Peki stool Vrs Tsito awudome stool (J4/14/2008) [2009] GHASC 12 (24 February 2009);
IN THE SUPERIOR COURT OF JUDICATURE
THE SUPREME COURT
ACCRA- A.D. 2008
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CORAM: MRS WOOD, C.J.(PRESIDING)
BROBBEY, J.S.C.
DATE-BAH, J.S.C.
ANIN YEBOAH, J.S.C.
BAFFOE-BONNIE, J.S.C.
CIVIL APPEAL
NO. J4/14/2008
26TH FEBRUARY, 2009
PEKI STOOL - PLAINTIFF/ RESPONDENT/ RESPONDENT
VRS.
TSITO AWUDOME STOOL - DEFENDANT/ APPELLANT/ APPELLANT
J U D G M E N T
BROBBEY, JSC:
This is an interlocutory appeal from the Judgment of the Court of Appeal dated the 8th day of May, 2007.
The facts relevant to this case are that, in the year 1957 Togbe Ayim Darke IV instituted legal action against Togbe Gobo Darke XI of Tsito and one Ntow Peniana, a subject of Tsito, in the Peki Native Court for a declaration of title and damages for trespass to parcels of land known as Awaline Avagah and Tiame. The case was transferred to the High Court, Ho, presided over by Francois J. (as he then was) where the trial commenced before HIM. The High Court gave Judgment in favour of Togbe Ayim Darke IV of Peki on the 11th of November 1975.
Togbe Gobo Darke XI of Tsito appealed to the Court of Appeal and the Appeal was allowed. There was a further appeal to the Supreme Court which was dismissed.
The case appeared to have been legally closed until the 13th of July 1987 when Togbe Ayim Darke IV instituted an action in the High Court Accra for a declaration that the Judgement of Francois J in the High Court, Ho, was null and void for want of jurisdiction, and a further order setting aside the Judgement of the Court of Appeal which had affirmed it. It finally applied for an order referring the matter to the Stool Lands boundary Settlement Commission under the Stool Land Boundary Settlement Decree, 1973 (NRCD 172). The reliefs were granted by the High Court in Accra, presided over by Omari Sasu J.
Togbe Gobo Darke XII and Ntow Peniana of Tsito appealed to the Supreme Court pursuant to leave granted by the Court of Appeal. In the preparation of their case, they run out of time and the case was struck out by the Supreme Court. Togbe Gobo Darke XII then brought an application for certiorari to quash the Judgment of the Accra High Court and all consequential orders made thereunder. The application was granted but it was further ordered that the suit should be sent to the Stool Lands Boundary Settlement Commission.
The Awudome stool as overlords of the Tsito stool joined the suit as second claimant . The Peki stool remained the first claimant. Upon the coming into force of the Stool Lands Boundary Settlement (Repeal) Act, 2000 (Act 587) all cases pending before the Stool Lands Boundary Settlement Commission including the instant suit were transferred to the High Court, Accra. The relevant section of the Act read as follows:
“3. (1)Subject to subsection (2), all cases and proceedings pending before the Commissioner immediately before the coming into force of this Act are by the Act transferred to the High Court.
(2) Any case before the Commissioner in which evidence has been taken shall be concluded by him within a period not exceeding eight months from the date of coming into force of this Act.”
At the time of the transfer, the matter was part heard before the Commissioner. As apparent in this section 3(2) of Act 587, the Commissioner was given eight months to complete all cases pending before the Commission. Cases which could not be completed before the eight-month deadline were to be transferred to the High Court to be concluded. The Peki Stool took six years to complete its evidence. The Awudome Stool started to give evidence but it called only one witness when the eight-month deadline expired and the case was adjourned indefinitely.
The Stool Lands Boundary Commissioner who had been appointed a Court of Appeal Judge continued to try the case as additional justice of the High Court. Upon an application by the Awudome Stool, the Supreme Court on 4th February 2003 granted an order of prohibition against the former Stool Lands Commissioner continuing to try the case. It further ordered the case be referred to the High Court for hearing and advised the parties to adopt the evidence taken by the Commissioner.
The case was sent to Mr. Justice Tweneboa Kodua who was then a Justice of the Court of Appeal. He sat on it as additional trial Justice of the High Court. The parties were not able to agree on the adoption of the evidence of the proceedings taken by the former Commissioner. While the Peki Stool preferred the adoption of the proceedings, the Tsito stool insisted that the trial should be started de novo without adopting the proceedings. When the issue was raised before him, the trial judge ruled that he would continue with the trial of the case by adopting the proceedings from the Commissioner. Dissatisfied with that order, the Tsito stool appealed to the Court of Appeal. The appeal was dismissed and the High Court order affirmed. It was against the decision of the Court of appeal that the appellant has appealed to this court.
The grounds of the appeal before this Court are as follows:
- The Court of Appeal erred in its construction of section 3 of the Stool Lands Boundary Settlement (Repeal)Act, 2000 (Act 587)
- The Court of Appeal erred in dismissing the Defendant/ Appellant/ Appellant’s appeal and awarding costs against it.
The two grounds of were argued together.
The established rule is that when a case is transferred from one High Court to another, the parties have the option to adopt the proceedings or to have the trial started de novo. This is the common law rule which has been adopted and practised for many years in our courts. That was indeed the procedure adopted in Boama v Okyere [1967] GLR 548 and Coleshill v Manchester Corporation [1928] 1 K.B. 776 the only cases cited by the parties in this appeal.
The decisions of the High Court and the Court of Appeal were based on the argument that because the transfer of the dispute was effected by statute, i.e. Act 587, s. 3, the normal rules of the High Court on such transfers should not apply. In their view, Parliament intended that the proceedings should be adopted. That was more or less the same basis of the argument of the respondent who contended that, by the use of the expressions in section 3(2), the entire proceedings as left by the former Stool Lands Boundary Settlement Commissioner were intended by Act 587 to be adopted in the ensuing trial. The expressions relied on were the transfer of “case and proceedings.”
The obvious point which militated against the arguments above is that no where in Act 587 is there any suggestion or implication that the normal rules of the High Court should be deemed to have been waived. If that was the intendment of Parliament, it would have said so in no uncertain terms.
It is significant to point out that Act 587 replaced the Stool Lands Boundaries Settlement Decree, 1973(NRCD 172). Under NRCD 172, when Parliament intended to grant powers of adoption of proceedings to the trial institution, it did so in no uncertain terms in section 5(5) which read:
“The Commissioner shall, as he thinks fit, complete any such work transferred to him under section 4 of the section with or without the hearing of fresh evidence.”
It is difficult to accept the argument that Parliament intended to grant similar powers to the High Court without any express provision to that effect when Parliament was fully aware of the provisions in the very Act that Act 587 was repealing and replacing.
I find the argument based on the use of the expression “case and proceedings” simply untenable. The word “proceedings” may connote steps taken in the action such as hearing notices, surveyor’s reports, etc as contended by counsel for the respondent herein. In ordinary references, the word “case” necessarily includes everything that goes with the action pending in court. This is because we do not have a situation where case can be divorced from proceedings. Case is wider in its connotation from proceedings. Without the mention of proceedings, the transfer of the “case” would necessarily have included the proceedings in the case. The attempt to define case as separate and distinct from proceedings is unconvinging semantics. So long as section 3(2) refers to “case and proceedings” it certainly refers to the entire action pending before the Stool Lands Commissioner. It cannot be right to contend that the use of “proceedings” should be interpreted to mean that Parliament did intend to have the proceedings adopted.
In the appeal before us, both counsel referred to the position taken by the Supreme Court when the issue was raised before it. It merely advised the parties to consider adopting the proceedings before the former Commissioner. It did not order the parties to mandatorily adopt the proceedings. Quite clearly, the court could have raised it as an issue to be argued if it was in any doubt about what the parties had to do. It is admitted that the issue was not argued and therefore the view of the court remained obiter. However, it is my view that the fact that it merely advised the parties to consider adopting proceedings was suggestive of the view that the Supreme Court at that time did not believe that the parties could have been compelled to adopt the proceedings.
The rationale for the argument of the respondents that the proceedings should be adopted by the High Court without giving the parties any option was that Parliament cannot be presumed to have intended that the proceedings should be started de novo because that would imply that Parliament intended that the trial was to be delayed but it was absurd to have suggested that Parliament intended to delay the trial. The common law rule which the High Court has applied up till now grants parties right to adopt the proceedings or have the trial started de novo. It is a well established vested right and if it had to be taken away, it had to be done in clear terms. One cannot deduce the abolition of a vested right by academic argument which in any case I find to be a non sequitur. If Parliament intended to take away that vested right, it would have done so in clear and express terms.
Since the case was transferred to the High Court, it is the procedure of the High Court which has to be used to try it. Act 587 has not taken away the application of that procedure in any way. The parties are therefore to decide to adopt the proceedings of the former Commissioner or have the trial started de novo. Since the appellants have clearly evinced their intentions not to have the proceedings adopted, the trail has to be started de novo. That is the state of the current rules in the High Court and they have to be complied with. The policy in CI 47 that trials should be expedited is no ground for sidestepping well established procedure in the court.
In my view, the appeal succeeds and should be allowed.
S. A. BROBBEY
(JUSTICE OF THE SUPREME COURT)
I agree:
G. T. WOOD (MRS)
(CHIEF JUSTICE)
I agree:
DR. S. K. DATE-BAH
(JUSTICE OF THE SUPREME COURT)
I agree:
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
I agree:
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
COUNSEL:
JAMES AHENKORAH WITH GEORGE AMAGYEI FOR THE RESPONDENT
SOMUAH ASAMOAH FOR THE APPELLANT
