BORTIER & ANOTHER VRS HYDRAFORM ESTATES LTD (H1/123/2021) [2021] GHACA 32 (15 July 2021)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL DIVISION) ACCRA – GHANA CORAM: HENRY KWOFIE JA P. BRIGHT MENSAH JA NOVISI ARYENE JA PRESIDING SUIT NO. H1/123/2021 15TH JULY 2021 BETWEEN: 1. EMMANUEL BORTEY BORTIER 2. CEPHAS BORTEY BORTIER … 2ND PLANTIFF … 1ST PLAINTIFF/APPELLANT vs HYDRAFORM ESTATES LTD … DEFENDANT/RESPONDENT ======================================================= JUDGMENT BRIGHT MENSAH JA: My Lords, the vexed question this appeal as filed by the 1st plaintiff/appellant raises for our consideration is whether the lower court, High Court, Accra [Land Division] exercised its discretion rightly and judicially when it refused an application the lawyer for 1st plaintiff/applicant moved for the amendment in the title of this suit. On record, the applicant had on 08/01/2013, filed a “Notice of Motion to invoke the inherent power of the court to correct an error or omission in the judgment of Anthony Oppong J dated 4/12/12 – Order 16 r 10.” The motion was argued in earnest by lawyers for the parties, either in support of, or as against the application. In the final analysis however, the court refused the application. It bears emphasis that per the Ruling of the trial High Court delivered 24/05/2013 and as appearing on pp 207A - 207D of the record of appeal [roa], the learned trial judge in refusing the application delivered himself as follows: “In arguing the application, learned lawyer for applicant referred the court to Atto-Quarshie v Okpote (1973) 1 GLR 59. Holding two thereof points out that where a court in making a decision overlooks a certain mandatory provisions of the law, it has the inherent power to vacate its own invalid orders. No- thing can be further from the correctness of the law as stated in this holding. However, the facts of this application in part- icular and the facts of this case as a whole do not permit the application of this law.” Justifying the refusal of the application, the learned trial judge ruled further: “In this application, the applicant has not succeeded in showing that this court in giving its judgment dated 4th December 2012 overlooked any mandatory provisions of substantive law or subsidiary or procedural. As stated, it was rather Counsel who appears to have overlooked the mandatory provision of C. I 47 by failing to file the order for substitution. Unfortunately, Counsel does not have any inherent power such as endowed in the courts to correct his mistakes……..…” BACKGROUND FACTS: Before proceeding to consider the arguments of Counsel in detail and the fundamental issue raised in this appeal, it is convenient to recount the facts of the case. Per a writ issued at the registry of the High Court, Accra (Land Division) on 12/04/2001, at the instance of the plaintiffs herein, they claimed against the defendant for the following reliefs: 1. Declaration of title to the plots described on the schedule hereunder described as plot ‘A’ for 1st plaintiff and plot ‘B’ for 2nd plaintiff. 2. Damages for trespass inclusive of special damages. 3. Perpetual injunction restraining the defendant, its agents, servants, workmen and privies from entering unto the two plots and in any way interfering whatsoever with the said plots. SCHEDULE ABOVE REFERRED TO PLOT ‘A’ FOR 1ST PLAINTIFF ALL THAT PIECE OR PARCEL of land situate, lying and being at South-East Nungua (Okpoi Gonno) bounded by North-East by proposed road measuring 87 feet more or less on the South by Lessor’s land measuring 263 feet more or less and on the West by Lessor’s land measuring 140 feet more or less and containing an approximate area of 2.07 acres. PLOT ‘B’ FOR 2ND PLAINTIFF ALL THAT PIECE OR PARCEL of land situate lying and being at South-East Nungua (Okpoi Gonno) bounded on the North-West by Donor’s land measuring 390 & 460 feet respectively more or less on the North-East by Proposed Road measuring 60 feet more or less on the South-East by Proposed Road measuring 40 feet & 500 feet respect- ively more or less on the South-West by Proposed Road measuring 350 feet & 50 feet respectively more or less on the West by Proposed Road measuring 80 feet more or less and containing an approximate area of 2.09 acres. After being served with the processes the plaintiffs filed, the defendant in response, filed its defence and counterclaimed as stated hereunder: “Declaration that the defendant is a lessee in respect of all that piece of land situate at OKPOI GONNO, Accra covering an area of 75.53 acres and bounded on the North-West by Aviation Highway measuring a total distance of 1520 feet more or less on the North-East by central Link Road measuring a total distance of 280 feet more or less on the East by a proposed Clinic and road measuring 2100 feet more or less on the South by an open space measuring 1650 feet more or less South- East by an open space measuring 8500 feet more or on the West by School street measuring 1200 feet more or less for a term of 99 years.” The case went through a full gamut of trial whereupon the trial court delivered its judgment on 04/12/2012. In its judgment as appearing on p. 198 [roa] the learned trial judge noted that the 1st plaintiff passed on during the currency of the case when he has offered his evidence. The learned trial judge observed that although a motion for substitution was filed and placed on the court docket, the motion was never moved. Therefore, the 1st plaintiff [deceased] was never substituted. In the result, the trial judge exercising the power vested in him under Order 4 r 7 of the High Court (Civil Procedure) Rules, 2004 (C. I 47), struck out the 1st plaintiff’s case at the close of the case and the time he was considering his judgment. Consequently, the trial court had to deal with only the merits of the case then subsisting between the 2nd plaintiff and the defendant. Now, having evaluated the evidence on record the trial court in the final analysis found for the 2nd plaintiff and accordingly entered judgment for him. It then proceeded to dismiss and indeed dismissed, the defendant’s counterclaim. Being aggrieved of, and dissatisfied with the decision of the lower court, the defendant launched an appeal on a number of grounds via the notice of appeal filed with this court on 09/01/2013. Then came the twist to the case that has culminated in the instant appeal. After the judgment as appearing on pp 195-200 [roa] was handed down, the lawyer for the plaintiffs filed with the trial court, a motion to invoke the inherent power of the court to correct an error in the judgment. See: pp 189-194 [roa]. See also: supplementary affidavit appearing on pp 203-205 [roa]. On record, the motion for correction in the judgment was opposed to by the defendant via an affidavit in opposition sworn to by the lawyer for the defendant. See: pp 204-205 [roa]. As recounted supra, the lower court having invited arguments of Counsel both in support of, and as against as the motion, dismissed the motion per its Ruling of 24th May 2013. It is against this ruling that the instant appeal has been launched on the grounds listed hereunder: 1. That the ruling is against the weight of the affidavit evidence adduced at the trial. 2. The learned trial judge exercised his discretion wrongfully. 3. Further grounds to be filed upon receipt of the ruling. So far, no further or additional grounds have been filed. We shall therefore confine our discussions and consideration of the appeal to the grounds of appeal listed supra. Submissions of Counsel for the 1st plaintiff/appellant: It has been argued on behalf of the appellant that the court below made some findings of fact on the totality of incontrovertible evidence that did not support the court’s conclusions. According to Counsel, the rationale for the motion was to draw the lower court’s attention to the fact that there was sufficient evidence on record to show that the motion for substitution had been moved and an order for substitution drawn up. The order for substitution attached to the motion marked Exhibit JBB1 was sufficient to prove that the motion for substitution was moved and granted by Justice E. K Mensah. Thus, the lower court was in error when it held otherwise. Premising his arguments on Attoh-Quarshie v Okpote (1973) 1 GLR 59 and Article 296 of the 1992 Constitution, Counsel submitted that the refusal of the trial judge to exercise his discretion to correct his error and undo what he originally had no power to do was wrongful. Once the motion for substitution had been moved and granted and the order had been drawn up by the Registrar of the court, it formed part of the record of proceedings. The lower court could not have overlooked same and to strike out the 1st plaintiff/appellant’s case on that ground alone when there was evidence to the contrary. That was an error of law which warranted the use of the court’s discretion to invoke its inherent jurisdiction to right its wrong, Counsel reiterated. Counsel submitted further that there was sufficient evidence on record to show that after the grant of the motion for substitution, James Bortey Bortier announced and was being recorded as the 1st plaintiff. Thus, where the court itself and the defendant having acquiesced to James Bortey Bortier as the 1st plaintiff they were estopped from denying same. In conclusion, Counsel did refer this court, in support of his case to the decision of the Supreme Court in Mensah Larkai v Ayitey Tetteh (2009) SCGLR 621 @ 623 in which the headnotes in Holding 2 ruled as follows: “It was true that the formal motion for the substitution in the instant case was never moved or granted. Nonetheless, it was very clear from the record of appeal that the suit had been tried throughout as a consolidated suit with Nii Paul Ayitey Tetteh as substituted Tetteh Quarcoo, without objection. In those circumstances, the said substitution ought to be deemed as having been effected, unhampered by any formalistic procedural ceremonies under the court rules of practice and procedure otherwise the rules would become masters rather than servants.” Counsel therefore invited the court to overturn the ruling of the lower court complained of, and further enter judgment for the 1st plaintiff/appellant on his claim. Submissions of Counsel for the defendant/respondent: In reply, Counsel having referred to some aspects of the Ruling of the trial court, submitted that the observations the learned trial judge made were flawless. In the circumstances, it was Counsel’s view that the court below did not commit any mistake to warrant the application for correction of the judgment. Counsel rather attributed the mistake to his learned friend for failing to file the order for substitution. It was his case that the error the 1st plaintiff complained of, is completely a question of law based on the express provisions of Order 4 r 7 of C. I 47 and the remedy lay in appeal in correcting mistakes if any, instead of applying for any correction to be made in the judgment. In support, Counsel relied on such cases as Ampofo Bros v Brong Ahafo Corp. Ltd (1961) 1 GLR 62; Yanney v African Veneer Mahogany Exporters Ltd (1960) GLR 89; and Holland West African v Pan African Trading Co. (1976) 2 GLR 179. Counsel also submitted that at the time the application for correction was made to the lower court, the court was functus officio. Therefore, the application was put in the wrong forum, Counsel maintained. In the result, he urged this court to dismiss the appeal. Determination of the appeal: To begin with, the law is certain that appeal is by way of re-hearing the case. It is provided in the rules of Court of Appeal, rule 8(1) of C. I 19 that any appeal to the Court shall be by way of re-hearing. This rule has been judicially interpreted in many cases to mean that the appellate court is enjoined by law to review the whole evidence on record and come to its own conclusion as to whether the findings of the lower court both on the law and facts were properly made and supportable. In R v High Court (General Jurisdiction 6); Exparte Attorney General (Exton Cubic – Interested Party (2020) DLSC 8755 the Supreme Court speaking through Anin-Yeboah JSC (as he then was) restated the principle thus: “Appeal is an application to a higher (appellate) court to correct an error which may be legal or factual. In Ghana, all civil appeals are by way of rehearing and the appellate court may subject the whole record to review and may even make new findings of facts in deciding the appeal.” It is worth repeating that in the instant appeal before us, the court is being called upon to consider whether the lower court rightly refused a motion premised under its inherent jurisdiction to allow an amendment to the title of the case. It cannot be put to any serious doubt that an application to a court to amend the title of a case calls for exercise of judicial discretion. It needs reiterating that there are no binding precedents in exercise of judicial discretion as each case has to be decided on its own merit provided that the judge or judicial officer took into consideration, all the necessary facts and circumstances of the case; the judge or the judicial officer was not biased or capricious or that he did not take into account extraneous matters. See: Agyeman v Ghana Rly & Ports Auth. (1969) CC 60 C/A. On the authorities, an appellate court cannot substitute its own discretion for the court exercising a discretion. Nevertheless, there may be circumstances justifying questioning the exercise of judicial discretion. The principles governing exercising judicial discretion and the power of an appellate court to interfere in the exercise of a court’s discretion were extensively considered in Sappor v Wigatap (2007-2008) SCGLR 676 wherein the Supreme Court set the perimeters of the rules as follows: “……….. [A]n appellate court would [only] interfere with the exercise of a court’s discretion where the court below applied wrong principles or the conclusions reached would work manifest injustice or that the discretion was exercised on wrong inadequate material. Arbitrary, capricious and un- informed conclusions stand in danger of being reversed on appeal.” Much earlier the Supreme Court speaking through a single judge, Crabbe JSC reiterated the grounds upon which an exercise of judicial discretion may be impeached to include: i) where it can be demonstrated that the judge or judicial officer violated the duty to be fair and candid; ii) where the discretion was exercised capriciously or arbitrary; iii) that the judge or judicial officer was biased either by resentment or prejudice; iii) the trial judge did not act in accordance with due process of law. See: R v Registrar of High Court; Exparte Attorney General (1982-83) GLR 407 @ 420 SC On the authorities, therefore, it was not open to an appellate court to substitute its own discretion for that of the court where the discretion was being questioned. What the law required was that it must be evident that in exercising its discretion, the court had failed or omitted to consider relevant material or had based its discretion an extraneous material. See: Nsiah v Osei (1975) 1 GLR 257. Having stated the law as regards interfering with the exercise of judicial discretion, we now proceed to consider the merit or otherwise of the appeal. By rule of procedure and practice, a party reserves the right to amend the title of his case, even on appeal where circumstances permit it. Traditionally, allowing amendment to a title of a case rested in the inherent jurisdiction of the court so as to do justice in the matter. Put differently, in the interest of doing substantial justice in a matter, the court may grant an amendment to the title of a case, even on appeal. In Ghana Ports & Harbour Authority v ETS Kabore Issoufou (1993-94) 1 GLR 24 the Supreme Court emphasizing the rule, held: "The courts had a duty to ensure that justice was done in cases before them and should not let that duty be circumvented by mere technicalities. Since the power to make amendments to the capacity of a party rested in the inherent jurisdiction of the courts, the courts could, when the issue was raised either in the trial court any time after judgment was delivered or in the appellate court on the application of a party to the suit, orally or otherwise, grant such amendments as were necessary to meet the justice of the case.” [Emphasis supplied] The Supreme Court observed in Kabore Issoufou case (supra) that there was enough evidence before the courts to show that Kabore Issoufou "KI" was the sole proprietor of the business and that it was he who imported the rice from Pakistan; "ETS" was his business name which he had registered since 1965 but was not a corporate body. However, since the business name was almost the same as that of the sole proprietor of the business, the Court of Appeal was justified in granting the amendment to the title of the suit. It is also our respectful opinion that allowing an amendment is to avoid multiplicity of suits otherwise the party affected will have to mount a fresh suit to vindicate his rights. Now, guided by the principles the Supreme Court espoused in Kabore Issoufou case (supra), which decision is binding on this court on the principle of stare decisis and in terms of Article 129(3) of the 1992 Constitution, the lower court erred in law when it refused to amend the title of the instant suit. Additionally, on the principles established in Attoh-Quarshie v Okpote (1973) 1 GLR 59 and Mensah Larkai v Ayitey Tetteh (2009) SCGLR 621 @ 623, it is our respectful view that the learned trial judge wrongfully exercised his discretion in refusing the application for amendment to the title of the plaintiff’s case. The reasons are not far-fetched. First, there was sufficient evidence on record, as the learned trial judge himself acknowledged, that a motion for substitution was filed and it was on the court’s docket. Although the learned trial judge claimed that the application was never moved, in the teeth of the Order for Substitution as appearing on p.198 roa this court is satisfied that it was so moved and was duly granted by E. K Mensah J and the Registrar drew up the order and the order was signed by both Justice E. K Mensah and the Registrar. Though the court was differently constituted, once it is undisputed it was the same High Court that granted the application, the trial judge, whose decision is the subject of the present appeal ought to have exercised much restraint in refusing the application for correction in the judgment when his attention was drawn to that fact. Next, the evidence established further that upon the demise of the original 1st plaintiff, James Bortey Bortier who has then been substituted for the deceased, was religiously attending court each time the case was called and dealt with. Additionally, it is on record that the original plaintiff [Emmanuel Bortey Bortier] at the time of his death had already given his evidence. Significantly, the defendant together with his lawyer [incidentally his lawyer in the present appeal] participated in the trial regardless of that seemingly default to properly substitute him in terms of Order 4 r 6 of CI 47. In any event, the defendant could have proceeded under Order 4 r 7(1) of CI 47 to have had the 1st plaintiff’s case struck out. However, he chose not. So he is estopped from raising the issue now. So granted that the application for substitution was never moved and a proper order for substitution drawn up, in the circumstances of this case and on the authorities of Attoh-Quarshie v Okpote (supra) and Mensah Larkai v Ayitey Tetteh (supra) it was deemed that the application was duly moved and granted. Furthermore, we hold the respectful opinion that the amendment if it was allowed by the lower court could not have had any injury to opponent’s case or prejudiced the defendant that could not be compensated by costs. The application was therefore made bona fide as it sought to bring the lower court’s attention to the true status of the case contrary to what the learned trial judge had observed in his judgment delivered 04/12/2012. Inherent jurisdiction: its scope and application: We cannot conclude this judgment without considering what the perimeters of inherent jurisdiction are, and the circumstances under which it is invoked and or applied. It has been stated that “inherent jurisdiction or power” is a doctrine of the English common law that confers on superior courts the authority to hear and deal with matter/issue placed before them, unless a statute or rule of law limits that power or authority or that the law grants exclusive jurisdiction to some other court or tribunal. Broadly speaking, there may be five (5) generalizations where the authority may be exercised. They are applied: 1. to ensure convenience and fairness in legal proceedings; 2. to prevent steps being taken that would render judicial proceedings inefficacious; 3. to prevent abuses of process; 4. to act in aid of the superior courts and or control of inferior courts and tribunals. 5. to prevent a court from inflicting an injury to a party or the court to undoing an act that it had no jurisdiction hitherto to do it. Lord Diplock observed in the English case of Bremer Vulkan Schiffbau und Maschinenfabrik vs South India Shipping Corporation Ltd (1981) AC 910 @ 977 that the court's inherent jurisdiction was a general power to control its own procedure so as to prevent its being used to achieve injustice. The English Law Lord then held in that case as follows: “The High Court's power to dismiss a pending action for want of prosecution is but an instance of a general power to control its own procedure so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice ……………………………………… ……………………………………………………………………….. The power to dismiss a pending action for want of prosecution in cases where to allow the action to continue would involve a substantial risk that justice could not be done is thus properly described as an "inherent power" the exercise of which is within the "inherent jurisdiction" of the High Court.” [Emphasis ours] It cannot be overemphasized that the doctrine “inherent jurisdiction/ power” has been considered in a number of cases in our own jurisdiction. Our law reports are replete with cases wherein “inherent jurisdiction” has consistently been considered and applied. In Acheampong v Asare-Manu (1976) 1 GLR 287 @ 289 for e.g., Osei-Hwere J (as he then was) summarized the law on the point as follows: “One of such areas is where it is necessary to prevent wrong or injury being inflicted by its own judgment. This will include the power of vacating judgments entered by mistake; of relieving judgments procured by fraud, and of undoing what it had no authority to do originally.” This court in Omaboe v Kwame (1978) GLR 122 speaking with unanimity through Apaloo CJ, stated that the court has an inherent jurisdiction to set aside or vary its own orders that can be exercised on three broad basis, namely: (1) if there was some clerical mistake in a judgment or order; (2) if there was some error in a judgment or order which arose from any accidental slip or omission; and (3) if the meaning and intention of the court was not expressed in its judgment or order. The court held in the case supra, that in so far as any policy reason could be extracted from those illustrations, it seemed the courts gave themselves this power when some fault was attributable to the court itself by reason of human error and a party damnified by it was entitled ex debito justitiae to have the court put right, its own error. Consequently, it can be said that inherent jurisdiction appears to apply to an almost limitless set of circumstances. Now, having regard to the fact there was sufficient evidence on record in this case to show that the application for substitution was granted, the 1st plaintiff/appellant was entitled ex debito justitiae to have the court put right, its own error contained in the judgment. For the reasons stated herein, we uphold the submissions of Counsel for the plaintiff that the appeal be allowed. The appeal is hereby allowed and the application for the amendment to the plaintiff’s suit is allowed, in consequence, the title of the case now reads: 1. Emmanuel Bortey Bortier (deceased) Substituted by James Bortey Bortier Accra … 1st Plaintiff/Appellant 2. Cephas Bortey Bortier … 2nd Plaintiff vs Hydraform Estates Limited … Defendant/Respondent Consequently, 1st plaintiff/appellant’s case is restored to the cause list at the trial court for hearing to continue. Registrar to carry out. 1st plaintiff/appellant’s costs assessed at Ghc10,000.00. SGD P. BRIGHT MENSAH (JUSTICE OF APPEAL) SGD HENRY KWOFIE (JUSTICE OF APPEAL) SGD NOVISI ARYENE (MRS.) (JUSTICE OF APPEAL) I agree I also agree COUNSEL JEHODA KOTEY FOR PLAINTIFF/APPELLANT LOUISA BABILAH FOR DEFENDANT/RESPONDENT 17