counsel lump their applications
under an existing instrument as well as invoking the inherent jurisdiction of the court.
My understanding of the procedure of the court is that where specific rules of court, be they instruments or Acts, provide or permit an application, it is wrong to invoke the inherent jurisdiction of the court at the same time to deal with that particular application. The inherent jurisdiction is called in aid in the absence of specific provisions and rather sparingly, whenever it is just and equitable to do so to ensure the observance of the due process of law to do justice between parties. For these reasons and those ably and clearly delivered by my brother Anin Yeboah, I dismiss the appeal. By virtue of rule 31[d] of CI 19 I order the Plaintiff /Respondent to pay the appropriate filing fee within twenty-one days of this decision as a precondition to the hearing of the action pending before the trial court. Registrar to draw up the order.
J. B. AKAMBA
JUSTICE OF APPEAL
TWENEBOA KODUA, J.A.: - The conclusions in the lead judgment just read were collectively arrived at and my duty here is simply to pronounce in the open court that I also dismiss the appeal in the light of those conclusions.
K. TWENEBOA KODUA
JUSTICE OF APPEAL
COUNSEL:
G.A. Eshun for Edgar Ansah Obiri for 5th Appellant.
Agyabeng Akrasi for Respondents.
+go+
