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Constitutional law - 1992
Constitution - Articles 2(1) and
130 - jurisdiction - s. 35 (1)
of the Transitional Provisions -
Estoppel per rem judicatam
Confiscation of the assets -
Whether or not the court had
jurisdiction or competence to
issue any order de-confiscating
any property confiscated by the
Armed Forces Revolutionary
Council - Whether or not the
orders made by the High Court
are in contravention of section
35 (1) of the Transitional
Provisions of the 1992
Constitution of Ghana - Whether
or not the Transitional
Provisions of the 1992
Constitution and Laws of Ghana
are wholly inapplicable to this
instant case - Whether or not
this action is caught by the
plea of estoppel per rem
judicatam - Whether decisions of
the High Court of Justice
decision have been declared null
and void subject matte to
invocations of the original
jurisdiction of the Supreme
Court
HEADNOTES
This action,
which is brought under the above
constitutional provisions, has
its genesis in the confiscation
of the assets of the Defendant,
Sweater and Socks Factory
Limited (Sweater and Socks), to
the State in 1979. The order of
confiscation was exacted by the
Armed Forces Revolutionary
Council (AFRC) under s. 1 and
the Schedule thereof of the
Transfer of Shares and Other
Proprietary Interests (Babylos
Co. Ltd. and Others Decree,
1979, (AFRCD 38). The Plaintiff
alleges that this confiscation
was never thereafter, at any
point in time, reversed, either
by virtue of the Confiscated
Assets (Removal of Doubt) Law,
1993, (PNDCL 325) or by the
President acting under the
Transitional Provisions of the
1992 Constitution. It was
further alleged that this
notwithstanding, the Plaintiff
had successfully sued to recover
possession of the assets. The
Sovereign Republic of Ghana
describing the court’s orders in
this regard as manifestly
unconstitutional and a complete
nullity has, through the
Attorney –General, approached
this court, under Articles 2(1)
and 130 of the 1992 Constitution
HELD
Finally, in
the previous action, the court
was never invited to order a
de-confiscation of the subject
property. The action, as
constituted by the reliefs and
the pleadings were not disguised
as such. Neither did the court
issue a decree to that effect.
The judgment was merely
declaratory of the legal status
of Sweater and Socks. The
answers so far provided, dispose
of all the matters raised in the
memorandum of issues filed and
those emanating from the
pleadings. The defendant’s plea
to us that we restore Ankumah
J’s ruling is without
jurisdiction and merit and the
same is hereby dismissed. In the
result, the plaintiff’s action
fails and the same is hereby
dismissed
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
Supreme Court
Rules, CI 16,
Confiscated
Assets (Removal of Doubt) Law,
1993, (PNDCL 325)
Evidence Act,
1975, NRCD 323
Confiscated
Asset (Removal of Doubt ) Law,
1993 PNDCL 352,
CASES
REFERRED TO IN JUDGMENT
In re
Sekyedumase Stool; Nyame v Kese
Alias Konto [1998-1999] SCGLR
476, Lartey and Others v Otoo
(2001-2002) SCGLR 80,
Dahabieh v
S.A.Turqui & Bros.[2001-2002]
SCGLR 498,
Gyimah &
Brown v Ntiri (Williams
Claimant) [2005-2006] 247,
In re Asere
Stool; Nikoi Olai Amontia IV
(substituted by Tafo Amon 11) v
Akotia Oworsika 111 (substituted
by) Laryea Ayiku 111 [2005-2006]
637
In re Kwabeng
Stool; Karikari v Ababio 11
[2001-2002] SCGLR 515,
Adumua Okwei
v. Ashieteye Laryea [2011]
1SCGLR 319
Republic v
High Court, Accra (Commercial
Division); Ex Parte Hesse
(Investment Consortium Holdings
SA & Scasom Ltd; Interested
Parties [2007-2008] SCGLR 1230
Green Halgh v
Mallard [1947] All ER 255
Andani v
Abdulai [1981] G.L.R.866
Sasu v
Amuah-Sekyi, [2003-2004] 742
Henderson v
Henderson (1843) Hare 100
Barrow v
Bankside Agency Ltd [1996] 1 WLR
257
Johnson v
Gore Wood & Co [2002] AC 1
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
WOOD (MRS),
C.J,
COUNSEL
MRS. SYLVIA
ADUSU (PSA) WITH HER ANNA PEARL
AKIWUMI SIRIBOE (PSA) FOR THE
PLAINTIFF.
GEOFFREY
HOWARD QUIST LED BY GEORGE
ESHUN AND DAVID KUDOADZI FOR THE
DEFENDANT.
ATTORNEY-GENERAL’S DEPARTMENT
PLAINTIFF
VRS
SWEATER
AND SOCKS FACTORY LIMITED
DEFENDANT
JUDGMENT
WOOD (MRS),
C.J,
The articles
2(1) and 130 of the 1992
Constitution provide that:
2 (1) “A
person who alleges that-
(a)
an
enactment or anything contained
in or done, under the authority
of that or any other enactment;
or
(b)
any
act or omission of any person;
is
inconsistent with, or is in
contravention of a provision of
this Constitution, may bring an
action in the Supreme Court for
a declaration to that effect.
130 (1)
Subject to the jurisdiction of
the High Court in the
enforcement of the Fundamental
Human Rights and Freedoms as
provided in article 33 of this
Constitution, the Supreme Court
shall have exclusive original
jurisdiction in-
(a)
all
matters relating to the
enforcement or interpretation of
this
Constitution;”
This action,
which is brought under the above
constitutional provisions, has
its genesis in the confiscation
of the assets of the Defendant,
Sweater and Socks Factory
Limited (Sweater and Socks), to
the State in 1979. The order of
confiscation was exacted by the
Armed Forces Revolutionary
Council (AFRC) under s. 1 and
the Schedule thereof of the
Transfer of Shares and Other
Proprietary Interests (Babylos
Co. Ltd. and Others Decree,
1979, (AFRCD 38). The Plaintiff
alleges that this confiscation
was never thereafter, at any
point in time, reversed, either
by virtue of the Confiscated
Assets (Removal of Doubt) Law,
1993, (PNDCL 325) or by the
President acting under the
Transitional Provisions of the
1992 Constitution. It was
further alleged that this
notwithstanding, the Plaintiff
had successfully sued to recover
possession of the assets. The
Sovereign Republic of Ghana
describing the court’s orders in
this regard as manifestly
unconstitutional and a complete
nullity has, through the
Attorney –General, approached
this court, under Articles 2(1)
and 130 of the 1992
Constitution, per an amended
writ for two main reliefs,
namely,
1.
“A
declaration that by virtue of
section 35 (1) of the
Transitional Provisions of 1992
Constitution of Ghana, no court
in Ghana has jurisdiction or
competence to issue any order
de-confiscating any property
confiscated by the Armed Forces
Revolutionary Council and /or to
award any monetary reliefs
against the Republic of Ghana
for the possession and /or use
of any such confiscated
property;
2.
A
declaration that the judgment of
the High Court , Accra dated 8th
April 2003 in Sweater and Socks
Factory Limited V
Attorney-General and Ors (Suit
No C.681/94) wherein the High
Court made an order
de-confiscating the assets of
the defendant… is null, void and
no effect as the said orders are
in contravention of section 35
(1) of the Transitional
Provisions of the 1992
Constitution of Ghana;”
The
Plaintiff, who maintains that
the purpose of this
constitutional litigation is to
ensure full compliance with
section 35 of the Transitional
Provisions of the 1992
Constitution, prays for such
consequential orders as would
effectuate this intention.
Stripped away of all fine
details, this is a fair
summation of the essential facts
on which this action is
grounded.
There is very
limited common ground between
the parties. It relates firstly
to the confiscation; the fact
that the assets of Sweaters and
Socks were indeed confiscated to
the State by the AFRC. The
Defendant however contests the
allegation that the property was
never thereafter de-confiscated.
They assert that to the
contrary, the majority
shareholders of the company
lawfully utilised the existing
laws of the land to have the
confiscation duly reversed.
This they did by petitioning
both the AFRC and the Special
Tribunal established under AFRCD
23, purposely to review inter
alia all acts of confiscation,
following which the assets were
de-confiscated. This singular
act, they assert, subsequently
received full judicial
approbation.
Secondly,
they admit instituting as
between the same parties in the
High Court Accra, Suit No.
C681/94, at which trial the
issues which the plaintiff seeks
to litigate in this instant
action, were determined and
judgment pronounced in
defendant’s favour for the
reliefs of:
a)
“A
declaration that the true legal
position now is that the Sweater
and Socks Factory have not been
confiscated and are therefore
entitled to carry out their
normal business operation.
b)
An
order for recovery of possession
of the factory premises and all
the machinery and or equipment
thereof from the hold of the 2nd
Defendant, National Industrial
Company”.
I would thus
summarise the defence of Sweater
and Socks to this action as
follows:
1 Section
35(1), of the Transitional
Provisions of the 1992
Constitution and Laws of Ghana
are wholly inapplicable to this
instant case; on the basis that:
2
As at
January 1980, the status of
Sweaters and Socks as a
confiscated property had wholly
altered; it having been legally
and effectively de-confiscated.
3
This
legal status or position of
Sweater and Socks as
de-confiscated property received
judicial affirmation in
Suit No. C681/94 entitled
Sweater and Socks Factory Ltd. v
Attorney General.
4
This
action is caught by the plea of
estoppel per rem judicatam,
namely, both cause of action
estoppel and issue estoppel
given that in the previous suit,
No.C681/94 (supra), which action
was between the same parties for
virtually the same reliefs, the
core issues relating to the
de-confiscation of Sweater and
Socks, and the applicability or
otherwise of the s. 35(1) of the
Transitional Provisions, were
decisively determined in
defendant’s favour by the High
Court, a court of competent
jurisdiction, which decision was
never appealed from.
5 In any
event, the judgment in C684/91
was merely declaratory of the
rights of the parties at law,
without the court usurping the
powers of the President as
exists under the Transitional
Provisions, by ordering the
subject property de-confiscated.
MEMORANDUM OF
ISSUES
Rule 50 sub
rule (1) of the Supreme Court
Rules, CI 16, stipulates that in
actions invoking the original
jurisdiction of this court, the
parties are, either, by
agreement or on the court’s
orders, enjoined to jointly file
a memorandum of agreed issues,
failing which, parties who are
unable to agree on the issues,
must file separate memorandum of
issues. This rule, which parties
must do well to honour in its
observance rather than its
breach, reads:
“(1) The
parties may agree to file, or
shall, if so ordered by the
Court, file a memorandum
specifying the issues agreed by
them to be tried at the hearing
of the action.
(2)…
(3) Where
parties cannot agree on the
issues each party may file that
party’s own memorandum of
issues.”
What is the
proper construction to place on
the rule, and consequently its
correct legal import,
notwithstanding the use of the
word “may”. It ought,
contextually, to be purposively
construed as being directory
rather than permissive or
discretionary. It is contrary to
the fundamental notions of
justice, and plain logic that
the framers of the law intended
that the filing of memorandum of
issues in respect of matters as
grave as constitutional
enforcement actions, remain
permissive and not mandatory; so
that the same be left entirely
to the parties’ discretion or
convenience. Sound judicial
policy and efficiency in the
administration of justice
requires that constitutional
disputes, which allege a
continuing violation of the
Constitution, whether express or
implied, be heard and disposed
of effectually and in a timely
manner. This sound policy can
only be achieved with the
maximum co-operation of parties
on both sides of the divide,
hence my opinion that the filing
of memorandum of issues cannot
be on sufferance of parties,
most especially a plaintiff who
is represented by counsel.
Certainly, as
the court of first and last
instance, our legitimate
expectation is that this
original jurisdiction of this
court would be invoked in only
serious constitutional
interpretive or enforcement
matters. Thus, and more
especially, where parties are
represented by counsel, it is
their duty then, as officers of
the court to assist the court to
justly and effectually determine
all matters in controversy
between the parties
expeditiously. That duty, which
understandably rests with the
parties in litigation, includes
the identification and
comprehensive formulation of all
the relevant issues for
determination. Undoubtedly, the
court may, in its purely
complementary role, suo motu
raise issues for its
consideration, after giving
parties sufficient notice and
opportunity to address the
issues so raised. But the
primary duty of identifying the
issues in any enforcement action
rests with the parties, not the
court.
Regrettably,
the plaintiff, the initiator of
this action, failed to file any
memorandum of issues as required
under the rules. I hesitate to
attribute this neglect, to
counsel’s difficulty in
identifying the issues which lie
at the heart of this
uncomplicated action. This
notwithstanding, this court has
a duty to examine the case as
presented by the parties, but
more particularly, the
plaintiff, alongside the
memorandum of issues formulated
by the defendant, with a view
to bringing out all other
relevant issues arising there
from and which may have escaped
the defendant’s scrutiny. The
basic notions of substantive
justice implicitly place this
burden on the court, in the face
of a default by one party or
even where both parties, have
filed agreed or separate
memorandum of issues. The court
has a duty to ensure that all
issues, not just those
identified by the parties, but
all issues emanating from the
statement of case on either side
are determined.
The
Memorandum of Issues filed by
the Defendant were:
1.
“Whether Sweater and Socks
Factory Limited was
de-confiscated prior to the suit
intituled Sweater and Socks
Factory Limited v. Attorney-
General and Ors.(Suit No. C
681/94)?
2.
Whether the High Court
de-confiscated the assets of
Sweater and Socks Factory
Limited in the suit intituled
Sweater and Socks Factory
Limited v. Attorney- General and
Ors.(Suit No. C 681/94)?
3.
Whether section 35 (1) of the
Transitional Provision of the
Constitution, 1992 is applicable
to the decisions of the High
Court in the judgment dated 8th
April, 2003 in the suit
intituled Sweater and Socks
Factory Limited v. Attorney-
General and Ors.(Suit No. C
681/94)?
4.
Whether decisions of the High
Court of Justice in the suit
intituled Sweater and Socks
Factory Limited v. Attorney-
General and Ors.(Suit No. C
681/94 which have been declared
null and void by the said High
Court can be the subject matter
of a suit to invoke the original
jurisdiction of the Supreme
Court?
It is quite
plain from the defendant’s
statement of case that the plea
of res judicata is central to
this case. The following
relevant parts of the parties’
statements lend support to this
view:
Plaintiff had
stated per paragraph 7 (1) of
the statement of case:
a.
“7 1)
The Plaintiff says that the,
Defendant on 22nd day
of September 1994 issued a writ
of Summons accompanied by a
Statement of Claim against the
Attorney – General and the
National Industrial Company in
Suit No.C681/94 claiming the
following:
a. A
declaration that the true legal
position now is that the Sweater
and Socks Factory have not been
confiscated and are therefore
entitled to carry out their
normal business operation.
b.
An
order for recovery of possession
of the factory premises and all
the machinery and or equipment
thereof from the hold of the 2nd
Defendant [i.e. National
Industrial Company].
c)
An
order of comprehensive account
of all uses or transactions
carried out by the 2nd
Defendant [ in that suit,
National Industrial Company] on
the premises of the factory
floor and or use of the
equipment or machinery by same.
d)
An
order of perpetual injunction
against the Defendants[i.e. the
Attorney-General and the
National Industrial Company from
interfering with the business
operations of the plaintiff
company
8. The
Plaintiff says that on the 8th
day of April 2003 the High
Court presided over by Her
Ladyship Justice H. Inkumsah
Abban gave judgment in favour of
the defendant for all the
reliefs claimed.[the judgment is
attached as Exhibit
AGSS1]”
The
defendant’s response, as per the
paragraph 9 of their statement
of case reads:
“9 The
Defendant admits paragraph 7(1)
and says that when he instituted
the action, the Plaintiff herein
was served with the Writ of
Summons and Statement of Claim.
(A copy of the writ of summons
has been attached as Exhibit
‘SSFL3’).
10. The
Plaintiff herein filed a
statement of defence (A copy of
which is attached as Exhibit
‘SSFL4’.)
11. In the
Statement of Defence filed by
the Plaintiff herein, the issue
of the confiscation of the
Defendant Company was raised.
The Plaintiff herein in the said
Statement of Defence averred
that Sweater and Socks Factory
Ltd. remained a confiscated
company and that if the
plaintiff wishes he could take
advantage of section 35(2) of
the Transitional Provisions of
the 1992 Constitution to redress
his grievance
12. The
issue of confiscation or
otherwise of Sweater and Socks
Factory Limited was one of the
issues set down for trial. And,
the plaintiff herein also had
the opportunity to argue this
issue extensively in an
address filed on the
27/2/2002. (A copy is attached
as Exhibit ‘SSLF5’). The
Defendant will therefore contend
that the issue Section 35(1) of
the Transitional has been raised
in the course of the trial of
that suit and the same taken
into consideration when the
judge gave her judgment. It was
argued that if the plaintiff
therein wishes he could take
advantage of Section 35(2) of
the Transitional Provisions of
the 1992 Constitution to redress
his grievance”.
These facts,
verified by affidavit are indeed
supported by the annexures,
namely, the writ and statement
of defence marked as SSFL3 and
SSLF4 respectively.
THE LEGAL
ARGUMENTS
The
plaintiff’s submitted that the
assets of Sweater and Socks were
confiscated to the State by the
AFRC pursuant to AFRCD 38, s.1
and the schedule thereof. Under
the existing laws, the argument
further went, the only authority
empowered to reverse
de-confiscation orders is the
President exercising the powers
conferred on him pursuant to s.4
of PNDCL325 and s.29 (3) of the
Transitional Provisions of the
1992 Constitution. It was
submitted that since the
President has not exercised any
such power relative to the
property, it remained
confiscated to the State. It was
argued that under those
circumstances, since s.35 (1) of
the Transitional Provisions,
completely ousts the courts from
enquiring into the act of
confiscation or making orders
thereto, the High Court acted
unconstitutionally and ultra
vires its powers when it granted
the orders complained of in suit
No. C681/94.
The Defendant
does not challenge the original
act of confiscation. They
maintain however that subsequent
to this, the assets were
lawfully de-confiscated, via due
process, with the legal status
of the subject property as a
de-confiscated property,
subsequently being judicially
affirmed by a court of competent
jurisdiction per suit No. C681
/94. They contended that, in
exercising that judicial power,
the High Court acted lawfully
within its jurisdiction and
never in contravention of the
1992 Constitution.
Two arguments
were advanced in support of this
contention. Firstly that,
contrary to the plaintiff’s
submissions, the s.35 (1) of the
Transitional Provisions was
wholly inapplicable to the
peculiar facts of Suit No
C681/94. Allied to this, that
the court by its judgment, never
committed any of the acts
prohibited under the s. 35 (1)
and never ordered the
de-confiscation of the property,
a deed which had already been
committed. The court only, they
urged, by means of a declaratory
judgment, and based on the facts
and the law, pronounced on the
true legal status of Sweaters
and Socks. Finally, they argue
that in any event, the
plaintiffs are caught by the
plea of res judicata in that
the cause of action and indeed
the two important issues raised
in this instant action, namely,
the issue of whether the
property had been de-confiscated
before the commencement of suit
No. C681/94, and the
applicability or otherwise of
the s. 35 (1) of the
Transitional Provisions, were
all duly considered and
adjudicated upon by the High
Court, a court of competent
jurisdiction.
The first
fundamental question for our
determination is whether Sweater
and Socks was ever
de-confiscated. There is no
doubt that the defendants
successfully discharged the
burden of proof which clearly,
from the state of the pleadings
and consequently the nature of
their defence, and on the
strength of ss. 10,11,and 12 of
the Evidence Act, 1975, NRCD
323 rested on them. Their
claim per paragraph 3 of
statement of case that:
“…as at
January 1980, the Sweaters and
Socks Factory limited had been
de-confiscated.”
is
corroborated by a statute of
this land, namely, the
CONFISCATED ASSETS (REMOVAL OF
DOUBT) LAW, 1993 PNDCL 352,
whose preamble clearly outlined
the purpose of the law. It
states:
“WHEREAS
the Provisional National
Defence Council is aware that
the properties specified in the
Schedule to this law have been
in the possession of the
Confiscated Assets Committee as
assets confiscated to the State;
AND WHEREAS the Provisional
National Defence Council
considers it necessary to remove
all doubt as to legal status of
the specified properties;
NOW THEREFORE in pursuance of
the Provisional National Defence
Council (Establishment)
Proclamation, 1981 this Law is
hereby made:
1.
(1)
Notwithstanding any law or
anything to the contrary
–
(a) the immovable properties
specified in Part 1 of the
Schedule to this Law; and
2.
…
are assets
which shall be deemed to have
been confiscated to the State
from the date of the
announcement or publication of
the confiscation or from the
date they were taken into
possession by the Confiscated
Assets Committee, and shall
remain, subject to section 3 of
this Law, confiscated to the
state.”
A careful
examination of the schedule
shows clearly that not a single
asset of Sweater and Socks is
included in the list of
confiscated properties.
Secondly, the
plaintiff is estopped per rem
judicatam from asserting
otherwise and re-litigating this
issue, given that it was
adjudicated upon by the High
Court in the previous suit No.
C681/94. The well established
principle is that a party who
intends to rely on this plea
must do so expressly, and make
full disclosure of all the
material facts on which it is
anchored. The primary object of
this sound and high public
policy driven rule has also been
fully discussed in many
decisions of this court. It is
in the interest of justice and
the public at large that
finality should attach to
binding judgments and decisions
of courts and tribunals of
competent jurisdiction. Also,
parties should not be vexed
twice or more over the same
matters in litigation. The
rationale for the rule that a
party who intends to rely on the
plea must expressly plead same
is to prevent the other party
being taken by surprise by
offering him or her full
opportunity to prepare
adequately to meet the plea.
Notwithstanding this
requirement, the failure to do
so with specificity, employing
the well known legal
terminology-“estoppel per rem
judicatam” - is not fatal to a
party’s case. Courts of justice
must always strive to strike a
proper balance between
substantive justice and
procedural laws. Whenever
legally justifiable or
appropriate, substantial justice
must never be sacrificed on the
altar of technism, or technical
rules of procedure. Thus, where
the plea has not explicitly been
set out, but the defendant’s
statement of case point
unequivocally or substantially
to the plea, the court is bound
to consider it, as if the same
had been specifically raised by
the defendant. It can hardly be
argued under such circumstances
that an opponent has been taken
by surprise or prejudiced.
Again, the
full scope of the res judicata
principle has been extensively
discussed in a host of decisions
of this court. (See for example;
In re Sekyedumase Stool; Nyame v
Kese Alias Konto [1998-1999]
SCGLR 476, Lartey and Others v
Otoo (2001-2002) SCGLR 80,
Dahabieh v S.A.Turqui &
Bros.[2001-2002] SCGLR 498,
Gyimah & Brown v Ntiri (Williams
Claimant) [2005-2006] 247, In
re Asere Stool; Nikoi Olai
Amontia IV (substituted by Tafo
Amon 11) v Akotia Oworsika 111
(substituted by) Laryea Ayiku
111 [2005-2006] 637 at 651-652).
Ampiah JSC, in the case of In re
Kwabeng Stool; Karikari v Ababio
11 [2001-2002] SCGLR 515,
lucidly set it out in these
terms, at page 530:
“The doctrine or principle of
estoppel is founded on the maxim
interest reipublicae ut sit
finis litium meaning, “it
concerns the State that lawsuits
be not protracted”. Also, “no
man ought to be twice vexed, if
it be found to the court that it
be for one and the same cause”
(nemo debet bis vexari, si
constat veriae quod sit pro una
et eadem causa). If an action is
brought, and the merits of the
question are determined between
the parties, and a final
judgment is obtained by either,
the parties are precluded, and
cannot canvass the same question
again in another action,
although, perhaps, some
objection or argument might have
been urged upon the first trial
which would have led to a
different judgment.’’
Also, in
Adumua Okwei v. Ashieteye Laryea
[2011] 1SCGLR 319, in laying the
foundational principles on what
documentary evidence , if
any, provides
sufficient proof of the plea,
this court rightly held that:
“In
determining the existence of
estoppel per rem judicatam, the
judgment itself must be looked
at; and where there had been
pleadings, those should also be
examined being part of the
record.”
Now, the
defendant’s contention that the
previous suit, No 681/94, was
between the same parties, and
further that the court duly
considered the issue of
de-confiscation on the merits is
clearly unassailable. The
pleadings and judgment in that
case which, which is a final
judgment of the High Court,
which was not appealed from and
which was produced at this
hearing, confirms these facts in
every essential detail.
But, this
definitive conclusion on the
applicability of res judicata,
invites a couple of other
critical questions. The first is
whether in the face of the
section 35 (1) of the
Transitional Provisions of the
1992 Constitution, and the
arguments advanced by the
plaintiff thereof, the High
Court’s jurisdiction was clearly
ousted by the s. 35 (1) of the
Transitional Provisions,
wherefore the court acted in
breach of the constitution when
it assumed jurisdiction, thus
rendering the decision
complained of in suit No.
C681/94 a complete nullity.
Stated differently, can it be
said that the court acted
unconstitutionally and does not
therefore qualify as a court of
competent jurisdiction?
The
defendant’s counter argument is
twofold. The first relates to
the inapplicability of the s.35
(1), since Sweater and Socks was
not confiscated property and the
second to the fact that the
matter is res judicata in any
event, given that this issue,
had been conclusively determined
in the previous suit No.
C681/94.
That s. 35
(1) of the Transitional
Provisions of the 1992
Constitution is inapplicable, on
the ground that the property is
not a confiscated property is
evidently unchallengeable. It
arises from the clear
constitutional provision itself
which limits the s. 35 (1) to
only confiscated assets.
De-confiscated properties do not
therefore fall within its ambit.
The law provides:
“S.35 (1)
Subject to subsection (2) of
this section, any
confiscation of any property
and any other penalties imposed
by or under the authority of the
Armed Forces Revolutionary
Council and the Provisional
National Defence Council under
any Decree or Law made by that
Council, shall not be reversed
by any authority under this
Constitution.” (Emphasis
supplied)
The operative
word is “any confiscation of
any property.” Therefore, a
party who pleads reliance on
rely on s. 35 (1) of
Transitional Provisions, as
ousting a court’s jurisdiction,
must of necessity prove that the
property in question is
confiscated property. Having
held that Sweater and Socks is
not a confiscated asset, the
court which adjudicated on suit
No. C681/94 was clothed with
jurisdiction and its decisions
are binding on both parties and
their privies, and we in this
court have a duty to respect it.
In this
regard, it is clear the only
reason why the plaintiff’s
argument is not sustainable is
because the property was not a
confiscated property. The
defendant’s other contention
that in the previous action, the
constitutionality question was
pleaded and taken into
consideration by the court is
not supported by the evidence
(pleadings and judgment)
provided at this hearing. Thus,
contrary to the defendant’s
assertion, this issue was never
adjudicated upon by the High
Court.
Plainly, the
plaintiff looses on the
jurisdictional question because,
as found, the assets are not
confiscated property. It is not
on the basis of res judicata,
namely that the question had, in
a previous action been
adjudicated upon, that this
action fails. But then, can it
be rightly contended in the
alternative that the plaintiff’s
failure to raise that
fundamental question in the
previous suit No C681/94,
precludes them from doing so
now? In fairness, it cannot be
urged against the plaintiff
that, in this instant action, in
the alternative and based on the
related doctrine of abuse of
process; they are estopped and
precluded from raising the
constitutionality issue. They
are indeed entitled to raise
this critical question, of the
applicability or otherwise of s.
35 (1) of the Transitional
Provisions at this hearing. The
only difficulty is that they
cannot succeed. And the reason
is again very simple.
This court
has, in previous decisions,
explained the nature of this
doctrine. In the past, we have
included it in the variants of
the more commonly utilised
defence of estoppel per rem
judicatam doctrine. We have
actually not merely identified
it as the third branch, so to
speak, of principle, but
assigned to it the generic term
‘res judicata’ . My decision in
Republic v High Court, Accra
(Commercial Division); Ex Parte
Hesse (Investment Consortium
Holdings SA & Scasom Ltd;
Interested Parties [2007-2008]
SCGLR 1230, in which I relied on
the old English case of Green
Halgh v Mallard [1947] All ER
255, as well as this court’s
earlier decisions in Andani v
Abdulai [1981] G.L.R.866,
Dahabieh v S A Turqui & Bros.
(supra), Gyimah and Brown v
Ntiri (supra) are included in
the fairly long list of decided
cases in which we were persuaded
by English authorities, to
adopt this approach.
However, in
Sasu v Amuah-Sekyi, [2003-2004]
742, Dr Date-Bah JSC took a
different stance. He concluded
differently as far as the proper
nomenclature of this less
commonly used principle - abuse
of process- is concerned. He
observed that the doctrine,
though related to res judicata,
is not strictly speaking res
judicata, although it bears
close affinity to it. I quote in
extenso the observation of the
honourable justice as found at
page 768 of Sasu v Amuah-Sekyi
(supra):
“In addition to the cause of action
and issue estoppel explained in
the quotation from Diplock LJ
above, there is the related
doctrine of abuse of process,
commonly referred to as the rule
in Henderson v Henderson (1843)
Hare 100 whose essence was set
out by the English Court of
Appeal in Barrow v Bankside
Agency Ltd [1996] 1 WLR 257 at
260 as follows:
“The rule in
Henderson v Henderson (1843)
Hare 100 is very well known. It
requires the parties, when a
matter becomes the subject of
litigation between them in a
court of competent jurisdiction,
to bring their whole case before
the court so that all aspects of
it may be finally decided
(subject, of course, to any
appeal) once and for all. In the
absence of special
circumstances, the parties
cannot return to the court to
advance arguments, claims or
defences which they could have
put forward for decision on the
first occasion but failed to
raise. The rule is not based on
the doctrine of res judicata in
a narrow sense, or even on any
strict doctrine of issue or
cause of action estoppel. It is
a rule of public policy based on
the desirability, in the general
interest as well as that of the
parties themselves, that
litigation should not drag on
for ever and that a defendant
should not be oppressed by
successive suits when one would
do. That is the abuse at which
the rule is directed.
…As Lord Bingham of Cornhill
observed in Johnson v Gore Wood
& Co [2002] AC 1 at 31 the three
doctrines of cause of action
estoppel, issue estoppel and the
rule in Henderson v Henderson
have a common purpose. He said:
“But
Henderson v Henderson abuse of
process, as now understood,
although separate and distinct
from cause of action estoppel
and issue estoppel, has much in
common with them. The underlying
public interest is the same:
that there should be finality in
litigation and that a party
should not be twice vexed in the
same matter”.
It is clear
from this passage that the
difference between the two
positions relates to terminology
rather than the real substance
relative to how the rule
functions or its underlying
philosophy. Suffice it to say
however that the thinking of Dr
Date-Bah JSC does reflects the
more current and more
persuasively authoritative
position of English law, the law
from which we develop some of
our principles.
More
importantly, it is very clear
from the abuse of process
doctrine as discernible from all
the decisions of this court,
without a single exception,
that special circumstances,
would justify its exclusion or
applicability and allow the
litigation of issues which could
have or ought to have been
brought up for adjudication in a
previous action, but were not.
Given that estoppels of all
kinds cannot override the laws
of this land, I would include,
constitutional questions,
jurisdictional questions,
arising from alleged
constitutional or statutory
violations, such as the one
raised before us, as some of the
exceptional grounds on which, in
a fresh action involving the
same parties or privies, a
defendant cannot successfully
rely on the plea of abuse of
process in defence. A plaintiff
would therefore be at liberty to
raise any such fundamental issue
in a subsequent new action; with
the success or other wise of a
plaintiff’s plea or claim being
an altogether different matter
for the court’s consideration.
In the light of the foregoing,
the plaintiffs are well within
their legal right, in this
instant action, to question the
constitutionality of the court’s
decision in suit No. C681/94.
Unfortunately, they do not
succeed; and the answer remains
unalterable. The s.35 (1) of the
Transitional Provisions would
not apply for the simple reason
that Sweater and Socks is not
confiscated property.
Finally, in
the previous action, the court
was never invited to order a
de-confiscation of the subject
property. The action, as
constituted by the reliefs and
the pleadings were not disguised
as such. Neither did the court
issue a decree to that effect.
The judgment was merely
declaratory of the legal status
of Sweater and Socks.
The answers
so far provided, dispose of all
the matters raised in the
memorandum of issues filed and
those emanating from the
pleadings. The defendant’s plea
to us that we restore Ankumah
J’s ruling is without
jurisdiction and merit and the
same is hereby dismissed.
In the
result, the plaintiff’s action
fails and the same is hereby
dismissed
(SGD)
G. T. WOOD (MRS)
CHIEF JUSTICE
DOTSE JSC
CONCURRING
OPINION
I have been
greatly privileged to have read
the erudite judgment delivered
by the Honourable and respected
Wood C.J and President of this
Court. Even though I agree with
the reasoning and decision
contained in the judgment that
the plaintiff’s writ be
dismissed, I am minded to
expatiate on an issue of
procedure that I feel requires
some further level of
expatiation in view of some
other instances of such
unwarranted applications to this
court.
In paragraph
32 of the amended statement of
Defendant’s case pursuant to
leave granted on 29th
day of July 2013, the
Defendant’s averred as follows:-
“It is respectfully submitted
that the Supreme Court ought
to exercise its powers to
reverse the ruling of Mrs.
Elizabeth Ankumah J made on
the 22nd day of April
2013, and reinstate all the
orders allegedly set aside by
Mrs. Ankumah J’s ruling and
order the Garnishee Order
Absolute made by
Justice Ocran to be enforced.”
In order to
put into proper perspective this
invitation of the Defendant’s to
reverse the orders made by
Ankumah J on 22nd
April, 2013, it is necessary to
give some historical background
to that scenario.
After the
judgment of the High Court,
Accra, Coram, Mrs. Helena
Inkumsah Abban, rendered on 8th
April, 2008 in Suit No. C.68/94
already referred to in the lead
judgment of Wood C.J, Ankumah J,
then made orders dated 27th
July, 2011 pursuant to the
judgment of 8/4/2003 and
accepted amended estimates of
the accounts of the Defendant’s
herein, therein plaintiffs which
were tendered in evidence before
the court in full blown
proceedings in which the parties
herein fully participated. These
proceedings culminated in a
ruling dated 16th May
2012 by which Ankumah J, awarded
monetary compensation to the
Defendant’s herein to the value
of USD$ 28, 595,600.00 or its
cedi equivalent against the
plaintiff’s herein based on the
judgment of 8th April
2003 in suit No. C.68/94 already
referred to supra.
In granting
an application at the instance
of the Plaintiff’s to set aside
the orders made by Ankumah J
dated 16/5/2012 it is perhaps
instructive to state the exact
words used by the learned trial
Judge. She stated thus:
“From the above, it is
manifestly clear that this
Court is clothed with
jurisdiction to set aside its
own order of 27th
July 2011, the proceedings based
on the said order of 27th
July 2011 and the
ruling of this Court dated 16th
May 2012 as being void.
Motion on notice under the
inherent jurisdiction of the
Court for an order to set
aside void orders
and proceedings of the High
Court filed on 13/3/2013
is hereby granted.”
Emphasis supplied.
The above are
the orders that the defendant’s
are inviting this court to use
its powers to reverse and to
reinstate all the orders
allegedly set aside by Ankumah
J.
Unfortunately, learned Counsel
for the defendant’s has not
identified and or pointed out to
the court, the powers of this
Court which as it were would
have clothed us with
jurisdiction to reverse and
reinstate the said orders.
It must be
noted that, the instant suit is
one which has invoked the
original jurisdiction of the
court pursuant to articles 2 (1)
(a) and (b) and 130 (1) (a) of
the Constitution 1992 of Ghana.
Since the
orders which this court has been
invited to reverse and
reinstate had all been made
by the High Court, and there is
no appeal against those
decisions to the Court of Appeal
and finally to this court which
has been brought to our
attention, the invitation to
this Court is not only strange
but bizarre and is a recipe for
disaster if it is acceded to.
PROCEDURE TO
INVOKE JURISDICTION OF SUPREME
COURT
One other
process by which the orders of
the High Court could be reversed
is to have invoked the
supervisory jurisdiction of this
court pursuant to article 132 of
the Constitution 1992 and rules
61 to 66 of the Supreme Court
Rules, 1996 C. I. 16.
It should be
clearly noted that, this court’s
jurisdiction has been
categorized under various
sub-sets and clearly marked out
in the Constitution 1992 and the
Supreme Court Rules, C.I. 16.
Out of
abundance of caution, these
jurisdictions are:
1.
Civil
and Criminal appellate
jurisdiction
2.
Original jurisdiction, just like
the instant case
3.
Review
jurisdiction
4.
Supervisory jurisdiction
5.
References to the court by
courts lower to the Supreme
Court
6.
Challenge of election of
President
7.
Chieftaincy appeals from the
National House of Chiefs
8.
Single
Judge jurisdiction
Where a
particular jurisdiction of the
court has been invoked,
reference is made to the
constitutional provisions
delineating the confines of the
jurisdiction of the Court as
well as the rules of court as
contained in the Supreme Court
Rules 1996, C. I. 16. This
latter legislation prescribes
the procedure by which the
particular jurisdiction is to be
exercised, the time within which
the required processes are to be
filed and by what originating
process.
Applications
made to the Supreme Court and
indeed to any Court of record
should be based upon clear
jurisdictional criteria of the
Court. This is because
jurisdiction is key to the
proper functioning of any court
of competent jurisdiction, and
where this is lacking the court
which wrongly assumes
jurisdiction stands the risk of
its orders being set aside
either suo motu or upon
application.
In this case
for instance, where it is the
original jurisdiction that has
been invoked, the power of the
court is clearly limited to the
reliefs endorsed on the writ and
more importantly, the memorandum
of issues that have been set out
and agreed upon.
Even though I
agree that in appropriate cases
and circumstances, this court
can and does grant some reliefs
where it is referable to the
matters in controversy, i.e. in
a supervisory jurisdiction case
or review application where the
application succeeds and
therefore consequential orders
are made the Supreme Court
generally will not depart from
its core jurisdictional mandate
and limitations.
The
invitation by learned Counsel
for the Defendant’s to this
Court in the manner in which it
has been stated is not warranted
by any of the known rules of
this court and should not be
countenanced.
In any case,
I am surprised that such an
application has been made
especially as the Defendant’s
are well aware that the
plaintiff’s have had to amend
their writ which has completely
taken out of the remit of the
instant suit, the orders made by
Ankumah J.
I would
accordingly want to sound a note
of caution to all legal
practitioners who are considered
as officers of the courts to be
mindful of their core duty to
the Court which is to advance
the course of justice and not to
mislead the courts into making
unwarranted orders.
Subject to
the above clarification on the
non-jurisdictional invitation
made to the court by Defendant’s
to reverse orders which are not
the subject matter of dispute,
the Plaintiff’s writ stands
dismissed as being without any
merit whatsoever.
(SGD) J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT
CONCURRING OPINION
GBADEGBE JSC:
My Lords, the relevant facts and
laws to which this case relates
have been so fully stated in the
judgment of Wood CJ (presiding),
the draft of which I have had
the advantage of reading
beforehand and as I set out to
make this delivery, I recollect
the issues for our determination
in these proceedings. Having
read the well thought out
judgment of the learned Chief
Justice, I agree that the claim
herein be dismissed. However,
for reasons that follow shortly,
I desire to add a few words of
my own that are limited only to
the question of the alleged
absence of jurisdiction in the
High Court to hear the case
numbered as Suit No C. 681/94
bearing the title Sweater and
Socks Limited v the Attorney
General.
As the learned Chief Justice has
in her judgment carefully set
out the facts on which this
action is based and correctly
expounded the applicable law, I
shall not spend any further
time in referring to them
except where it is necessary
for the purpose of the opinion
that I am about to deliver.
After a careful examination of
the writ and the supporting
documents filed by the plaintiff
before us as well as the
processes filed by the
defendant; I am of the view that
the plaintiff appears not to
have appreciated the real nature
of the previous action initiated
by the defendant in 1994 whose
decision is being attacked in
the proceedings herein on
jurisdictional grounds. It seems
to me that the lack of
appreciation of the 1994 case
must have informed the plaintiff
in initiating the action herein.
In my view, although the
previous action demanded from
the court reliefs other than a
declaration, the ancillary
reliefs were subject to the
declaratory relief which was
formulated in the 1994 action
entitled Sweater and Socks
Limited v Attorney- General
as follows:
a)”A declaration that the true
legal position now is that the
Sweater and Socks Factory have
not been confiscated and are
therefore entitled to carry out
their normal business
operation.”
At the trial, while the
plaintiff asserted that although
the company had been confiscated
earlier, by virtue of a petition
submitted to it by shareholders,
the Special Tribunal acting
under AFRCD 23 had set aside the
confiscation with the result
that when PNDCL 325, THE
CONFISCATED ASSETS (REMOVAL OF
DOUBT) LAW was subsequently
passed, it made no mention of
any of the assets of Sweater and
Socks Factory Limited. To
counter this, the defendant
averred that the confiscation
remained in force and that
consequently, the court by
virtue of Section 35(1) of the
Transitional Provisions of the
1992 Constitution was precluded
from questioning the
confiscation. The plaintiff, it
appeared to me commenced the
1994 action to prevent the
defendant from continuing to
treat its assets as confiscated
contrary to law. It is settled
law that in determining what was
in controversy in a previous
action such the 1994 action to
which reference has been made,
we must look at the pleadings
and indeed the judgment in order
to ascertain the remit of the
court.
In my view, as the parties to
the 1992 dispute had placed
different legal consequences on
the prior act of confiscation
and the matters that arose
subsequently including the
establishment of the Special
Tribunal and the enactment of
PNDCL 325, the latter which I
regard as declaratory in
nature, there was clearly before
the court an issue to be decided
on whether or not before the
1994 action issued the assets of
Sweater and Socks that were
previously confiscated by the
AFRCD continued to be so
confiscated? It being so, there
was a legitimate question that
the High Court was called upon
to determine in relation to the
status of the assets of Sweater
and Socks Factory Limited. The
determination of that question
turned on the examination of the
circumstances that came lawfully
into being subsequent to the
confiscation and had nothing to
do with whether or not the
confiscating authority had
properly taken all relevant
matters into account before
making the order of
confiscation. The mere
pronouncement of the legal
status of the said assets does
not amount to questioning the
act of confiscation, which is
what section 35(1) of the
Transitional Provisions of the
1992 Constitution prohibits. On
the contrary, the decision under
attack is in substance one that
ascertained the true state of
the law regarding the assets in
question and having been so
ascertained made a pronouncement
to that effect. One would have
thought that the declaration as
to the status of the said assets
put to rest any view to the
contrary and for myself, I am
surprised that the plaintiff who
was a party to the 1994 action
persists in pursuing the same
contention before us in these
proceedings.
Accordingly, in my opinion the
High Court in the 1994 action
did not veer outside its
jurisdiction such as to render
its decision a violation of
section 35(1) of the
Transitional Provisions of the
1992 Constitution as the
plaintiff invites us to hold by
the making of the declaration in
terms of relief 1 of the
indorsement to the writ of
summons herein. Whiles the truth
of the contention contained in
section 35(1) of the
Transitional Provisions has not
been doubted, I do not think
that it has any application to
the 1994 action that did not
require the High Court to make
any independent determination
that has the effect of
de-confiscating any asset
belonging to Sweater and Socks
Factory Limited. The
jurisdiction that the High Court
assumed in the 1994 case was
essentially to ascertain and
determine the rights of the
parties to it based upon matters
that were in existence before
the issue of the writ. In its
nature, a declaratory judgment
serves the public interest by
making binding pronouncements on
disputed rights as was done by
the trial High Court in the 1994
case on 8 April, 2003. The
utility of declaratory reliefs
to the judicial process and the
development of the law must
explain why today, unlike
previously under common law
when an action for a
declaration was unknown , no
action or proceeding is open to
an objection on the ground that
by the claim only a declaratory
judgment or order is sought.
See: Order 41 of the High Court
(Civil Procedure Rules,) 2004,
CI 47.
For these reasons, the
plaintiff’s action fails and is
dismissed.
(SGD) N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD)
J. ANSAH
JUSTICE OF THE SUPREME COUR
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD)
V. AKOTO- BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
(SGD)
J. B. AKAMBA
JUSTICE OF THE SUPREME COURT
COUNSEL
MRS. SYLVIA
ADUSU (PSA) WITH HER ANNA PEARL
AKIWUMI SIRIBOE (PSA) FOR THE
PLAINTIFF.
GEOFFREY
HOWARD QUIST LED BY GEORGE
ESHUN AND DAVID KUDOADZI FOR THE
DEFENDANT. |
