LAW TIP
Failure to comply with mandatory procedural rules can invalidate the entire court proceedings. Courts have the power to set aside such proceedings in their entirety when they arise from improper procedures. AGYARKWA v FOLAGIN & 4 Ors (J4/58/2019) (11 March 2020)
QUOTE FROM JUDGEMENT
“The procedure adopted by the Defendant in this case being fundamentally flawed, the decision of 22nd July 2011 purporting to set aside the judgment of 8th June 2010 is a nullity. That being the case all the subsequent proceedings are also null and void. As was stated by Lord Denning M.R. in Macfoy v. United Africa Co Ltd. [1961] 3 All E.R 1169; “If an act is void then it is in law a nullity. It is not only bad but incurably bad. It is automatically null and void without much ado…. And every proceeding which is founded on it is also incurably bad. You cannot put something on nothing and expect it to stay there, it will collapse”. This Court has affirmed this position in a long line of cases including Republic v. High Court, Accra; Ex parte Atumfuwa Kwadwo Bi & Anor [20001 SCGLR 72; Oppong v. Attorney-General [20001 SCGLR 275; Republic v. High Court, Tema; Ex parte Owners of M V Essco Spirit (Darya Shipping Sa, Interested Party) [2003-2004] 2 SCLR 689 and Standard Bank Offshore Trust Company Limited v. National Investment Bank [2017-2018] 1 SCGLR 707. In Oppong v Attorney-General Atuguba JSCstated at page 280 that; “Where the step by a party to proceedings before a court is fundamentally wrong; such error is not within the purview of the rule and cannot be waived. One cannot waive a nullity”. And in Standard Bank Offshore Trust Company Limited v. National Investment Bank, supra, Benin JSC stated at page 724 that; “the entire proceedings may be set aside for non-compliance with a rule of practice”.
LAW TIP
If something is legally void, it has no effect at all and anything built on it also falls apart. You cannot build on nothing and expect it to stand. AGYARKWA v FOLAGIN & 4 Ors (J4/58/2019) (11 March 2020)
LAW TIP
Motion to set aside judgment can only be filed in ongoing proceedings. Once judgment is given and executed, the court becomes functus officio-it has no jurisdiction to revisit the case. Agyarkwa Vrs Folagin & 4 Ors (J4/58/2019) (11 March 2020)
QUOTE FROM JUDGEMENT
“Order 19, rule 1 of the High Court (Civil Procedure) Rules, 2004 (C. I.47) provides that “Every application in pending proceedings shall be made by motion.” As at 8th July, 2011 when the Defendant filed a motion to set aside the judgment of 8th June 2010, there were no ‘pending proceedings’. It is therefore not clear what jurisdiction trial judge exercised on 11th July 2011, when it purported to set aside its judgment of 8t June 2010. The Trial judge had tried the case, albeit in the absence of Defendant, and given judgment. The Plaintiff had entered judgment after trial, served the Defendant, gone into execution, taken possession of the land and demolished property on the land. At this point, the Court became functus officio and had no jurisdiction to set aside the judgment of 8 June 2010 which had been completely executed. It is for this reason that Order 36 of C. I. 47 establishes strict timeframe for setting aside a judgment obtained when a party had at the trial. Order 36, rule 2(1) provides that a judge may set aside or vary a judgment claimed against a party who fails to attend at the trial. But rule 2(2) provides that “An application under this rule shall be made within fourteen (14) days after the trial”. This is mandatory and must be complied with. This court reiterated the need for courts to uphold mandatory provisions of the rules of court when it stated per Benin, Jsc in Standard Bank Offshore Trust Company Limited v. National Investment Bank citation at pages 728-729; “The rules of court form an integral part of the laws of Ghana, see article 11(1)(c) of the 1992 Constitution. Consequently, they must be treated with equal amount of respect in order to produce sanity in court proceedings. Where a rule is mandatory by the use of the expression shall; it should be so regarded in view of section 42 of the Interpretation Act, 2009 (Act 792)” motion to set aside the judgment of 8th June 2010, was filed on 8th July 2011, more than one year after the trial. It was woefully out of time. The judge had no right to waive this flagrant violation of the Rules and had no jurisdiction to enter the application. The order of 22nd July 2011 to set aside the judgment of 8th June 2010 is therefore null and void. Any person who became aggrieved by the actions of the Plaintiff in the execution of the lawful orders of the Court can institute a fresh action against the Plaintiff.
LAW TIP
A lawful recovery of land includes the right to remove any illegal structures on it. Demolition is not separate from possession; it flows from it. Agyarkwa Vrs Folagin & 4 Ors (J4/58/2019) (11 March 2020)
“The attempt to separate and distinguish recovery of possession of the land from the demolition of the premises thereon is equally disingenuous. The demolition of the premises is in fact a consequences of the recovery of possession. It is because the Plaintiff has recovered possession of the land pursuant to the Order for recovery of possession that the Plaintiff demolished the offending unlawful premises on his land.” Agyarkwa Vrs Folagin & 4 Ors (J4/58/2019) (11 March 2020)