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AMOAKO ATTA II AND OTHERS v. KOFI II AND OTHERS


  • New
  • 1962-02-20
  • HIGH COURT
  • 1 GLR 115-117
  • Print

OLLENNU, J.


Summary

Practice and procedure?-Court order staying proceedings until boundary determined?-Whether court can entertain application for re-listing?-Disputed boundary was subject of enquiry initiated by legal notices?-Notices subsequently revoked?-Effect of such revocation on court order?-Stool Lands Boundaries Settlement Ordinance Cap. 139 (1951 Rev.) s. 4.

Headnotes

Under the provisions of section 4 of the Stool Lands Boundaries Settlement Ordinance, Cap. 139 (1951 Rev.) a court order was made staying proceedings in this suit "until the boundary shall have been finally determined" because the situation of the said boundary was the subject of an enquiry under two legal notices, (L.N. 105/56 and L.N. 214/57). By E.I. 60/60 the said notices were revoked.Subsequently, without formal application the case was re-listed and a date fixed for trial. Counsel for the defendants took the point that the case was not properly before the court on the ground that the order for stay of proceedings was still in force because it has not been revoked, discharged or set aside, and the boundary has not been finally determined.

Judgement

RULING on preliminary point that the suit was not properly before the court because of an order for stay of proceedings made under the Stool Lands Boundaries Settlement Ordinance, Cap. 139 (1951 Rev.) s. 4.

On the 12th October, 1957, an order was made by this court staying proceedings in this case. The said order was made in pursuance of the provisions of section 4 of the Stool Lands Boundaries Settlement Ordinance1 which reads:

"4. If an Order is made under subsection (2) of section 3 of this Ordinance for the determination of any boundary and?-

(a) any proceedings are then pending in any Court; or

(b) any proceedings are brought in any Court after the making of the Order and before the boundary has been finally determined as provided in this Ordinance,

and in either case it appears to the Court that the situation of that boundary is in dispute in, or is otherwise relevant to the determination of, those proceedings, the Court may order a stay of the proceedings until the boundary shall have been finally determined as provided in this Ordinance, and may make such incidental or consequential orders as the Court may deem just".

The powers given to the court by this section to stay proceedings are different from the general inherent powers of the court to stay proceedings. The inherent powers of the court are exercised when the action is vexatious, or is an abuse of the legal process on the grounds that it is frivolous, vexatious, or harrassing, or where the proceedings are manifestly groundless or where there is clearly no cause of action in law or inequity: see Metropolitan Bank v. Pooley2 and Burr v. Smith.3 It is also different from the special powers given to the court by some rules of court to stay proceedings in certain circumstances, e.g. Order 7, rule 1, where a solicitor whose name is endorsed on the writ declares that the writ was not signed by him, or Order 25, rule 4, where the pleadings show the action to be frivolous or vexatious.

An order made under the inherent powers of the court or under the powers given it by the rules to stay proceedings finally determines the action and can be pleaded as a bar to subsequent proceedings. On the contrary an order made by the court under section 4 of Cap. 139, merely operates to suspend, not to determine the proceedings finally. In the language of the section "the Court may order a stay of the proceedings until the boundary shall have been finally determined as provided in this Ordinance". I interpret those words to mean that so long as the enquiry [p.117] on account of which the order for stay was made is pending before the Boundary Settlement Commissioner, the court cannot place the case on the cause list for it to be tried unless the order for stay is set aside either on review or on appeal. But as soon as the boundary is finally determined, that is the contingency upon which the proceedings were stayed, happens, the court should entertain application for re-listing the suit for the proceedings to continue; and upon the suit being placed back on the cause list, the court may make such order or orders therein as the justice of the case may require paying due regard to the decision given by the Stool Lands Boundaries Settlement Commission.

In this case the order for stay of proceedings was made because the situation of a boundary between the stool lands of the parties which is in dispute in this suit, was the subject of an enquiry initiated by two legal notices, L.N. 105 of the 20th April, 1956, and L.N. 214 of the 28th August, 1957.

The orders for holding the enquiry made by the aforesaid legal notices have been revoked by executive instrument, namely E.I. 60 of the 8th March, 1960, that is, revoked since the court's order for stay of proceedings.

It would appear from the history of the case as recorded on the docket, that shortly after the court's order for stay had been made the parties forgot all about it, and so in spite of its existence they have from time to time taken one interlocutory proceedings or the other; and finally without an order of court and without an application of any sort the case found its way on to the cause list and a date was fixed for trial.

Counsel for the defendants has taken the point that the suit is not properly before the court on the grounds that the order for stay of proceedings is still in force because (1) it has not been revoked or discharged or set aside, and (2) the contingency upon which it was made, namely ?"until the boundaries shall have been finally determined" has not taken place.

For the plaintiffs it was submitted that the order of the court was automatically rendered null and void by reason of the revocation of the statutory orders for the holding of the boundary enquiry.

In my opinion the executive order revoking the orders for holding the boundary enquiry cannot render the order of the court null and void, or even discharge it; all it did is, to make it impossible for the contingency to happen upon which alone the order for stay could lapse and thereby the case be automatically restored to the list.

I am of the opinion that in view of the subsequent impossibility the only way by which the restraint on further proceedings in the case can be removed, is by an order of the court made upon application to restore the case to the list. This may appear a mere technicality, but in my opinion it is fundamental. It will be a constitutional tragedy for this court to uphold the submission of counsel for the plaintiffs, that an order of the court of competent jurisdiction could be revoked by an executive instrument.

In my opinion the trial of the suit cannot proceed until further order of the court has been sought for and obtained.

Decision

Ruling that trial cannot proceed.

Plaintiff / Appellant

Bredu Pabi

Defendant / Respondent

Sir Edward O. Asafu-Adjaye Messrs. A. Asafu-Adjaye and Koranteng-Addow with him

Referals

(1) Metropolitan Bank v. Pooley (1885) 10 App.  Cas. 210

(2) Burr v. Smith [1909] 2 K.B. 306, C.A.

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