JESUIT FATHERS OF GHANA SOCIETY VRS KOFIE & OTHERS (H1/253/2018) [2020] GHACA 22 (25 June 2020)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE COURT OF APPEAL (CIVIL DIVISION), ACCRA – GHANA CORAM: BARBARA ACKAH-YENSU JA PRESIDING HENRY A KWOFIE JA P. BRIGHT MENSAH JA SUIT NO. H1/253/2018 25TH JUNE 2020 BETWEEN: JESUIT FATHERS OF GHANA SOCIETY … PLAINTIFF/APPELLANT vs 1. PATIENCE BELINDA KOFIE 2. ERIC ARYEE MENSAH 3. UNKNOWN DEVELOPER MENSAH JA … DEFENDANTS/RESPONDENTS JUDGMENT The instant appeal turns on the issue, whether the learned trial judge properly exercised her power/discretion when she issued an order to the parties to settle this case out of court. The appeal is against the order of Vivian Amoah J, sitting in the Accra High Court (Land Division) made 21/03/2018. The order complained of, appears on p. 89 of the record of appeal whilst the notice of appeal filed by the plaintiff/appellant whom I shall subsequently refer to simply as “the appellant”, appears on p.110-113 of the record. There appears to be some mishaps in the dates as to when the order was actually handed down. It is therefore appropriate to set the record straight. Whilst the court’s notes show that the order companied of, was made on 26th March 2018, Counsel for the appellant per his notice of appeal, stated it to be 31st March 2018. However, on record, the court proceedings show that on 26th March 2018 the plaintiff’s [appellant] representative, Rev. Father Andrew Setsoafia was present in court. The 1st defendant was also present in court but the 2nd defendant was not. As regards legal representation, G. S. K Babanawo is on record to have appeared for the 1st defendant and Frank Panford did appear for the appellant. Significantly, the judge having recorded the appearance of the parties in court and the legal representation, then proceeded to make her order that the parties should settle the case out of court. There is nothing on record to show that either the parties or the lawyers expressed any desire to have the matter settled out of court. For purposes of clarity, I set out hereunder, the order: “By court - Court makes order under Section 72 of Act 459 for parties to attempt settlement. Suit is adjourned to 13th April 2018.” As parties and lawyers are bound by the court’s records, I shall accept the date when the order was made as 26/03/2018 and treat as error, the date 21/03/2018 Counsel for the appellant stated in his notice of appeal. Grounds of appeal: Reproduced below, are the grounds of appeal the lawyer for the appellant filed. 1. The learned judge was wrong to assume she possessed the power to order mediation in a case where interlocutory judgment had already been entered because such a suit is no longer ‘pending’. (Courts Act 1993 Act 459, section 72(1); Alternative Dispute Resolution Act 2010 (Act 798); (Interlocutory judgment of 01.02.18) 2. the learned judge issued her order ex tempore and did not appear to have had the opportunity of familiarizing herself with the contents of the case docket and thus erred in principle in the discharge of her duty to be fair and not arbitrary or capricious and to decide in accordance with due process of law. (Ghana Constitution 1992, Article 296(a)-(b); Awuni v WAEC (2003-5) 2 GLR 381; Djan v Yeboah Afari (2013) 62 GMJ 27; GCHQ Case (1985) AC 374 3. the learned judge failed to take any or sufficient account of factors which the appellant contends should have led her to a different conclusion, namely (i) that as the registered proprietor of land the plaintiff possesses a title that is indefeasible and is thus provided with a complete answer to all adverse claims and a title against the whole world. (Land Title Registration Law 1986 (PNDCL152), section 43(1) & Memorandum); (Statement of Claim para 1; Exhibit AS 1); (ii) that certificate of registration in the plaintiff’s possession is con- clusive evidence of its title and at any hearing no evidence contrary will be admitted to displace this conclusive presumption. (Land Title Registration Law 1986 (PNDCL 152), section 18) & Memorandum; Evidence Decree 1975 (NRCD 323), section 24(1); (Exhibit AS 1) (iii) that each of the defendants has been culpable in the past of criminal misdemeanours, having disturbed or removed boundary fences erected by the plaintiff and also having unlawfully entered and remained on the land after being forbidden to do so; in the latter case the criminal court is empowered to order the removal of trespassory structures by force if necessary. (Land Title Registration Law 1986 (PNDCL 152) section 40(1) (a); Criminal Offences Act 1960 (Ac t 29). Section 157; Exhibit “AS 5” and (iv) that none of the defendants have thus far asked the court for leave to file a late appearance (judgment having been entered) or file a defence for service on the plaintiff (the time for filing having expired). (High Court (Civil Procedure Rules (CI 47, O 9 r 6(1) and O 11 r 2(1)-(2); Republic v High Court ex p Osafo (2012) 36 MLRG 163, SC; (Order od substituted service dated 12:12:17; and (v) that there is at the eleventh hour the 1st defendant’s motion to set aside the default judgment (07.03.18) and notice of entry of appearance (07.03.18) and a motion for joinder by a potential 4th defendant (06.04.18) whereas judicial policy should be directed against forensic strategies that lead inevitably to interminable adjournments and towards speedier justice avoiding intolerable delays and unnecessary expense; the plaintiff’s project for the property will suffer irreparably if not become wholly derailed. (High Court (Civil Procedure Rules (CI 47, O 1 r 1(2); Evidence Decree 1975 (NRCD 323), memorandum, penultimate paragraph), (AS Witness statement, para 4) 4) the learned judge exercised her discretion in a manner that was irrational or Wednesbury unreasonable in imposing the conditions of mediation that she did; the plaintiff’s society is an independent religious order of the Catholic Church in Ghana although it operates within and under the aegis of Catholic Church’s dioceses; its governance falls within the North-West Province of the Society of Jesus (Jesuits) and in its governance it has a Hierarchy of (in ascending order) a Provincial (Lagos) a Superior General (Rome) and ultimately the Holy See (Rome) – there is no place in its institutional arrangements for a ‘monsignor’. ‘Observation’ that an unknown trespasser on cannot be made a defendant in an action seeking a declaration of title and an order authorizing the removal of trespassory structures. The learned judge was wrong to pronounce a negative ‘observation’ about the procedural merits in a case she is about to hear; it creates a suspicion even in the mind of a reasonable and fair-minded person that a fair hearing was not possible, in any event the proscription against bringing suit against an unknown trespassor (who is neither a natural or juristic person) is not so rigid as to bar a title holder whose primary concern was to avoid resort to self-help with its potential for public disorder and to resort instead to a court of law for a declaration of title and authorization to remove trespassory structures. (R v High Court Kumasi ex p Mobil Oil (2005-06) 1 SCGLR 312; Benyarko v Mensah (1992) 2 GLR 404) (AS Witness statement, paras 6 & 8). In examining the grounds of appeal, I notice that the grounds of appeal did not comply with the mandatory rules of this court. Without any shred of doubt, the grounds of appeal the appellant filed that had annexures of decided cases and reference to the 1992 Constitution and statutes clearly sin against the rules, CI 19. It is instructive, Rules 8(4) & (5) of CI 19 for eg., provide: “(4) Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated (5) The grounds of appeal shall set out concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.” [emphasis mine] Now, Rule 8(6) of CI 19 also provides: “(6) No ground which is vague or general in terms or which discloses no reason-able ground of appeal shall be permitted, except the general ground that the judgment is against the weight of the evidence; and any ground of appeal or any part of the appeal which is not permitted under this rule may be struck out by the Court of its own motion or on application by the respondent”. [emphasis supplied] The appellate courts have always frowned upon non-compliant of mandatory rules of the courts. In the case of FKA Co. v Nii Tackie Amoah VI & ors (Civil Appeal No. J4/1/2016 dated 13/02016 (unreported) the Supreme Court speaking through Akamba JSC ruled, inter alia, as follows: “…………it is important to stress that the adjudication process thrives upon law which defines the scope of operation. It is trite to state for instance that nobody has an inherent right of appeal. The appeal process is the creature of law. Any initiative within the con- text of the adjudication process must be guided by the appropriate relevant provision, be it substantive law or procedural law. As courts if we fail to enforce compliance with the rules of court, we would by that lapse be enforcing the failure of the adjudication process which we have sworn by our judicial oaths to uphold.” The Supreme Court in Ayikai v Okaidja III (2011) SC GLR 205 has reiterated that non- compliance with the rules of court result in fatal consequences as they not only constitute an irregularity but raise issues of a jurisdictional nature as to whether or not the jurisdiction of the court has by the irregularity been properly invoked. A notice of appeal cannot be a dumping ground for all kinds of narrative arguments as was done in the present case. Additionally, I also think that most submissions and or arguments canvassed in the grounds of the appeal which ordinarily should have appeared in Counsel’s statement of case, are not borne out of the facts contained in the facts/record of appeal. Consequently, I strike down as improper, all the grounds of appeal in this case. However, since an appeal is by way of rehearing the case, the principle of law is that the appellate court in assessing the facts and analyzing the evidence led on record, acts in the position of the trial court. Thus, this court is enjoined by law to look at the whole case and determine whether the lower court reached the proper conclusion. As indicated in the introductory part of this judgment, the fundamental issue this appeal raises, is whether the lower court properly exercised its power or discretion when it ordered the parties to settle the case out of court. That the High Court has that wide discretionary power to remit a civil case for settlement out of court, is not put to any serious doubt as that power is sanctioned by law. There are generally, 2 modes by which the court may exercise that power to remit a case for settlement out of court. The first is exercisable under S. 72(1) of the Courts Act, 1993 (Act 459) that provides: “(1) Any court with civil jurisdiction and its officers shall promote reconciliation, encourage and facilitate the settlement of disputes in an amicable manner between and among persons over whom the court has jurisdiction.” In actual practice, what often happens is that the court may suo motu raise the possibility of the case being settled out of court having to the peculiar facts and issues involved and nature and the relationship of the parties. Any of the parties or the parties themselves may hint the court that they would want to attempt settlement and if successful, announce the outcome to the court subsequently. However, to be binding on all the parties, the parties would have to say in court that the outcome of the settlement was what took place at the settlement or where terms of settlement signed and executed were filed in court. The law reports are replete with cases where the courts have endorsed and adopted this practice. And the law was that where parties have set out to settle a case out of court the settlement reached could only become binding if it was reduced into writing, signed and executed by the parties and the terms of settlement filed in court. See: the decision of the Court of Appeal in Owusu v Kumah (1984-86) 2 GLR 29. That implied that until the terms of settlement were filed any of the parties could resile from the settlement and the court will have no option than to try the case on its full length. Nevertheless, law is not cast in stone. The law has since developed beyond the established principle that to be become binding, terms of settlement ought to be filed or parties must say in open court that they agree to the settlement reached. The present true and correct position of the law is that once parties have committed themselves to settlement out of court, the voluntary conclusion reached is binding on the parties whether or not terms of settlement were filed in court. See: R v High Court (Fast Track Division), Accra, Accra; Exparte Atakorah (Cudjoe – Interested Party) (2015-2016) 329. The ratio decidendi in that case is that settlement reached by the parties becomes a civil contract that could be enforced at law. Giving basis for the proposition, the Supreme Court speaking through Atuguba JSC is credited that statement of law appearing at p. 333 of the law peport as follows: “…….. When parties settle an action whether in or out of court simpliciter, the cause of action involved in such settlement is gone and is replaced by such settlement. Upon breach of the settlement, the innocent party’s remedy is not to re-open the litigation so settled, but to bring an action to enforce the settlement, it being an enforceable contract between the parties. Where, however, the terms of settlement by consent of the parties, are entered by the court, it then becomes a consent judgment, and like any other judgment, an executable judgment of the court if it contains executable orders.” The second mode is where the parties have agreed to submit themselves to arbitration in terms of S. 7(1) of the Alternative Dispute Resolution Act, 2010 (Act 798). That provision of the law enacts: “(1) Where a court before which an action is pending is of the view that the action or a part of the action can be resolved through arbitration that court may with the consent of the parties in writing, despite that there is no arbitration agreement in respect of the matter in dispute, refer the action or any part of the action for arbitration.” It bears stressing that in each of the 2 modes, consent and or agreement of the parties is sine qua non for the order to be made for settlement out of court. In making the order, the court may set the terms and conditions of the settlement to be embodied in its consent judgment if settlement was successful. The court cannot impose on the parties to settle as it was done in the instant case, especially so when there is nothing on record to show that the parties were agreed to settle. That is tantamount to excess of, or abuse of power. In the light of the above, it is my judgment that the trial judge grievously erred when she imposed on the parties to settle the case out of court where there is no record to show that they did give their consent to settle or that the court sought their consent before making the order. Indeed, it is apparent on record of the court, the proceedings as appearing on pp 108 – 109 of the record of appeal [the next hearing date] that the parties were dissatisfied with the position of the trial judge. The appeal is allowed in the interest of justice and for the expeditious trial of the case, the order for settlement the trial judge made is hereby set aside. The case is remitted to the trial court for it to take its normal cause. But was the filing of appeal necessary at all? I do agree with learned Counsel for the 1st defendant/respondent that it wasn’t. All that Counsel for the appellant needed to do was to have informed the court that the plaintiff particularly, was not agreed to the settlement and that they were prepared to fight the case on its merit in court. That would have settled it instead of rushing to the Court of Appeal with these treatises. This kind of approach Counsel adopted has no ancestry and the court must not give life to it. We hope such frivolous appeals would not put before this court in the near future. I make no order as to costs. P. BRIGHT MENSAH JUSTICE OF APPEAL 12