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INTRODUCTION
ALL subscribers of The Ghana Law
Reports are familiar with Mr.
Justice Taylor’s industry and
research; so also all legal
practitioners before him are used
to the fact that he sees “a very
interesting legal point” in most
of the cases that come before him.
In the case of Republic v. Special
Tribunal; Ex parte Forson whose
ruling he delivered on 19 May
1980,1 Taylor J. (now a Justice of
the Supreme Court) really lived to
his reputation. In resolving the
issues, inter alia, whether the
supervisory jurisdiction of the
High Court is ousted by section 7
(2) of the Armed Forces
Revolutionary Council (Special
Tribunal and Other Matters)
Decree, 1979 (A.F.R.C.D. 23),
Taylor J. referred to 53 decided
cases, both local and overseas,
dating from the seventeenth
century to 1980. Before we
consider whether all this labour
is necessary let me give you the
simple facts of the case as appear
from his lordship's ruling.
Forson, the applicant, was
convicted by the special tribunal
established under section 1 of
A.F.R.C.D. 23 and sentenced to a
three year term of imprisonment in
respect of two offences arising
from the report of a committee of
inquiry into the affairs of the
Ghana Cocoa Marketing Board,
popularly known as the “Archer
Committee.” The two offences were:
(i) obtaining an advantage by
using his official position in the
public service and (ii) doing acts
with intent to sabotage the
economy of Ghana. An application
for certiorari was brought to
quash the conviction and sentence
on the grounds of (a) lack of
jurisdiction, (b) excess of
jurisdiction and (c) error of law
on the face of the record in that
the tribunal admitted inadmissible
evidence, i.e. hearsay, and based
its judgment on it. Counsel for
the special tribunal raised a
preliminary objection framed thus:
“(1) That in view of the
provisions of section 7 (2) of
A.F.R.C.D. 23 which have been
incorporated in the 1979
Constitution by virtue of section
17 (7) of the transitional
provisions of the said
Constitution, the High Court has
no jurisdiction to entertain the
application.
(2) That in the alternative, the
application raises a matter of
question of law (namely whether in
view of the provisions referred to
above the High Court has
jurisdiction to entertain the
application) and that in the
event, the High Court should stay
the present proceedings and refer
the said question of law to the
Supreme Court for determination
under article 118(2) of the
Constitution.”
In short, put in a straightforward
and simple language the objection
was that the jurisdiction of the
High Court to supervise inferior
tribunals conferred on it by
article 126 of the Constitution
does not apply to the special
tribunal or so far as the special
tribunal is concerned the
jurisdiction of the High Court was
and is ousted. This objection, no
doubt, tasked the patience of
Taylor J. and he summarily
dismissed it with a promise to
embody his reasons in his ruling.
And for this he really went to
town! He even looked at the Year
Books for judicial inspiration.
But was it all necessary? For my
part I think not!
Ouster Clauses
In 1957 the Court of Appeal in the
case of Ahenkora v. Ofe2 dealt
with the issue of ouster of
jurisdiction of the High Court.
This case does not appear to have
caught the judicial eye of Taylor
J. nor was it brought to his
notice by the counsel who appeared
before him. In all seventeen cases
were referred to by that court and
van Lare Ag. C.J. said3 ". . . it
is necessary to consider the
nature and history of the tools at
the disposal of the Supreme [High]
Court for the exercise of this
supervisory jurisdiction." He,
therefore, referred to
Blackstone’s Commentaries, Coke’s
Fourth Institute and Holdsworth's
History of English Law. In
Ahenkora v. Ofe one of the issues
for determination was whether the
supervisory jurisdiction of the
Supreme Court (now High Court) has
been ousted by the provisions of
the Courts Ordinance, Cap. 4 (1951
Rev.), s. 88. This section
provides:
“88. The Supreme [High] Court and
Magistrates’ Courts shall not have
jurisdiction to entertain either
as of first instance or on appeal
any civil cause or civil matter
instituted for—
"(1) the trial of any question
relating to the election,
installation, deposition, or
abdication of any Paramount Chief,
Head Chief or Chief;
(2) the recovery or delivery up of
Stool property in connection with
any such election, installation,
deposition, or abdication;
(3) the trial of any question
touching the political or
constitutional relations
subsisting according to native law
and custom between two or more
Paramount Chiefs or Head Chiefs,
or between two or more Chiefs, or
between a Paramount Chief and a
Chief, or between a Head Chief and
a Chief.”
van Lare Ag. C.I. in concurring
with the judgment of Granville
Sharp J.A. said4, ". . . I desire
to take the liberty of expressing
my opinion on the effect of the
Courts Ordinance, s.88, in respect
of which there appear to be
divergent views by various
judges." After tracing the history
of the prerogative writs, his
lordship held5:
“. . . that even if section 88
were couched in such express words
as to preclude the use of the
prerogative writs by the Supreme
Court in any cause or matter
‘relating to the elections and
constitutional relations of
Chiefs,’ etc., this direct
expression would still not prevent
the use of the writs against a
State Council or a committee of
inquiry where either had acted in
excess of or without jurisdiction,
or where, when sitting in a
judicial capacity, it had failed
to act in conformity with the
rules of natural justice."
The ouster of jurisdiction clause
and the self-same section 88 of
the Courts Ordinance, came up
again for consideration by the
Court of Appeal in Mbrah v.
Donkor.6 The Court of Appeal (coram
Korsah C.J., Granville Sharp J.A.
and Ollennu J.) unanimously held:
“It seems to us therefore that in
such cases, where that is to say,
as here, the adjudication upon the
subject matter is removed from the
High Court and made exclusively
the province of somebody deriving
authority from statute the
jurisdiction of the High Court is
of a divided character. It cannot
by writ of certiorari or otherwise
interfere with the matter
adjudicated upon by the inferior
Court it this resided within its
jurisdiction, but if such
adjudication was given by a body
which lacked jurisdiction in that
it was of defective constitution
in the senses to which we have
referred or exceeded its
jurisdiction, or whose decision
was obtained by fraud or duress,
the High Court cannot be deprived
of its power to intervene and
correct such injustice and
irregularity."
The court therefore concluded:
“All therefore that the section
has achieved is to exclude from
the jurisdiction of the High Court
any power of adjudication upon
such matters. In relation to
imputations made against the
constitution of the tribunal or
its conduct or the conduct of the
parties which are extraneous to
the actual adjudication the power
of the High Court remains."
The Mbrah case was decided eleven
years before the House of Lords
came to the same conclusion in
Anisminic Ltd. v. Foreign
Compensation Commission7 and
twenty-two years before Taylor J.
embarked upon his “uncharted
course.” Surely, if Taylor J. was
aware of Ahenkora v. Ofe and Mbrah
v. Donkor his research would have
been profitably diverted to other
fields of law and I have no doubt
in my mind that he would have
"profited from the labours” of van
Lare Ag. C.J. who would have
shared Taylor J.'s honours with
Lord Denning M.R. for the
"praiseworthy efforts to trace the
history of these ouster clauses.”
One point Taylor J. failed to
bring out succinctly in his rather
lengthy ruling is that there are
two types of ouster clauses: The
first type only confers exclusive
jurisdiction on an inferior
tribunal or body of persons as was
done in section 88 of the Courts
Ordinance, Cap. 4 (now repealed in
section 52 of the Courts Act, 1971
(Act 372)). This I may call
“partial ouster clause.”
The second type of ouster clause
goes further and bars the High
Court from entertaining an
application for prerogative orders
in respect of the adjudications of
the tribunal so clothed with
exclusive jurisdiction. Taylor J.
was dealing with the second type
of ouster clause, which I may call
the "complete ouster clause." Even
though Ahenkora v. Ofe was of the
first type of ouster clause a
dictum by Granville Sharp J.A. at
page 151 would have benefited
Taylor J. His lordship said8, “Nor
is it to be doubted that if
Parliament uses explicit
expressions that indicate a clear
intention to oust or restrict
jurisdiction these expressions
must be given full effect.”
This second type of ouster clause
was recently considered by both
the Privy Council and the House of
Lords. Unfortunately these
decisions were delivered on 24
June and 3 July 1980 respectively
after Taylor J. had delivered his
judgment on 19 May 1980. In South
East Asia Fire Bricks v.
Non-Metallic Mineral Products
Manufacturing Employees Union9 the
issue was whether section 29 (3)
(a) of the Industrial Relations
Act, 1967 of Malaysia (No. 35 of
1967), which is in the following
terms: "an award of the
(Industrial) Court shall be final
and conclusive, and no award shall
be challenged, appealed against,
reviewed, quashed or called in
question in any court of law" took
away the supervisory jurisdiction
of the High Court to grant an
order of certiorari. The Privy
Council held that “quashed or
called in question in any Court”
seemed to their lordships to be
clearly directed to certiorari.
The Board further held10:
“The decision of the House of
Lords in Anisminic Ltd. v. Foreign
Compensation Commission [1969] 2
A.C. 147 shows that, when words in
a statute oust the power of the
High Court to review decisions of
an inferior tribunal by
certiorari, they must be construed
strictly ‘and that they will not
have the effect of ousting that
power if the inferior tribunal has
acted without jurisdiction or if
it has done or failed to do
something in the course of the
inquiry which is of such a nature
that its decision is a nullity':
per Lord Reid at p. 171. But if
the inferior tribunal has merely
made an error of law which does
not affect its jurisdiction, and
if its decision is not a nullity
for some reason such as breach of
the rules of natural justice, then
the ouster will be effective.”
The next case is the House of
Lords decision in In re A
Company.11 The earlier Court of
Appeal decision in the case was
brought to the notice of Taylor J.
but he said, “I have, read the
judgments of Lord Denning M.R. at
p. 285 et seq., of Shaw L.J. at p.
287 and of Templeman L.J. at pp.
257—288. In the circumstance I did
not find that case useful." Be
that as it may, the House of Lords
decision is very useful indeed.
Lord Diplock in distinguishing
between administrative tribunals
and inferior courts said12:
“The break-through made by
Anisminic [1969] 2 A.C. 147 was
that, as respects administrative
tribunals and authorities, the old
distinction between errors of law
that went to jurisdiction and
errors of law that did not, was
for practical purposes abolished.
Any error of law that could be
shown to have been made by them in
the course of reaching their
decision on matters of fact or of
administrative policy would result
in their having asked themselves
the wrong question with the result
that the decision they reached
would be a nullity."
He went on and said13:
“In the case of inferior courts
where the decision of the court is
made final and conclusive by the
statute, this may involve the
survival of those subtle
distinctions formerly drawn
between errors of law which go to
jurisdiction and errors of law
which do not that did so much to
confuse English administrative law
before Anisminic [1969] 2 A.C.
147; but upon any application for
judicial review of a decision of
an inferior court in a matter
which involves, as so many do,
interrelated questions of law,
fact and degree the superior court
conducting the review should not
be astute to hold that Parliament
did not intend the inferior court
to have jurisdiction to decide for
itself the meaning of ordinary
words used in the statute to
define the question which it has
to decide."
As earlier pointed out, Taylor J.
was dealing with the second type
of ouster clause because A.F.R.C.D.
23 confers exclusive jurisdiction
on the special tribunal and
section 7(2) of the Decree
provides:
“7. (2) It shall not be lawful for
any court to entertain any action
or proceedings whatsoever for the
purpose of questioning any
decision, judgment finding,
ruling, order or proceeding of the
Special Tribunal; and for the
removal of doubt, it shall not be
lawful for any court to entertain
any application for an order or
writ in the nature, of habeas
corpus, certiorari, mandamus,
prohibition, quo warranto
injunction or declaration in
respect of any decision, judgment,
finding, ruling, order or
proceeding of the Special
Tribunal.”
In view of the above clause an
adjudication of the special
tribunal can only be attacked on
matters extrinsic or extraneous.
Hence Taylor J. was right in
dismissing the application for
certiorari which sought to attack
the judgment on grounds of error
on the face of the record, i.e.
wrongful admission of hearsay
evidence.
Non-Jurisdictional Error of Law
Taylor J. was dealing with the
second type of ouster clause and
in view of the fact that he did
not make the distinction in his
ruling between partial and
complete ouster clauses, certain
statements of law made by him may
in future be taken to apply to
both types of ouster clauses.
The grounds upon which the
applicant relied for invoking the
supervisory jurisdiction of the
High Court were:
(1) That the special tribunal
acted without jurisdiction when it
adopted a procedure contrary to
section 5(1) of A.F.R.C.D. 23.
(2) That the special tribunal
assumed jurisdiction under section
3(1) (a) of A.F.R.C.D. 23 when
there was no evidence of the
pendency of any case or matter
against the applicant before the
A. F.R.C.D. courts.
(3) That the special tribunal
acted contrary to the rules of
natural justice when it ignored
the Government White Paper.
(4) That the special tribunal
acted without jurisdiction when it
tried the accused on count one
when the offence was neither
disclosed nor arose out of the
Archer Committee otherwise known
as the Committee of Inquiry into
the Affairs of the Ghana Cocoa
Marketing Board.”
All the four grounds dealt with
want or lack of jurisdiction and
breach of the rules of natural
justice; error of law on the face
of the record was not alleged.
Order 59, r. 5 (1) of the High
Court (Civil Procedure) Rules
195414 provides:
“. . . no grounds shall . . . be
relied upon or any relief sought
at the hearing of the motion or
summons except the grounds and
relief set out in the said
statement."
In view of the above rule, it is
surprising that Taylor J. allowed
counsel for the applicant to argue
error of law on the face of the
record, i.e. " the special
tribunal admitted illegal evidence
" i.e., hearsay evidence. On this
issue Taylor J. said:
“The evidence led before the
tribunal is not before me. I am in
no position to say whether apart
from hearsay evidence, the special
tribunal acted on other admissible
evidence."
Nonetheless, his lordship went on
to hold, “Counsel for the special
tribunal chose not to reply and so
I shall assume that Mr. Moore is
right and the illegal evidence was
admitted." Since error of law was
not canvassed in the statement as
one of the grounds relied upon and
since Taylor J. was dealing with
the second type of ouster clause
which excludes delving into the
internal or intrinsic matters of
the adjudication, Taylor J.’s
holding is clearly wrong.
On the issue of non-jurisdictional
error, it is desirable to refer to
the following passage in de
Smith's learned treatise, Judicial
Review of Administrative Action15.
“In 1951, in the Northumberland
case, the Divisional Court of the
King's Bench Division held that
certiorari would issue to quash
the decision of a statutory
administrative tribunal for error
of law on the face of the
'record,' although the tribunal
was not a court of record and
although the error did not go to
the jurisdiction of the tribunal.”
Ghana as a common law jurisdiction
followed the decision in R. v.
Northumberland Compensation Appeal
Tribunal, Ex parte Shaw16 and in
William Joseph and Sons v. Jebeile
Brothers.17 And in Halsbury's Laws
of England (4th ed.), Vol. 1, para.
84 at p. 107 it is stated:
“. . . it is settled that
certiorari will issue also to
quash a determination for error of
law on the face of the record
although the error does not go to
jurisdiction."
The old distinction between error
of law that goes to jurisdiction
and error of law that does not,
non-jurisdictional errors of law,
have been abolished with regard to
the first type of ouster clause.
The learned editors of Halsbury's
Laws of England (4th ed.), Vol. 1,
para. 63, p. 74 list the following
errors for which certiorari will
lie:
“. . . misinterpretation of a
statute or any other legal
document or a rule of common law;
asking oneself and answering the
wrong question, taking irrelevant
considerations into account. or
failing to take relevant
considerations into account when
purporting to apply the law to the
facts; admitting inadmissible
evidence or rejecting admissible
and relevant evidence; exercising
a discretion on the basis of
incorrect legal principles; giving
reasons which disclose faulty
legal reasoning or which are
inadequate to fulfil an express
duty to give reasons; and
misdirecting oneself as to the
burden of proof."
In Jebeile Brothers case the Court
of Appeal dealt with
non-jurisdictional errors and said
per Apaloo J.A.:
"There are decisions which suggest
that where the proceedings are
regular upon their face and the
inferior tribunal had
jurisdiction, the superior court
will not grant an order of
certiorari on the ground that the
inferior tribunal had misconceived
a point of law or misconstrued a
statute."
The court per Apaloo J.A. further
said:
“But there is a great body of
decided cases which shows that
where upon the face of the
proceedings themselves it appears
that determination of the inferior
tribunal is wrong in law
certiorari to quash it will be
granted."
The Court of Appeal decided to
follow the decision in the
Northumberland case and the
Anisminic case18 “that certiorari
properly lay to quash a
determination where an error of
law appears on the face of the
record.”
Surely, the decision of the Court
of Appeal in Jebeile Brothers case
is binding on Taylor J. and if his
attention had been drawn to it his
statement of the law might be
different and perhaps strictly
confined to cases of complete
ouster clause or the second type
of ouster clause about which he
was dealing with.
Taylor J. in relying on the view
of Greer L.J. in R. v. Minister of
Health,19 further propped his
stance by referring to a dictum of
Lord Reid in R. v. Governor of
Brixton Prison; Ex parte Armah20
that:
“a tribunal or magistrate 'does
not destroy his jurisdiction by
reaching a wrong decision. If he
has jurisdiction to go right he
has jurisdiction to go wrong.
Neither an error in fact nor an
error in law will destroy his
jurisdiction’."
With all due respect to Taylor J.,
the Ex parte Armah case was one of
habeas corpus and not certiorari
and as such the quotation is a non
sequitur. Again with all due
respect his lordship took the
quotation out of context. Lord
Reid in the next sentence went on
to say21:
“Whether or not there is evidence
to support a particular decision,
is always a question of law but it
is not a question of jurisdiction.
So if the courts could only
interfere on the ground of lack of
jurisdiction I do not see how they
could interfere on the ground that
there was no evidence to support
the magistrate's decision.'
The issue in Ex parte Armah was
meaning of the words in section 5
of the Fugitive Offenders Act,
1881, namely, “. . . raises a
strong or probable presumption” of
guilt and whether the Bow Street
magistrate had correctly
interpreted the section. Lord Reid
was not dealing with an
application for certiorari nor did
he mean to say that once a
tribunal or magistrate has
jurisdiction to go right he could
go wrong and that certiorari on
grounds of error of law would not
lie. This statement of the law by
Taylor J. is bound to be misused
if not abused.
The ruling of Taylor J. can
however stand or be supported
solely on the ground that he was
dealing with a case of complete
ouster of jurisdiction and by
section 7(2) of A.F.R.C.D. 23 "a
decision, judgment, finding,
ruling, order or proceeding of the
special tribunal” cannot be
attacked on grounds of
insufficiency of evidence or
admitting inadmissible, hearsay,
evidence, i.e. error of law on the
face of the record.
Assistance from Counsel
Taylor J. ended the ruling by
saying: "there will be no order as
to costs, as I have no assistance
whatsoever from counsel for the
respondent.” This is not the
first time Taylor J. has lamented
that he did not get assistance
from counsel: see Sam v.
Comptroller of Customs and
Excise22 and Billa v. Salifu23.
All trial judges are entitled to
assistance from counsel appearing
before them. Where this assistance
is not forthcoming, they should be
wary on embarking upon a research
or dissertation for they are
likely to miss the point at issue,
worse still they may see only one
side of the coin. If the
assistance from counsel had been
obtained Taylor J. would have been
told of Ahenkora v. Ofe24, his
attention might be drawn to Mbrah
v. Donkor,25 and he would have
been made aware of Jebeile
Brothers case26 which was examined
and applied by Cecilia
Koranteng-Addow J. in Republic v.
James Town Circuit Court; Ex parte
Markham.27
CONCLUSION
There are two types of ouster of
jurisdiction clauses:
(1) (a) those simply conferring
exclusive jurisdiction on an
inferior tribunal or body of
persons, e.g. Chieftaincy Act,
1971 (Act 370) on the judicial
committee of a regional house of
chiefs and a traditional council
in chieftaincy matters; Stool
Lands Boundaries Settlement
Decree, 1973 (N.R.C.D. 172), on
Stool Lands Boundaries Settlement
Commissioner in boundary disputes;
the Rent Act, 1963 (Act 220), on
the rent officer and rent
magistrate: see Jebeile Brothers
case.
(b) those conferring exclusive
jurisdiction and in addition
prohibiting the High Court from
exercising its supervisory
jurisdiction and taking away the
right of appeal.
(2) In the first type of ouster
clause certiorari will lie on the
grounds of: excess of
jurisdiction, want or lack of
jurisdiction, breach of rules of
natural justice, and error of law
on the face of the record: see
Ahenkorah v. Ofe, Mbrah v. Donkor
and Jebeile Brothers case.
(3) In the second type of ouster
clause certiorari will lie but not
for error of law on the face of
the record: see South East Asia
Fire Bricks v. Non-Metallic
Mineral Products Manufacturing
Employees Union.28
(4) Certiorari lies to quash a
judgment, order or ruling where
there is non-jurisdictional error
of law on the face of the record,
Jebeile Brothers case following
the Northumberland case and the
Anisminic case.
(5) The distinction between
jurisdictional error and
non-jurisdictional error of law so
far as the first type of ouster
clause is concerned does not now
exist.
(6) It is not correct that once a
tribunal or magistrate is seised
with jurisdiction he can go right
or wrong and certiorari will not
lie in first type of ouster
clause: see Pearlman v. Keepers
and Governors of Harrow School
where Lord Denning M.R. said29,
"It is intolerable that a
citizen's rights in point of law
should depend on which judge tries
his case, or in which court it is
heard."
(7) In view of the fact that in
the Forson case the three grounds
for certiorari were founded on
lack and excess of jurisdiction,
the preliminary objection that the
High Court has no jurisdiction, by
virtue of section 7 (2) of
A.F.R.C.D. 23 was rightly
dismissed by Taylor J. as
misconceived.
(8) Finally, the argument of the
counsel for the applicant that
certiorari will lie to quash a
judgment of an inferior tribunal
on grounds of error of law on the
face of the record, in this case
admission of hearsay evidence, is
misconceived in view of the
express words of section 7 (2) of
A.F.R.C.D. 23 that “... it shall
not be lawful for any court to
entertain... certiorari ... in
respect of any decision, judgment,
finding, ruling, order or
proceeding of the Special
Tribunal."
FOOTNOTES
*
LL.B. (Lond.) of Gray's Inn,
Barrister-at-Law and Solicitor of
the Supreme Court of Ghana.
1. To be reported in [1980] G.L.R.;
digested in [1980] G.L.R.D. 63.
2. (1957) 3 W.A.L.R. 145, C.A.
3. Ibid, at p. 154.
4. Ibid, at p. 154.
5. Ibid, at pp. 157—158.
6. Court of Appeal, 28 April 1958,
Cyclostyled Written Judgments
(Civil), January—June 1958, 51,
unreported.
7. [1969] 2 A.C. 147, H.L.
8. [1957] 3 W.A.L.R. 145 at p.
151.
9. [1980] 3 W.L.R. 318, P.C.
10. Ibid. at p. 322.
11. [1980] 3 W.L.R 181, H.L.
12. Ibid. at p. 187.
13. Ibid. at p. 187.
14. L.N. 140A.
15. (3rd ed.), 1973, p. 353.
16. [1952] 1 All E.R. 122, C.A.
17. Court of Appeal, 5 May 1969,
digested in (1969) C.C. 98; to be
reported in [1969] G.L.R.
18. Editorial Note: One may not,
with respect, agree with the view
that Anisminic was followed by the
Court of Appeal in the Jebeile
case. The court per Apaloo J.A.
merely considered the decision in
Anisminic and found it
inapplicable to the facts of the
case before it.
19. [1939] 1 K.B. 232 at p. 246,
C.A.
20. [1968] A.C. 192 at p. 234, H.L.
21. Ibid, at p. 234.
22. [1971] 1 G.L.R. 289.
23. [1971] 2 G.L.R. 87.
24. Above.
25. Above.
26. Above.
27. [1977] 1 G.L.R. 388.
28. [1980] 3 W.L.R. 318, P.C.
29. [1978] 3 W.L.R. 736 at p. 744. |
