ANTHONY SAKYI v. GA SOUTH MUNICIPAL ASSEMBLY
May 12, 2022
COURT OF APPEAL
GHANA
CORAM
- WELBOURNE J. A. (PRESIDING)
- B. MENSAH J.A.
- BAFFOUR J.A
Areas of Law
- Civil Procedure
- Administrative Law
- Property and Real Estate Law
- Tort Law
- Evidence Law
May 12, 2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Ghana Court of Appeal (panel: Margaret Welbourne JA, P. Bright Mensah JA, and Eric K. Baffour JA) addressed whether a High Court trial judge could, at judgment, raise jurisdiction sua moto and dismiss an action for non-compliance with section 210 of the Local Government Act, 2016 (Act 936). The plaintiff/appellant, a landowner, had sued a District Assembly for unlawful entry and destruction of building materials, seeking declaratory and injunctive relief plus GH¢89,000 special damages. Although the defendant’s defence was struck out for failing to file witness statements, the trial judge dismissed the suit as incompetent because the plaintiff did not prove the mandatory pre-suit notice. On appeal, the court affirmed, holding that statutory preconditions are jurisdictional and cannot be waived, that declaratory relief requires evidence even in uncontested cases, and that audi alteram partem did not compel reopening proceedings. The appeal was dismissed.
Baffour J.A:
Introduction
What comes to the fore for determination in this appeal is whether the trial Judge was right to have raised the issue of the competence of the suit that bothers on the jurisdiction of the court as not having properly been invoked to dismiss the suit. For it is the plaint of the plaintiff/appellant that the trial Judge should have offered him the opportunity of being heard on the fundamental legal issue that the trial Judge raised suo moto as a basis to dismiss the suit. Plaintiff had sought per his writ issued on the 4th of April, 2018, for declaration that the entry upon and destruction of building materials on the plaintiff’s land by the defendants is unlawful, an order for perpetual injunction to prevent the defendants either by himself, his agents, workmen or privies from entering upon his land, special damages of Gh¢89,000.00 as the value of building materials destroyed by defendants, general damages and cost
It is crucial to recognize that the plaintiff suit asked for mixed reliefs of declaratory relief, an order for perpetual injunction, special damages, general damages and cost. What it meant is that plaintiff by the very nature of the reliefs he sought at the trial court was not entitled to summary judgment or judgment in default of defence even in the absence of the defendant and needed to prove every claim that he had alleged in his statement of claim. For it is not in dispute that when directions was taken in the suit, the learned trial Judge ordered the parties to file their intended witness statements and the documents they intended to rely on as exhibits for trial. And it is further not in dispute that the defendant failed to comply with the order for the filing of witness statements and documents. The court in the exercise of its power for what it claimed to be “under Order 37 Rule 3(b) of C. I. 87” on the 19th of October, 2020, struck out the statement of defence of the defendant for failure to file the ordered witness statements and documents. In fact, the correct rule is not Order 37 as stated by the learned trial Judge but rather Order 32 Rule 7A(3) of C. I. 47 as inserted by High Court (Civil Procedure (Amendment) Rules, 2014, C. I. 87. The said Rule is to the effect that:
“Where a party has failed to comply with any of the directions given at a case management conference or a pretrial review or both, the Judge may make any of the following orders:
(a) Strike out the action, if the non-complying party is