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R U L I N G
WOOD,(MRS) CJ:-
In this motion to invoke the
supervisory jurisdiction of this
honourable court, the applicant
prays for an order of certiorari
directed at the Automated/Fast
Track High Court (No 4),
presided over by Her Ladyship,
Mrs. Irismay Brown. The purpose
is to bring up to this court and
to have quashed the judgment of
that court dated 20th
March, 2008, granting GHC100,
000.00 to the Plaintiff
(Interested Party herein)
without notice to the Defendant.
The facts which triggered the
present application are not
complex. On the 25th
day of October 2007, the learned
trial judge sitting in the Fast
Track High Court 4 delivered
herself in the case of
Dinah Koranten Amoako
Plaintiff
Vs
State Housing Company
Ltd Defendant.
as follows:
“The verdict of the court is
that the dismissal of Plaintiff
was motivated by factors other
than the alleged misconduct of
the Plaintiff and therefore
wrongful. The behaviour of
management gives credence to the
allegation by Plaintiff that she
had been harassed, persecuted
and treated in a discriminatory
fashion by management in respect
of the purchase of her house.
She has led evidence to show
that officers of lower
designations had benefited from
both the land and house purchase
concessions offered by the
Company.
The Court has taken judicial
notice of the frantic attempts
made by management to evict
Plaintiff and her family from
the said accommodation soon
after the institution of this
suit and intends to take this
into account in the award of
damages which in any case
plaintiff is deemed to be
entitled to as a result of the
finding by the court, that the
purported termination of
Plaintiff’s employment was
wrongful.
Apart from being allowed to
purchase her house, Plaintiff is
seeking to be reinstated and the
award of all benefits she is
entitled to or alternatively for
an award of damages.
Since the Court is not versed
with the current state of
affairs, the final award of the
court, will be suspended pending
further evidence :”(
Emphasis ours)
Clearly dissatisfied with this
decision, the applicant, acting
through his counsel, filed a
Notice of Appeal on the 20th
of December 2007. On the 6th
February 2008, when the matter
came up before the trial judge
for further hearing as she had
directed at the previous
hearing, the applicant refused,
as he was legally and perfectly
entitled to do; to participate
in the proceedings, as the
record of the day clearly
reveals. It reads thus:
“By Court: The matter
before the court today.
J. Aidoo:
My Lord, as I pleaded on the
last time, not yesterday, we
think that having regard to the
settlement of the matter the
Defendant /Judgment/Debtor (not
audible) and again, they have
filed an appeal against the
matter, and therefore we think
that, we don’t want to involve
our self in this and that the
court can proceed to deliver
judgment.
By Court:
I merely wanted to know, first
of all she is still in her
house, whether you are going to
reinstate her, and whether she
is in employment. These are the
three things that should
influence the court in
delivering the final verdict in
this matter. So there is the
question of whether they are
still living in the property or
they have vacated the property?
Whether she has obtained
alternative employment or
whether she is waiting to be
reinstated. So these are the
things that you should address
me on, before I deliver a final
verdict…”
Unperturbed by their refusal to
participate in the hearing, the
trial judge proceeded to obtain
the information she thought
necessary to bring closure to
the proceedings, and on the 20th
of March, 2008, made the orders
complained of. We find however
that the facts, on which the
impugned decision was based,
were obtained from legal counsel
at the bar, and not under oath
or affirmation as the statutory
evidentiary rules mandate.
The instant application is
predicated on the following
self-explanatory grounds:
a.
“(a) that the trial judge having
pronounced or passed final
judgment on 25th
October 2007, in favour of the
Plaintiff (Interested Party) she
was functus officio and could
not therefore cause any further
evidence to be led by the said
Plaintiff (Interested Party) or
her lawyer(s) to state her claim
on 6th February,
2008;
b.
that after pronouncing final
judgment as aforesaid the trial
Judge lacked the jurisdiction to
suo motu recall the Plaintiff
(Interested Party) or afford her
the opportunity to lead fresh
evidence on her claims thereby
enabling the court to award her
reliefs on 20th
March, 2008;
c.
that the judgment of the trial
court on 20th March,
2008 granting reliefs to the
Plaintiff (Interested Party)
after delivering final judgment
as aforesaid was a flagrant
abuse of the rules/process of
court and therefore illegal.
d.
That the Defendant/Applicant
herein, not having been served
any hearing notice to appear in
court on 20th March,
2008 the court breached the audi
alteram partem rule of natural
justice by conducting a hearing
on the matter after final
judgment had been delivered by
the same court on 25th
October, 2007;
e.
that any proceedings after 25th
October 2007 for the purpose of
further hearing or evidence as
aforesaid, is ultra vires the
court and without jurisdiction
as same was functus officio;
f.
that a further or second
judgment of the trial court
dated 20th March
2008, wherein the court awarded
GH¢ 100,000.00 without any
express reason, explanation,
ground or justification being
offered, is without jurisdiction
and therefore null and void and
of no effect.”
The application is therefore
based on two main grounds,
firstly, that the judge having
pronounced final judgment, she
became functus officio and
lacked jurisdiction to call
further evidence and secondly
that she breached the rules of
natural justice in that she did
not give the applicants the
opportunity to be heard before
delivering the impugned decision
of 20th March, 2008.
This latter complaint is the
most unmeritorious. A party who
disables himself or herself from
being heard in any proceedings
cannot later turn round and
accuse an adjudicator of having
breached the rules of natural
justice.
Indeed, the applicant’s own
Exhibit “G” contradicts this
unjustified attack. The record
demonstrates that it was the
applicant who disabled himself
from being heard when in clear
and unambiguous terms, he
expressed his intention not to
participate any further in the
proceedings complained of. The
Applicant’s own supplementary
affidavit of 8th of
August 2008, confirms this
finding.
IS THE CERTIOARI APPLICATION
TIME-BARRED?
One of the defences raised in
response to this application, is
a jurisdictional and
consequently fundamental
objection that the motion be
dismissed in limine on the
ground that the application is
clearly time barred. The
argument is that since on the
applicant’s own showing, the
trial judge assumed jurisdiction
to call for the further evidence
on the 6th of
February 2008, the grounds for
this instant application first
arose on that date. It was thus
urged that the computation of
the statutory time limit of 90
days within which the
application may be brought, as
mandated under Rules 61 & 62 of
the Supreme Court Rules CI 16,
as amended by Supreme Court
(Amendment) Rules, 1999 CI 24,
starts from the 6th
of February and not the 20th
of March, 2008, the day on which
the second or final judgment was
delivered.
Not surprisingly, the
applicant’s counter-argument is
that the grounds for the
application arose after the
judgment of the 20th
March, 2008, specifically, as
soon as the Plaintiff/
Interested Party filed a
Judgment After Trial to indicate
“his readiness to proceed on
judgment against the Defendant,”
The arguments on both sides
therefore raise the question of
what is the true scope and
effect of rule 62 of the Supreme
Court Rules CI 18 as amended by
the Supreme Court (Amendment)
Rules, 1999 CI 24, regarding
particularly the determination
of the date on which the grounds
for an application to invoke our
supervisory jurisdiction can be
said to have arisen for the
first time, that is a cause of
action has accrued. Stated
differently, what are the
indicators a cause of action has
accrued, namely that grounds
exist for invoking the
jurisdiction, the date from
which the 90 day statutory time
limit begins to run.
The rule provides:
“62 An application to invoke the
supervisory jurisdiction of the
court shall be filed within 90
days of the date when the
grounds for the application
first arose unless time extended
by the court.”
Under the amended rule, the
statutory period of 90 days was
determinable by reference to the
date when the grounds of the
application first arose and not
the date of the decision as
existed under the previous rule.
A plain reading of the rule
presupposes that the legislature
envisages a situation where the
grounds could even arise a
second or some other subsequent
time, but clearly, the time
limit begins to run from the
date the grounds first arose. It
is therefore important that we
do set some legal principles for
identifying that critical first
time. Therefore the following
critical question arises for our
consideration: how do we
determine that grounds for
invoking the jurisdiction of the
court have indeed, at least for
the first time arisen?
It is indeed impossible, if not
imprudent to lay down set
criteria for a determination of
this vexed question. It is
therefore determinable on a case
by case basis, guided by some
very broad principles, some of
which I had occasion to allude
to in the relatively recent
decision in the case of
Republic v High Court, Kumasi;
Ex Parte Mobil Oil (Ghana) Ltd
(Hagan Interested Party)
[2005-2006] SCGLR 312.
We had opportunity to determine
the scope of the rule 62 and
spoke with one voice.
Dr. Twum JSC delivering the lead
opinion observed that:
“With the amendment effected by
CI 24, the time limit within
which an application to invoke
the supervisory jurisdiction of
the court may be filed is
determined by reference to the
date when the grounds for the
application first arose and not
the date of the decision against
which the jurisdiction is
invoked. It is possible the two
bases of reckoning may achieve
the same result in a few cases
but it is most probable that a
different time limit will be
determined if the amended rule
62 is used.”
Some of the general guiding
principles I thought should
prove useful in determining the
existence, for the first time,
of sufficient grounds for
invoking this jurisdiction are
discernible from the observation
I made, which is at page 335 of
the Ex Parte Mobil case (supra).
I stated:
“It follows that until it has
become firmly established that a
judge has been entrusted with
the actual hearing of a case
under consideration, and that he
or she has evinced a clear
intention not to disqualify
himself or herself , when
matters which call for his or
her recusance are brought to his
or her attention or formal
objections are raised as to his
or her impartiality, or (sic) a
party might be acting
prematurely or even lack
sufficient grounds to invoking
our supervisory jurisdiction for
the appropriate orders to be
made.”
It is to be understood that
these are not intractable rules,
cast in iron, but guiding
principles; with room for
expansion and which also allows
for reasonableness, flexibility
and adaptability in their
application. They include the
following:
(a) an applicant must not act
prematurely, but have sufficient
grounds for invoking this
special jurisdiction,
(b) the judge must evince, for
the first time, a clear
intention that he or she is
clothed with jurisdiction, put
in other words manifest a clear
intention that he or she will
not disqualify himself or
herself on the jurisdictional
ground complained of.
(c) ordinarily, such an
intention is made manifest when
a formal or informal objection
to jurisdiction is raised and
the judge firmly rules against
the objection.
It does appear to me then that
ordinarily, a judge’s first
conclusive claim to
jurisdiction, whether express or
implied, is the date of the
decision that he or she does
indeed have jurisdiction, not
the date on which an objection,
if any, whether formal or
informal is raised. I would not
make the date on which the
objection is raised the
reference point, the reason
being that even when a formal
legal objection to jurisdiction
is raised, under normal
circumstances, the judge must
assume jurisdiction to determine
that jurisdictional question.
The date the judge proceeds to
hear and determine that
jurisdictional question then
cannot be the reference point,
but the date on which the judge
rules that he or she has
jurisdiction and perhaps
proceeds to exercise it. Even so
I hesitate to present this as
the inflexible rule of law.
On the plaintiff’s own showing,
the reference date is the 20th
of March, 2008, the date on
which the court delivered its
final decision, implying that it
had jurisdiction not merely to
collect the relevant information
and even more importantly using
the information so gathered to
make the impugned orders. The 90
day statutory period thus runs
from this date, in which case
the applicant is out of time as
regards this instant
application, albeit for only one
day. The motion must therefore
be dismissed in limine.
In this instant case, the judge
clearly had jurisdiction to take
further evidence before ruling
on the case finally. It was
indeed obvious from her ruling
of 25th that the
decision was not a final but an
interlocutory judgment. On that
day she had ruled:
“Apart from being allowed to
purchase her house.(sic)
Plaintiff is seeking to be
reinstated and the award of all
benefits she is entitled to or
alternatively for an award of
damages. Since the court is not
versed with the current state of
affairs the final award of the
court, will be suspended pending
further hearing.”
The 2nd Edition,
Volume 19 of Halsbury’s Laws of
England, defines a final
judgment as follows:
“A Judgment or order which
determines the principal matter
in question is termed “final” An
order which does not deal with
the final rights of the parties,
but either (1) is made before
judgment, and gives no final
decision on the matters in
dispute but is merely on a
matter of procedure; or (2) is
made after judgment, and merely
directs how the declarations of
right already given in the final
judgment are to be worked out is
termed ‘interlocutory’”
In POMAA AND OTHERS v. FOSUHENE
[1987-88] 1 GLR 244-265
S. C, the court declared:
that
“An inference whether a decision
or order was final or
interlocutory was dependent
essentially on the nature of the
decision or order and
consequently on the answer to
the question whether the
decision or order finally
disposed of the rights of the
parties or the matter in
controversy. An interlocutory
decision did not assume finally
to dispose of the rights of the
parties. It was an order in
procedure to preserve matters in
status quo until the rights of
the parties could be
determined. The test was not to
look at the nature of the
application but at the nature of
the order made...”
Could the judgment of Justice
Irismay Brown therefore be said
to be final, thus rendering her
functus officio? Certainly not!
She never effectively determined
the substantive matter to
finality. In other words, she
never dealt with the final
rights of the parties. The judge
therefore had jurisdiction to
admit further evidence-facts she
believed was crucial or relevant
to the assessment of damages for
wrongful dismissal. The
application therefore fails on
this ground also.
In applications to invoke the
supervisory jurisdiction of this
court, the mere failure of the
stated ground on which the
application is purportedly
based, does not end the matter.
If there exists on the record
some other legally justifiable
or sufficient ground for the
grant of the order sought or
indeed any other order, the
applicant is clearly entitled to
the appropriate order.
Consequently, although the
objection to jurisdiction on the
specific ground that the judge
was functus officio is not
maintainable, the applicant may,
if he finds that other grounds
exist for invoking the
supervisory jurisdiction of this
court to have the decision
quashed, set the necessary
processes into motion to achieve
the desired results.
G. T. WOOD(MRS)
(CHIEF JUSTICE)
I agree
S. A. BROBBEY
(JUSTICE OF THE SUPREME
COURT)
I agree
J. V. M. DOTSE
(JUSTICE OF THE SUPREME
COURT)
I
agree
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
I agree
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
COUNSEL:-
FRANK DAVIES WITH NII AYITEY
OKAI FOR THE INTERESTED PARTY
JOHN AIDOO FOR THE APPLICANT |
