Bobby Banson, Esq. FCIArb. *

Background

I would like to set the tone of this paper with this hypothetical situation. The Plaintiff is a limited liability company with its registered address and place of business in Tema in the Greater Accra Region.

• The Defendant is also a limited liability company with its registered address and place of business in Tema in the same region.
• The business transaction, which led to the dispute, was consummated in Tema.
• The Lawyer for the Plaintiff resides in Accra and so instituted an action in the High Court in Accra.

This paper is aimed at answering the question of what will happen in the event that the Plaintiff’s lawyer decides to file a Writ of Summons at the High Court in Accra.

 

Regional Jurisdiction of  the High Court

It is trite that there is only 1 High Court in Ghana. Every student of Ghana Legal System will be conversant with this phrase.

Edward Wiredu J (as he then was) held in the case of ABUDULAI V. AGYEI II AND ANOTHER[1]that the oneness of the High Court of Justice of Ghana as established under article 122 of the Constitution of the Second Republic is now too well settled by a number of judicial decisions to admit of any dispute. This was also upheld in the cases of IN RE AGYEPONG (DECD.); ABOSI V. POKU[2] and AWUKU V. BENDA, HIGH COURT, CAPE COAST.[3]

In Republic v. High Court, Ho, Ex-Parte: Nana Diawuo Bediako II[4] the Supreme Court held that

“By virtue of article 139 of the Constitution 1992 and section 14 (1) (2) and (3) of the Courts Act, 1993 Act 459, the point can safely be made that there is only one High Court in Ghana”.

Although there is only one High Court in Ghana, the rules of Court, CI 47, have made provisions for actions to be commenced in the Region which is the most suitable and convenient for the case, based on the factors provided in the rules.

Under Order 3 of High Court (Civil Procedure) Rules, 2004, CI 47 it is provided as follows:

  (1) Every cause or matter that relates to immovable property or any interest in it or for any damage to it shall be commenced in the Region in which the immovable property or any part of it is situated.

   (2) Every cause or matter that relates to movable property distrained or seized for any cause shall be commenced in the Region in which the distrain or seizure takes place.

  (3) Every cause or matter against a public officer to recover penalty or forfeiture shall be commenced in the Region where the cause of action arises.

  (4) Every cause or matter for specific performance of a contract or in respect of breach of contract shall be commenced in the Region in which the contract ought to have been performed or in which the defendant resides or carries on business.

 (5) All other causes or matters shall be commenced in the Region in which the defendant resides or carries on business.

 (6) If there are two or more defendants resident in different Regions the cause or matter may be commenced in any of the Regions.

 Although there is only one High Court in Ghana, the powers that be in realizing that justice ought to be exercised without delay and also to allow persons seeking justice to be afforded that opportunity and in the most convenient forum, set down the parameters for finding the appropriate venue to institute an action at the high court. The high court civil procedure rules provide for the remedy in the event that an action is commenced in a region different from the region as provided for in the rules reproduced above.

Under Order 3 rule 2 it is provided that:

(1) Where a cause or matter is commenced in a Region other than that in which it ought to have been commenced under rule 1, it may continue in the Region in which it was commenced unless

(a) the defendant raises an objection to the jurisdiction before or at the time the defendant is required to file a defence in the proceedings; or

(b) the Court reports to the Chief Justice that in its opinion, the proceedings ought to be transferred and the Chief Justice orders the transfer.

(2) No proceedings taken prior to an objection to the jurisdiction with regard to venue raised by the defendant under paragraph (a) of sub rule (1) of this rule shall be affected by the objection, but the Court if satisfied that the objection is well founded, shall inform the Chief Justice that in its opinion the cause or matter ought to be transferred to the Region in which it ought to have been commenced, and the Chief Justice may upon that, make such order as the Chief Justice considers appropriate

The rules as stated above show that though it is the case that there is only one High Court in Ghana, to achieve justice expeditiously and to extinguish obstacles such as excessive cost and unnecessary delay, various High Courts have been set up in different regions. Where a Plaintiff fails to adhere to these rules, a Defendant has the right to raise an objection to the forum and where the objection is sustained, the case is then referred to the Chief Justice for an order transferring the case to the appropriate region.

The question therefore still remains; what is the position of the law on an application for a transfer of a suit which the defendant claims are being instituted in the wrong part of the region? It is clear that there is no statutory provision that speaks directly to such an instance. We, therefore, have to refer to judicial pronouncements on the subject.

 

Intra-Regional Jurisdiction of the High Court

This paper will discuss 3 reported cased which have touched on this subject.

The first case to be discussed is the case of VOLDEN AND OTHERS V. GHANA GOLDFIELDS LTD.[5]

Facts: The defendant was a mining company resident at Tarkwa. The Plaintiffs, former employees of the defendant, claiming to have contracted diseases in the course of their employment brought an action against the defendant at the High Court, Sekondi for, inter alia, payment of twenty months’ salary each for the sickness. The defendant then applied to the court to transfer the suit to the High Court, Tarkwa for hearing on the ground that all the parties and their witnesses, as well as counsel for the defendant, resided at Tarkwa bearing in mind that both Sekondi and Tarkwa were cities in the Western Region. In granting the application, the High Court held that, 

“the rationale for the creation of multiple High Courts within one region was to let the parties litigate in the High Court nearest to them and thereby save them time, energy and expenses. Accordingly, although no provision in the High Court (Civil Procedure) (Amendment) Rules, 1977 (Ll 1107) governed the situation where there was more than one High Court in a region with jurisdiction to hear a matter, and a defendant against whom an action had been brought in one High Court applied to that court to transfer the suit to the other, it was within the discretion of that High Court to determine the application. The test to be applied in each case was whether the defendant would suffer injustice if the action was heard in the court where he did not reside or carry on business. On the facts, it would be more expeditious, proper and convenient to have the suit heard at the High Court, Tarkwa since on the balance of hardship more hardship would be caused to the defendant than the plaintiffs, if the suit was heard in the High Court, Sekondi. Accordingly, a report would be made to the Chief Justice to exercise his power of transfer accordingly”.

The second case is GENERAL PORTFOLIO LTD. AND OTHERS V. GHANA NATIONAL PETROLEUM CORPORATION.[6] In that case where an application was brought for the transfer of a case from Tema to Accra (both in the Greater Accra Region) Asare Korang J as he was then, held that since the rationale for the establishment of more High Courts within the same region was to suit the needs of the people to reduce the costs and expenses of litigation, especially travelling and transport of clients and counsel and to ease the congestion and back-log of cases in the courts, the test for an application under rule 1 (6) of L.I. 1107 (governing inter-regional transfers) was also applicable to applications for intra-regional transfers”.

The third case that speaks to intra-regional transfers is a decision of the Supreme Court in the case of REPUBLIC V HIGH COURT, HO, EX-PARTE: NANA DIAWUO BEDIAKO II.[7] The Supreme Court in deciding whether the appropriate forum to appeal the matter was the High Court Ho or Hohoe (both in the Volta region) held as follows:

“…even though there is only one High Court denominated both under the Constitution and the Courts Act, for administrative and geographical reasons, there are various divisions and or locations of the High court. If for instance, a crime is committed say in Hohoe and a report is made to the Hohoe Police, it will be completely out of place if the said case is not prosecuted at either the District Court or the Circuit Court, both of which are in Hohoe, but at Ho without an order under the hand of the Chief Justice authorising transfer as is stipulated in sections 104 or 108 of the Courts Act, Act 459. The procedure outlined where cases are prosecuted in courts within the geographical location is a mechanism designed to prevent forum shopping by prospective litigants before the courts and also for the convenience of litigants to have access to courts very close to them. In the instant application, the case from which the interested parties were tried, convicted and sentenced was the Circuit Court, Hohoe. Using the administrative and geographical location, any appeal against that decision must be to the High Court at Hohoe”.

From the decisions of the cases stated above, it can be concluded that the transfer of suits within a region is solely the discretion of the Court. This is because there is no express statutory provision that states the procedure or conditions that ought to be satisfied before such a transfer is reported to the Chief Justice and then subsequently transferred. However, case law suggests that there are certain principles and tests that ought to adhere to by a Judge in exercising this discretion.

 Firstly, as espoused in the case of GENERAL PORTFOLIO LTD. AND OTHERS V. GHANA NATIONAL PETROLEUM CORPORATION[8] the High Court when faced with the application for an intra-regional transfer stated that the rationale for the establishment of various High Courts within one region is similar to the rationale behind the establishments of high courts in different regions i.e. to reduce the cost of litigation by cutting short traveling expenses and to reduce the back-log of cases and  that should be the rationale applied to the courts when faced with an issue of an intra-regional transfer.

Furthermore, the High court once again speaking through the High Court in Volden & Ors. v. Goldfields[9] stated that the test to be applied in each case was whether the defendant would suffer injustice if the action was heard in the court where he did not reside or carry on business.

Finally, the Supreme Court in 2011 in REPUBLIC V HIGH COURT, HO, EX-PARTE: NANA DIAWUO BEDIAKO II[10] stated that for administrative and geographical reasons, there are various divisions or locations of the High Court and this is for the convenience of litigants.

 It can be concluded that though not expressly stated in the rules, the Court can exercise its discretion to order an intra-regional transfer of a suit in so far as it is clear that the facts before the court satisfy the test of convenience, expediency in the execution of justice and is cost-effective to transfer the said suit which is the underlying principle behind the establishment of various High Courts in different regions.  Once that is established, Section 104(1) of the Courts Act, 1993, Act 459 would apply.

 

The Power of the Court and the Chief Justice

Section 104 (1) of the Courts Act, 1993, Act 459 provides that “the Chief Justice may by order under his hand transfer a case at any stage of the proceedings from any Judge or Magistrate to any other Judge or Magistrate and from one court to another court of competent jurisdiction at any time or stage of the proceedings and either with or without an application from any of the parties to the proceedings.”

On the application of these provisions, when an action is commenced in the “wrong” High Court within a region, an affected party may apply to the Chief Justice through the Court for an order transferring the matter to the “appropriate” High Court within the region. Such an application will not come under Order 3 rule 2 of CI 47 but be founded on Section 104 of the Courts Act, 1993, Act 459.

The application to the Chief Justice for an order of transfer should automatically stay the proceedings before the High Court Judge pending a decision of the Chief Justice.

 

Conclusion

In conclusion, justice is a right that should be afforded to all irrespective of his or her economic status and as such to save such unnecessary costs, several High Courts are set up within a region. To also reduce the huge back-log of cases as after all justice delayed is justice denied, different High Courts are set up within a region. It is therefore not for nothing that the Rules of Court provide for regional jurisdiction of the High Court. The policy rationale has been discussed in the cases cited above.

 However, that same policy rationale should guide litigants when determining the venue to commence proceedings.  Hence, even though there is only one High Court in Ghana, the administrative and territorial jurisdiction of each High Court should not be taken for granted and the power, therefore, lies with the Court to ensure that these divisions created are made to achieve the purpose for which they were established.

 

Footnotes

*The Author is the Lead Consultant with Robert Smith & Adelaide Law, a boutique law firm based in Accra and assists with the teaching of Civil Procedure at the Ghana School of Law, Makola Campus-Accra. He is also a member of the Chartered Institute of Arbitrators.

 

[1]   [1976] 1 GLR 185-193

 

[2]   [1973] 2 G.L.R. 456 @ P. 477

 

[3]   1 July 1974, Unreported.

 

[4]   [2011] SCGLR 704

 

[5]   [1999-2001] GLR 462 – 466

 

[6]   [1992] 2 GLR 138-145

 

[7]   [2011] SCGLR 704

 

[8]   [1992] 2 GLR 138-145

 

[9]   [1999-2001] GLR 462 – 466

 

[10]   [2011] SCGLR 704