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Practice and Procedure -
Certiorari - Judicial review -
Bail - Order 73 rule1 sub-rule
(2) and rule (2) - High Court
(Civil Procedure Rules), CI 47
HEADNOTES
The simple question for our
decision turning on the
application before us for
judicial review in the nature of
certiorari is whether the
learned trial judge of the High
Court acted within jurisdiction
when he made an order on
February 08, 2016 that the
applicant (a defendant to the
action before the trial High
Court) to give bail for his
appearance in a civil action by
virtue of Order 73 of the High
Court (Civil Procedure Rules),
CI 16. From the impugned order
the learned trial judge did not
as required by the rules afford
the applicant, the opportunity
of showing cause why he should
not provide good and sufficient
cause for his appearance in the
action.
HELD
In our opinion, the
circumstances with which we are
concerned in these proceedings
are no different from that which
fell to be considered in the
case referred to in the
preceding paragraph, a decision
that is binding on us and
renders the order of 08 February
2016, as appears from page 1 of
exhibit “A” amenable to judicial
review in the nature of
certiorari having been made
without jurisdiction.
Accordingly, the impugned
proceedings are brought up
before us for the purpose of
being quashed by the writ of
certiorari and the same are
hereby quashed.
STATUTES REFERRED TO IN JUDGMENT
High Court (Civil Procedure
Rules), CI 47
CASES REFERRED TO IN JUDGMENT
Republic v The High Court,
Koforidua, Ex parte Osae-Akonnor
[2009] SCGLR 753.
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
GBADEGBE JSC:
COUNSEL
KWEKU PAINTSTIL FOR THE
APPLICANT.
NO APPEARANCE FOR THE
INTERESTED PARTY.
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RULING
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GBADEGBE JSC:
The simple question for our
decision turning on the
application before us for
judicial review in the nature of
certiorari is whether the
learned trial judge of the High
Court acted within jurisdiction
when he made an order on
February 08, 2016 that the
applicant (a defendant to the
action before the trial High
Court) to give bail for his
appearance in a civil action by
virtue of Order 73 of the High
Court (Civil Procedure Rules),
CI 16. From the impugned order
, which appears at page 1 of
what is loosely described as
Exhibit “A” series, the learned
trial judge did not as required
by the rules afford the
applicant, the opportunity of
showing cause why he should not
provide good and sufficient
cause for his appearance in the
action. The obligation imposed
on the learned trial judge is
expressed in the following words
of Order 73 rule1 sub-rule (2)
and rule (2) thus:
1.
(2).“ Where the court is
satisfied that the provisions in
paragraph (a) or (b) of sub-rule
(1) have been substantiated and
that the execution of any
judgment in the action against
the defendant is likely to be
obstructed or delayed, it may
issue a warrant to bring the
defendant before the Court to
show cause why the defendant
should not give good and
sufficient bail for the
defendant’s appearance.
2.
Where the defendant fails to
show cause, the Court shall
order the defendant to give bail
for the defendant’s appearance
at any time while the action is
pending and the execution or
satisfaction of any judgment
that may be given against the
defendant in the action, and the
surety shall undertake to pay
any money that may be adjudged
to be paid by the defendant in
the action, in default of the
appearance of the defendant.”
We venture to say without any
hesitation that the order for
bail arises only when following
his appearance before the court
under a warrant issued under
order 73 rule (1) sub-rule (2),
he is unable to show cause as
provided for in rule 2 of the
Order. The order for bail so
made upon his failure to satisfy
the court in regard to his
appearance while the action is
pending may be likened to bail
in criminal cases. The purpose
of the bail granted to the
defendant is to ensure that he
appears not only at the trial
but as some form of security
that any judgment obtained
against him in the action may be
satisfied. It seems therefore
that the failure of the
defendant to satisfy the court
that he would appear at the
trial and also satisfy any
judgment that might be rendered
against him in the action is an
essential pre-requisite to the
making of the order by a court
for bail to a defendant in a
civil matter.
The order for bail which is
authorised under rule (2) of
Order 73 is not to be made
lightly but upon proof that
indeed, the defendant against
whom an absconding warrant was
made ex parte is not able to
show satisfactorily to the court
that he will appear for the
trial and also satisfy any
judgment that may be entered
against him. The defendant’s
obligation to show cause may be
satisfied by proof either that
he has valuable property situate
within the jurisdiction to
enable him pay off any judgment
that may be entered against him
in the action or by means of the
deposit of money. A defendant
who satisfies the court in
relation to either of these
instances cannot properly
speaking be ordered by the court
to give bail for his appearance.
The order requiring an
absconding defendant to provide
bail for his appearance from the
very plain language of rule (3)
of Order 73 is contingent upon
the failure of the defendant to
satisfy the court that he has
funds or property within the
jurisdiction that are sufficient
to secure his appearance in the
execution and to satisfy the
execution of any judgment that
may be obtained against him in
the action.
Examining the proceedings
before the court on February 08,
2016, we make the unhappy
observation that the learned
trial judge did not ensure that
that the condition precedent to
the order that the defendant
provide bail existed before he
directed him to give bail for
his appearance. We think that
the effect of the order made by
the learned trial judge
fundamentally sinned against the
strict requirements of the rules
by which a defendant who
absconds may be ordered to give
bail for his appearance as the
learned trial judge’s conduct
may be likened to making an
order in the absence of a
condition precedent; an
attribute which deprives the
order so made of jurisdictional
competence.
In our view, the learned trial
judge without first requiring
the absconding defendant to
explain why he should not be
made to give bail in the action
to guarantee his appearance in
the action and also in respect
of any judgment that might be
recovered against him, acted in
excess of jurisdiction. The
failure firstly of the learned
trial judge to afford the
applicant the opportunity to
show cause before the order
that he gives bail for his
appearance apart from being
procedurally flawed also shows
from the impugned proceedings a
clear denial of the
applicant’s right to be heard
before he was condemned to give
bail. This position is in accord
with the decision of this court
in the case of The Republic v
The High Court, Koforidua, Ex
parte Osae-Akonnor [2009] SCGLR
753. In the course of the
judgment in the said case, Owusu
JSC (as she then was) observed
at page 584 as follows:
“In violation of the rules, the
applicant was denied the
opportunity to be heard. It was
only where the defendant had
failed to show cause that the
court should order him to give
bail for his appearance….. In
view of the court’s failure to
call upon the defendant to show
because why he should not be
made to give bail, the grant of
bail was unwarranted and same
ought to be quashed.”
In our opinion, the
circumstances with which we are
concerned in these proceedings
are no different from that which
fell to be considered in the
case referred to in the
preceding paragraph, a decision
that is binding on us and
renders the order of 08 February
2016, as appears from page 1 of
exhibit “A” amenable to judicial
review in the nature of
certiorari having been made
without jurisdiction.
Accordingly, the impugned
proceedings are brought up
before us for the purpose of
being quashed by the writ of
certiorari and the same are
hereby quashed.
(SGD)
N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD)
V. AKOTO-BAMFO (MRS.)
JUSTICE OF THE SUPREME COURT
(SGD) A.
A. BENIN
JUSTICE OF THE
SUPREME COURT
(SGD)
Y. APPAU
JUSTICE
OF THE SUPREME COURT
(SGD)
G. PWAMANG
JUSTICE OF THE SUPREME COURT
COUNSEL:
KWEKU PAINTSTIL FOR THE
APPLICANT.
NO APPEARANCE FOR THE
INTERESTED PARTY. |
