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WELBOURNE, JA
This instant action is an appeal against the ruling or decision of the High Court Sunyani, delivered on the 5th day of November, 2018.
By the said ruling, the learned trial Judge stated as follows:-
“In view of the fact that the affidavit ought to have been commissioned by the Registrar and which was not done, I will take it that it was a mistake from the Registry especially taking into account that the Registrar subsequently commissioned Plaintiff’s copy. In the circumstance I will accept the affidavit and hold that it is hereby regularized. I do so taking into account that no useful purposes will be served if it is struck out only for the Claimant to come back, which will only work to further delay the hearing of the matter. The order for the Claimant to file the Writ stands.”
Aggrieved by this ruling the Plaintiff has appealed to this Honourable Court on the grounds set out below:
GROUNDS OF APPEAL
i. That the Claimant and his lawyer, Charles Bawaduah Esq. did not address the court or moved the court in respect of the un-commissioned affidavits of interest filed on the 19th April, 2018.
ii. The Plaintiff argued in his Affidavit in Opposition and moved the court on the 5th of November 2018 that Order 20 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) Sub rule 2 and 14 talks about commissioning of Affidavit and Certificate of Identification which the Claimant, Jacob Agongo did not comply and I pray to the court to dismiss their Affidavit of Interest but surprisingly the Judge refused my prayer and suo muto regularized the un-commissioned Affidavit of Interest and Certificate of Identification.
iii. That the Judge ruled again that it was the fault of the Registrar of the High Court Sunyani which is never correct because respectfully it is not the duty of the Registrar to be inviting people or making sure that Affidavits of Interest and Certificates of Identification are commissioned.
BRIEF FACTS
A brief background to this case is that the Plaintiff who did not seek legal representation and hence represented himself initiated this action at the High Court, Sunyani against the Defendants for the following reliefs:-
a. An order of the court compelling the Defendants to release the forty (40) tricycles which the Plaintiff bought from the 4th Defendant.
Or in the alternative, recovery of an amount of One Hundred and Sixty Thousand Ghana Cedis(GH₵60,000.00) being the cost of the forty (40) tricycle motors.
b. Recovery of an amount of Fifty Thousand Ghana Cedis (GH₵50,000.00) from the 4th Defendant which the 4th Defendant took from the Plaintiff to be given to the Prosecutor as prosecution fee and also used same for transportation.
c. Interest of the amount mentioned in the reliefs (a) and (b) supra at the current bank rate from January 2015 till the final day of payment.
d. Cost.
The Plaintiff’s case was that on the 21st of January, 2015 he bought forty tricycle motors from the 4th Defendant and paid an amount of One Hundred and Sixty Thousand Ghana Cedis (GH₵160,000.00) to the 4th Defendant through its lawful agent, one Mr. Kojo Adjei alias Cocaine. He further averred that the 4th Defendant refused to supply him the said tri cycles upon several demands. He stated that the 4th Defendant informed him that it had encountered certain problems with his business partner and as a result the case was pending before the Police and the Attorney General in Wenchi. He further stated that the 4th Defendant then demanded an additional Fifty Thousand Ghana Cedis (GH₵50,000.00) as financial assistance to be given to the Prosecutor as prosecution fees and some would be used for the transportation. Plaintiff further stated that upon enquiry the 4th Defendant told him that the 1st, 2nd and 3rd Defendants have impounded the tri-cycles and that all attempts to retrieve either the forty (40) motor tri cycles or a refund have proved futile.
However, on the 23rd of November, 2017, His Lordship Justice Patrick Baayeh dismissed the action against the 1st, 2nd and 3rd Defendants as the action disclosed no reasonable cause of action and awarded cost of Six Hundred Ghana Cedis (GH₵600.00) each for them. The court then entered judgment in default of appearance against the 4th Defendant and for the reliefs sought by the Plaintiff. Cost of Two Thousand Ghana Cedis (GH₵2,000.00) for the Plaintiff against the 4th Defendant was also awarded.
On the 28th of November, 2017 the Plaintiff filed an entry of judgment against the 4th Defendant for the amount of Three Hundred and Eighty-Three Thousand Five Hundred Ghana (GH₵383, 500.00). He then entered into execution and filed a writ of fieri facias against the 4th Defendant. He further attached all Four Hundred and Forty-One (441) motor cycles at Techiman and Wenchi Police station and applied to the court for an interim preservation order, restraining the Police from releasing the motor cycles which belonged to the 4th Defendant or his agents as the motor bikes were in the custody of the Police at Techiman.
One Jacob Agongo, filed an application to be joined to the suit as a 5th Defendant. He claimed to be a businessman dealing in the importation, distribution and sales of motor bicycles and tricycles and their parts. He submitted that he entered into a business arrangement with a Togolese National by name Emile Meto, and the said Emile Meto supplied him with motor bicycles for sale on commission basis. He was thus supplied with the motors by Emile Meto upon which when the bikes were sold the proceeds would be paid into Meto’s account. Emile Meto in the course of their business made a report to the Wenchi Police that he Jacob Agongo had failed to properly account for the sale of his bikes. He further stated that the matter was amicably resolved.
On 31st March, 2015 one Kojo Adjei purporting to act by a Power of Attorney for the said Meto caused his solicitors to write to him claiming recovery of 441 motor bikes. He responded through his lawyers and denied liability for any 441 motor bikes as same had been sold and the proceeds deposited into the account of the said Emile Meto. He further submitted that the Wenchi Police without a warrant and court order entered into his shop at Techiman and took away 21 bikes and motor parts to the Techiman Police station and the items have since been kept there since August 2015. Also the 21 bikes and parts which the Plaintiff claims belong to the 4th Defendant is his and that he has never dealt with the Plaintiff. He also submitted that he was arraigned before the High court by the Police and the Attorney General on charges of fraudulent breach of trust but he was discharged on the 23rd of November 2017. As a result he was about to reclaim his goods from the Police when he was informed that a preservation order had been made. He therefore prayed the court to join him to the suit so that he could claim rightful ownership of the goods.
The Plaintiff denied the averments and opposed the joinder application by Jacob Agongo. The court then ordered the said Kojo Adjei who claimed to have a Power of Attorney from Emile Meto to appear in court. Kojo Adjei claimed to be one of 3 directors of the 4th Defendant Company and that Emile Meto was the owner of the 4th Defendant Company. He admitted that Jacob Agongo entered into an agreement with the company to sell bikes but embezzled monies belonging to Emile Meto and was subsequently arrested. The Police took custody of 441 bikes from Jacob Agongo. He was thus issued with a Power of Attorney by Emile Meto to collect and sell the motor bikes which he sold to the Plaintiff but the bikes were not released to him since the Police claimed they had arraigned Jacob Agongo before court.
Counsel for Jacob Agongo denied this and said that his Client had sold the 441 bikes and paid the money into the account of Emile Meto. What was left were spare parts and a few motor bikes. He further informed the court that he had withdrawn the joinder application and filed a notice of claim. This was granted by the court and he was ordered to file his Affidavit of Interest within 8 days.
Counsel for Jacob Agongo filed his Affidavit of Interest and contended that he owned the items in the custody of the Police and that Kojo Agyei has procured a fictitious Power of Attorney from Emile Meto and had conspired with the Plaintiff to claim ownership of the bikes. He further submitted that the Plaintiff had not paid any monies for the supply of motor bikes to him.
Plaintiff in response in an affidavit in opposition strongly opposed the Affidavit of Interest of the Claimant, Jacob Agongo. He further claimed that the Affidavit of Interest should be dismissed since it has not been commissioned and offends order 20 rule 2 of CI 47.
The court then made an order under order 48 rule 7 of CI 47 for the Claimant to issue a Writ of Summons as a Plaintiff against the Defendant now as Defendant and the writ should be issued within 14 days. The case was to take its normal course after. The Plaintiff at this stage raised an objection and stated that since the Affidavit of Interest by the Claimant had not been commissioned then it should be struck out. This request was rejected by the court. It is against this ruling that the Plaintiff has appealed to this court.
In his written submission filed on the 12 of February 2012, the Plaintiff submits that the Claimant has abused the court process by filing frivolous processes in order to frustrate him. Also the bane of his argument is that the Affidavit of Interest filed on the 19th of April 2018 by the Claimant was not commissioned as required by law and it was wrong for the trial Judge to rule that it was a mistake of the court Registrar who did not commission the Affidavit of Interest because they never presented it to the court Registrar for commissioning so blame cannot be put at the doorsteps of the court Registrar. Also as order 20 rule 2 has not been complied with through the fault of the Claimant it should be struck out as null and void and the ruling of the trial Judge set aside in the interest of fairness.
In this appeal, the Plaintiff/Appellant is hereinafter referred to as the Appellant while the Defendants are hereinafter remained as the Defendants and the Claimant/Respondent hereinafter referred to as the Respondent. The Record of Appeal is hereinafter refers to as ROA. The Court Note (Ruling) of the trial Court can be found at pages 144-145 of the ROA, while the Notice of Appeal spans from pages 149-151 of the ROA.
CONSIDERATION:
To begin with, Rule 8 of the Court of Appeal Rules (1997) CI. 19 provides that:
“An appeal to the court shall be by way of rehearing and shall be brought by a notice of appeal”
Again, in the case of Agyeiwaa v. P and T Corporation (2007-08) SCGLR 968 @ 989, the Supreme Court speaking through Her Ladyship, Georgina Wood, CJ (as she then was)stated inter alia that:
“The well-established rule of law is that an appeal is by way of rehearing and an appellate court is therefore entitled to look at the entire evidence and come to proper conclusions on both the facts and the law.”
GROUND ONE (i): That the Claimant and his lawyer, Charles Bawaduah Esq. did not address the court or moved the court in respect of the un-commissioned affidavits of interest filed on the 19th April, 2018.
The Appellant herein in his Written Submission at page 2, paragraph 10 submits as follows:
“That respectfully, my Lords the Affidavit of interest that was not commissioned as by law required filed on the 9th April 2018 of which there is a Court stamp as certify true copy proofs that indeed it was not commissioned being copy for service, the Claimants own copy or the Court copy by the Claimant and his Lawyer was exhibited as Exhibit “B” attach to my affidavit in opposition and same can be seen at pages 122-128.”
The Appellant further submits at paragraph 11 of his Written Submission at the same page that:
“That I indicated at paragraph 6, 7 and 8 of my Affidavit in opposition filed on the 8th May, 2018 and I attach exhibits to it saying that the affidavit of interest and the attach exhibit and certificate of identification wasn’t commissioned by any one and same should be dismissed. Respectfully my Lords this can be seen at pages 91-101 of which the registrar commissioned all exhibits including my Affidavit in opposition.”
Again, at paragraph 12 of his Written Submission on pages 2 and 3 the Appellant herein argues that:
“THAT IT IS MY CASE THAT ONCE THE AFFIDAVIT OF INTEREST FILED ON THE 19TH OF APRIL 2018 WHICH WAS NOT COMMISSIONED TOGETHER WITH ALL EXHIBITS AND CERTIFICATES OF IDENTIFICATION, IT WAS WRONG FOR THE JUDGE TO RULE THAT IT WAS THE MISTAKE OF THE COURT REGISTRAR WHO DID NOT COMMISSION THE AFFIDAVIT OF INTEREST BECAUSE THEY NEVER TOOK IT TO THE COURT REGISTRAR FOR COMMISSIONING SO WHAT IS THE FAULT OF THE REGISTRAR RESPECTFULLY MY LORDS.”
In their response to the above submissions made by the Appellant, the Respondent as per his Counsel argues at page 4, paragraph 5 that:
“The Claimant filed a notice of claim and subsequently filed an affidavit of interest. On 5th November, 2018 the Court heard the interpleader and ordered the Claimant to issue a Writ against the Plaintiff, which the Claimant has since done and the matter is pending at the High Court, Sunyani. The ruling of the Court on the Interpleader Application can be found at page 144 of the Record of Appeal. When the Honourable Court ordered the Claimant to issue a Writ, the Plaintiff raised the issue that the Affidavit of Interest was not commissioned to which the Claimant responded that the Claimant’s copy had been commissioned by the Registrar of the Court and if the Court’s copy and that of the Plaintiff’s were not commissioned, then it clearly was a mistake from the registry of the Court. My Lord, there upon the Court regularized the affidavit and maintained its earlier order that the Claimant should issue a Writ against the Plaintiff/Appellant. It is against the ruling of the Court particularly regularizing the affidavit of interest that the Appellant has filed this Appeal.”
Again, at pages 5-6, paragraph 5 thereon, of his Written Submission, Counsel for the Respondent submits in rebuttal to the Appellant’s above submission as follows:
“My Lord it is submitted, that the court did not err at all in accepting or admitting the affidavit notwithstanding the alleged defect in the affidavit. The Court had a duty to do justice and to ensure that the actual issues in contention are resolved. The Court also had a discretion in that regard. It is provided under Order 20 Rule 7 of C.I. 47 that;
“An affidavit may with leave of Court be filed or used in evidence notwithstanding any irregularity in its form.”
It is submitted that this gives the Court the discretion to decide on whether or not the Respondent used a defective affidavit. The Court had a duty to ensure speedy and effective justice as required under Order 1 rule 1 (2) of C.I. 47 which provides that:
Order 1 rule 1 (2);-
“These rules shall be interpreted and applied so as to achieve speedy and effective justice, avoid delays and unnecessary expense, and ensure that as possible, all matters in dispute between parties may be completely, effectively and finally determined and multiplicity of proceedings any of such matters avoided.”
It is further submitted by the Respondent per his Counsel that:
“Again, Order 81 of C.I. 47 grants the Courts authority to cure defects in Court processes.”
Counsel for the Respondent herein therefore impressed upon this Court to dismiss this instant appeal as same according to him is unmeritorious.
It is trite law that, where findings were based on established facts, the appellate court was in the same position as the trial court to draw its own inferences from the established facts. See Oppong Kofi and Ors v. Atibrukusu III [2011] 1 SCGLR 176.
Upon critical examination of the entire ROA as well as the various Written Submissions of the Appellant (representing himself) as well as the learned Counsel for the Respondent, this Court agrees with the learned trial Judge as well as the Respondent herein that, since the copy of the Affidavit of Interest filed by the Respondent herein is certified and this was not disputed by the Appellant herein, the learned High Court Judge was right to hold that it was the fault of the Registrar for not indorsing or commissioning the respective copies of both the Appellant and the Court.
Again, the Constitution gave discretionary power to persons in authority to be exercised fairly and judiciously. In our view, the trial Judge was again right by exercising his discretionary power given to him by law to regularize the defective Affidavit of Interest to be regular so as not to delay the trial of the matter and also to rather deal with the matter on its merit.
Further, we are of the opinion that, Order 20 rule 7 of C.I.47 (supra), which is captioned as, “Use of defective affidavit”, gives discretionary power to the learned trial High Court Judge to regularize for the court’s usage a defective affidavit as in the instant case. See Article 296 of the 1992 Constitution of Ghana.
In the case of Republic v. High Court, Kumasi Ex Parte Atumfuwa and Another [2000] SCGLR 72 at 80, when the Supreme Court was confronted with similar circumstance as in the instant case it held dismissing the application for review by majority decision of six (6) to one (1) for the following reasons:
“It is clear from the language of rules 72 of the Supreme Court Rules, 1996 (CI 16), that non-compliance with any rule in CI 16, like the instant one of failing to file a sworn affidavit, is a bar to further prosecution of the proceedings except where the court decides to waive the said non-compliance ...... Thus in each case of non-compliance of whatever degree and nature, the decision to waive or not would lie with the court. And since this is an exercise of the court’s discretion, it would naturally take into consideration the circumstances surrounding the inability to comply with the particular rule in question, the nature of the non-compliance and other relevant factors necessary to enable a fair and judicious exercise of that discretion. Each non-compliance should be decided in accordance with its own peculiar circumstances. Thus, the fact that in a particular situation, the court refused to waive the non-compliance with any rule of practice or procedure, does not mean that in another situation based on different circumstances, the court could refuse to waive non-compliance with any rule of practice of procedure”
Further, the court per Atuguba JSC, also concurring in dismissing the application on different grounds:
“Principles relating to rule 76 of CI 16 ....... Thus:
i. Where the proceeding suffer from a fundamental defect they are not within the purview of rule 79 and cannot be waived, though such instances may very rarely occur:
ii. Where the proceedings suffer from curable defect then non-compliance with any of the rules can be waived at the discretion of the court...;
iii. Where the defect in procedure can be waived, the waiver may take the form of ignoring the defect simplicita and continuing with the proceeding...;
iv. The waiver may also take the form of allowing the defaulting party to remedy the defect by filing the requisite process ...; and
v. It may also take the form of amendment.
Applying the above principles to the present case, it cannot be said that the absence of a properly sworn supporting affidavit is so fundamental that the application may be said not to have been commenced at all.”
See also the case of Amoakoh v. Hansen [1987-88] 2 GLR 26 at 37, where Taylor JSC (as he then was) held inter alia that:
“... But the point as here is that, the decision that a particular non-compliance goes to the root of the action and thereby renders the proceedings a nullity, is that of the court and not the party to the action. And the court arrives at such a decision after considering all the relevant facts, statutory rules and the surrounding circumstances, and when it is satisfied, declares the same void.”
It is our view again that the combined effect of the overriding principle of civil litigation as stated under Order 1 rule 1(2) which provides for speedy and effective justice, avoidance of delays and unnecessary expense....completely, effectively and finally avoidance of multiplicity of suits; as well as Order 81 of C.I. 47 which provides for non-compliance with Rules not to render proceedings void, the learned trial Judge is again right and has not erred when he regularized the defective Affidavit of Interest as filed by the Respondent herein and which is the subject matter for the instant appeal.
In the case of The Registered Trustees of The Catholic Church v. Buildaf Ltd and 2 Ors (Civil Appeal NO.J4/30/2014) (25th June, 2015) Unreported, the Supreme Court held that in the circumstances where a party fails to particularize, such a flaw can be cured by Order 81 of C.I. 47.
Therefore flowing from the above analysis, this ground of appeal is dismissed.
GROUND TWO (ii): The Plaintiff argued in his Affidavit in Opposition and moved the court on the 5th of November 2018 that Order 20 of the C.I. 47 Sub rule 2 and 14 talks about commissioning of Affidavit and Certificate of Identification which the Claimant, Jacob Agongo did not comply and I pray to the court to dismiss their Affidavit of Interest but surprisingly the Judge refused my prayer and suo motu regularized the un-commissioned Affidavit of Interest and Certificate of Identification.
On this ground of appeal, it is the case of the Appellant herein that, per Order 20 of the C.I. 47 Sub rule 2 and 14 of C.I. 47, the learned trial Judge ought to have dismissed the Affidavit of Interest of the Respondent herein on the basis that same sinned against the above quoted provision of the High Court Rules, C.I. 47 but surprisingly the Judge suo motu regularized the un-commissioned Affidavit of Interest.
On their part, Counsel for the Respondent argues on the contrary that at page 5, paragraph 5 of their Written Submission that per Order 20 rule 7 of the same C.I. 47 as relied on by the Appellant herein, the trial Judge had rightly exercised his discretionary power under the law to regularize same.
We hold the view therefore that the High Court Judge was right in doing so.
This ground of appeal is refused accordingly.
GROUND THREE (iii): That the Judge ruled again that it was the fault of the Registrar of the High Court Sunyani which is never correct because respectfully it is not the duty of the Registrar to be inviting people or making sure that Affidavits of Interest and Certificates of Identification are commissioned.
Under this leg of appeal, the Appellant’s case is that, it is not the duty of the Registrar of the Court to invite people or to make sure that Affidavit of Interest and Certificates of Identification are commissioned and on that basis, the ruling of the trial Judge was in error.
In their response, the Respondent per his Counsel submits at page 4, paragraph 5 of their Written Submission that, since the Respondent’s copy of same had been commissioned by the Registrar of the Court and if the Court’s copy and the Plaintiff’s Copy were not commissioned, then it clearly was a mistake from the registry of the Court and the Judge was right to regularize same and subsequently maintained an earlier order of the Court that the Respondent herein should issue a Writ against the Appellant herein.
This Court is of the opinion and accordingly hold that the learned trial Judge did not err in ruling the way it did. We accordingly refuse this ground of appeal.
CONCLUSION
Upon thorough scrutiny of the ROA and all the Written Submissions attached and filed by both parties to this appeal, this Court is of the view that the Ruling of the trial High Court is apt and same must not be disturbed. The case should be tried on merit and no party should hide under the cloak of technicality to truncate justice and fairness. Again, in order to achieve speedy adjudication of the matter and to avoid multiplicity of same, the trial Judge was right to have the Affidavit of Interest regularized as permitted under the law. We therefore uphold the order directed at the Respondent on 5th November, 2018 by the trial High Court to issue a Writ of Summons against the Appellant herein so that the case would take its normal cause and for same to be determined once and for all on its merit. See the case of Adomako Anane v. Owusu Agyemang [Subs. By Nana Banahene] and 8 Others, Civil Appeal No. J4/42/2013, Dated 26th February, 2014.
Also, in the case of Addae Aikins v. Daniel Dankwa, Civil Appeal No. J4/24/2014, Unreported Judgment and same delivered on 28th May, 2014, Atuguba JSC said in passing that:
“A Court has power to uphold but not to pervert justice.”
We therefore dismiss the appeal in its entirety and we so hold. Costs of GH¢3,000.00 to Claimant/Respondent against Plaintiff/Appellant.