The Intra-Regional Jurisdiction of the High Court: Does The Court Really Have Discretion?

Introduction

It is so notorious a fact that there is only High Court in Ghana. It is also trite that the various divisions of the High Court are for administrative and other purposes including convenience in litigation. That notwithstanding, litigants areproject20151221074318_image not entitled to insist on particular courts or judges to determine their cases. It is for this reason that the law gives the Chief Justice the power to transfer any case from one court or Judge to another. This power of the Chief Justice may be exercised by her either suo motu, or upon a report made to her by the trial Judge, or by an application to her by any of the parties or persons interested in the matter. The report by the trial Judge to the Chief Justice may also be made either suo motu by the trial Judge or upon application by any of the parties.

While there may varied reasons why a person may apply for transfer, the Rules of Court specifically empowers a Defendant to an action to apply for transfer where the action is commenced in the Region other than the Region where he/she resides or carries on business or where the cause of action arose or the subject matter is situate.

With the establishment of different High Courts in different parts of the same Region, the question then is whether a party is entitled to seek a transfer from one part of the Region to another on the basis that the action or the parties are closer to that Court. In order words, does the trial Court really have the discretion to grant an application for transfer from one part of the region to another on the basis of “wrong” choice of forum?

This is a contribution to an earlier article written by my learned friend Bobby Banson. It is submitted in this piece that the discretion of the court in such matters is limited.

Territorial jurisdiction of the High Court in Civil Matters

The territorial jurisdiction of the High Court in civil original matters is governed by Order 3 rule 1 of C.I. 47. In sum, every cause or matter must be commenced in the Region where the Defendant resides or carries on business or where the cause of action arose or where the subject matter is situated. Where the action is commenced in the wrong region, rule 2 empowers a party or the Court to seek a transfer of the case from the wrong Region to the right Region. But can a party seek a transfer from one court to another court in the same Region on the basis of “wrong” forum? Some few authorities will be helpful.

In Quansah v Tetteh[1], although the issue before the Court was a motion for transfer from Cape Coast in the Central Region to Accra in the Greater Accra Region, the Court of Appeal was emphatic that where an action is commenced in the region where the Defendant resides or carries on business, there is no discretion in the Court to transfer same. Lutterodt JA (as she then was) stated at page 914 as follows:

[The rule] … gives the court power, upon an application by any of the parties, or suo motu, to determine the forum of convenience. But the court can only do so where there are more defendants than one resident in different regions. In other words, it is only where there are more than one defendant resident in different regions that the court exercises this discretion. So that, where all the defendants for example live in one region, no discretion arises in the matter. [emphasis added]

It follows from the above that where there is only one Defendant, such a discretion may not exist. Few years after this decision, the Court of Appeal was faced with a real question of intra-regional transfer in the case of Ghana Private Road and Transport Union v Ntrakwa.[2] The Plaintiff, in this case, had commenced an action in Secondi against the Defendant who resided and carried on business in Bogosu in respect of a land situate in Bogosu. The Defendant applied to have the case transferred to Tarkwa which is much closer to Bogosu although both Secondi and Tarkwa were in the Western Region. The trial Judge refused the application. On appeal, although the Court of Appeal criticised the reasons assigned by the trial Judge in dismissing the application, it held that since Bogosu was in the Western Region, the Plaintiff was entitled to commence the action in Secondi which is also in the Central Region. Brobbey JA (as he then was) speaking on behalf of the Court stated at 289 as follows:

It is obvious that the emphasis in these rules is on the region where the cause of action arose or the region where the subject-matter is situated or where the defendants reside. Bogosu, where the land in question is situated; Sekondi where the case was actually tried and Tarkwa to which application was made for the case to be transferred are all situated in the Western Region. The rules would seem to have been complied with. On the face of the law, that ground of appeal cannot be sustained and therefore failed.

The High Court in General Portfolio Ltd. V Ghana National Petroleum Corporation[3] and Volden v Ghana Goldfields Ltd[4] however allowed intra-regional transfers. The Court in General Portfolio cannot be faulted as it was decided prior to the two Court of Appeal decisions. The Volden case was however decided almost six (6) years after the Quansah decision but it appears the decision was not brought to the attention of the Court as the court did not even cite it in its ruling.

Undoubtedly, all the above decisions were decided under the old rules in LN 140A. The provisions in Order 5 of LN 140A as amended by L.I 1107 are however in pari materia to the provisions in Order 3 of C.I. 47. The established principle of law is that where a statutory provision has received an interpretation or endorsement and the same provision is repeated in a subsequent legislation, the legislature is deemed to have adopted the decision of the Court.

Since the legislature is deemed to know the existing law, and since judicial decisions form part of the laws of Ghana by virtue of article 11(1) and (2) of the Constitution, it cannot be said that the Rules of Court Committee did not know about the decisions of the Court of Appeal at the time of drafting C.I. 47 in 2004. Indeed, if the legislature intended that actions be commenced in the court closer to the parties, they would have said same having regard to the confusion that had been created by the previous decisions. Having maintained that a Plaintiff is entitled to commence an action in the Region where a defendant resides or carries on business, the legislature should be deemed to have permitted a Plaintiff to commence an action in any part of the Region and the Court must not unjustifiably interfere with the election of the Plaintiff.

In the recent case of Republic v University of Education, Winneba and Others; ex parte Dr. Frimpong Duku and Others[5] the High Court faced with a similar situation held that the Rules put a Plaintiff to an election and the court must not interfere with the election of the Plaintiff. In this case, the Plaintiffs, all employees University of Education, Winneba, and residing in Winneba commenced an action in the High Court, Cape Coast, against the Defendants who were also employees and residents in Winneba. The Defendants applied for the matter to be transferred to Winneba where all the parties reside or carry on business. The Court dismissed the application on the ground that what was important was that the action has been commenced in the right Region. In his ruling, the learned Judge held as follows:

The operative clauses are “the Region in which the defendant resides or carry on business.” No special definition of a Region was provided in the Rules and the accepted application has been to equate same with the politically created and defined Regions of the Country. In that respect, there can be no argument that with all 6 applicants and the 1st and 3rd respondents being resident and carrying on their businesses at Winneba and the 2nd respondent residing in Cape Coast but carrying on his business at Winneba, all in the Central Region the legally prescribed venue for the trial is the Central Region. The motion for transfer of the cause cannot, therefore, be founded on the wrong choice of Region nor the jurisdiction of the High Court in that Region; the High Court being vested with jurisdiction in all matters by article 140(1) of the 1992 Constitution.

Having resolved that the action has been commenced in the right Region, the Court proceeded to address other matters in respect of choice and forum shopping as follows:

The motion is based on the issue of choice by the applicants/respondents between three equally competent High Courts within the right region with concurrent jurisdiction, i.e. the High Court, Winneba; the High Court, Agona Swedru; and the High Court Cape Coast. The choice of any of these Courts being the High Court under O. 82 of C.I. 47 within the Central Region in which the respondents/applicants reside and carry on business could have been legitimate under O. 3 r. 1(4), (5) or (6) of C.I. 47. The preference of one of the three permissible Courts to the other two depends on the election of the individual presented with the options, and so long as it does not infringe any law or prescribed procedure, there appears not to be any justification for the Court to interfere, as to do so would be substituting the choice of this Court or the respondents/applicants for that of the applicants/respondents. The incidence of forum shopping is abhorrent behaviour not only on the part of the plaintiff but on the part of the defendant as well, and care should be taken by the Court not to be seen to be encouraging that conduct on either side. It is for that matter that the provisions of the law rather than individual preferences should be the paramount consideration in deciding on the venue for any cause of matter. [Emphasis added]

 Inapplicability of ex parte Bediako

In the earlier article by my learned friend Bobby Banson, he referred to the case of Republic v High Court, Ho; ex parte Nana Diawuo Bediako[6] in support of intra-regional transfer of cases. A close reading of the case, however, makes it apparent that the case does not apply to civil actions commenced in a particular High Court within a Region. The case deals essentially with the territorial appellate jurisdiction of the High Court in respect of appeals from the lower courts. In that case, the interested parties were convicted by the Circuit Court, Hohoe. They appealed to the High Court, Hohoe and applied for bail pending appeal in the High Court, Ho. The Supreme Court was to determine whether the High Court, Hohoe or Ho was the appropriate forum. The Court held that since the lower court that convicted the interested parties were in Hohoe, the Hohoe High Court was the appropriate forum.

What must be noted is that the territorial jurisdiction of the High Court in respect of appeals is different from original civil actions commenced in the High Court. Whereas the territorial jurisdiction of the High Court in respect of original matters commenced before the Court is regulated by Order 3 of C.I. 47 by virtue of article 157 of the Constitution and section 80 of the Courts, Act, 1993 (Act 459), the territorial jurisdiction of the High Court in respect of appeals from the lower courts is regulated by section 21(4) of the Courts Act which provides as follows:

An appeal under this section against a judgment of a Circuit, District or a Juvenile Court, shall, subject to any transfer directed by the Chief Justice, be made to the Judge of the High Court exercising jurisdiction over the area of jurisdiction of the Circuit, District or Juvenile Court. [emphasis added]

Thus, unlike original civil actions where the Plaintiff is put to election as to any of the High Courts within the Region, an appellant in the High Court is not put to election, he is mandated to appeal to the High Court which exercises jurisdiction over the area of the lower court. In Republic v High Court, Cape Coast; ex parte Korte[7] the Supreme Court held that the High Court that exercises jurisdiction over the area of a lower court is the High Court closest to the lower Court and no other court has jurisdiction to entertain such appeals. In that case, the appellant had appealed to the High Court, Cape Coast against a decision of the Community Tribunal in Agona Swedru although there was a High Court in Agona Swedru. The Court in quashing the decision of the High Court, Cape Coast held at pp. 401 – 402 as follows:

Thus for the purposes of this application, the fact that there are two High Courts in the same region does not mean that a prospective appellant may elect in which High Court and in what town he may prefer his appeal. There must be appointed by legislative instrument or other binding statutory instrument designating a judge of the High Court to exercise “jurisdiction over the area of jurisdiction of the Community Tribunal.” My researches, however, reveal that the existing legislative instrument (LI 1574) while it marks the areas of the jurisdiction of the community tribunals, does not address the matters concerned with the application of section 21 of Act 459. Consequently, as presently constituted, when any such situation occurs, the High Court of convenience must be the court nearest to the area of jurisdiction of the community tribunal within the region…. Therefore, where, as in this case, the community tribunal and the High Court are situate in the same town, an aggrieved party must lodge his appeal in the High Court situate in the same town.

Although the Supreme Court in the Bediako case did not refer to its previous decision in ex parte Korte, there is no doubt that the Court was essentially affirming this decision. That restriction, however, does not apply to original actions commenced in the High Court which a plaintiff is entitled to elect any courts within the region.

Applications under section 104 and 105 of the Courts Act

Many practitioners confuse applications under sections 104 and 105 of the Courts Act. Although both sections empower the Chief Justice to transfer a case based on an application by a party to the action, the nature of the application differs considerably under each provision. The relevant provisions of the law provide as follows:

104 (1) Subject to the provisions of the Constitution, 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.

105(1) Any Judge of the High Court or Chairman of a Regional Tribunal may on his own initiative or on application by any person concerned, report to the Chief Justice any case civil or criminal pending before him, which in his opinion ought for any reason to be transferred from him to any other court, Judge or Regional Tribunal.

Applications under section 104(1) are made directly to the Chief Justice and not the Court. This provision entitles a party to an action, who for any reason wants the matter to be transferred from one Court or Judge to another to apply directly to the Chief Justice stating the reasons for the transfer. And if the reasons find favour with the Chief Justice, she may exercise her discretion and transfer the case.

By contrast, applications under section 105 are made to the Court by motion stating the reasons for the transfer. And if those reasons find favour with the Court, the Court will make a report to the Chief Justice who will then decide whether to transfer or not.

A party is therefore at liberty either to apply directly to the Chief Justice under section 104 or apply to the Court under section 105 to have a matter transferred for any reason. However, the practice has been that where the reason for the transfer is based on venue, the aggrieved party must apply to the Court instead of the Chief Justice. In Oils and Fats Ltd v Hooper[8] the Defendant-company applied to the Chief Justice to transfer an action commenced in the High Court, Cape Coast to the High Court, Accra on the ground that its registered offices were in Accra. The Chief Justice refused the application and advised them to rather make an application to the Court. According to the report, the Chief Justice directed that all applications relating to change of venue must be put before the trial Court.

Such applications to the trial Court must also comply with the rules of the Court. Thus, an application for transfer of venue must comply with the requirements of the Order 3 of C.I. 47. Thus, even though section 105 entitles a party to apply at any stage of the proceedings for transfer, where the application is based on venue, it cannot be made after filing a defence. Thus, in Oils and Fats, the Court of Appeal held that the defendant having filed a defence was precluded from applying for transfer, the earlier application to the Chief Justice notwithstanding.

Conclusion

Undoubtedly, sections 104 to 108 gives the Chief Justice the power to transfer any case to any court or Judge and this may be done either suo motu, or an application to the Chief Justice or the Court. The Rules of Court has however imposed some restrictions on the right of a party to apply for transfer on the basis on “wrong” choice of venue. The Rules appears to put the Plaintiff to an election where there are multiple Courts in the same Region. The judicial decisions, on the principle of stare decisis which has received a constitutional injunction by virtue of articles 136(5) and 129(3) of the Constitution, suggests that the discretion of the Court is very limited and the courts must not be seen to be aiding Defendants in forum shopping, just as they should not aid Plaintiffs in forum shopping. This, of course, does not preclude a party from applying for transfer for any other reason.

[1] [1992 – 93] 2 GBR 910, CA

[2] [1999 – 2000] 2 GLR 278, CA

[3] [1992] 2 GLR 138

[4] [1999 – 2000] 1 GLR 462

[5] Unreported, Suit No. E10/04/2018 dated 27th March, 2018

[6] [2011] SCGLR 704

[7] [1999 – 2000] 1 GLR 397

[8] [1992] 1 GLR 326

Cletus Alengah

Cletus Alengah

Cletus Alengah is a legal practitioner with interest in litigation and research. He assists in teaching Constitutional law and Administrative law at the University of Ghana Business School.

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