The Republic v. The High Court And Amalgamated Bank Limited Ex Parte: Allgate Company Ltd Civil Motion No. J5/22/2008

Material Facts:

The second respondent instituted an action against the defendant-applicant to recover a debt. The defendant-applicant was served with the writ and it entered appearance. The bank, however, filed a motion for summary judgement (this simply means the court should go ahead and give its judgement without trial because the defendant has no defence to a claim). The motion was fixed for hearing on 18th December, 2007 and the applicant was served with it on Wednesday 12th December, 2007. The application was granted by the High Court.

The applicant contends that there is a mandatory rule of procedure that there should be four clear days between the date of service of the motion for summary judgement and the return date. It contended that since the applicant was served on a Wednesday, 12th December, the fourth clear day was 18th December, 2007 and thus the application should not have been moved on that date. Failing to do that renders the judgement of the High Court null and void.

Issue:

Whether the failure of the second respondent to give notice of its application for summary judgement four clear days before 18 ^th December 2007 renders the judgement of the High Court null.

Holding:

The failure of the defendant is an irregularity that does not result in a nullity of proceedings or the judgement.

Ratio Decidendi:

There is non-compliance with the rule that notice of the application should be served on the defendant not less than four clear days before the day named in the notice for hearing the application (Order 14 Rule 3). There is thus short service in the present case. The question is whether this short service renders the judgement of the High Court null and void.

In the opinion of the court, Order 81 of C.I. 47 makes provisions on the saving of non-compliance with the rules of procedure. The question now is whether the short service can be saved by the invocation of Order 81. In answering this question, the Supreme Court of Ghana, speaking through Date-Bah JSC, said:

Clearly, the language ofOrder 81(1)is intended to prevent non-compliance with the rules of procedure resulting automatically in the invalidity of proceedings. The rule gives the court the discretion to waive the non-compliance or to set aside the proceedings which follow from the non-compliance. In spite of the absolute nature of the statement in Order 81(1) that the non-compliance shall not nullify the non-compliant proceedings, is there still, even after the commencement of the new rules, some non-compliance that will result in the nullity of the proceedings? This is an issue that has to be confronted in this case. Acquah JSC (as he then was) gave an answer to the question posed above, although he was considering the Supreme Court Rules, rather than the new High Court rules. In Frimpong v Nyarko [1999-2000] SCGLR 429 at p. 442 , he said, in relation to non-compliance with a rule of civil procedure that:

“Again where the error is fundamental or goes to the jurisdiction of the court , thereby exposing the court's incompetence or lack of jurisdiction in the matter in which the said error was committed, the court is incompetent to correct or waive such an error, as a court of law has no authority to grant itself jurisdiction in matters where the relevant statute does not confer such power.”

The logical strength of this argument by Justice Acquah is irresistible. His view is buttressed by the similar opinion expressed by the Supreme Court in Oppong v Attorney-General & Ors. [2000] SCGLR 275 . There Atuguba JSC said, in relation to rule 79 of the Supreme Court Rules, 1996 (CI 16), which is broadly similar in purpose to Order 81 (at p. 280):

“The scope of this rule was extensively considered by this court in Republic v High Court, Kumasi; Ex parte Atumfuwa ... reported in [2000] SCGLR 72 ante. There, I said at length that, where the step by a party to proceedings before this court is fundamentally wrong, such error is not within the purview of the rule and cannot be waived. One cannot waive a nullity.”

It is difficult to see how any language in a civil procedure rule can be interpreted to overcome or waive a High Court's actual lack of jurisdiction. That would imply giving the court the right to roam, jurisdictionally, like a mid-field “libero” in footballing terms, unconstrained by the fetters of jurisdiction, doing as it pleases. That is inconceivable and would be potentially unconstitutional! A concept of Order 81 as an omnibus provision that cures deficiencies in jurisdiction is impossible to accept and is unlikely to have been the intent of the Rules of Court Committee.

What is probably intended to be covered by Order 81 are irregularities, short of situations of want of jurisdiction or infringements of statutes other the High Court Rules. Such irregularities are not to nullify automatically the proceedings that follow them. In this connection, it should be pointed out that the word “not” in the clause “the failure shall not be treated as an irregularity” in Order 81(1) is probably an error in drafting or a typographical mistake. A comparison between our Order 81 and Order 2, rule 1 of the Rules of the Supreme Court (Rev. 1965) of England and provisions in pari materia from Canada and Singapore confirms this error. Be that as it may, my interpretation of Order 81(1) is that whilst it treats non-compliance with the High Court rules as not nullifying the non-complying proceedings, this rule does not apply to non-compliance which is so fundamental as to go to jurisdiction or which is in breach of a statute other than the civil procedure rules.

…

To summarise then, where there has been non-compliance with any of the rules contained in the High Court (Civil Procedure) Rules 2004 (CI 47), such 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 Court or the rules of natural justice or otherwise goes to jurisdiction.

In the present case, their lordships are of the view that the short service given to the defendants was a mere irregularity, which does not cause an automatic nullity.

Principle in Case:

General rule: Non-compliance with the rules in C.I. 47 does not automatically result in a nullity of the proceedings or the judgement.

Exceptions: Non-compliance will result in nullity under the following circumstances:

1.If the non-compliance is fundamental as to go to the jurisdiction of the court, as stated in Frimpong v Nyarko [1999-2000] SCGLR 429 at p. 442 .

2. If the non-compliance is also in breach of the constitution or the rules of natural justice.

3. If the non-compliance also violates a statute, the court cannot waive the non-compliance as same would be a nullity, and one cannot waive a nullity.