FRANK OSEI-GYAMFI VRS JOSEPH OFORI & ANOR. (C12/02/2024) [2024] GHAHC 390 (17 October 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE HELD AT KIBI ON 17TH DAY OF OCTOBER, 2024 BEFORE HER LADYSHIP RUBY NAA ADJELEY QUAISON (MRS) HIGH COURT JUDGE. SUIT NO: C12/02/2024 FRANK OSEI-GYAMFI …. PLAINTIFF/RESPONDENT VRS 1. JOSEPH OFORI ….. DEFENDANTS/APPELLANTS 2. ULTIMATE MINING COMPANY LTD. ----------------------------------------------------------------------------------------------- RULING -------------------------------------------------------------------------------------------------- This is an application by the defendants/ Appellants praying to dismiss the ruling of the District Magistrate court Akyem Kwabeng delivered on 15th February 2024. The said ruling dated 15th February 2024 is against an application for transfer of suit to District Court, Weija by the Appellants herein. Following the dismissal of the motion on notice for transfer of suit by the trial court, the Appellants herein, through their Counsel, has filed this Notice of Appeal against the ruling of the trial court dated 15th February 2024 which plaintiff/respondent is vehemently opposed to. The brief background to this suit as narrated by the defendants/appellants is necessary to shed light on the issues raised by counsel for appellants. The plaintiff/respondent commenced this instant suit against the appellants at the District Magistrate court, Kwabeng on 22nd January 2024 and claimed as per the reliefs endorsed in his Writ of Summons and statement of claim. The address endorsed on the writ of summons and 1 accompanying claim indicates that the 1st appellant lives and resides in Weija, Accra in the Greater Accra Region of the Republic of Ghana. The said processes also further indicate that the 2nd appellant’s registered place of business as Room 14-17 Block A, Gicel Estates, Weija, Accra. On the face of the writ looking at the addresses for service all the parties to the instant suit seem not to be resident within the jurisdiction of the District Magistrate court, Akyem-Kwabeng. The appellants applied for an order from the aforementioned District Magistrate court to remit the suit to the Supervising High Court Judge of the Magisterial District for it to be transferred and put before the District Court, Weija in the Greater Accra Region. These additional facts are also glimpsed from the plaintiff/respondent’s response to this application. That on 22nd January, 2024 at the District Magistrate Court, Kwabeng, the respondent issued the writ against the defendants/appellants seeking in particular, an order of the Honourable court to compel the defendants to pay an amount of GH¢420,000 being accrued salaries and risk allowance due from, on, or before April, 2022 to December 2023 and other ancillary reliefs as indorsed on the Writ. The cause of action for the instant appeal is a breach of contract on the part of the defendants, which contract the respondent at all times, performed at Akyem Sankubenase, within the Magisterial District of the Kwabeng District Court, the appropriate venue to commence the action. The plaintiff avers that he indorsed two separate addresses of the appellants on the writ of summons, that is, their operational address at Akyem Sankubenase and their registered address at Weija-Accra. At the heart of defendants/applicants’ application and indeed the present appeal is that, the registered place of business of the appellants is at Room 14-17 Block A, GICEL Estates, Weija-Accra, and thus the District Magistrate Court, Kwabeng is not the proper venue for the suit. 2 The respondent has vehemently opposed this averments and categorically stated supported by annexures marked Exhibit 1 to Exhibit 5 to the effect that the 2nd defendant/applicant company which is owned by the 1st defendant/applicant with his name on documents as Mr. Kwame Amankwaah and Tax identification Number (TIN) P0007106319, is situated and still operational within the Atiwa West District which is the Magisterial District of the Honourable court at Kwabeng. The assertion that none of the defendants/appellants in the instant suit do not reside in the jurisdiction cannot be said to be true since a letter that was written to the Atiwa West District Assembly regarding Business Operating Permit (Exhibit 1) dispels that falsehood. Again, the 1st defendant/applicant operates another company by name RY Goldfields at Akyem Asunafo with the name Mr. Joseph Ofori and has a Tax Identification Number (TIN) P0001291106 which is also within the Magisterial District of the Kwabeng Court. The 2nd defendant, Ultimate Mining Company Limited was sued by the Atiwa West District Assembly on 13th day of July 2023 for non-payment of Business Operating Permit (BOP) per exhibit 2. The defendants/appellants through their lawful representative (Juliana Oppong) went for the invoice of 2024 Business Operating permit for Ultimate Mining Company Limited and signed same in the dispatch books of the Atiwa West District Assembly (Exhibit 3) which is within the Magisterial District of the Honourable Court at Kwabeng The appellants in arguing this application opined that the limits, scope and extent of the territorial jurisdiction of the lower courts, and particularly the District Court are provided for per section 45 of the Courts Act, 1993, (Act 459). Act 459 provides as follow: “…There shall be in each District the District Courts that the Chief Justice may determine…and the Chief Justice shall specify the area of jurisdiction of the District Court...” Also in BELEWUDZI & ORS V DZOTSI & ORS [1979] GLR 173 @ 175 the court held per SOWAH J that “…With the greatest respect, all courts including inferior courts are creatures 3 of legislation. The limit, scope and extent of their jurisdiction are structured in the statute creating them...” 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. Specifically Order 5 Rule 1(4) of 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. Order 5 Rule 1(4)CI 59 provides that a cause or matter for specific performance of a contract or in respect of breach of contract, shall be commenced in the magisterial district in which the contract ought to have been performed or in which the defendant resides or carries on business it is settled law and practice that where the precise geographical jurisdiction of a matter is in doubt, the trial court is under obligation to refer the issue to the Chief Justice or the Supervising High Court Judge for transfer. See: Practice and Procedure in the Trial Courts and Tribunals of Ghana, 2nd edition by S.A Brobbey @ page 37. The rules on venue do not delimit the jurisdiction of the court but are rather intended for fair and efficient distribution of cases. Thus the judicial divisions are for the purposes of convenient administration of justice. See: Civil Procedure: A Practical Approach, by Kwami Tetteh @page 201. See also: REPUBLIC V HIGH COURT JUDGE (FAST TRACK DIVISION) ACCRA, EX PARTE QUAYE [2005-2006] SCGLR 660 AT 664, In the case of INGOS CONTRUCTION LTD V. BLACKWOOD HODGE (GHANA) LTD [1981] GLR 347 at page 348-349, Sarkodee J, offers a useful guide to how the said discretion is to be exercised by stating; “The court ought to look at all the circumstances and decide whether or not to order a transfer of the suit. It seems to me every case must turn on its own peculiar facts but the test to be applied in each particular case, where the defendant applies that the matter be transferred is whether the defendant would suffer some injustice if the action was heard in the region where he does not reside or carry on business.” (emphasis ours) 4 Finally, the case of REPUBLIC V HIGH COURT, HO, EX-PARTE NANA DIAWUO BEDIAKO II [2011] SCGLR 704 is trite authority for the proposition that 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. Thus the summary of the above-mentioned provisions and case law is simply to reiterate the proposition that the determination of whether or not a court is the appropriate venue for the determination of a matter is solely the within preserve and discretion of the Trial Judge before him/her the objection for transfer is being made, and where the Judge, upon considering all the surrounding circumstances, such as the convenience of litigants in attending court proceedings, the place where the defendant resides or carries out business, and the logistical challenges that may be faced in the service of court processes, is of the view that the precise geographical jurisdiction is in doubt, the trial court is under immediate obligation to refer the issue to the Chief Justice or the Supervising High Court Judge for transfer. The respondent in opposing the application stated that the germane issue in this appeal is whether the defendants, particularly the 2nd defendant a registered mining entity, carries on its business at its registered office. Taking a Judicial Notice of the fact that mining companies usually have their registered offices at geographical areas different from their operational areas. Thus, the fact that the company has its registered office at Weija Accra is not conclusive evidence that their operations or the business of mining is carried out in Weija. It is equally clear from Rule 4 of Order 5 of the District Court Rules, that where the cause or matter is in respect of specific performance of a contract or in 5 respect of breach of contract, it shall commence in the magisterial district in which the contract ought to have been performed. As stated earlier this suit emanates from a breach of contract on the part of the defendants, which contract the respondent at all times, performed at Akyem Sankubenase, within the Magisterial District of the Kwabeng District Court, and therefore the appropriate venue to commence the action. The appellants have tried to ignore the fact that, the rules make provision for the action to commence at the venue the defendant carries on business, as well as where the contract is to be performed and is conveniently inviting the court to a one-sided provision on residence or registered place of business. the respondents further opined that they are of the considered opinion that, where the rules of court make provision for a litigant to choose from among different considerations, a litigant would be acting within the rules if he/she decides on which of the options to exercise. The Respondent in this appeal opted to initiate his action at the venue where the 2nd appellant carries on its business as well as where the contract ought to have been performed and have been performed, and same falls within alternative venues he may opt for as per Order 5 of the District Court Rules, 2009 C.I. 59. Regarding the issue of balance of convenience, the respondents submitted that, the respondent, he stands to suffer greater inconvenience and expense should the appeal be granted, he would have to incur expenses to cater for his witnesses, he intends to call who are all resident at Akyem Sankubenase where the contract was contracted, was executed and performed. The assertion that the appellants ceased operations over nine months before the commencement of this action, is so disingenuous as evidence available from the Atiwa West District Assembly indicates that, the 2nd defendant was served with demand notice of the 2024 property rates, Business operating permit, and Business Registration bills for 2024 on 29/01/2024. This statutory obligation gives credence to the irrefutable fact that, 6 the appellants have not ceased operations within the magisterial jurisdiction of the District Court, Kwabeng as it is being alleged. This submission was just calculated to throw dust into the eyes of this Honourable Court. The appellants posited in their submission that the bailiffs have on countless occasions refused to travel to Accra to carry out their duties. Permit me my Lady to say that the assertion is unfounded, as the Judicial Service has structures in place to ensure service on parties at anywhere in the country. It has never been the case that, the bailiffs or the registry coordinates with their colleagues to effect service. That said, the difficulty of the bailiff in doing their work is not one of the grounds upon which a party and in this case the appellants could apply for the transfer of the suit. BY COURT: Order 5(1) rules (3) (4) (5) and (6) & order 5(2) of the District court Rules, 2009; C.I. 59 states: “… (3) A cause or matter to recover penalty or forfeiture against a public officer shall be commenced in the magisterial district where the cause of action arises. (4) A cause or matter for specific performance of a contract or in respect of breach of contract, shall be commenced in the magisterial district in which the contract ought to have been performed or in which the defendant resides or carries on business. (5) Any other cause or matter shall be commenced in the magistrate' district in which the defendant resides or carries on business. 7 (6) Where there are two or more defendants resident in different magisterial districts the cause or matter may be commenced in any of the magisterial districts. Transfer of proceedings 3. (1) 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 is commenced unless (a) the defendant raises an objection to the jurisdiction before or at the time the plaintiff's case is commenced, or (b) the Court reports to a 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.” In the case of GENERAL PORTFOLIO LTD. AND OTHERS V GHANA NATIONAL PETROLEUM CORPORATION [1992]2 GLR 138-145, Korang J held that: 1. “…. The test to be applied was whether the defendant should suffer some injustice if the action was heard in the region where he did not reside or carry on business. The defendant must be able to prove either that the expenses or the difficulties of trial in that region would be so great that injustice would be done in the sense that it would be difficult or practically impossible for the party applying for the transfer to have had justice in that region.” The District Court rules mandates that in causes or matters in respect of specific performance of a contract or in respect of breach of contract, it shall commence in the 8 magisterial district in which the contract ought to have been performed, or which the defendant resides or carries on business. The District court rules provides clearly the considerations the court ought to be mindful of in determining the appropriate venue for hearing a suit. It is only where the plaintiff commences an action out of all the alternatives/and or appropriate options provided per the rules of court that the issue of transfer of the said suit may arise. Suffice it to say that there is undisputed evidence that the alleged contract, breach of which caused this suit to be initiated was performed within the Magisterial District of Kwabeng court. Again there is ample evidence before this court that appellants continue to carry on albeit their other businesses within the Magisterial District of Kwabeng District and continue to litigate other matters within district court, kwabeng. Also importantly the witnesses of this suit are largely resident in and around the jurisdictional location of the kwabeng court. I have considered the application and affidavits filed by all parties as well as their written submissions. I have also taken into consideration all the peculiar circumstances of this case. The fact that the parties entered the employment agreement/ and or contract at sunkubenase. The fact that parties conducted all transactions within this said jurisdiction. That Sunkubenase is also where the operational aspect of the business was situated and not at the registered business address. Also the witnesses of this suit are largely resident in and around the jurisdictional location of the kwabeng court. More specifically, pursuant to order 5(1)4 of C.I. 59 this Honourable court is of the firm view the District Magistrate Court, Kwabeng was right in refusing the Appellants’ application for suit to be transferred. Consequently, this application fails and same is dismissed. No order as to costs. 9 H.L RUBY NAA ADJELEY QUAISON (MRS.) JUSTICE OF THE HIGH JUDGE 10