F.A GLOBAL ESTATE GHANA LTD. VRS ERIC OKOH TETTEH & 5 ORS. (civil case of 2022) [2022] GHACC 348 (10 October 2022)

IN THE CIRCUIT COURT HELD IN ACCRA ON 10TH DAY OF OCTOBER, 2022 BEFORE HIS HONOUR SAMUEL BRIGHT ACQUAH, CIRCUIT COURT JUDGE ========================================================== SUIT NO. …. BETWEEN F. A GLOBAL ESTATE GHANA LTD PLAINTIFF/RESPONDENT ACCRA AND ERIC OKOH TETTEH & 5 OTHERS DEFENDANTS/APPLICANTS ACCRA =========================================================== RULING This is an application for leave to file an appeal against an interlocutory ruling given by this court on 7th July 2022. Counsel for the defendants/Applicants pray for leave to appeal against this ruling at the court of appeal. Counsel for the Plaintiff/respondent is opposed to this application and submits that the application be struck out on the basis that it was brought under the wrong section and also the application has no merit. Counsel for Defendants/Applicants rebutted this argument by relying on the case of Okofoh Estates v Modern Signs Ltd[1995-96] 1 GLR 310. Counsel submitted that although the application had been brought under the wrong section in the Courts Act, the court could still entertain the application since there was in existence a rule that gave the Circuit court jurisdiction to hear applications seeking leave to appeal against decisions of the Circuit court. Essentially, the pertinent issue for the determination in this present application is; (a) Whether or not the misstatement of the section in the application was grave enough to warrant the striking out of the application? (b) Whether or not leave should be granted for the Applicants/ Defendants to appeal against the ruling delivered on 7th July 2022? ANALYSIS ISSUE 1 Appeals are ways through which persons aggrieved by decisions of courts can seek redress for their grievances. By virtue of statute appeals against interlocutory decisions of the Circuit Court. This is provided for in Section 11(5) of the Courts Act,1993(Act 549) as amended by Act 620. Section 11(5) states as follows; A person aggrieved by any interlocutory order or decision made or given by a Circuit Court may appeal to the Court of appeal against the order or decision with the leave of the Circuit Court and upon a refusal with the leave of the Court of Appeal and the Court of Appeal shall have jurisdiction to hear and determine any such appeal. This is the Section that this present application should have been brought pursuant to. However, counsel for the defendant/Applicant, in his application, stated that the present application was being brought under Section 23(1) of the Courts Act. Section 23(1) relates to appeals from the District Court to the High Court and has no bearing on this application. This forms the crux of the respondent’s objection. The Defendant/Applicant impresses on this court to rely on the holding in the Okofoh Estates Ltd v Modern Signs Ltd and Another (supra). The court stated in holding 1 as follows: However, the court would not decline jurisdiction simply because an application had not been headed in what was considered the normal manner. In any case, the maxim de minimis non curat lex remained as applicable today as it had ever been. Since the Supreme Court was a court of last resort, in the absence of specific prescriptions in CI 13 or any other relevant statute, the important consideration was whether the application had any substance regardless of the form in which it had been intituled. Accordingly, the relevant question in the instant case, was whether or not despite the title of the application, the Supreme Court had supervisory jurisdiction under articles 132 and 161 of the Constitution, 1992 and section 55 of the application for an order of certiorari could not in any material manner derogate from the nature of the application itself, the court would not entertain the application. In this case, Akuffo JSC (as he then was), relying on the case of GBOGBOLULU V HODO (1947) 7 WACA 164 reiterated the courts’ duty to ensure that substantial justice is done between the parties and to not let that aim be turned aside by technicalities. The Court is still seized with this duty today as expressed in Order 1 Rule 1(2) of the High Court (Civil Procedure) Rules, 2004 (C.147) which states that These Rules shall be interpreted and applied so as to achieve speedy and effective justice, avoid delays and unnecessary expense, and ensure that as far as possible, all matters in dispute between parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided. Another provision which seeks to facilitate speedy and effective dispensation of justice is Order 81 of C. I 47. Order 81 Rule 1 provides as follows 1. Where, in the beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall not be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgement or order in it. (2) The Court may, on the ground that there has been such a failure as stated in Sub rule (1), and on such terms as to costs or otherwise as it considers just (a) set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgement or order therein; or (b)exercise its powers under these Rules to allow such amendments to be made and to make such order dealing with the proceedings generally as it considers just. The Courts have over the years had the opportunity to pronounce o the scope of order 81`s applicability. In Republic v High court, Accra; Ex parte Allgate Co. Ltd (Amalgamated Bank Ltd Interested Party) [2007-2008] SCGLR 1041, Justice Date Baah, had this to say about Order 81. What is intended to be covered by Order 81 are irregularities, short of situations of want of jurisdiction or infringement of statutes other the High Court rules. Such irregularity is (sic) to nullify automatically the proceedings that follow them. Thus whilst Order 81, r 1 treats non-compliance with the High Court Rules as not nullifying non-compliance proceedings, the rule does not apply to non-compliance which is so fundamental as to go jurisdiction or which is in breach of a statute other than the civil procedure rules. Non- compliance is to be regarded as an irregularity that does not result in nullity, unless the non-compliance is also a breach of the Constitution or of a statute other than the rules of the court or the rules of natural justice or otherwise goes to jurisdiction. Justice Date Baahs statement thus provide guidance on situations under which a breach will be deemed so fundamental that it cannot be remedied by Order 81. These instances are when the irregularity affects the court’s jurisdiction or amounts to a breach of the rules of natural justice or the rules of another statute other than C. I 47. Thus in situations where the irregularity does not fall under any of the categories listed above, the courts are to treat it as a mere irregularity which will not render proceedings null or void. This view was also affirmed in the case of Boakye vrs Tutuyehene[2007-2008] SCGLR 980 where the court stated that The new order 81 of the High Court (Civil Procedure) Rules, 2004 (CI 47), has made it clear that perhaps apart from lack of jurisdiction in its true and strict sense, any other wrong step taken in any legal suit should not have the effect of nullifying the judgement or the proceedings. The current position of the law with regards to the scope and applicability of Order 81 of C.147 is that if the irregularity does not affect the court’s jurisdiction or amount to a breach of the rules of natural justices or the provisions of another statute, the Courts should waive that irregularity as a nullify. A combined reading of the Okofoh Estates case (supra) and, Orders 1 Rule 1(2) and 81 of C. I 47 leads to the conclusion that the misstatement of Section 11(5) of the Courts Act as Section 23(1) is not grave enough to warrant the striking out of the application especially when there is the avenue to amend the motion paper to reflect the correct section. Order 16 of C. I 47 gives parties the opportunity to amend writs, pleadings and other documents in the course of proceedings with or without leave of the court as may be appropriate. This is one of the provisions that aid the court to do speedy and effective justice while avoiding multiplicity of suits. ISSUE 2 Section 11(5) of the Courts Act mandates that a person who intends to appeal against an interlocutory decision of the Circuit Court must seek leave from the Circuit Court. In the vent that the Circuit Court refuses to grant leave, the applicant can repeat the application at the Court of appeal. The application has to prove to the trial court that there is reasonable ground for leave to be granted. Bearing in mind the fact that there is an opportunity for the defendants /Applicants to repeat this application at the Court of Appeal if leave is not granted, and in light of the responsibility of the courts to ensure speedy and effective trial as stated by Order 1 Rule 1 (2) of C. I 47, I hereby grant leave for an appeal against the ruling delivered by the court on 7th July 2022. CONCLUSION I therefore hold that the misstatement of the section under which the application is brought is not grave enough to warrant the application being struck out since Section 11(5) of the Courts Act which clothes the court with jurisdiction to hear this application is in existence and thus fulfills the test set down in the Okofoh Estates case. Furthermore, there is an avenue for the motion paper to be amended to reflect the correct section of the Courts Act. On the issue against of whether leave should be granted for the Applicants/Defendants to appeal against the ruling delivered on the 7th July 2022, I hold that the application for leave is granted. However, the applicant should not go and sleep over it, within 21 working days after the declaring of judgment today 10th October, 2022, the application should be seen to be filed and served at the Court of Appeal and the respondent failure the application will be deemed as abandoned. DECISION Leave granted. H/H. SAMUEL BRIGHT ACQUAH CIRCUIT COURT JUDGE 7