Starcom Broadcasting Services … Vrs LA Chaumiere Restaurant And Others (H1/238/04) [2007] GHACA 18 (09 March 2007);
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA – GHANA
Coram: Aryeetey J.A (Presiding)
Kanyoke J.A
Brown J.
CIVIL APPEAL NO: H1/238/04
FRIDAY: 9TH MARCH 2007
Starcom Broadcasting Services … Plaintiffs/Respondents
V
LA Chaumiere Restaurant … Defendant
And
1. Nana Ama Serwaa Gyasi
- Oyoko Contractors … Co–defendants/Appellants
JUDGMENT
Kanyoke J.A: The facts of this case are as follows: The plaintiffs/Respondents (herein after referred to as the Respondents) extended a short term credit facility to a company named Messers Allied Trades and Finance(ATF) which was secured by an Agreement of the property known as plot No. 64A Airport Residential Area, Accra, owned by the 2nd co-defendant/Appellant. A.T.F defaulted on the loan and the Respondents attempted to realize the collateral whereupon the co-defendants/Appellants (herein thereafter referred to as the appellants). Commenced suit No. L 114/02 in the High Court against the Respondents and their Managing Director, Frank Okyere for a declaration that the Deed of Assignment by which the loan was secured was a forgery and therefore invalid.
The Respondents counterclaimed for inter alia,
“(a) a declaration that the Assignment between 2nd defendant acting on behalf of the plaintiff and the 1st defendant was validly executed and is legally binding on the parties thereto”
The High court upon a summons for summary judgment entered judgment for the Respondents in their counterclaim but that judgment was reversed by the court of Appeal which remitted the case back to the High court to be heard on its merits. Meanwhile the respondents had filed a motion for an order to restrain the 2nd appellant herein from collecting accumulated and future rent and for an order that such rent be paid into court. But by the time this motion came up for hearing the court of Appeal had already delivered its judgment so the application was struck out. The Respondents appealed against the judgment of the court of Appeal to the Supreme Court and then repeated the application before the court of Appeal to restrain the 2nd appellant from collecting accrued rent and for an order that the accrued rent and further rent for the disputed property be paid into court pending the determination of the suit. The court of Appeal however declined to entertain the application on the ground of lack of jurisdiction. The application was accordingly struck out as withdrawn.
Then on the 4th February 2004 the Respondents instituted a fresh action by a writ of summons against the defendant claiming “as per statement of claim.” This writ was served together with the statement of claim on the defendant. By paragraph 5 of the statement of claim the Respondents claimed against the defendant.
“(a) Perpetual injunction restraining the defendant from paying rent to the previous owners, Oyoko contractors Ltd or in the alternative
(b) An order to compel the defendant to pay the accumulated rent and rent advance into court pending the determination of ownership of the premises between the plaintiff and Oyoko Contractors.”
On the 18th February 2004 the appellants herein filed a motion on notice “praying this Honorable Court for an order joining the applicants (i.e. the appellants herein) to the above named suit in terms of the accompanying affidavit. This motion was scheduled to be heard on the 25th February 2004. It was in fact so heard and granted on the said 25th February 2004. Then on the 2nd March 2004 the appellants purportedly filed conditional Appearance to the action and on the same 2-3 -2004 the appellants at 9.32 am filed a motion on notice as follows:
“ Suit No. B Misc. 374 / 2004
Starcom Broadcasting Services – Plaintiff
V
La Chaumiere Restaurant - Defendant
- Nana Ama Serwaa Gyasi
- Oyoko Contractors Ltd - Co-defendants
Motion on Notice
Please take notice that this Honourable Court will be moved on Monday the day of March 2004, at 9.00 clock in the fore noon or so soon thereafter as counsel can be heard by counsel for and on behalf of the Co-defendants herein praying this Honourable court for an order setting aside and/or dismissing the plaintiffs writ of summons and accompanying statement of claim under the inherent jurisdiction of the Honourable court as same is an abuse of the process of court, unwarranted by any rule of practice or procedure, known to the court and thus a nullity and same being contrary to the rules and practices of the court and in terms of the accompanying affidavit” (my emphasis). See page 42 of the Record.
Paragraphs 11 and 12 of the accompanying affidavit are germaine to this appeal so I quote them herein as follows:
11. “ That with full knowledge of all the facts and the status of the defendant being a tenant of the 2nd co-defendant, the plaintiff has filed the instant action against the defendant without any endorsement on the writ of summons.
12. That I will contend through counsel that the writ is incurably bad, defective and not cognizable by any rule of practice or procedure known to the court and thus a nullity.”(my emphasis).
It is significant to state here that on the face of the motion on Notice and its supporting affidavit, it is clear that the defendant was not a party to that application to set aside the writ. Paragraphs 11 and 12 of the supporting affidavit quoted above also make it abundantly clear that the writ of summons that was being sought to be set aside by this motion was the writ issued on 4th February 2004 by the Respondents.
Before this motion to set aside the writ could be heard, the Respondent filed a “fresh” writ of summons against the same defendant only on 24-3-2004 and for the same reliefs or claims as averred in paragraph 5 of the statement of claim. This time the claims or reliefs as well as the service address of the Respondents were indorsed at the back of the writ. I have labeled the writ of 24-3-2004 ‘fresh” because on its face there is no words” Amended writ”. However an amended statement of claim was filed on the same day. See pages 51-52 of the Record. As far as the record goes, this “fresh” writ of summons does not appear on its face to have been served on the defendant. In any case the application by the appellants to set aside the writ of summons was heard on the 6th day of April 2004, and the learned trial judge gave his ruling on the 27th April 2004 dismissing the appellants’ application prompting the appeal to this court. The Notice of Appeal was filed on the 5th May 2004 and contains nine (9) grounds of Appeal. I do not intend however to deal with these grounds of appeal even though both counsel have filed their written submissions in support and against the appeal.
My reason is simple and it is that the appeal is a nullity and is not therefore properly and validly before this court so considering the grounds of appeal will be an exercise in futility.
It is my considered opinion that for reasons given below in this judgment, both counsel for the parties especially learned counsel for the Respondents unfortunely and very regrettably glossed over very fundamental and fatal defects and irregularities apparent on the face of the Record of proceedings as a result of which the learned trial judge was also misled into entertaining the application to set aside the writ of summons; instead of dismissing it in limine. Now my reasons.
In the first place the appellants herein were not parties to the action initiated by the writ of summons issued on 4-2-2004. The defendant was also not a party to the application to set aside the writ of summons.
Secondly when the appellants’ application for joinder was granted by the court on the 25th February 2004 they did not automatically become parties to that suit to wit suit No. B Misc 374/2004. A process had to be taken but which was not taken before the appellants could become parties to that suit and that is that the writ had to be amended to incorporate the appellants as parties or co-defendants to the suit. And even if that writ was so amended the appellants could only become parties to the suit only upon service on them of the amended writ of summons. All these processes which are mandatory are provided under order 15 rules 6(1) and 8(1) (2) and (3) of the High court (Civil Procedure), Rules 1954 (L.N.14OA)as amended by the High court (Civil Procedure) (Amendment) (No. 2) Rules, 1977(L.1.1129).See also order 4 Rules 3(1), 5(5) (6) and (7) of C.147 Order 15 rule 6(1) and Rule 8(1), (2) and (3) of L.N. 140A as amended by L.1.1129 provided as follows;
“6(1) No proceedings shall be defeated by reason of the misjoinder or non-joinder of any party, and the court may in any proceedings determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the proceedings.”(My emphasis).
My understanding of this rule is that, if assuming the defendant in suit No. B misc. 374/04 was a party to the application to set aside the writ of summons, the non-joinder or misjoinder of the appellants would not have affected that application. But in the instant case the application to set aside the writ was filed only by the appellants who at the time or date of that application were strangers to that suit. And there is no evidence from the affidavit supporting that application to the effect that the appellants had a power of attorney from the defendants or had his consent to prosecute that application on the defendants behalf. The allegation in that affidavit that the defendant was a tenant of the appellants could not and did not automatically clothe the appellants with the locus standi or the capacity to prosecute that application on the defendant’s behalf or on their own behalf.
That the appellants were not made parties to suit No B misc.374 by the mere grant of the application for joinder is amply and neatly answered by order 15 Rule 8 (1) (2) and (3) of L.N 140A as amended by L.1 1129 which provided as follows:
“ 8 (1) Where an order is made under rule 6 the writ by which the action was begun must be amended accordingly and endorsed with-
- a reference to the order in pursuance of which the amendment is made; and
- the date in which the amendment is made and the amendment must be made within such period as may be specified in the order or if no period is so specified within 14 days after making of the order.
- Where under rule 6 a person is ordered to be made a defendant the rules as to service of a writ of summons shall apply to service of the amended writ on him, but before serving the writ on him the person on whose application the order was made must procure the order to be noted in the cause book.
- A person ordered under rule 6 to be added as a party shall not become a party until the writ has been amended in relation to him under this rule and (if he is a defendant) has been served on him.” (my emphasis)
My understanding of order 15 rule 8(1) (2) and (3) of L.N 140A as amended by L1 1129 is that where an order is made for the joinder of a person or where an application for joinder is granted that person or the applicant does not automatically become a party to the suit. A process is required to be taken to make that person or applicant a party to the suit. This process is mandatory and must be strictly complied with. This process consists of firstly taking steps to amend the writ within the period specified in the order or if no such period is specified, then within 14days after the making of the order and when the writ is so amended the person ordered to be joined as a party shall not become a party until he (if he is a defendant) has been served with such an amended writ.
In the instant case the application for joinder was granted on the 25th February 2004. No period was specified in the order within which the writ had to be amended. It followed therefore that the writ had to be amended within 14 days from 25th February 2004, that is the amendment ought to have been effected latest by the 17th March 2004. And if it was so amended it had to be served on the appellants, it was not until such service on them that the appellants could become parties to the suit.
On the evidence on the record the writ was not amended to relate to the appellants at all. Instead the Respondents issued “a fresh” writ of summons on 24-3-2004 against only the defendant. And even this ‘fresh’ writ on its face never related to the appellants and was also not served on the defendant or on the appellants. In effect order 15 rule 8 (1) (2) and (3) of LN 140A as amended by L 1 1129 were not complied with. As I indicated earlier on Rule 8 (1) (2) and (3) of order 15 of LN 140A as amended by l 1 1129 is mandatory. Consequently non-compliance with it is fatal to the beneficial interest of the person on whose behalf an application is made for joinder as a party. In the circumstances and on the evidence on record therefore the appellants were never made parties to or had never been parties to suit No B misc 374/04.Therefore the conditional appearance entered by the appellants on 2-3-2004 to the suit was and is still a nullity because the appellants were not parties to that suit and could not therefore have validly and legally filed an appearance to a writ which was not directed at and or served on them.
It also follows that the motion filed by the appellants on 2nd March 2004 seeking to set aside the writ in suit No B misc 374/2004 was and is equally a nullity because being not parties to that suit and not coming under a power of attorney from the defendant and not having obtained its consent the appellants lacked the locus standi or the capacity to seek to set aside the writ by their said motion. The truth of the matter is that at the date the appellants filed the motion to set aside the writ they were neither the defendants nor parties to the suit nor did they have a power of attorney to take these proceedings for and on behalf of the defendant. No cause of action was therefore vested in them and they could not and did not commence a competent application to set aside the writ because they lacked capacity to initiate that application. I am therefore constrained to hold that the motion on Notice to set aside the writ was a nullity and so are the subsequent proceedings and ruling of the trial judge founded upon them.
It also follows that the Notice of Appeal filed on 5th May 2004 which was founded on these void proceedings is equally a nullity. As Lord Denning said in Macfoy v United Africa Company Ltd [1962] A C 152 at pp 1172-1173, P C.
“if an act is void then it is in law a nullity. It is not only bad but it is incurably bad, there is no need for an order of the court to set it aside.
It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it so. And every proceeding which is founded on it is also bad and incurably bad.
You cannot put something on nothing and expect it to stay there. It will collapse so will this judgment collapse if the statement of claim was a nullity.’
In the case of Akrong V Bulley [1965] GLR 469, SC where the plaintiff sued in a representative capacity but at the date of the issue of the writ, he was not clothed with such capacity the writ of summons and the statement of claim were held to be null and void and incurably bad and that it was immaterial that during the course of the proceedings he acquired the capacity. Also in the case of Graves V Oyewoo court of Appeal, July 3, 1947unreported where the capacity of the plaintiff was raised, Crabbe J.A held as follows:
“In my judgment, the plaintiff’s action was incompetent at the date when the writ was issued, and that his position was not in anyway ameliorated by the subsequent grant to him of letters of administration and the amendment of the writ consequently the whole proceedings and the judgment by the trial judge were a nullity.”
In the instant case, as already noted the motion to set aside the writ of summons was incompetent at the date when it was filed because the appellants were not parties to the suit and they had no power of attorney from the defendant to initiate that application, they therefore had no capacity to initiate that application, consequently the whole proceedings, that is the entry of conditional appearance the motion to set aside the writ and the ruling of the learned trial judge and the Notice of appeal herein founded on those void processes are nullities.
As I indicated earlier on none of the counsel for the parties raised this issue about the nullity of the proceedings culminating in this appeal but as the Supreme Court, held in Mosi V Bagyina[1963] 1 GLT 337 at p 338.”
“ (4) where a judgment or an order is void either because it is given or made without jurisdiction or because it is not warranted by any law or rule or procedure, the party affected is entitled ex debito justitiae to have it set aside, and the court or a judge is under a legal obligation to set it aside, either suo motu or an application of the party affected. No judicial discretion arises here….”
As I have shown, the appeal before us is null and void. This court can therefore suo motu set it aside because the party affected ie the respondent is entitled ex debito justitiae cae to have it set aside.
In conclusion the appeal is dismissed as a nullity.
S.E. KANYOKE
JUSTICE OF APPEAL
IRISMAY BROWN. J - I also agree with the judgment, just read by my brother Mr. Justice Kanyoke, that failure to comply with the mandatory processes of amendment and service after the order for joinder had been made thereby rendered all ensuring processes by the person joined null and void.
I refer particularly to Order 4 rule 5 (6) already cited by my brother
“Where under this rule a person is ordered to be made a
defendant, THE PERSON ON WHOSE APPLICATION THE ORDER
IS MADE SHALL PROCURE IT” TO BE NOTED IN THE CAUSE
BOOK BY THE REGISTRAR”.
6 (a) “the amended writ shall be served on the
person ordered to be made a defendant; and
6 (b) the defendant so served shall thereafter file
an appearance”.
Order 4 rule 5 (7):
“A person ordered under this rule to be added as a party shall not become a party UNTIL THE WRIT IS AMENDED in relation to the person under this rule and, if the person is a defendant, the writ has been served on the person”
The law as it stands now gives aid and comfort to a reluctant plaintiff who is determined to keep out a person from becoming a party. There is no laid down procedure compelling the amendment and service of the writ and there are no sanctions against such a plaintiff.
Rule 5 above merely compels the beneficiary of the order to procure a note to be made in the Cause Book by the Registrar. This is not sufficient and does not facilitate the diligent prosecution of a case.
The Rules Committee I suggest should take a second look at the rules.
IRISMAY BROWN (MRS)
JUSTICE OF THE HIGH COURT
I also agree. B.T. ARYEETEY
JUSTICE OF APPEAL
COUNSEL - MR. KWESI AFRIFA FOR THE CO-DEFENDANT/APPELLANT.
MR. MUERELL LOGAN FOR THE APLAINTIFF/RESPONDENT.
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