Territorial Jurisdiction of Lower Courts- Can Suits Be Transferred From One Lower Court to Another?
1.Synopsis
It isaccepted that there is only one (1) High Court in Ghana but for administrative convenience, the Chief Justice may create different high courts in different parts of the country. .
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 several 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[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”.
The High Court (Civil Procedure) Rules, 2004, CI 47 however provides in Order 3 an avenue for matters commenced in a wrong Region to be transferred to the Court in the Region where the matter should have been commenced. Pending the order for the transfer of the action to another Region by the Chief Justice under Order 3 of CI 47, all proceedings and rulings made in the Court where the case was wrongly commenced are deemed valid and binding. This is premised on the fact that because there is only 1 High Court in Ghana which may sit at different parts of the Country and hence proceedings before one High Court Judge is deemed to be pending before every other High Court Judge, albeit differently constituted.
Now, concerning District and Circuit Courts, the Author is of the opinion that there is neither one (1) District Court nor one (1) Circuit Court in Ghana. The rules of transfer of proceedings pending before One High Court to another High Court as provided for in Order 3 of CI 47 cannot be applicable to matters which are commenced in a wrong district or circuit.
This article seeks to provide the legal basis of the contention of the Author as stated above.
2.Introduction
Article 126 (1) (b) of the 1992 constitution provides that the Judiciary shall consist of such lower courts or tribunals as Parliament may by law establish.Lower Courts are defined in Section 39 of the Courts Act, 1993, Act 459, as amended, as follows:
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- Pursuant to paragraph (b) of clause (1) of Article 126 of the Constitution, the following are by this Act established as the lower courts:
(a) Circuit Courts;
(b) District Courts;
(c) Juvenile Courts; and
(d) the National House of Chiefs, Regional Houses of Chiefs and every Traditional Council, in respect of the jurisdiction of that House or Council to adjudicate over a cause or matter affecting chieftaincy.
For the purposes of this article, we will limit the term lower court to mean either the District or the Circuit Court.
3.Territorial Jurisdiction Of Lower Courts
Sowah JA (as he was then) held in Belewudzi & Ors v Dzotsi & Ors[5] that: “With the greatest respect, all courts including inferior courts are creatures of legislation. The limit, scope and extent of their jurisdiction are structured in the statute creating them.”
Flowing from this dictum, we will proceed to restate the limits, scope and extent of the territorial jurisdiction of the lower courts as provided for in the Courts Act, 1993, Act 459; as amended.
Section 40 (1) of Act 459 provides as follows “ (I) There shall be established in each region of Ghana such Circuit Courts as the Chief Justice may by legislative instrument specify.”
Section 40 (5) further provides that “(5) A Circuit Court Judge shall exercise the jurisdiction conferred on the Circuit Court or the Judge by this Act or any other enactment in respect of causes and matters arising within the relevant area of jurisdiction.”
Section 45 of Act 459 provides as follows:
45 (1) “There shall be in each District the District Courts that the Chief Justice may determine
45 (3) The Chief Justice shall specify the area of jurisdiction of the District Court.
From the wordings of Section 40 (5) and 45 of Act 459, there is no doubt that a lower court is established to operate within a specific geographical jurisdiction and not beyond. In further proof of this, (LI 1574) lists the geographical territories of each District and Circuit Court[6] as per the schedules attached thereto.
4.Transfer Of Proceedings Before Lower Courts
The Courts Act, 1993 (Act 459) provides for various means of transferring proceedings from one court to another court. For this article, however, we shall discuss only the means of transferring proceedings from one Court to another on the grounds of the action having been commenced in the wrong venue.
As stated above, concerning the High Court, the provisions of Order 3 of CI 47 are relevant and appropriately so, as there is only 1 High Court in Ghana.
The question then is whether or not there should be similar provisions in respect of the lower courts?
4.1 Circuit Courts:
It is known that there are no separate civil procedure rules in respect of the Circuit. The High Court (Civil Procedure) Rules, are generally applicable to proceedings before the Circuit Court.
Order 1 (1) provides that “These Rules shall apply to all civil proceedings in the High Court and the Circuit Court, except that the application by the Circuit Court shall be with such modifications as may be necessary.
Now, even though Order 1 implores the application of the provisions of CI 47 to proceedings before the Circuit Court, it is not without exceptions. The rule itself admits that there could be modifications of the provisions of CI 47 when it comes to proceedings before the Circuit Court. These modifications, the Author submits, could arise from applicable substantive laws (i.e. Acts of Parliament). For it is trite that where the provisions of the Rules of Court are at variance with the provisions of substantive law, such as an Act of Parliament, on any matter, it is the provisions of the substantive law which must prevail. This position of law was succinctly put in the case of Adjoba v Osofo Hagar[7] where it was held that “By the canons of interpretation, the rule of substantive law must prevail over or override the rule of procedural law.”
Now in this situation, there are the provisions of Order 3 (2) of CI 47 which states 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.
These provisions suggest that all matters commenced before a High Court; could be transferred to another High Court in another region if the laid down procedure is followed. The question is whether or not this room for transfer of proceedings in the High Court, applies to proceedings commenced before a Circuit Court at the wrong venue?
The Author is of the opinion that they do not!
The Court Act, 1993, (Act 459) which is substantive legislation, has provided clearly that there shall be different circuit courts created in different parts of Ghana. The Act further provides that a Circuit Court Judge shall only deal with matters that arise within his/her territorial/geographical jurisdiction. This means that, unlike the High Court where there is no such territorial or geographical limits, the Circuit Court has this limitation in its enabling Act. Applying the ratio in the Belewudzi & Ors v Dzotsi & Ors case (supra), it is submitted that a Circuit Court cannot exercise jurisdiction beyond its territorial boundary.
Therefore, when an action is commenced before a wrong Circuit Judge, that action should be rendered a nullity ab initio. In other words, a Writ of Summons filed in the Circuit Court in Accra, when the cause of action accrues in Kumasi, should be deemed a nullity because the jurisdiction of the Circuit Court Judge in Accra has not been properly invoked. Therefore, if the Writ of Summons is a nullity, it cannot be saved through a transfer of the proceeding to the Circuit Court in Kumasi; under Order 3 of CI 47.
The provisions of Order 3 of CI 47 will therefore not apply to proceedings before the Circuit Court as unlike the High Court, we do not have only one (1) Circuit Court in Ghana.
4.2 District Court
As stated above, section 45 of Act 459 also provides territorial limits to the jurisdiction of District Courts in Ghana. A District Magistrate therefore will have no jurisdiction to entertain an action when the cause of action does not accrue within the geographical boundaries of that district. As in the Circuit Court, it is submitted, that any action commenced in a District Court when the cause of action accrues outside the geographical boundaries of that District is a nullity and that defect cannot be cured by the transfer of the action to the appropriate venue.
Concerning the District Court however, the District Court Rules, 2009, CI 59 contains provisions governing the transfer of proceedings similar to those in the High Court (Civil Procedure) Rules, 2004, CI 47.
Transfer of proceedings
Order 5 rule 2 (1) of CI 59
Where a cause or matter is commenced in a magisterial district other than that in which it ought to have been commenced under rule 1, it may continue in the magisterial district 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 plead; or
(b) the Court reports to the Supervising Judge of the High Court that in its opinion the proceedings ought to be transferred and the Supervising Judge of the High Court 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 subrule (1) of this rule shall be affected by the objection, but the Court if satisfied that the objection is well-founded shall inform the Supervising Judge of the High Court that in its opinion the cause or matter ought to be transferred to the magisterial district in which it ought to have been commenced, and the Supervising Judge of the High Court may upon that, make such order as he considers appropriate.
(3) Where two actions covering the same subject matter and substantially the same parties are pending simultaneously in two different District Courts, the Magistrate of the Court where the action was first filed shall decide the forum for trial and his decision shall be final.
(4) Notwithstanding anything herein contained, in actions for maintenance, child custody, adoption, paternity and other matrimonial causes commenced in the Court contrary to subrules (1) and (2) above, the magistrate before whom an objection is taken may for good reasons stated, and having regard to all the circumstances, assume jurisdiction over the case and that decision taken shall be final.
From the provisions of CI 59 reproduced above, it seems to suggest that where an action is commenced in a wrong magisterial district, that action does not become a nullity. The defect in the jurisdiction is curable by either the waiver of the defect or a transfer of the proceedings to the appropriate venue.
Section 45 of Act 459 however provides that a District Magistrate can only assume jurisdiction over matters which accrue within the geographical limits provided by the Chief Justice in the LI 1574. It is the contention of the Author therefore that where a matter is commenced at the wrong District, contrary to the provisions of Act 459 and LI 1574, it will occasion a breach of substantive law and that breach cannot, therefore, be cured by either a waiver of the Parties or a transfer of proceedings. The provisions of Order 5 of CI 59, therefore, contradict the provisions of Act 459 and LI 1574 and hence on the authority of Adjoba v Osofo Hagar (supra), the provisions of Section 45 and LI 1574 should prevail over the provisions of CI 59.
5.Conclusion
The rules of transfer of matters from one High Court to another under the provisions of Order 3 of CI 47 is premised on the accepted principle that there is only 1 High Court in Ghana. We do not have the same legal principle when it comes to the District or Circuit Courts for which reason the provisions of Order 3 of CI 47 should not apply to the Circuit Court and the provisions of Order 5 of CI 59 should be revoked.
The territorial limits of the jurisdiction of lower courts should not be taken for granted by the Bench and the Bar. It goes a long way to avoid the situation where a Party will forum shop due to his perceived advantage of commencing an action in one District or Circuit even if the cause of action does not accrue in that district or Circuit.
The Author, therefore, recommends that the Rules of Court Committee should amend the provisions of the CI 59 to revoke order 5 for the reasons articulated in this article.
[1] [1976] 1 GLR 185-193
[2] [1973] 2 G.L.R. 456 AT P. 477
[3] High Court, Cape Coast, 1 July 1974, Unreported.
[4] [2011] SCGLR 704
[5] [1979] GLR 173 @ 175
[6] The Author is of the opinion that this LI must be amended to reflect the current number of District Courts and Circuit Courts and their respective areas of operation.
[7] [2008-2009] 2GLR 112
The Writer is the Lead Consultant with Robert Smith Law Group, 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 Fellow of the Chartered Institute of Arbitrators.