Nullity Nullified: The Poisoned Tree Can Now Bear Healthy Fruits
Introduction
If an act is a nullity, in the eyes of the law, it is treated as if it never existed. At common law, the act is automatically void with or without an order of a court setting it aside.[1] In the locus classicus of Mosi v. Bagyina,[2] Akufo Addo JSC (as he then was), by introducing the common law position into Ghanaian jurisprudence, rehearsed Lord Denning’s famous pronouncement in Macfoy v. United Africa Company Ltd,[3] that: “Where an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
It then became a settled law that nothing could be founded on an act which was a nullity.[4] That explains why eventually in Huseini v. Moro,[5] when the writ of summons was found to be void, the counterclaim became automatically voided. In respect of judgments, not even the parties could convert one that was a nullity into a binding judgment by consent.[6]
Speaking figuratively on nullities, Osei Hwere JSC in Republic v. High Court, Accra; Ex Parte Darke XII and Another,[7] said: “If the tree is poisoned, its fruits are also poisoned.”[8] In other words, it is impossible for a poisoned tree (an act which is a nullity) to produce good fruits; as Jesus said in the Good Book that a bad tree cannot bear good fruits.[9] This apothegm is consistent with our elders’ belief that “a crab does not begat a fish”; or better still: “A troublesome stomach does not care how well it had been treated.”
Just as it was thought in the days of old that nothing good could come from Nazareth[10] so it had been conceived that nothing good could spring from an act or order which was a nullity. But if the Messiah could eventually emerge from Nazareth, then we should, in no way, be surprised to discover in this paper that healthy fruits can develop from poisoned trees, that is to say, a void act can have valid consequences (something that was perceived to be an impossibility).
For a clearer understanding of the topic, some light will be shed on the distinction between void and voidable acts. Unpretentiously, the dissimilarity between void and voidable acts have sometimes been obscure, and it is hoped that this exercise would ultimately contribute to the clarification of the thorny issue of whether acts or orders that are nullities can produce good fruits or have remnants of validity.
Upstage of the Traditional Common Law Position on Nullities by the Courts
At the turn of the century, the Supreme Court expressed satisfaction in the common law position on nullities, but acknowledged its practical difficulties. On a united front, with Afreh JSC as the spokesperson in Republic v. High Court, Accra, Ex Parte Continental Cargo and Trade Services Inc.[11] their Lordships underscored the fact that the dictum of Lord Denning in the Macfoy case supra to the effect that there is no need to set aside a void order is an impeccable statement of a common law principle. But the Court did not hide the fact that the principle contains a logical difficulty because “unless an order of a competent court is obtained, there is no way of establishing the nullity of the order or the judgment. A decision of a court is presumed to be valid until its alleged validity has been established in a court of competent jurisdiction.”
The Apex Court relied on Lord Radcliffe’s statement of the law in Smith v. East Elloe Rural District Council,[12] that: “An order, even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset it will remain as effective as the most impeccable of orders.”
With this line of thinking, their Lordships at the Apex Court through Atuguba JSC in Mensah Larkai v. Ayitey (substituted by) Tetteh Quarcoo; Mensah Larkai v. Tetteh Quarcoo & Ayaa Cudjoe (Consolidated)[13] could boldly assert that: “Nullity proceedings are not always disastrous.” His Lordship seemed on that occasion to set the grounds ready for a judicial upheaval. We must confess that we derived great comfort from his later judgment in Claude Oppon v. The Attorney General[14] which we have decided, without any apologies, to quote extensively below because it is not only illuminating and edifying but it is also couched in simple but beautiful prose which could have incurred the envy of that great giant of prose Jonathan Swift.
This is what the learned Judge said: “As far as the nullity of a decision of a court of competent jurisdiction is concerned, the balance of judicial decisions in n Ghana has swung to the position that the judgment of a court cannot be treated as null and void without recourse to court. Before that, cases like Mosi v. Bagyina (1963) 1 G.L.R. 337 SC based on the celebrated case of Macfoy v. UAC Ltd (1962) 152, P.C. had held that a void order was ipso facto void without the need for a court to set it aside. In the course of time the courts tried to restrict the ambit of the nullity principle to cases in which the nullity is patent or obvious on the face of the order. All this was finally reviewed and settled by this court in the remarkable case of Republic v. High Court, Accra, Ex Parte Afoda (2001-2002) SCGLR 786 wherein this court for public policy reasons, unanimously held per Kpegah JSC at 773 thus: We …. reiterate the law to be that an order of, or a process from, a court of competent jurisdiction is perceived and considered void or erroneous should not give a party who is affected by the order, or to whom the process is directed, the slightest encouragement to disobey it…. The proper thing to do is either obey or sue for a declaration to that effect or apply to set it aside.”
In truth, if His Lordship’s position is pitched against section 13 (4) of the Matrimonial Causes Act,there probably may exist some contradictions. Under the said provision, nothing is to be “construed as validating a marriage which is by law void but with respect to which a decree of nullity has not been granted.” In a sense, a marriage may be deemed void even in the absence of a nullity decree.
Some Nullities in Criminal Proceedings that have lost their Venom
In Addai v. The Republic,[15] the first prosecution witness, a medical officer, gave evidence before the trial judge alone when the jury had not been empanelled, yet he directed them on that evidence. The Court of Appeal, despite finding the proceedings of that day as a nullity, found sufficient evidence aliunde to support the conviction.
The failure by a court to convict is another area where nullity has lost its place of pride. In the past, if a court failed to record a conviction of an accused before sentencing him, it was deemed fatal.[16] In COP v. Sarpey & Nyamekye,[17] it was held by the Supreme Court that such an “omission … is in law, in limine and renders the proceedings null and void.” This strict attitude of the courts has now been thumped by the viewpoint that the failure of a court to record a conviction, in appropriate cases, is an irregularity that does not invalidate the entire trial.[18]
Effects of Some Nullities Attenuated in Civil Procedure
1.A Breach of the Natural Justice Rule
A breach of the natural justice rule has been held to be fundamental which goes to jurisdiction,[19] and renders proceedings subsequent to it nullity.[20] Amissah J.A. sitting as an additional judge of the High Court, in the case of Vasquez v. Quarshie,[21] held as follows: “A Court making a decision in a case where a party did not appear because he had not been notified would be doing an act which was a nullity on the ground of absence of jurisdiction.”
It is revealing that jurists have sometimes ‘dismember’ the nullity effect of the rule. In Halsbury’s Laws of England (3rd ed), it is stated at vol. 30 at 718 that: “If the rules of natural justice are not observed, the decision will be voidable, not absolutely void.” In Republic v. Court of Appeal; Ex Parte Eastern Alloy Co. Ltd.[22] the Supreme Court held with one voice at page 372 thus: “It is trite law that the rules of natural justice can be waived: see Bilson v. Apaloo (1981) GLR 24, SC.”
2.Unsigned/Defective Writ
A defective writ such as an unsigned writ was deemed a fundamental defect which rendered the writ void for nullities and could not be given life by an amendment or accompanying statement of claim.[23] Cecilia Koranteng-Addow J. put it in Alfa Manufacturing Co Ltd. v. Nyamekye[24] thus: “If a writ is void, it is void ab initio and all that follows is likewise void.”
In contemporary times, the courts have distanced themselves from that rigid notion about defective writs, by ensuring that the writ is read together with the accompanying statement of claim. In Hydrafoam Estates (Gh.) v. Owusu (per Lawful Attorney) Okine & Ors.[25] Anin Yeboah (JSC) (as he then was) held: “The indorsement in the plaintiff’s writ of summons for an injunction, … was not for any substantive relief known in law. Such a claim would have been declared void in law. However, upon reading the writ together with the accompanying statement of claim the defect in the writ was cured by the statement of claim filed together with the writ.”[26]
3.Failure to Amend a Process After an Order to do so Within the Stated Time
The court may give a party the time within which a process should be amended. If no time is given, the party has 14 days to do so,[27] otherwise the order will cease to have effect. The Supreme Court in Akufo-Addo v. Catheline[28] held that “where a party sought and obtained leave to amend his pleadings but failed to do so, the order lapsed and the process became ipso facto void.”[29]
However, in Eastern Alloys Co. Ltd v. Chirano Gold Mines,[30] the time lapse for not amending the statement of claim was more than a year which effectively rendered the amended statement of claim void, but the Apex Court overlooked the procedural lapse and recognized the validity of the process in their quest to do substantial justice to the parties. Their Lordships would not allow the harsh nullity rule to lead them astray. Our elders even say, if the horse is mad, he who sits on it is not also mad.
Time to Set Aside a Void Order
The principle laid down in Mosi v. Bagyina was that a void order being a nullity can be set aside at any time[31] even for the first time on appeal.[32] Nevertheless, the Apex Court in Agyekum & Alhassan (No. 2) v. Amadu Baba (No. 2)[33] downplayed the much popular position by deciding that a person aggrieved by a void order which is a nullity did not have the luxury of time to sleep and wake up at any time to challenge the order; he can only set aside the void order within a reasonable time.
There is also a statutory edict to make the Mosi v. Bagyina’s proposition which allows for a void order to be challenged at anytime unpopular. Order 55 Rule 3 of the High Court Civil Procedure Rules, 2004 (C.I. 47), sets six months as the time frame for challenging an order of a court by way of certiorari. Dotse JSC in Republic v. Wassa Fiase Traditional Council & Another, Ex Parte Abusuapanyin Kofi Nyamekye,[34] does not think it is right to even extend the time to entertain an application for such a relief.
“The position might therefore be stated that, the provisions in Order 55 rules 3 (1) and (2) of C.I. 47 does not admit the grant of extension of time to bring applications for judicial review outside the statutory six months period unless special circumstances exist, such as lack of notice to the party applying to the proceedings that terminated in the decision, order, ruling, judgment or action that the subject matter of the judicial review seeks to quash or prohibit or as the case might be in appropriate cases,” the learned judge stressed.
In Republic v. High Court, Accra, Ex Parte Continental Cargo and Trade Services Inc.[35] supra their Lordships noted that if an aggrieved party to a void order chooses to launch a direct attack against it by seeking a prerogative order, such as certiorari, he must comply with the statutory pre conditions for exercising the supervisory jurisdiction of the court as well as other rules which must be complied with.
Wade and Forsyth have also stated in their book, Administrative Law (7th ed) (1994) at pp 342-343,“The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances … A common case where an order, however void, becomes valid is where a statutory time limit expires after which its invalidity cannot be questioned. The statute does not say that the void order shall be valid; but by cutting off legal remedies it produces that result.”
Void and Voidable Distinguished
Lord Denning eruditely expounded the distinction between void and voidable orders or acts in Mosi v. Bagyina supra. He explicated that a void act is a nullity and does not require an order to declare it as such; a voidable order, on the other hand, is “not automatically void. It is only an irregularity which may be waived. It is not to be avoided unless something is done to avoid it. There must be an order setting it aside; and the court has a discretion whether to set it aside or not. It will do so if justice demands it but not otherwise. Meanwhile, it remains good and a support for all that has been done under it.”
The distinctiveness of the terms ‘void’ and ‘voidable’ might seem uncomplicated but in practice it may not. Appreciating the practical difficulty associated with the distinction, Lord Diplock in Hoffman-La Roche & Co AG v. Secretary of State for Trade and Industry,[36] confessed that the use of such terms as “voidable”, “void” or “a nullity” often leads to confusion. The Court of Appeal, in their attempt to explain the two terms in the case of Addai v. Donkor[37] held that where a sale is illegal, then the sale is void ab initio and no title passed, but where it is irregular, then it is voidable at the instance of the debtor.
Is a Judgment or An Order Obtained by Fraud Void or Voidable?
In contract law, fraud or fraudulent misrepresentation renders the contract voidable and not void, as Abban J. (as he then was) held in Japan Motors Trading Company Limited v. Randolph Motors,[38] thus: “… the principle is that a contract induced by fraud is not void but voidable at the election of the party defrauded, and when once the party defrauded has elected to abide by the contract, being aware of the fraud, he cannot afterwards rescind it.”
The Court of Appeal speaking through Torkornoo J.A. (as she then was) in Mrs. Veronica Sarhene and Another v. Edward Nasser & Co. Ltd & Another,[39] similarly held: “It must be appreciated that fraud, even if proved, makes a transaction voidable, not void.”
However, with decisions of a court tainted with fraud, the dominant position is that an order or a judgment obtained by fraud is void, because fraud vitiates everything. A relevant statement on this is found in Okofo Estates Ltd v. Modern Signs Ltd.[40] thus: “An allegation of fraud goes to the root of every transaction. A judgment obtained by fraud passes no right under it and so does a forged document or a document or a document obtained by fraud pass no right.” This has been stated over and over again by the Apex Court[41] without anyone raising a finger.[42] While the legal proposition may seem right at common law where a void order being a nullity need not be declared by a court before it can be considered void; in Ghana, the reverse appears to be the case. The mere allegation of fraud without going the extra mile to establish it, is, respectfully not enough to treat the judgment as nullity. Until the judgment is impugned and set aside, it is difficult to comprehend why it cannot pass a right or title.
It may be recalled that Cecilia Koranteng-Addow J. decided in Lartey & Lartey v. Beany[43] that “A judgment obtained by fraud was only voidable. It was not automatically void by the mere fact that fraud was detected. The person adversely affected by it must set it aside. And until a court had made an order to set it aside, a judgment obtained by fraud remained good and support all that had been done under it.”
Unfortunately, the learned judge’s decision seems to stands in isolation, and being rendered in the High Court, it can no way lock horns with the authoritative position enunciated countless times by the Apex Court. It is never too late for the courts to pause and reflect on the point. If a party does not take steps to set the order or judgment aside, he will be bound by it. It lies only within the power of a court of competent jurisdiction to declare that a judgment obtained by fraud is void, and until that is done, the judgment or order is valid and binding.
In Punjabi Brothers v. Namih,[44] the Supreme Court through Adumua Bossman JSC held thus: “… it is open to a party against whom judgment has been given to institute a fresh action to claim the setting aside of that judgment on the ground of fraud and/or misrepresentation … The law seems to be clearly enough settled that so long as a judgment of a superior court remains undischarged and of full force and effect, it is not competent to another court of co-ordinate jurisdiction to pronounce against its validity, however palpably erroneous it may appear to be … if therefore there are features about a judgment as to render it liable to be set aside, clearly the proper step to take is to get it set aside first.”[45]
Therefore, we venture to propose that the principle should be that – a judgment or an order obtained by fraud that has been proved and declared as such by a court of competent jurisdiction is void; while a judgment obtained by fraud simpliciter is voidable and can be set aside.
Matrimonial Causes Act (MCA)
1. A Child born in a nullity marriage
Section 13 of the MCA deals with nullities and it allows a person to present a petition for a decree of nullity on several grounds including absence of consummation of the marriage, being of unsound mind, suffering from a venereal disease in a communicable form, being pregnant by another person etc.
Where nullity is decreed by a court, section 14 provides that: “any child of the parties to the decree shall be deemed to have the same status and rights as if the marriage of his parents had been dissolved rather than annulled.”
Per the above provision, the fruits (the children) of the poisoned tree (void marriage leading to the decree of nullity) are not illegitimate as pertains at common law.
2.Property Settlement upon the annulment of a Marriage
Recently the courts were tested to choose between the uncompromising posture of nullities at common law espoused in Mosi v. Bagyina and the statutory liberal approach. They have had no difficulty at all taking sides with the latter.
In Lydia Kwao v. Pascal Muako Tchemco,[46] the Supreme Court endorsed the decision of the trial High Court, which was affirmed by the Court of Appeal in decreeing that the marriage between the parties was a nullity. Nevertheless, their Lordships proceeded to share the properties equally between the parties. Owusu JSC delivering the profound decision of the Court stated: “… the Matrimonial Causes Act, 1971 (Act 367) makes provision for property settlement when a marriage is declared a nullity or in case of a divorce. The Act does not discriminate between divorce and declaring a marriage a nullity.”
Further, in Owuo v. Owuo,[47] the respondent had a subsisting marriage under the Ordinance with one Beatrice Owuo at the time he purportedly contracted the marriage with the petitioner. As a result, the trial court found that the parties were never married in the eyes of the law. The Court of Appeal in affirming the findings of the lower court proceeded to award half of the value of the property to the petitioner. On a further appeal to the Supreme Court, counsel for the respondent contended that so far as the marriage between the parties was found to be void by both the High Court and the 1st appellate court, the latter could not have validly made any order even under section 19 of the Matrimonial Causes Act since no legal consequences could have properly flowed from the annulled marriage. The Apex Court rejected the argument and affirmed the decision of the Court of Appeal.
Conclusion
It is evident from our discussion so far that the traditional perception that nothing valid can be founded on an act which is a nullity is now an antiquated common law principle. The Supreme Court’s restatement of the law that nullity proceedings are not always disastrous might seem weird at the outset, but when thoroughly examined, the wisdom in the proposition becomes self evident. A judgment may be found to be a nullity, but the evidence adduced in the trial could be relevant in a future trial.
The poisonous tree of nullities is now capable of bearing clean fruits. It has been observed that the strict nullity rule in the past served as a recipe for confusion. Litigants and their lawyers were emboldened by the nullity rule to interpret the law in their own way, and that sometimes led to the disobedience of court orders. Undeniably, the yawning effect of nullities served as a catalyst for injustice, and it was not out of place for the courts and the law maker to ‘conspire’ with a view to mitigating their draconian effect. Upon the dawn of the substantial justice era, we can rest assured that the “poisoned tree” is going to bear more healthy fruits in the coming years.
[1] See the case of Craig v. Kanseen (1943) K.B. 256, per Lord Greene.
[2] (1963) 1 G. L. R. 337.
[3] (1962) A.C. 152.
[4] See for instance, Republic v. Asogli Traditional Council, Ex Parte Togbe Amorni VII (1992) 2 G.L.R. 347.
[5] (2013-14) 1 SCGLR 363. See also Andrews Narh-Bi (Substituted by John Nyongmo) & 3 Others v. Asafoatse Kwetey Akorsorku III (Substituted by Asafoatse Kwetey) & Another, Civil App. No. N4/28/2022, dated 27th July 2023, S.C., per Amadu Tanko JSC
[6] See Aniomega v. Ahiabor (1971) 1 G.L.R. 1 at p. 6, C.A., per Azu Crabbe Ag. CJ.; Amidu v. A.G. & 2 Ors. (2015) 83 G.M.J. 144 at p. 168, S.C. & Damoah v. Taiba (19470 12 W.A.C.A. 167 at p. 176, S.C.
[7] (1992-93) 3 G.B.R. 1138; (1992) 2 G.L.R. 688.
[8] See Republic v. High Court, Accra, Ex Parte Darke XII and Another (1992-93) 3 G.B.R. 1138; (1992) 2 G.L.R. 688.
[9] Matthew 7:18.
[10] See John 1:46.
[11] (2001-2002) S.C.G.L.R. 901.
[12] (1956) AC 736 at p.769.
[13] (2009) SCGLR 621 at p. 634.
[14] Writ No. J1/11/2016, dated 22 June 2017, S.C., Unreported.
[15] (1973) 1 GLR 312, C.A.
[16] See COP v. Mateifio (1943) 9 W.A.C.A. 40 & R. v. Mensah (1960) GLR 53, CA.
[17] (1961) 2 GLR 756 at p. 759.
[18] See Nyarko v. Republic (1999-2000) 2 GLR 252 & Kingsley Kuchama a.k.a. Friday v. The Republic, Criminal App. No. J3/02/2018, dated 8 March 2018, S.C., Unreported.
[19] See Republic v. High Court Accra, Ex Parte All Gate Co. Ltd (Amalgamated Bank Ltd-Interested Party) (2007-2008) S.C.G.L.R. 1041 at holding 1.
[20] See In Re Kumi (Dec’d); Kumi v. Nartey (2007-2008) S.C.G.L.R. 623 at p. 632-633.
[21] (1968) GLR 62.
[22] (2007-2008) 1 S.C.G.L.R. 371.
[23] See Republic v. High Court, Tema, Ex Parte Owners of MV ESSCO Spirit (Darva Shipping SA – Interested Party)(2003-2004) 2 SCGLR 689 at p. 694, per Twum JSC and Amidu (No. 3) v. A.G. & Waterville & Woyome ) No. 2 ) 2013-2014) 1 SCGLR 606 at p. 658.
[24] (1980) G.L.R. 470.
[25] (2013-2014) 2 SCGLR 1117.
[26] See also: Opoku (No. 2) v. Axes Co. Ltd (No. 2) (2012) 2 SCGLR 1214 at p. 1222, per Gbadegbe JSC; Agbo v. Rainbow Windscreen (1994-95) 2 GBR 859, CA.
[27] See Order 16 Rule 8 of C.I. 47.
[28] (1992) 1 G.L.R. 377.
[29] See also the cases of Agbeshi v. GPHA (2007-2008) 1 SCGLR 469 at p. 482; In Re Okine (Dec’d) (2002-2005) SCGLR 582; Ayiwa v. Badu (1963) GLR 86; Empire Builders Ltd v. Top King Enterprise Ltd. (2015) 84 G.M.J. 33 & Henry Nuertey v. Francis Amosa (20160 101 G.M.J. 1.
[30] Civil App. No. J4/48/2016, dated 26 January 2017, S.C. Unreported.
[31] See also Charmant v. Mensah (1982-83) G.L.R. 65 & Republic v. Adama Thompson & Ors., Ex Parte Ahinakwa II (Substituted by Ayikai (No. 2) (2013-2014) 2 SCGLR 1396.
[32] See Amoasi III v. Twintoh (1987-88) 1 G.L.R. 554.
[33] (2007-2008) 1 SCGLR 386 at holding 2, per Sophia Akuffo JSC.
[34] Civil App. No. J4/55/2014, dated 28 May 2015, S.C., Unreported.
[35] (2001-2002) S.C.G.L.R. 901.
[36] (1975) AC 295 at p. 366.
[37] (1972) 1 GLR 209, CA.
[38] (1982-83) 1 GLR 543 at 544.
[39] (2017) 109 G.M.J. 39 at p. 48.
[40] (1996-97) S.C.G.L.R. 233 at 253.
[41] See Appeah v. Asamoah (2003-2004) SCGLR 226 at p. 234; Dzotepe v. Hahormone (1987-88) 2 GLR 681 at 701, S.C.; Yirenkyiwaa v. Nutsugah (2011) 30 GMJ 166 & Twum v. SGS Ltd. (2011) 30 GMJ 92 at p. 98.
[42] Apart from Cecilia Koranteng-Addow J.
[43] (1987-88) 1 GLR 590.
[44] (1962) 2 G.L.R. 46.
[45] See John Kwadwo Bobie v. 21st Century Construction Co. Ltd & Others, Civil App. No. J4/5/2014, dated 9 March 2016, S.C., Unreported.
[46] Civil App. No. 34/32/2019, dated 22 July 2020, S.C., Unreported.
[47] See also the case of Mrs. Theresa Owuo v. Francis Owuo, Civil App. No. 14/20/2017, dated 6 December 2017, S.C., Unreported.
