Attorney General & Another Vrs Nkegbe & Another [2023] GHAHC 194 (8 May 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HO – VOLTA REGION AD – 2023. CORAM: CHARITY A. ASEM (MRS) J. SUIT NO. E11/11/2023 DATE: 8th MAY 2023 1. ATTORNEY GENERAL 2. KETU SOUTH MUNICIPAL PLAINTIFFS/RESPONDENTS ASSEMBLY AFLAO VRS. 1. COMFORT NKEGBE BUNGALOW NO. A. 15, AFLAO DEFENDANTS/APPELLANT 2. MAJEED TETTEH BUNGALOW NO. A15, AFLAO JUDGMENT This is an appeal from the decision of the District Magistrate sitting at the District Court, Aflao delivered on the 19/08/2022. In the Notice of Appeal filed on the 29/9/2022 the respondent has attacked the Ruling of the District Court on the following four (4) grounds of Appeal. Pages 16 and 17 of the record of Appeal. a. The ruling is manifestly against the weight of overwhelming evidence on record. b. The Learned trial Magistrate was harsh and failed to give fair hearing to the respondents/appellants when they informed the Magistrate that they have a lawyer to represent them. c. The Magistrate erred in law for not giving the opportunity to the Respondents/Appellants to put their case across resulting in miscarriage of justice. d. Further or other grounds of appeal will be filed upon receipt of certified true copy of the record of appeal. On the 04/04/2023, Counsel for the Respondent/Appellant without the leave of the court filed one (1) additional ground of appeal; 1. That the jurisdiction of the trial court has not been property invoked. It is trite learning that, Appeals from District Court to the High Court is regulated by Order 51 of C. I. 47 of the High Court Civil Procedure Rules of 2004. And I will like to deal with the additional ground of appeal filed without the leave of the court presently. The said provision per Order 51 Rule 2(5) states as follows; “The appellant shall not without leave of the court rely on any ground of appeal not stated in the notice of Appeal.” The counsel for appellant caused to be filed a written submission on the 17/04/2023 where he digested the additional ground of appeal. Per the additional grounds filed without the leave of the court Counsel prayed the court to declare the whole proceedings before the Magistrate Court Aflao void ab initio. It is the law that where a statute establishes a condition to be satisfied before a court can assume jurisdiction failure to comply with the condition deprives the court the right to assume jurisdiction and make any order(s). In the case of STEPHEN OBENG YEBOAH & 1 OR. V. NANA APRAKU MENSAH (2019) GMJ page 92@ 100 CA decided that, “We concede that per rule 8(8) of the court of appeal rules as amended C I 19, the plaintiff required leave of this court to be able to amend his grounds of appeal to include additional grounds……” Now, no notice was made by way of motion to amend and or file additional grounds of appeal. The failure by counsel to seek leave to argue additional grounds of Appeal under Order 51 Rule 5 is fundamental and goes against both substantive and procedural law. In my considered view on the above point, the position of the law is unequivocal and does not need any further elucidation from the court. In recent times, the courts have adopted a liberal position in its decisions to the effect that appeals shall not be confined to the grounds set out by the appellant but the court shall not rest its decisions on the grounds not set out by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground. I will therefore hesitate to simply strict out the additional grounds filed without leave of the court. This was the take of their lordships in the Stephen Obeng v. Yeboah &1 Or (supra). It is noted from the submission made by counsel for the state that though not put on notice, he aptly responded to the said ground of appeal. I will proceed to deal with additional ground firstly – That the jurisdiction of the trial court has not been properly invoked. The additional grounds of appeal is concerned with the procedure used to invoke the jurisdiction of the Rent Magistrate whose decision is under attack. Counsel for appellant argued that, the respondent should have issued a writ of summons and describe the parties as plaintiff and defendant. Indeed, unlike the rules of the High Court which are superior court are interpreted strictly. That of the District Court under C I. 59 as amended are interpreted leniently to ensure speedy, effective justice without delays and above all unnecessary expense. Having carefully evaluated the submissions made by both learned lawyers on that ground, I turn to agree with counsel for the republic that on the 19th August 2022 when the application for ejectment was put before court, the trial District Magistrate was sitting as a rent Magistrate in accordance with the provisions of the Rent Act 1963, Act 220. Please see sections 36 of Act 220 on the interpretation of what a rent officer and a rent Magistrate is. Lastly on this point, section 7 of the rent Act, Act 220 provides as follows; “Subject to this Act and Regulations, a District Magistrate functioning as a rent Magistrate for the purposes of this Act shall have the same powers and observe the same procedure as a District Magistrate has and observe in the exercise of the ordinary jurisdiction of that Magistrate.” In view of the above provision therefore, I found as a fact that the process of originating motion was with the rules. The assemblage of the legal constraints which invoked the instant appeal are necessary at this point. I will reproduce same nearly as it appears from the record before me. The Applicant/Respondents are the Attorney General and the Ketu South Municipal Assembly. The dispute is about a government property, known as Bungalow No. 15. The 1st Appellant, Comfort Nkegbe is said to have worked as a Civil Servant for the Government of Ghana and in the course of her duties she was allocated property No. 15 at Aflao as a duty post accommodation. It is undeniable fact that 1st respondent/appellant retired from government services over seven (7) years ago but continue to occupy the property. It is the case of the Government that, 1st appellant has relocated to somewhere in Accra but put her grandchildren in the property. The 2nd respondent/appellant is the said grandson. According to Applicant/respondent several attempts to plea with them to vacate the said bungalow for the State have been met with fierce and forceful resistance from these occupants. Strangely, the occupants rather insist on buying the property from the State. Though she was informed the State was not interested in selling the property, she insists on buying it at all cost. According to the applicant/respondents some time last year the government re-allocated the property to the Ministry of Gender and Social protection to be used as a temporary shelter for rescued children who are victims of Human Trafficking. That the sector has received funding from Expertise France, an NGO to assist in rehabilitation of the property. According to the respondents, the government stands to lose the funds if the project was not completed within a scheduled time. That the above information was brought to the attention of the appellants herein so as to see the need to vacate the property. They still refused. The Applicant/Respondents then on the 15/08/2022 applied to the District Court Aflao for an order for ejectment of the appellants from the property. They invoked the jurisdiction of the District Court pursuant to Section 47(1)(d) of the Courts Act, Act 1993 (Act 459) and Section 6(1)(b) of the Rent Act, 1963 (Act 220). The appellants were duly served to appear at the District Court. Evidence of proof of service at page 26 of the record of appeal. On the 19/08/2022, the District Court heard the matter and ordered the appellants to vacate bungalow No. 15 Aflao. At the hearing of the case, appellants appealed to the Magistrate once more, their desire to purchase the government property. The court was clear in its orders that the State has need for the property and it was not for sale. The reason given by the appellants to purchase the property from the State is because they have lived in the property for so long. At the hearing, appellants informed the court that they had engaged a lawyer to prosecute the case on their behalf. The trial Magistrate found no record of a lawyer before him. After giving the appellants thorough hearing he accordingly ordered the appellants to vacate the property on or before the end of September 2022. According to the respondents, the order by the court, granting almost two months to the appellants to vacate and give up vacant possession was used to convince the NGO not to withdrew the fund. Magnanimously, the NGO extended the time for completion of the project to Gender and Social Protection to end of May 2023 as the last opportunity to complete work else the money will be returned to chest. About few days left to vacate the property, the appellants engaged the services of Emile Atsu Agbakpe Esq. as Counsel. He filed a Notice of appointment as a lawyer (see page 25 of the record of Appeal). He subsequently filed a Notice of Appeal and a Motion on Notice for Stay of execution of the ruling of the trial Magistrate. From the record before the Court the Motion on Notice for Stay of Execution pending Appeal was presented to the filing clerk at the District Court Aflao who received and stamped same. The motion conspicuously is Headed; In the Superior Court of Judicature In the High Court of Justice Ho. A. D. 2023. Yet filed at District Court Aflao. The motion found its way unto the court’s docket at the High Court without a return date (See page 5 of the record of Appeal). For the above reasons the appeal was in limbo until 29/03/2023 when Counsel for respondents caused the case to be listed for hearing of a non-existent motion. In my view the overall effect of this lapse on the part of the appellants and counsel to fix a date for hearing of the motion poses an intentional and eminent attempt to delay for which the court rightfully intervene by ordering the parties to file written legal submissions since the Appeal has been put before the High Court for hearing. The above directives were complied with. From the submissions filed on the 17/04/2023, Counsel for appellants has abandoned ground ‘A’ of the original grounds of appeal. He however prayed to argue ground B and C together, and the additional ground filed without leave of the court. I will produce the said two grounds B and C below; (b) The Learned trial Magistrate was harsh and failed to give fair hearing to the respondents/appellants when they informed the Magistrate that they have a lawyer to represent them. (c) The Magistrate erred in law for not giving the opportunity to the respondents/appellants to put their case across resulting in miscarriage of Justice. Candidly the above two grounds of appeal mean one and same. So, arguing the above grounds of appeal together counsel for appellant said that, the whole procedure that took place on the 19th August 2021, fairness and the rules of Natural justice has been sacrificed on the altar of desperation because the Attorney General and the Municipal Assembly are involved. He argued that the appellants were not given ample time to defend their case. He posed the following questions; - Whether the trial Magistrate was fair to the appellants. - Was the trial Magistrate candid to the appellants? - Has a discretional power not been arbitrarily used. On the 19/8/2022 when the 1st respondent/appellant appeared in response to the court’s summons, he acknowledged service of the summons/Motion and service on them. It is contended on their behalf that; the court did not give them fair hearing because they did not receive a three (3) clear days to respond to the summons. Counsel continued that though the appellant told the court that they had a lawyer it was ignored by the court leading to miscarriage of justice. So was the trial Magistrate fair to the appellants. I am aware that generally a court has no jurisdiction to proceed against a party who has not been served with a court process. Service invokes the jurisdiction of the court. See Barclays bank of Ghana Ltd. Vs Ghana Cable Co. Ltd. (1998-99) SCGLR page 1. Having reviewed the record, the jurisdiction to hear the case was invoked when the court was satisfied that the appellants were served and so appeared. Talking about fairness, has the appellants been fair to the State. Having occupied a property which does not belong to them for seven (7) years after retirement from government service? Filing an appeal, a day to when they were required to vacate the premises, filing a Motion on Notice for Stay of Execution in disguise without a date stalling the appeal processes for several months? The appellants should not be heard to complain of fairness in view of their attitude stated above. From perusal of the record of appeal, this court noticed that the trial Magistrate was fair in demonstrating professional character. He was patient with these disgruntled appellants by taking them through the process as required when a party is not represented by a lawyer at the District Court. It is a fact that as at time the matter was put before the Magistrate, he had jurisdiction to deal with the matter. May I remind the appellants and Counsel that the presence of a lawyer or his absence will not take away the sole discretionary power of the judge to determine the matter in a manner that he deem fit within the ambit of the law. The courts exist to do justice to all people who appear before it. It is the duty of the courts to aim at doing substantial justice between parties and not to let the aim be turned aside by technicalities. Hodo Vs Gbogbolulu (1941) 7 WACA 164. A party in litigation does not need the leave of the court to appoint a lawyer of his choice. He also does not need the leave of the court to change his solicitor. See Republic vs High Court Koforidua & Anor. Exparte Ohene (1995-96) GLR 1. However, a party whose lawyer withdraws representation in his absence, the procedure is, he must be notified. See Takoradi Timber Ltd. vs. Amuah (1981) part II at 1142. Therefore, if a party is desirous to engage the services of a lawyer, he does so promptly. That is, when the matter is for hearing. May I add that the matter at hand did not fall within category of cases where the court must appoint a lawyer for the appellants under the rules of court. Above all the statement by the appellant that he has a lawyer was not a defence to be considered in response to the claims of the respondent herein. And with all due respect to learned counsel for respondent/appellant, I think it is very simplistic a view to argue that once the respondent/appellant told the court he had a lawyer, all other proceedings in absence of the lawyer amounted to miscarriage of justice. Amongst the 3 issues raised by Counsel for the court’s determination, the 3rd is the most fiscal of all. First of all, the property under consideration is the property of the State. From the proceedings of 19/08/2022, appellant has not stated any legal right in the property No. 15, Aflao. When he appeared before the trial Magistrate, his plea was that, he be given the option of purchasing the bungalow No. 15. The Magistrate in clear words stated that, the State is not interested in selling. Please see page 9 of the record of proceedings. And I reproduce the interactions between the court and the appellant on the faithful day as follows; 1st Respondent: My lord I have a lawyer Court: where is the lawyer, because there is nothing on record to show that you have engaged a counsel. 1s respondent: My lord I have proposed to the Assembly to buy because I have stayed in the building for so long. Court: Yes, that is a proposal and the Assembly has indicated they are not selling the bungalow, they are allowing the premises to the ministry of Gender and child protection to be used as state shelter. Is that why you said you wanted to engage the lawyer? Respondent: Yes my lord. They ought to give me first option. Court: But they are not selling it yet. Respondent: Then my Lord, tell them if they are selling it in later, they should notify me. The above is the full representation of what took place before the trial court on the 19/08/2022. The above interaction amounts to full hearing of respondent appellants defence to the respondent’s claim on the endorsement. It beats my imagination when counsel for appellant described the proceedings above as amounting to miscarriage of justice. Miscarriage of justice as defined in Black’s Law Dictionary is a grossly unfair outcome in a judicial proceeding. Now the averments made by the respondents were not denied per the court’s record, and once not denied no issues were joined and so their unlawful occupation of the property has been admitted. And so, the statement made by the appellant that he has a lawyer is not an answer to the claim before the court to admit any adjournment as there would have been nothing for trial by the court. Besides the trial Magistrate gave the appellants enough time to prepare and vacate the building. CONCLUSION After careful and thorough examination and review of all the submissions made from both learned lawyers on behalf of their clients, I find no merit in the case of the appellant deserving of any positive remarks from this court. In fact, the claim of the appellant does not make common sense worthy of pursuit. And I hold the view that Counsel for appellant ought to exhibit condor even when the truth is unpleasant. Appellants have not demonstrated any legal right in the said government bungalow, neither have they paid rent to the 2nd respondent for the past seven years. I described the claims of the appellants by a funny but sensible African proverb thus; “The hardest thing is to find a black cat in a dark room especially if there is no cat.” Turing my attention to the 2nd respondent, they have themselves to blame having turned an open blind eye to their statutory duty when 1st appellant retired seven long years ago, for allowing the appellants to become contumacious, thus willfully disobedient to authority. Be that as it may, considering the present appeal before this court, there is nothing on record to show that the appellants pleaded not liable to the respondents claim for which reason the trial Magistrate was obligated to adjourn for trial. Counsel for appellant has also failed to point out the legal lapses convincingly from the decision of the trial Magistrate. Flowing from the above discussions therefore, I will without hesitation dismiss the appeal in limini for lack of merit, as a much ado about nothing. The decision of the District Magistrate Aflao dated on 19/08/2022 is hereby affirmed. The appellant is to be ejected from bungalow No. 15 Aflao immediately. This is to pave way for the renovation works to commence in order that the State does not lose the funds extended to it. Due to the special circumstances of this case, I direct the Registrar of this court High Court Ho, to take steps to execute the orders of this court. Order 51 r 1(1) of C I 47 which provides as follows; Any judgement given or order made by the court may be enforced by the court or by the court below as the court may direct. There shall be cost of GH¢2,000.00 against the Respondent/Appellant in favour of the Applicant/Respondent. (SGD.) CHARITY A. ASEM (MRS) (JUSTICE OF THE HIGH COURT) PARTIES: 1st and 2nd Plaintiffs/Respondents – Present. 1st Defendant/Appellant– Absent. 2nd Defendant/Appellant – Present. LEGAL REPRESENTATION. Lawyer Joseph Opusuma (ASA) for the Plaintiffs/Respondents– Present. E. A. Agbakpe for the Defendants/Appellants– Absent. jd* 13