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RULING
BROBBEY J.S.C.:
Describing his capacity as a
citizen of Ghana simpliciter and
a person with the duty to defend
the Constitution, the plaintiff
issued a writ invoking the
original jurisdiction of this
court. He cited as the defendant
the Attorney General in his
capacity as the principal legal
officer of the Government and
the person who conducts criminal
prosecutions or on whose behalf
criminal prosecutions are
conducted. In his writ, the
plaintiff claimed the following
reliefs;
“i) A declaration that section
179A(3) of the Criminal Code,
1960 (Act 29) as amended by Act
458 is inconsistent with and in
contravention of Article 19(11)
of the Constitution of Ghana,
1992.
ii) A declaration that any
criminal prosecution, trial and
or conviction held or done under
or on the authority of the said
section 179 A (3) of Act 29 is
in contravention of the
Constitution and void and of no
effect.
iii) A declaration that the
prosecution or trial of some
former public officers of Ghana
under the said section 179 A (3)
of Act 29 in suit FT/MISC/2/2001
otherwise known as the Quality
Grain Case is being done in
contravention of the
Constitution"
Statements of the plaintiff's
case were filed, followed by
affidavit verifying the facts
and particulars in the terms of
the rules. For his part, the
defendant filed statements of
his case and memorandum of
issues were also filed. Monday,
March 4th, 2003 was fixed for
the hearing of the writ. As late
as half past ten in the morning
of that Monday, the plaintiff
filed supplementary statement of
his case. At half past two on
the same day of 3rd March, the
plaintiff filed a notice in
these terms:
PLEASE TAKE NOTICE that the
plaintiff wholly
discontinues/withdraws this
action"
When the case was called on that
day, counsel for the plaintiff
formally applied on behalf of
the plaintiff in open court to
withdraw or discontinue the
action. According to counsel,
the plaintiff applied to
withdraw or discontinue the case
for "personal reasons.”
At that juncture, the defendant
opposed the application to
withdraw or discontinue. In sum,
the submissions made to oppose
the application were as follows;
1. Counsel for the plaintiff did
not state the rule under which
he applied to withdraw the case.
There were no express rules on
similar withdrawals in the
Supreme Court Rules, C.I. 16,
and therefore he invited the
court to apply rule 5 of the
said Rules and treat the
application as an application to
for leave to withdraw or
discontinue the suit.
2. In the view of the Attorney
General, leave should be refused
for two main reasons.
3. The first reason was that the
case raised a serious
constitutional issue as to the
constitutionality of section
179A of the Criminal Code. In
the interest of the public, that
issue should be determined
finally by the highest court of
the land to bring to an end the
spate of criticisms levelled
against that section, especially
in some criminal trials pending
in the courts.
4. The second reason was that
the application to withdraw was
brought in bad faith. This point
was grounded on the fact that
the same counsel who applied to
withdraw the suit had openly in
the High Court ten days earlier
castigated the Chief Justice and
the Acting Supreme Court
Registrar for failing or
refusing to list for hearing the
very suit that he was applying
to withdraw after it had been
listed.
5. The Attorney General relied
on Fox v. Star Newspaper & Co.
(1898) 1 QB 636, 638 to support
his contention that the
application to withdraw the suit
should be refused.
In his reply, counsel for the
plaintiff contended that the
plaintiff could not be forced to
pursue the case and that he
should be allowed to withdraw,
citing as his authority a
similar case of withdrawal
granted by this court in Obeng
Manu (Jnr.) v. the Attorney
General (Writ no. 6/93 dated
23rd May 1995.)
There is no doubt that C.I. 16
contains no express provision by
which a person who has filed a
writ may withdraw it or
discontinue his action commenced
before this court. In the state
of the lacuna in the rules, it
is usually rule 5 which is
invoked to find a solution. Rule
5 provides that
“Where no provision is expressly
made by these Rules regarding
the practice and procedure which
shall apply to any cause or
matter before the court, the
court shall prescribe such
practice and procedure as in the
opinion of the court the justice
of cause or matter may require."
In deciding on this issue,
reference may be made to the
procedure in the High Court
(Civil Procedure) Rules, 1954
(LN 140A), rule 26 which
regulates the procedure to be
followed when an application is
made to withdraw a case
commenced by a writ. Under Order
26, a plaintiff may withdraw his
case without leave at any stage
up to fourteen days after the
defendant has been served with
the writ. After that, the writ
may be withdrawn only with the
leave of the court. The
rationale for this rule will be
found on comments on similar
English rules given by the House
of Lords when the case of Fox v.
Star Newspaper Co went on appeal
there. The principle of the rule
in that case is as follows;
‘The principle of the rule is
plain. It is that, after the
proceedings have reached a
certain stage, the plaintiff,
who has brought his adversary to
court, shall not be able to
escape by a side door and avoid
the court. He shall then no
longer be dominus litis and it
is for the judge to say whether
the action shall be discontinued
or not and upon what terms. ...
The substance of the provision
is that, after a stage of the
action has been reached at which
the adversaries are meeting face
to face, it shall only be in the
discretion of the judge whether
the plaintiff shall be allowed
to withdraw from the action so
as to retain the right of
bringing another action for the
same subject-matter."
The expression "dominus litis"
has been defined in Osborn's
"Concise Law Dictionary', 1994
edition, page 123 as
" The principal in a suit as
opposed to his procurator".
Further clarification will be
found in Black's "Law
Dictionary', seventh edition,
page 503. In that page.
"Dominus" has been interpreted
to mean "an owner of a thing or
inheritance." It goes on further
to explain "dominus litis" to
mean "the party who makes the
decision in a law suit, usually
as distinguished from the
attorney."
From these explanations, it is
obvious that a plaintiff who
initiates a suit can properly be
described as being dominus litis
in the early stages of the suit
because he literally owns it at
that stage, is in control of the
case and is in a position to
determine whether or not the
case should proceed in court.
That is why at that stage he is
allowed to withdraw the case
without leave. After the party
has appeared in court or taken
steps in the case and the two
sides of the respective cases
have been arraigned before the
judge who has to judge the
merits of each person's case,
the progress of the suit will be
left in the hands and control of
the judge or the independent
arbiter. From that stage, the
cases will no longer be in the
hands of the plaintiff. That is
why at that stage the plaintiff
needs leave of the court or the
judge if he desires to
discontinue or withdraw it.
The same considerations may be
given to the plaintiff invoking
the original jurisdiction of the
Supreme Court like the one in
the instant suit. The case was
obviously initiated by the
plaintiff. Until the defendant
filed his statement of case, he
was dominus litis. When the
defendant filed his statement of
case and supplementary
statements were also filed
followed by the filing of the
memorandum of issues, the
plaintiff ceased to be dominus
litis. The case was left in the
hands and control of the court
that had the responsibility to
determine the merits and
demerits of the respective
submissions. That was the stage
at which the plaintiff filed his
application to discontinue the
suit. At that stage, the
plaintiff needed leave of the
court to withdraw or
discontinue. The case of Obeng
Manu the practice that is
prescribed in the terms of rule
5 is that where a plaintiff
invokes the original
jurisdiction of this court and
statements of case of the
parties together with the
memorandum of issues are filed,
the plaintiff needs leave of the
court to withdraw or discontinue
the case initiated by him. It is
explained that Order 26 of LN
140A is not being applied here.
It is the import of the rule as
well as the principles
enunciated thereafter which are
being considered by analogy for
application in the instant case.
It must be emphasized that this
is practice that is prescribed.
That exercise of prescribing
practice and procedure under
rule 5 differs from the making
of rules under the 1992
Constitution, Art. 157(2) by the
Rules Committee. The case of
Obeng Manu v. the Attorney
General also laid down the
procedure that leave is required
to withdraw a case under
circumstances similar to those
in the instant case. As it were,
the procedure seems to have been
laid down already by this court
in a previous case.
On the facts of the instant
case, the submission of the
Attorney General that the
application should be treated as
an application for leave to
withdraw or discontinue with the
suit is consequently upheld.
Ordinarily, leave should be
sought by motion supported by an
affidavit and served on the
opposing party to be able to
react to it. It would appear
that the defendant might not
insist on formal application
since it was he who moved that
the application might be treated
as one for leave to withdraw.
What the court has to decide is
whether or not to grant leave to
the plaintiff to withdraw or
discontinue the case. That calls
for exercise of discretion by
the court. Discretion of this
nature should be exercised
judicially, that is in
accordance with the law and the
rules of reasoning. The court
exercising the discretion should
consider all the circumstances
of the case.
For the discretion to be
exercised in his favor, the
plaintiff should show good and
sufficient reasons. The sole
ground given was that the
plaintiff applied to withdraw
the suit for personal reasons.
The personal reasons should have
been particularized to enable
the court to decide whether or
not they were good reasons for
granting the leave. That was not
done.
The defendant contended that
leave should be refused, his
first reason being that it is in
the interest of the public so to
do and the second reason being
that of bad faith on the part of
the applicant as already
referred to. The defendant's
argument in support of the first
reason was that there had been
public criticism that the
charges preferred under Act 29,
s. 179A are unconstitutional.
Since that raised a serious
constitutional issue, this court
being the highest court of the
land should determine the issue
finally for the public to know
the constitutionality or
otherwise of the charges.
At the last paragraph of page 8
of the defendant's statement of
case, the defendant stated
categorically that
"the suit does not raise any
constitutional issue as it
relates mainly to the
interpretation of Act 179A(3) in
the light of Article 19(11).
This can be done by any court
before which a person is being
tried for an offence under
section 179A(3)(a) and not
necessarily the Supreme Court.
The suit therefore does not
raise any constitutional issue."
That was a clear and categorical
statement indicating the
intentions of the defendant and
the lines on which he opposed
the plaintiff's action in this
court. The submission by the
same defendant during the
hearing of the application that
the case raises serious
constitutional issues requiring
interpretation by this court
conflicts with his case that has
been reduced into writing and is
already before the court.
That was not all. In the last
paragraph of his statement of
case, the defendant submitted
that
" It is our contention that the
plaintiff has no locus standi
since the purpose of his action
is to have the trial of former
government officials, otherwise
known as the Quality Grain
Trial, aborted. Since he would
not be directly or indirectly
affected by the decision in the
Quality Grain trial, his
capacity to maintain an action
is highly questionable if not
part of a collusive process. In
view of that it is our
submission that the plaintiff
has no locus standi to bring and
maintain this action and must
accordingly be non suited."
If his submissions had been
taken up by the court and upheld
and the plaintiff non-suited,
the case would have ended
without considering the merits
that the defendant now invites
the court to do. The finality of
the determination of the issue
raised in the writ would not
have been achieved. That in
essence again makes his written
statement inconsistent with the
arguments canvassed during the
hearing of the application to
withdraw.
The defendant argued that the
submissions were ready before
the court and so the court could
proceed to consider the
arguments and dispose of the
case. It is significant to point
out that if the court has to go
by the papers filed, the
contention of the defendant
during the hearing of the
application that the suit raises
constitutional issues cannot be
considered because that is the
exact opposite of what the
written statement contains.
For the case to be considered on
its merits, there is no way that
the defendant could have
proceeded by relying on his
statement of case filed in the
court. It is arguable that the
defendant may apply to amend his
statement of case. That will
cause more delay. Any argument
that justice will be expedited
by refusing the application to
withdraw and proceeding to hear
the case to dispose of the
controversy once and for all
will surely be defeated by the
delay that will be occasioned by
that possible amendment.
In any case, the most important
point on this issue is that the
view that the court could have
proceeded to give judgment on
the case when it was first
called is not correct having
regard to the circumstances of
the instant case. The rule in CI
16 that allows the court to
proceed to give judgment without
further arguments is rule 53
(1), which reads as follows;
"The court may, after
considering the statement of the
plaintiff's case and of the
defendant's case, the memorandum
of issues and any argument of
the law, decide to determine the
action and give judgment in
court on a fixed date without
further arguments or may appoint
a time at which the parties
shall appear before the court
for further arguments in the
action."
By this rule, the court may give
judgment only after considering
the statement of the plaintiff
and the defendant's case and the
memorandum of issues, but not
before then. As a matter of
fact, that consideration was not
reached and has still not been
reached in the instant case
because the application to
withdraw the case was handed to
the panel of judges sitting on
the case before the panel could
meet to consider the statements
of the plaintiff and the
defendant and the memorandum of
issues. Since no consideration
had been given to the cases of
the plaintiff and the defendant
and the memorandum of issues,
the court could not decide to
determine the action and give
judgment as stated in rule
53(1). Any argument based on the
supposition that the court could
have proceeded to give judgment
without hearing the parties is
totally wrong because the court
had not given the relevant
consideration to the statement
of case of the plaintiff and
that of the defendant. At the
stage before the court could
embark on the necessary
consideration, the plaintiff put
in the application to withdraw
the suit.
In any case, having regard to
the points raised above on the
position taken by the defendant
in his written statement of
case, one may well ask whether
the defendant would achieve the
final determination of the
issues on constitutionality from
a consideration of his written
statement which expressly
opposed the consideration of any
constitutional issue.
What will be the effect of
refusing to allow the writ to be
withdrawn? It will mean that the
plaintiff may be compelled to
proceed to prosecute his writ
filed in this court. It is very
obvious that the consequences of
such a situation will be very
adverse to the image and
authority of this court.
A person who decided to initiate
the case obviously thought that
he had a case to present to the
court for consideration by the
court. If at some stage in the
case the same person thinks that
he no longer wishes to pursue
the case, it is important to
bear in mind that in the same
vein that the court respected
his views and accepted the case
for trial, the court has the
duty to respect his views not to
push the case for trial. This is
firmly endorsed by Article 21
(1) (b) of the 1992 Constitution
which provides that
"All persons shall have the
right to—
(b) freedom of thought,
conscience and belief, which
shall include academic freedom."
This is a fundamental human
right which this court has the
duty to enforce. There is no
doubt that it is in the interest
of the public that
constitutional issues should be
disposed of once and for all,
provided of course that it is
taken that the case raised
constitutional issues. At the
same time, it is equally in the
interest of the public that the
highest court of this dear
country of ours lays no
proposition of law that seems
even tangentially to suggest
that a person can be compelled
to litigate when he is not
minded to do so, barring
extremely exceptional cases of
which this case is not one. This
should not be done because that
will go contrary to the letter
and spirit of the 1992
Constitution and all the
freedoms that it enshrines.
In the case of Obeng Manu v. The
Attorney General already
referred, a similar application
was made to withdraw a writ
filed in this court when the
court sat to hear it. The
application to withdraw was
granted. The issue and facts in
the instant case are almost on
all fours with the issue and
facts raised in that case. No
ground was found to distinguish
that case from the instant one
and no reason has been assigned
for not following it. It will
therefore be followed in the
instant case. In the case of Fox
v. Star Newspaper Co. the
application to withdraw was
refused. The facts in that case
however differ from those of the
instant case and so that
decision will not be followed.
In any case, the latter decision
being a British one is of less
authoritative effect than the
decision of this very court on
facts almost the same as those
in this instant case. While
British decision are at best of
persuasive effect on our courts,
decisions of this court are
binding on itself. Even they are
binding in principle only, they
are nevertheless binding, unless
they can be distinguished from
the case in which they are
sought to be applied.
In addition to the above, this
is the highest court of the land
and care should be taken not to
allow a situation to develop
that may result in bringing the
court into ridicule and
contempt. Rule 53(1) quoted
above allows the court to invite
further arguments from the
parties. What kind of
cooperation can be expected to
be forthcoming from a party who
has already decided that he will
no longer want to proceed with
the case initiated by him? The
answer to this question is not
far to seek. The reality of the
situation is this; can anybody
be forced to speak, or to move
the court or submit further
arguments for the court's
consideration when that need
arises in the course of hearing
the case? Again, the answer is
not difficult to seek.
It has already been explained
that the defendant will have to
amend his case if he is to avoid
contradictions between his
written statements and his
submissions in court. If papers
are served on the plaintiff
requiring him to react but he
fails to react, or he is ordered
to reply to submissions and he
fails to do so, what will the
court do to him? He may even be
said to be guilty of the
disobedience of a court order.
What image will the Supreme
Court of this country carve for
itself if it were to impose
sanctions on the plaintiff in
those circumstances? It is easy
to say that if the plaintiff
does not appear in the court or
refuses to take part in the
proceedings, the court can
proceed with hearing and give
judgment on it. What will be the
efficacy of such a judgment?
Surely, that is not the sort of
precedent that the defendant
would like to be set by the
court on the issues raised in
the case.
The operations of this court
should not be reduced to the
level where its orders will not
merely fail to command respect
but may be treated with levity.
On the peculiar facts of the
instant case, there is no need
for this court to go the extent
of having to compel the
plaintiff to proceed if he does
wish to. This is because the
defendant in his argument
opposing the withdrawal alluded
to two cases pending in the High
Court on the same section 179A.
The constitutionality or
otherwise of the section may be
taken up in the two cases and
pursued all the way to this
court either by way of case
stated or by appeal if the case
proceeds beyond the High Court
and the Court of appeal. Even if
the cases do not proceed beyond
the High Court, there are
already two Superior Court
decisions on the same point that
may be considered by the courts
trying those cases. One of the
decisions was given by the Court
of Appeal and is Mallam Ali
Yusuf v The Republic. These
points were forcefully
articulated by the defendant
himself at page five, paragraph
two, of his statement of case.
This is therefore not a case in
which all avenues to pursue the
point in this court are so
closed that the plaintiff has to
be compelled to prosecute the
case at all cost even if he does
not wish to do so. Further, this
court and indeed this country is
not faced with a situation in
which if this particular case is
not concluded in the writ issued
by the plaintiff, no criminal
prosecutions can ever be
initiated or conducted under
section 179A, neither is it
faced with a situation in which
those cases already started
cannot be heard to conclusion to
make it mandatory to proceed at
all cost to hear the writ filed
by the plaintiff.
Arguing the case on the ground
of bad faith, the defendant
contended that the plaintiff's
counsel had castigated and
passed strictures on the Chief
Justice and the Acting Supreme
Court Registrar for delaying the
listing of the instant case
which was in fact filed in 2002.
The defendant therefore
submitted that it was an act of
bad faith for the same plaintiff
and his counsel who had
complained of inaction to
withdraw from steps taken to
list the case to end the
inaction. It was pointed out to
counsel for the defendant that
he should have based his
arguments on an affidavit. The
plaintiff’s counsel however got
to his feet and replied in open
court that that what the
defendant was alleging was true.
The conduct of going to one
court to complain about a
situation of inaction and then
proceeding to another court to
take steps that would nip in the
bud attempts at ending the
inaction left much to be desired
and was certainly
uncomplimentary. That conduct
should be held against the
plaintiff by being mulcted in
heavy cost.
The rationale in the rule quoted
above emphasizes on the
discretion to be exercised by
the court in granting or
refusing leave. That discretion
among others touches on the
decision to allow or prevent the
applicant withdrawing to bring
another action for the same or
similar relief. Having regard to
the conduct of the plaintiff in
going to one court to complain
and then frustrating efforts to
end the complaint at the
eleventh hour, the plaintiff in
this case should be barred from
ever bringing another action for
the same or similar relief.
By all means citizens of this
country should not be
discouraged from taking action
to enforce provisions of the
Constitution. At the same time,
citizens should be made to
understand that if they are not
sure of themselves or their
action, they should not get, of
all courts, to this court which
is the highest court in the
country because there are rules
on the business in this court
that will deal with them if they
are found wanting or abandon the
case at a point when the case
has moved under the control of
the court.
For all the foregoing reasons,
the application to withdraw or
discontinue the case should be
allowed but with no liberty to
the plaintiff to issue a fresh
writ for the same or
substantially the same reliefs,
and additionally, subject to
heavy cost against this very
plaintiff.
S.A. BROBBEY
JUSTICE OF THE SUPREME COURT
J.A. BAMFORD-ADDO (MRS)
JUSTICE OF THE SUPREME COURT
G.T. WOOD (MRS)
JUSTICE OF THE SUPREME COURT
S.G. BADDOO
JUSTICE OF THE SUPREME COURT
DR. SETH TWUM, J.S.C:
On 20th September, 2002, the
plaintiff issued a Writ in this
court to invoke its original
jurisdiction. The Defendant is
the Attorney-General. By his
Writ the Plaintiff sought the
following reliefs:—
i. A declaration that section
179 A(3) of the Criminal Code,
1960 (Act 29) as amended by Act
458 is inconsistent with and in
contravention of Article 19(11)
of the Constitution of Ghana,
1992.
ii. A declaration that any
criminal prosecution, trial and
or conviction held or done under
or on the authority of the said
section 179 A(3) of Act 29 is in
contravention of the
Constitution and void and of no
effect.
iii. A declaration that the
prosecution or trial of some
former public officers of Ghana
under the said section 179 A(3)
of Act 29 in Suit FT/MISC/2/2001
otherwise known as the Quality
Grain case, is being done in
contravention of the
Constitution.
The Acting Registrar of the
Supreme Court fixed the case for
hearing on 4th March 2003. At
10.30 am. on 3rd March 2003, the
Plaintiff filed Supplementary
Submissions/Address of Counsel
for Plaintiff. This comprised
bundles of documents more
voluminous than all the papers
previously filed by both the
Plaintiff and Defendant put
together. They were mainly
photocopies of judgments of
American Courts and two articles
written by two Ghanaian authors.
Bundles were promptly
distributed to the panel of
judges who were going to hear
the case. It is probable that
the Attorney-General was also
served with a bundle. The record
shows that at 2.30 pm. that same
day, the Plaintiff filed a
"Notice of
Discontinuance/Withdrawal". In
it the Plaintiff gave notice
that he wholly
discontinues/withdraws the
action'.
On 4th March, 2003 when the
matter was called, Nana Adjei
Ampofo, learned counsel for the
Plaintiff informed the court
that for personal reasons, his
client had decided not to
proceed with the action. The
learned Attorney-General
objected to the manner in which
the issue of discontinuance was
being presented to the court. He
argued that the Plaintiff ought
to have sought leave before
seeking to withdraw the action.
Learned counsel for the
Plaintiff argued that under the
Supreme Court Rules (C.I. 16),
there was no express procedure
for "Discontinuance" and so he
invited the court to apply rule
5 of C.I. 16. Rule 5 of C.I. 16
provides:—
"Where no provision is expressly
made by these Rules regarding
the practice and procedure which
shall apply to any cause or
matter before the court, the
court shall prescribe such
practice and procedure as in the
opinion of the Court the justice
of the cause or matter may
require."
The learned Attorney-General
invited the court to treat the
statement by learned counsel for
the Plaintiff as an application
for leave. He then proceeded to
argue that the court should
refuse the application on two
main grounds.
(i) Public interest
considerations;
(ii) Bad faith
Under the rubric of public
interest, the learned
Attorney-General submitted that
the Plaintiff was aware that as
a result of his Writ, the case
popularly referred to as the
"Quality Grain Case" being tried
by Mr. Justice Afreh a Supreme
Court Judge sitting as
additional High Court Judge, had
been adjourned pending the
outcome of the action in this
Court. He referred to another
case being tried by Mrs.
Herietta Abban, a Court of
Appeal Judge, which would
similarly depend on the
determination of the main issue
raised by the Plaintiff in his
Writ. He argued that the parties
had filed all their papers and
that under the Supreme Court
Rules, the Court may, after
considering the statement of the
Plaintiff's case and of the
Defendant's case, and any
arguments of law, decide to
determine the action and give
judgment in Court on a fixed
date without further arguments.
In the circumstances, the case
was ready for judgment and it
was therefore an abuse of the
process of the court that on the
eve of the hearing of the action
and fixing a date for judgment
the Plaintiff would decide to
discontinue it. He said it was
in the public interest that the
case should go on so that the
public may know whether the
plaintiff's claim that the
prosecution or trial of some
former Public Officers of Ghana
is unconstitutional, is correct.
On the question of bad faith,
the learned Attorney-General
explained that the Plaintiff had
been agitating for his case to
be heard and had even gone as
far as accusing His Lordship the
Chief Justice, of not wanting to
have his action fixed for
hearing. He said it was in utter
bad faith for the Plaintiff
therefore to decide on the eve
of the matter coming up for
hearing to say that he would no
longer go on with it. Learned
Counsel for the Plaintiff
admitted in court that indeed
his client had said that His
Lordship the Chief Justice was
deliberately refusing to direct
that the case be fixed for
hearing. But he added that the
plaintiff could not be compelled
for whatever reason to proceed
with the action if he did not
wish to go on. He then referred
to the case of Obeng Manu vrs.
Attorney-General and promised to
supply the citation to the court
by the close of day. He went on
to say that, that was a
constitutional case in which the
Plaintiff sought leave to
discontinue. He said this was
resisted by Mr. Martin Amidu,
the Deputy Attorney-General. The
Court however, granted the leave
and the action was struck out.
It was his final prayer that the
leave be granted. In his reply
the learned Attorney-General
cited the case of Fox vr. Star
Newspaper Company (1898) I.Q.B
where the court refused the
Plaintiff leave to discontinue
and prayed that leave be refused
accordingly.
Pursuant to Rule 5 of CI. 16
will apply order 26 rule 1 of
the High Court (Civil Procedure)
Rules, 1954, (L.N. 140A). It
provides that the Plaintiff
discontinue his action at any
time before the Defendant has
filed his defence. Thereafter,
he may only do so with leave of
the court which may grant the
leave if it sees fit, upon
terms. Strictly, the application
for leave should be by motion or
summons or under the Summons of
Directions but oral applications
may be allowed. Where a
Plaintiff has to apply for leave
he is 'in mercy' as Lewis F
Sturge puts it in his book "
Basic Rules of the Supreme
Court", page 64. An application
for leave vests a discretion in
the court or the judge. It is
part of our jurisprudence that
all judicial discretions must be
exercised judicially. This means
they must be exercised according
to clear rules established by
the courts through decided
cases; not arbitrarily made up
on the spur of the moment. Over
the years our case law has
established that a party praying
for leave must advance good
reasons to persuade the court to
grant him his prayer. Leave is
simply not for the asking. The
court must consider the reasons
and all the surrounding
circumstances; for example the
state the case has reached
before the application for leave
is made. Again leave may be
refused if the applicant is not
wholly dominus litis, or if the
defendant has by the proceedings
obtained an advantage of which
it would not seem just to
deprive him. (see The Annual
Practice-1958 Vol. 1 page 593)
One other relevant factor is the
nature of the action.
Proceedings in criminal contempt
for example, cannot be withdrawn
once set in motion.
At this juncture one may ask,
what will the Plaintiff lose if
his application for the
discontinuance is refused? A
refusal can only mean that the
court will proceed to consider
the case on the merits. And I
cannot see how a consideration
of the case on it merits by the
court can possibly affect the
Plaintiff adversely. In my view
he will lose absolutely nothing.
On the other hand a
pronouncement by the Supreme
Court will be beneficial to the
whole country, including the
Plaintiff himself.
So let us consider the
application for leave to
discontinue. As we have pointed
out, the only ground advanced by
the Plaintiff was ‘personal
reasons'. With all respect to
learned counsel for the
Plaintiff, he knew or ought to
have known that no court, let
alone the highest court of the
land should be invited to
consider an application for
leave on the sole ground of
'very personal reason'. Not even
'ill-health' is a sufficiently
good reason. And if I may say
so, learned Counsel for the
Plaintiff did not help matters
when he said that the Plaintiff
cannot be compelled for whatever
reason to proceed with the
action he does not wish to go
on. This is quite unfortunate.
As soon as the Writ was filed in
this Court, the Plaintiff
submitted himself to the
Jurisdiction of the court which
then assumes full control of the
proceedings. The Plaintiff is
not claiming any relief for
himself. The basis of his Writ
is not a private wrong done him.
It is a wrong he alleged was
being done to the entire people
of Ghana. The Plaintiff is not
pursuing his own individual
interest. Rather, it is the
public interest that he is
espousing. The Plaintiff is
asserting a direct and
substantial interest in
maintaining the supremacy of the
Constitution over all other
laws, enacted or otherwise. The
matter is therefore in the
public domain and public
interest considerations play a
vital role in the equation
whether to grant leave to
discontinue or not.
One ground for refusing leave to
discontinue an action is, as we
have stated above, if the
defendant has by the proceedings
obtained an advantage of which
it would not seem just to
deprive him. The learned
Attorney-General in his
submission stated that there was
a steady criticism of section
179 A(3) of Act 29 in a section
of the media insinuating the
unconstitutionality of the law
under which certain former
public officers have been tried
and found guilty. He said the
Plaintiff, both in his Writ and
also in his statement of case,
expressly allies himself with
the Defendants in the "Quality
Grain case". It was most
important that the case be
continued to the end so as to
clear the air once and for all
whether or not that piece of
legislation is unconstitutional.
There is a great deal of force
in this submission.
One other matter worth
considering is that a judgment
given in the action will be
judgment in rem. It will not
simply be a kind of res judicata
between the Plaintiff and the
Defendant. It is a
constitutional matter and will
settle the status of section 179
A (3) of the Criminal Code 1960
(Act 29). If the action is not
heard to its conclusion the
doubt which the Plaintiff's Writ
has thrown on the
constitutionality of section 179
A(3) of Act 29 will persist.
This is not in the public
interest. And if people could
file writs in the Supreme Court
challenging the
constitutionality of our laws,
criminal or civil, and could
then discontinue them at will, a
stage could soon be reached when
nobody could be sure which of
our laws were constitutional.
This would surely undermine the
administration of justice and
nibble at the foundations of our
democratic governance. In my
view, for the reason given above
the application for leave to
discontinue the action should be
refused.
JUSTICE OF THE SUPREME COURT
COUNSEL
Nana Akuffo-Addo, Attorney
General, Miss Gloria Akuffo,
Deputy Attorney and Mr. Osafo
Sampong D.P.P for Defendant
Nana Adjei Ampofo for Plaintiff. |
