The Republic Vrs Fast Track High Court , Accra (J5/8/2009) [2009] GHASC 23 (29 January 2009);

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA

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CORAM: BROBBEY, JSC, (PRESIDING)

ANSAH, JSC

ADINYIRA (MRS), JSC

DOTSE, JSC

ANIN YEBOAH, JSC

CIVIL MOTION

NO. J5/8/2009

29th January,2009

THE REPUBLIC

VRS

FAST TRACK HIGH COURT, ACCRA

EX-PARTE: SIAN GOLDFIELDS LIMITED .. APPLICANT

AUREX MANAGEMENT AND INVESTMENT … INTERESTED PARTY

AG/SA LTD.

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RULING

ANIN YEBOAH, JSC:-

The applicant herein was sued by the interested party for recovery of a sum of money due and owing to the interested party. The usual ancillary relief of interest was also endorsed on the writ. The facts leading to the claim is not necessary for the determination of this application. It appears, however, that the interested party was represented by its lawful attorney, one Mr. Kwaku Twumasi Ampofo. The High Court, at the application for directions set down the issue of capacity of the interested party to be argued by the parties, as the applicant had challenged the capacity of the plaintiffs on the grounds that the Power of Attorney was irregular.

On 6/12/2005, the High Court dismissed the application to set aside the writ on grounds of want of capacity. The applicants herein appealed to the Court of Appeal which by a majority decision on 12/07/2007 allowed the appeal and set aside the writ of summons and made further consequential orders as follows:

“the writ filed by Kwaku Twumasi Ampofo and all process following in this case are null and void for lack of authorization by Annex Management Company”

The interested party here lodged an appeal against the majority decision to this court but subsequently on 4/12/2007 withdrew the appeal. It follows that the majority decision stood as the subsisting judgment of the court.

As the writ had been declared a nullity, the interested party issued a fresh writ as suit № AC 158/2007 and indorsed it as follows: AUREX MANAGEMENT AND INVESTMENT AS/SA, Acting by its lawful Attorney Kwaku Twumasi Ampofo etc before the Fast Track High Court, Accra.

Both parties settled pleadings and it appeared that the applicant as defendant in the suit repeated his objection on the capacity of the interested party’s lawful attorney.

According to the applicant, the same power of attorney which had been rejected by the Court of Appeal in the earlier suit at the court of Appeal was being used at the High Court in the fresh suit. The High Court judge on 1/4/2008 dismissed the application whereupon the applicants herein lodged an appeal to the Court of Appeal and filed a motion to stay proceedings of the High Court. The learned High Court judge dismissed the application which was subsequently repeated at the Court of Appeal.

The learned trial judge at the application for directions stage ordered the parties herein to file their respective documents in the case as according to him, the suit could be disposed off by legal arguments. The order was complied with by the parties. The learned judge in his judgment, which is the subject of this application, entered judgment for the interested party and held that the interested party (as plaintiff) is not estopped from instituting the fresh action. The applicant hearing has invoked the supervisory jurisdiction of this court to quash the judgment of the learned High Court judge.

The applicant in his statement of case has canvassed four main grounds as the basis for this application as follows:

The decision of the High Court violates the andi alteram partem rule.
The trial judge acted in excess of jurisdiction or lack of it when he purported to overrule the decision of the Court of Appeal.
The trial judge had no jurisdiction to preside over a suit which by the decision of the Court of Appeal was void.
The trial judge having become aware that there was an appeal against his ruling at the Court of Appeal together with an application to suspend proceedings pending the determination of that appeal, ought to have known his jurisdiction became suspended and did not have mandate to give judgment.

The argument canvassed on the first ground was that there was no proper service on the applicant when the court heard the case and gave judgment. The affidavit in support of this application sworn to by one Ben K. Kuffour, specifically paragraph 34 speaks of short service of notice of trial. In course of his argument, learned counsel said he had a case at the Volta Regional House of Chiefs at Ho, and had requested for an adjournment with a letter drawing the attention of the trial judge to the short service and his absence.

I understand the position of the law to be that all adjournments are subject to the court’s convenience. Trial courts are to exercise discretion in adjournments of cases pending before the courts. It is only when an adjournment is refused on illegitimate grounds that an appellate court is bound in the interest of justice to interfere. See MAHAMA v SOLI [1976] 2GLR 99, HAIGGI v COMMONWEALTH HAULAGE [1963] 1GLR 276, BUABENG v FORKUO & OR [1970] CC 59 CA. Assuming on the facts of this case that the learned trial judge erred in his refusal to grant an adjournment to the applicant herein, his refusal to exercise his judicial discretion in favour of the applicant should not be construed as violation of the audi alteram partem rule. The applicant had notice of trial and there no rule of procedure which sets a time limit for parties to respond to hearing notice summoning their presence for trial. I think this ground of the application is misconceived and not supported by any case law or rule of procedure.

A court of law is not bound to adjourn a case on the grounds that a lawyer for the party applying for the adjournment had officially written to the trial court to ask for an adjournment on stated grounds. The discretion to adjourn a matter in court is under the rules of court is vested in the court and if it is properly exercised, an appellate court will be slow in interfering with such discretion unless it is proved that the discretion was unfairly exercised.

The next ground which was argued with such force was on jurisdiction. Learned counsel had contended that the learned trial judge purported to overrule the Court of Appeal’s decision. According to counsel, as the Court of Appeal had declared the power of attorney as illegal and contrary to the powers of Attorney Act, Act 549 of 1998, the decision of the majority of the Court of Appeal was binding on the High Court judge. To him, the judge’s refusal to follow the majority decision of the Court of Appeal amounted to want of jurisdiction.

Article 136 clause (5) of the 1992 Constitution makes it mandatory for all courts lower than the Court of Appeal to follow the decisions of the Court of Appeal on questions of law. The learned trial judge did not impliedly ignore this provision of the constitution. In fact in his ruling on the preliminary objection dated the 1/04/2008, he said as follows:

“It is my humble view that given the record before them the majority in the Court of Appeal could not have come to a different conclusion.

As referred to above it is the contention of the applicant that in the light of the above ruling it is incorrect and bad in law for the Attorney to use the same power of attorney to sue in the present case.

If indeed the power of attorney with which the present suit has been commenced were the same as the one in suit №138/2005; I would have had no difficulty in sustaining the objection raised by the applicant. The Attorneys would have no capacity and the suit would have to be dismissed accordingly”

He proceeded to hold that the power of attorney in the suit № AC 158/2007 which has culminated in this application is different from the one in suit № 138/2005 which was determined at the Court of Appeal. Counsel for the interested party and the trial judge were factually right when they contended that the two powers of attorney were different. This is borne out by the fact that the first one was issued on 3/03/2005 and the second one was issued on 9th August 2005. Indeed they were different in form and contents, dates etc. In my opinion, the trial judge did not in any way overrule the decision of the Court of Appeal as contended by counsel for the applicant. In any case, failure to follow a binding authority by a lower court should not be construed as amounting to excess or want of jurisdiction to warrant the intervention of this court’s supervisory jurisdiction. Such errors if apparent should be redressed by appeals. See REPUBLIC v HIGH COURT ACCRA, EX PARTE COMMISSIONER FOR HUMAN RIGHTS AND ADMINISTRATIVE JUSTICE (ADDO INTERESTED PARTY) [2003-24] SCGLR 312 and REPUBLIC V HIGH COURT, ACCRA EX PARTE INDUSTRIALIZATION FUND FOR DEVELOPING COUNTRIES [2003-2004] SCGLR 348.

Another ground on jurisdiction which counsel for the applicant argued was that as the Court of Appeal had decided the fate of the Power of Attorney and the appeal to the Supreme Court was withdrawn, the judgment of the Court of Appeal sets a seal on the matter as it declared the action as void. A close reading of the judgment of the Court of appeal’s majority decision by Quaye J-A was that as the power of attorney was defective and runs counter to the Powers of Attorney Act, Act 544 of 1998 the action was void and the writ together with all proceedings were a nullity. Personally I have my own misgivings about the order make by the learned judge, but the judgment is not on appeal before us in this application, for me to comment on it. There was no question of jurisdiction raised before him to declare the writ void under the circumstances. The position of the law on this point was settled about forty years ago in the case of BARCLAYS BANK D.C.O V HEWARD-MILLS [1969] CC 132 CA. It was held as follows:

“When a judgment is set aside on the grounds that it was obtained by fraud, the nullity does not affect the writ of summons. similarly, when proceedings are set aside by an appellate court as a nullity, the writ which commenced the proceedings remains unaffected, unless the grounds of nullity is that the trial court has no jurisdiction to issue the writ. The legal effect of declaring proceedings null and void is that there has been no adjudication upon the claim, and so the writ or claim automatically goes back to the trial court there to be properly adjudicated upon”

The issue of jurisdiction was not raised by the applicants before the Court of Appeal. It was a simple case of lack of locus standi. As by a judicial pronouncement the writ and the entire proceedings had been declared void, I think the interested party’s access to the court to issue a fresh writ could not be construed as violating the law. As said earlier, the two powers of attorney were different and the judge whose decision is the subject of this application was sitting on a fresh matter with a wholly different suit number. The issue of jurisdiction therefore dose not arise for consideration by this court.

Lastly, the applicant argued that as there was a pending application for stay of proceedings at the Court of appeal, the judge ought to have refrained from proceeding to hear the case. The record shows that the trial judge refused an application for stay of proceedings. The suit suffered several adjournments as indeed the affidavit in support of this application shows.

The record shows that on two separate hearing dates, learned counsel for the applicant in Exhibits SGL 12 and SGL 13 wrote to the court on 28/07/2008 and 1/12/2008 respectively to ask for adjournments. It should be pointed out that no where in these two letters did counsel make it known to the trial court that he had indeed filed a repeated application for stay of proceedings at the Court of Appeal. He did not annex a copy of the motion and failed to copy counsel for the interested party. In as much as counsel’s integrity should not be doubted in this case, I think lawyers should assist trial courts to know that such applications which are filed outside their courts in appellate courts are brought to the notice of the trial courts. The letter of 28/07/2008 stated inter alia that : the hearing of a motion to stay proceedings in this court has been scheduled for Wednesday . 30th July in the Court of Appeal; in the letter of 1/12/2008 no where did counsel repeat his request for adjournment based on the pendency of the motion to stay proceedings as the Court of Appeal. His request was on simple grounds that he was travelling to Ho, in the Volta Region to do a case. The basis for the adjournment on 28/07/2008 that there was a pending stay of proceedings at the Court of Appeal had impliedly ceased to exist given the contents of the letter of 1/12/2008.

I think if the learned judge’s attention had been drawn to the pendency of the motion to stay proceedings at the Court of Appeal by exhibiting a copy of the motion to the letter he could have commented on it before proceeding to hear the case. It should, however be pointed out that the trial judge’s jurisdiction to hear the case on the 1/12/2008 was not destroyed by the pendency of the motion to stay proceedings as the Court of Appeal. Counsel did not assist the court with even a single decided case on this point. A stay of execution is conceptually different from stay of proceedings in legal proceedings.

I am of the considered opinion that the grounds for this application and the facts do not establish that the learned judge exceeded his jurisdiction or engaged in any serious illegality to warrant our intervention by way of certiorari. The application is thus dismissed for want of merit.

ANIN YEBOAH