SETTING ASIDE DEFAULT JUDGMENT INVOLVING CHIEFTAINCY MATTER

Practice and procedure- Default judgment Application to set aside - Application by strange -Proper procedure to follow - Preliminary  objections founded on applicant having no locus standi to set aside default judgment - Objection as to capacity going to root of applicant’s status-Objection a question of law to be raised even before appellate court.

Chieftaincy - Cause or matter affecting chieftaincy - Meaning of – Need to adduce evidence before determining how a party was elected or nominated a chief constitutes a cause matter affecting chieftaincy.

Practice and procedure - Writ - Default appearance - Reliefs endorsed on writ - Classifying claim as to nature of judgment to be obtained in default of appearance-whether to classify as default or final judgment.

Constitutional law – Constitution-Legislative or executive act of past governments-Proceedings against executive act of PNDC – Action to question legality of El 18 of 1983 made by PNDC Government-No court not even Supreme Court empowered to make any order or grant any relief in respect of EI 18 of 1983by virtue of article 299 and Sched I, s 34(3) of constitution, 1992.

Published Thursday, June 3, 2010

IN RE NUNGUA CHIEFTAINCY

ATTORNEY-GENERAL (BORKETEY LAWEH XIV APPLICANT)

BEFORE THEIR LORDSHIPS ATUGUBA, ANSAH, SOPHIA ADINYIRA, R C OWUSU AND ARYEETEY JJSC

There were two well-established modes whereby a person, such as the applicant - respondent in the instant case, who was a stranger to a judgment which had injuriously or adversely affected him, could have it set aside.

He could either obtain the leave of the defendant in the suit to use his name and then apply to the court in the defendant’s name to have the judgment set aside; or if for some reason he could not use the name of the defendant, he could take out a summons in his own name but then the summons should be served on both the plaintiff and the defendant asking for leave of the court to set aside the judgment and to be allowed to defend the action on such terms of as the judge might consider just.

The Supreme Court unanimously so held in dismissing the appeal by the plaintiff from the judgment of the court of Appeal, which had affirmed the ruling of the High Court given on 26^th May 2006, setting aside the judgment in default given on May 10, 2001 by the High Court differently constituted for want of jurisdiction.

The relevant facts of the case were as follows. In 1983, The Government of the Provisional National Defence Council (PNDC), passed an executive instrument, i.e. the Nungua Chieftaincy Affairs (Nii Odai Ayiku IV) (Prohibition ) Instrument, 1983 (EI 18), where by Nii Odai Ayiku IV (hereinafter called the plaintiff ) was prohibited from purporting to exercise the function of Nungua  Mantse.

In 2001, the plaintiff, claiming as the Mantse of Nungua in the Ga Traditional Council, Accra issued a writ at the High Court, Accra against the Attorney-General for the following declarations: (i) the Nungua Chieftaincy Affairs (Nii Odai Ayiku IV) Instrument, 1983( El 18), was null and void having been based on facts which were untrue; (ii) EI 18 could not operate to “destool” the plaintiff without judicial process; and (iii) notwithstanding EI 18, the plaintiff was the lawfully enstooled Mantse of Nungua and entitled to exercise the functions appertaining to that status.

The defendant, the Attorney-General, who had been served with the writ, failed to enter appearance. Consequently, a default judgment for all reliefs endorsed on the writ was obtained by the plaintiff against the Attorney-General on May 10, 2001.

In 2005, Nii Borketey Laweh XIV, who claimed to be the current Mantse of Nungua and as the person who had been injuriously affected by the default judgment, issued a summons which he served on both the plaintiff and the Attorney-General on set aside the default judgment.

At the hearing of the application to set aside the default judgment, the plaintiff raised a preliminary objection, contending that the applicant as a stranger to the grant of the default judgment, had no capacity (want of locus standi) to bring the application. However, the preliminary objection was dismissed.

The application to set aside the default judgment was thus granted on May 26, 2005 by the High Court, Accra, differently constituted.

Dissatisfied with the decision, the plaintiff appealed to the Court of Appeal which dismissed the appeal, holding that the matter was a cause or matter affecting chieftaincy; and that the High Court had no jurisdiction to declare EI 18 of 1983 null and void, the same being reserved exclusively for the Supreme Court. The plaintiff further appealed to the Supreme Court.

On these facts, the Supreme Court further held that the applicant-respondent had properly applied in his own right as a person who had been injuriously affected by the default judgment.

In so holding, the Supreme Court (per RC Owusu JSC said, “Before the application by the applicant-respondent to set aside the default judgment … was heard, a preliminary objection was raised by counsel for the plaintiff, the then respondent, as to the competency of the application challenging the capacity of the applicant that he had no locus standi.

The objection relating to the applicant’s capacity is a question of law which goes to the root of the applicant’s status before the High Court and can therefore, be raised even in this court.

The Supreme Court further held that if evidence on how a party was nominated, elected, selected, enstooled or enskinned, deposed or abdicated had to be adduced before the issue raised in the case could be determined, then the case was almost certainly a cause or matter affecting chieftaincy.

In the instant case, the plaintiff, by the first relief endorsed on his writ had sought a declaration that the Nungua Chieftaincy Affairs (Nii Odai Ayiku IV) (Prohibition) Instrument, 1983, (EI 18), was null and void because the same had been based on facts which were untrue.

And those untrue facts he had set aside out in his statement of claim. He had contended that the facts were untrue because he had never been destooled as the Chief of Nungua. Besides, the plaintiff conceded that reliefs (ii) and (iii) endorsed on the writ related to a cause of matter affecting chieftaincy.

Consequently, the Court of Appeal had rightly concluded that, on consideration of the reliefs sought by the plaintiff before the High Court in their entirety, one could only come to the inescapable conclusion that the reliefs had dealt with “a cause or matter affecting chieftaincy” and therefore the High Court had no jurisdiction to have entertained it.

It was also held that the reliefs by the plaintiff in the High Court could not, as rightly held by the Court of Appeal, be classified under claims in which default or final judgment could be entered upon application.

In an action like that, not specially provided for under the rules, if a party served with the writ did not appear within the time limited for appearance, the plaintiff might file an affidavit of service and the action might proceed as if such party had appeared.

All that the phrases “proceed as if such a party had appeared” meant was that the case has been set down for hearing. The plaintiff must lead evidence in proof his claim. Where a plaintiff has claimed a declaration for title, he still had to lead evidence in proof of his title notwithstanding the failure on the part of the defendant to enter appearance.

Finally, the court held that given the provisions in article 299 and section 34(3) of the Transitional Provisions of the 1992 Constitution, no court, not even the Supreme Court being the highest court in Ghana, could have made any order or grant any remedy or relief relating to the plaintiff’s claim, seeking a declaration that the Nungua Chieftaincy Affairs (Nii Odai Ayiku IV) (Prohibition) Instrument, 1983 (EI 18), was a nullity.

Consequently, the plaintiff’s action brought before the High Court was not maintainable and should have been dismissed by trail High Court.

The Court of Appeal had therefore rightly affirmed the subsequently decision of the High Court (differently constituted), setting aside the default judgment earlier granted by the same High Court in respect of the plaintiff’s action.

In throwing further light on its decision, the court per RC Owusu JSC said: “Section 34(3) of the Transitional Provisions of the 1992 Constitution was passed rather at an abnormal time, so far as good governance is concerned, and nobody could challenge it at the time.

The indemnity provisions was to make it sure that when time returned to normal, i.e. under a properly elected government in a constitutional regime, the law could still not be challenged… the High Court … should have known from the reliefs sought especially relief (1) that had no jurisdiction in the matter and thrown the writ out of court.

It is not only the High Court which did not have jurisdiction to entertain the action; but indeed, no court could have pronounced on EI 18 of 1983”.

 Daily Graphic             Page: 7                      Thursday, 3, June 2010