State Vrs Asantehene Divisonal Court B (GLR 238-276) [1963] GHASC 3 (05 July 1963);



5TH JULY, 1963




In 1950, Amadu Baba, the then Zerikin Zongo (chief of the Hausa community in Kumasi Zongo) as a representative of the Hausa community in Kumasi brought an action against Mallam Sallow in the Asantehene's Divisional Court B1 for a declaration of title to the buildings on plot No. 3, West Road Area, Old Zongo, Kumasi and an injunction to restrain Mallam Sallow from dealing with the said property.  It was the contention of Amadu Baba that the property belonged to the Zongo stool. At the time when the action was instituted, the defendant was out of the country having been deported by the government.  The action was defended on his behalf by one Sampson N. Larnyo, his agent.  The Asantehene's Court found that the property belonged to the Zongo stool and gave judgment for the plaintiff on the 10th May 1950.  Mallam Sallow was subsequently permitted by the Ghana Government to return to this country where he lived for six years before he died without raising any objection to the judgment.

In 1961, Mallam Mutawakiliu who had succeeded Amadu Baba as the Zerikin Zongo applied to the Local Magistrate's Court Division II, Kumasi North, for an order to remove the personal attendants  of his predecessor in title from the building, in order to make room for his own retinue.  The order was accordingly made on the 20th February, 1961.  As a result of this order, Iddi Kusada, the appellant in this case, by an ex parte motion, applied to the High Court, Kumasi, for a writ of certiorari to quash the judgment of the Asantehene's Divisional Court B1 and any subsequential orders based on it.  In his application for the writ, the appellant stated that he was one of the sons of Mallam Sallow, Ex-Zerikin Zongo, and that his father bought the premises in question in 1919. He stated that while his father was in exile, his successor to the stool instituted [p.240] the action at the Asantehene's Court against one Larnyo, the then caretaker of the premises in dispute.  He contended that the said Larnyo had no authority to represent Mallam Sallow and therefore the proceedings before the Asantehene's Divisional Court B1 were a nullity.  He did not make a formal application for an extension of time, but at the hearing of the ex parte motion for leave to apply for the writ of certiorari, his counsel verbally applied for an extension.  Apaloo J. who heard the motion granted the extension and leave to apply for the writ.  He subsequently dismissed the application for an order of certiorari.  He found that Larnyo conducted the litigation which resulted in the judgment sought to be quashed with the full knowledge and consent of Mallam Sallow; and that the said judgment was binding on Mallam Sallow's heirs and successors.  The applicant appealed to the Supreme Court.

At the hearing of the appeal in the Supreme Court, counsel for the respondent raised certain objections in limine.  He argued that the application for the extension of time was not properly before the High Court in that such application could only be made upon motion on notice, and that no application for leave to apply for an order of certiorari could be filed until the extension of time had been granted. He contended that since the appellant did not give reasons for the delay in applying for the writ, the learned judge should not have granted an extension of time and that in granting leave, he did not exercise his discretion judicially. He maintained that the purpose of filing an affidavit in support of an application was to enable the court to verify the facts alleged as reasons for delay. He further contended that the application for leave was not in proper form, because it was not accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which the relief was sought and also an affidavit testifying the facts relied on. He stated that leave was wrongly granted contrary to the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 59, r. 3.

Counsel for the appellant, on the other hand, contended that since the High Court had granted an extension of time, the issue as to whether the extension was granted in accordance with the provisions of Order 59, r. 3 was not a matter which could be raised on appeal.  He further argued that the only point of the appeal was whether service on Larnyo, Mallam Sallow's agent for collecting his rents, was proper service within rules 41 to 46 of the Native Courts (Ashanti) Procedure Rules, 1949 (No. 32 of 1949) Vol.  VIII (1954 Rev.), p. 797. He contended that since Mallam Sallow was not personally served with the writ, the proceedings before the Asantehene's Divisional Court B1 were a nullity.

Held,  dismissing the appeal (Adumua-Bossman J.S.C. dissenting):

(1) the High Court should not have entertained the application for the writ of certiorari, for, the applicant had not complied with the conditions precedent for applying for an extension of time and for leave to apply for the writ. Although a judge has an unfettered discretion under Order 64, r. 6 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A) to grant an extension of time, such a discretion must however be exercised judicially.  The discretion had not been properly exercised in this case.  An applicant applying for an extension of time must give good reasons why the application should be granted. He must also give notice to the person who would be affected if the order challenged were quashed. Neither of these conditions had been fulfilled by the applicant. In re Wigfull & Sons' Trade Marks [1919] 1 Ch. 52 at p. 58, C.A. and R. v. Ashford, Kent, Justices; Ex parte Richley [1955] 1 W.L.R. 562 cited.


(2) Where power is conferred on a judge for an enlargement of time in any judicial proceedings, such power may be exercised by him according to his discretion, but such discretion should be exercised judicially.  If, therefore, conditions precedent for the exercise of such discretion have not been  complied with, a party aggrieved by the exercise of such discretion may raise the matter in the course of the proceedings as well as on appeal.

Per Adumua-Bossman J.S.C. dissenting: Where an applicant for a writ of certiorari is out of time, he could apply orally to the court for an extension of time.  A person affected by the enlargement of time may at the first available opportunity apply to adduce evidence why the extension should not be granted.  If the person affected fails to apply to adduce evidence to impugn the enlargement order, he cannot subsequently appeal against such order which is an interlocutory order made in the course of an action or suit.  Bradshaw v. Warlow (1886) 32 Ch.D. 403 at pp. 406-408; R. v. Akiwumi; Ex parte Dako (1957) 3 W.A.L.R. 137, C.A.; Dankwa v. Fuller (1957) 3 W.A.L.R. 168, C.A. cited.

(3)  On the evidence the agency of Larnyo was not limited to the collection of rents but he had been appointed by Mallam Sallow as his general agent in connection with his affairs in this country and he had kept Mallam Sallow informed about the litigation in respect of the house in dispute.  Pole v. Leask (1863) 33 L.J.Ch. 155, H.L.; Boyle v. Sacker (1888) Ch.D. 249, C.A. cited.

(4) The object of a service of a writ is to give notice to the defendant so as to give him the opportunity of defending his rights. Where personal service is not possible because the defendant is abroad, service is allowed to be effected on the agent of the defendant who is within the jurisdiction and who is in regular communication with the defendant and has also been managing the particular matter involved in the suit.  Such an agent becomes the alter ego of the principal and service of process upon him becomes an effective service upon the principal creating the agency. Personal service is not required in these circumstances except when a person is to be made criminally responsible.  Since Larnyo was the alter ego of Mallam Sallow and had defended the suit at the Asantehene's Divisional Court B1 he must be deemed to have admitted service of the writ of summons. Service of process had therefore been effected in accordance with rules 41 to 46 of the Native Courts (Ashanti) Procedure Rules, 1949 (No. 32 of 1949), Vol.  VIII (1954 Rev.), p. 797.  Hope v. Hope (1854) 4 De G.M. & G. 328 at pp. 341-342; 43 E.R. 534 at pp. 539-540; Kistler v. Tettmar [1905] 1 K.B. 39 at p. 45, C.A.; Tanham v. Nicholson (1872) L.R. 5 H.L. 561 and Nelson v. Pastorino (1883) 49 L.T. 564 applied.

(5) Where an objection to a decision of an inferior court is taken merely by a member of the public and not by an aggrieved party, the granting of certiorari is discretionary; but where the objection is by a party aggrieved, then, as a rule, the writ is issued ex debito justitiae. But a party aggrieved may by his conduct preclude himself from taking objection to such a decision.  The conduct of the appellant in this case had precluded him from obtaining the writ not only by reason of delay but also by his failure to give satisfactory reasons why the writ should be granted.  R. v. Williams; Ex parte Phillips [1914] 1 K.B. 608 at pp. 613, 615; R. v. West Suffold Compensation Authority; Ex parte Hudson's Cambridge & Pampisford Breweries Ltd. [1919] 2 K.B. 374; R. v. Sheward (1880) 9 Q.B.D. 741, C.A. and Re Mansergh (1861) 1 B. & S. 400 at p. 406; 121 E.R. 764 at p. 766 applied.


(6) An applicant for an order of certiorari must be either a person aggrieved or a person who has a real or substantial interest in the proceedings sought to be quashed.  The appellant was not a party to the proceedings before the Asantehene's Divisional Court Bl. He did not claim to have either a vested or reversionary interest in the property in question.  He did not disclose the capacity in which he brought the application, neither had he shown any peculiar grievance of his own beyond some inconvenience suffered in common by the general public.  He had therefore failed to bring himself within either category.  He must therefore be deemed for all practical purposes to be a stranger to the proceedings.  R. v. Nicholson [1899] 2 Q.B. 455 at p. 471, C.A.; R. v. Richmond Confirming Authority; Ex parte Howitt [1921] 1 K.B. 248; R. v. Surrey (1870) L.R. 5 Q.B. 466 at p. 472; R. v. Brighton Borough Justices; Ex parte Jarvis [1954] 1 W.L.R.203 at p.207 cited.