Matrimonial
causes - Divorce - Ownership of
Matrimonial home - interlocutory
injunction - Whether or not the
High Court (Court 9) Accra,
acted without jurisdiction by
proceeding to hear the case -
HEADNOTES
The applicant
and the interested party were
granted a divorce decree on the
23rd day of
September, 2009 by the High
Court (Court 20), Accra subject
to the determination of
ancillary reliefs. The applicant
having remarried, was minded to
bring his new wife to the former
matrimonial home. The interested
party claiming exclusive
ownership of the said home filed
a motion on the 4th
day of July, 2013 “praying the
Court for an order of
interlocutory injunction to
restrain the
Respondent/respondent herein or
his agents, privies, assigns and
whomsoever from bringing into
the matrimonial house, House No.
233, Airport West, Dzorwulu,
Accra and any of the buildings
listed as being in dispute in
this matter, the woman the
respondent has recently married,
or any other woman to cohabit or
live therein or for any purpose
and from harassing and
intimidating the petitioner
pending the final determination
of the suit.” The motion
eventually came before Elizabeth
Ankumah J as vacation judge
sitting in High Court ( Court
9), Accra. Though the applicant
attended court his counsel,
Edward Anokye, did not, but
sought adjournments on grounds
of ill health. Both sides having
filed their affidavits the
motion was fixed for Ruling on
the 2nd day of
September, 2013. However, the
applicant, on account of the
alleged ill health of his said
counsel, filed a motion in this
(Supreme) Court on the 28th
day of September, 2013 per David
K. Adade Boafo , “ for judicial
review by way of an order for
Prohibition directed at the High
Court, Accra, presided over by
Her Ladyship Justice Elizabeth
Ankama (sic) restraining the
Court from giving a Ruling in
respect of an application for an
order for interlocutory
injunction dated 4th
July, 2013, filed by the
Interested Party herein which
has been fixed for Ruling on 2nd
September, 2013, in a Petition
entitled Nana Yaa Konadu vrs.
Alhaji Abdul Rashid – Suit No.
BDMC 164/09, in which the
Applicant herein is
Respondent/Respondent therein.
HELD
“Against a
background such as this, we have
no difficulty in holding that
though certiorari is a
discretionary remedy, the
omission of a party to raise
objection to a proceeding in an
inappropriate forum should
disentitle the applicant to that
remedy where the omission was
wilful and an abuse of the
process of the court.” ...” For
all these reasons, the
application is hereby dismissed.
STATUTES
REFERRED TO IN JUDGMENT
CASES
REFERRED TO IN JUDGMENT
In Re
Appenteng (Decd), Republic v.
High Court, Accra (Commercial
Division), Ex parte Appenteng (Appentengs
Interested Parties) [2010] SCGLR
327.
Republic v.
High Court; Accra; Ex parte
Attorney-General (Ohene Agyapong
Interested Party) [2012] 2 SCGLR
1204
in Republic
v. High Court, Denu; Ex parte
Agbesi Awusu II (No.2) (Nyonyo
Agboada Interested Party)
[2003-2004] 2 SCGLR 907,
in Republic
v. High Court, Accra; Ex parte
Aryeetey (Ankrah Interested
Party) [2003-2004] 1 SCGLR 398
at 410,
Republic v
High Court, Accra; Ex parte
Tetteh Apain [2007-2008] 1 SCGLR
72,
BOOKS
REFERRED TO IN JUDGMENT
De Smith ,
Woolf and Jowell’s Principles of
Judicial Review (1999)
DELIVERING
THE LEADING JUDGMENT
ATUGUBA
J.S.C.
COUNSEL
J. OPPOKU -
AGYEI FOR THE APPLICANT
OSAFO BUABENG
FOR THE INTERESTERED PARTY
RULING
ATUGUBA
J.S.C.
The facts
The applicant
and the interested party were
granted a divorce decree on the
23rd day of
September, 2009 by the High
Court (Court 20), Accra subject
to the determination of
ancillary reliefs. The applicant
having remarried, was minded to
bring his new wife to the former
matrimonial home. The interested
party claiming exclusive
ownership of the said home filed
a motion on the 4th
day of July, 2013 “praying the
Court for an order of
interlocutory injunction to
restrain the
Respondent/respondent herein or
his agents, privies, assigns and
whomsoever from bringing into
the matrimonial house, House No.
233, Airport West, Dzorwulu,
Accra and any of the buildings
listed as being in dispute in
this matter, the woman the
respondent has recently married,
or any other woman to cohabit or
live therein or for any purpose
and from harassing and
intimidating the petitioner
pending the final determination
of the suit.”
The motion
eventually came before Elizabeth
Ankumah J as vacation judge
sitting in High Court ( Court
9), Accra. Though the applicant
attended court his counsel,
Edward Anokye, did not, but
sought adjournments on grounds
of ill health. Both sides having
filed their affidavits the
motion was fixed for Ruling on
the 2nd day of
September, 2013. However, the
applicant, on account of the
alleged ill health of his said
counsel, filed a motion in this
(Supreme) Court on the 28th
day of September, 2013 per David
K. Adade Boafo , “ for judicial
review by way of an order for
Prohibition directed at the High
Court, Accra, presided over by
Her Ladyship Justice Elizabeth
Ankama (sic) restraining the
Court from giving a Ruling in
respect of an application for an
order for interlocutory
injunction dated 4th
July, 2013, filed by the
Interested Party herein which
has been fixed for Ruling on 2nd
September, 2013, in a Petition
entitled Nana Yaa Konadu vrs.
Alhaji Abdul Rashid – Suit No.
BDMC 164/09, in which the
Applicant herein is
Respondent/Respondent therein.
THE GROUNDS
FOR THE APPLICATION ARE AS
FOLLOWS:
-
The High
Court, Accra, a vacation
Court, erred by insisting on
going ahead to hear and give
a Ruling in the absence of
counsel for Applicant herein
when he had written to the
Court indicating that he
wanted to rest during the
vacation and alluded to his
health in the said letter
and thus denying the
Applicant a hearing through
his counsel.
-
The High
Court, Accra erred by
issuing a directive to the
Applicant’s counsel to
attend court when he had
provided the Court with a
medical report from the
Cardiothoracic Centre at
Korle-Bu advising that he
should rest for a month
while taking his medication
and in the process denying
the Applicant herein a
hearing through his counsel
particularly when
Applicant’s counsel had
stated in a letter that he
intended filing a
supplementary affidavit in
opposition but could not do
so because of his health.”
(e.s.)
This motion
was fixed for hearing on the 22nd
day of October 2013 but was
struck out on that day pursuant
to a notice of withdrawal filed
by the applicant’s counsel the
previous day. In the interim
Elizabeth Ankumah J stayed her
Ruling, but thereafter the
parties were served with notices
dated the 28th day of
October 2013 for delivery of the
Ruling on the 31st
day of October 2013; on which
day the interested party’s
aforementioned motion for
interlocutory injunction was
granted by Elizabeth Ankumah J
aforementioned.
Proffered
Legal Basis for the Application
The applicant moves this court
to quash the said Ruling of
Elizabeth Ankumah J dated the 31st
day of October 2013 on the
ground specified in his motion
paper and maintained in his
statement of case as follows:
“The ground
for the application is that:
1.
The
High Court (Court 9) Accra,
presided over by Her Ladyship
Justice Elizabeth Ankumah acted
without jurisdiction by
proceeding to hear a case on 31st
October, 2013, which was pending
before High Court 20, Accra,
presided over by His Lordship
Justice Gyinae and which had not
been transferred to that Court,
after 30th September,
2013, when vacation Courts had
ended their sitting.”
Curiously
counsel for both sides rely,
inter alia, on this court’s
decision in In Re Appenteng
(Decd), Republic v. High Court,
Accra (Commercial Division), Ex
parte Appenteng (Appentengs
Interested Parties) [2010] SCGLR
327. The applicant relies on the
earlier part of that decision
which holds that a vacation
judge’s jurisdiction is limited
to the vacation period whilst
the Interested Party relies on
the latter part of that decision
to the effect that certiorari
being discretionary the
applicant’s conduct for example,
in failing to raise objection to
the jurisdiction of the court,
can disentitle him to that
remedy.
The Conduct
of the Applicant
The conduct
of the applicant in the
proceedings herein sought to be
impugned by certiorari calls for
scrutiny. It is trite law that
equitable principles are much
the same as the grounds for
exercising a discretionary
power. The following court note,
as per exhibit “NYK1”, is
relevant:
“PARTIES
Petitioner
absent
Respondent
present
COUNSEL
Mr. C.K. Koka
for the petitioner/applicant
BY COURT
Counsel for
the respondent refused to come
to court, at the last adjourned
date, he said he was sick. Today
he has presented a letter from
Cardio Centre that he should
take rest for four weeks. The
respondent is alleged to have
said he will do all that he can
so I do not sit on this case, he
denies it. His lawyer is also
seen around. I have a feeling
they are just trying to delay
the hearing of the motion on
notice of interlocutory
injunction preventing the
respondent from bringing into
the matrimonial house or any of
the buildings listed, his newly
married bride and to stop the
respondent from harassing and
intimidating the petitioner.
The parties
have filed their affidavits
supported by statement of case.
The respondent has also filed
supplementary affidavit in
opposition dated 31st
July.
Case
adjourned to 2nd
September, 2013 for ruling.
JUSTICE
ELIZABETH ANKUMAH (MRS.)
JUSTICE OF
THE HIGH COURT.”
(e.s.)
Though the
applicant appears to contest the
veracity of the judge’s comment,
inter alia, that “His sick
lawyer is also seen around” he
proffers no evidence against
this solemn judicial statement
of fact in a court record,
which, on authority, should
carry much weight.
In any event
the judge’s observations as to a
desire by the applicant per his
counsel to delay the hearing of
the motion are borne out on the
facts. We observe firstly that
there is no indication that
counsel for the applicant has no
associates or juniors in his
chambers who could handle the
motion in his stead. Even if
that is so the applicant could
have instructed another counsel,
as he did for the purpose of his
prohibition motion to this
court, to handle the motion for
interim injunction before
Elizabeth Ankumah J, especially
as vacation matters are normally
urgent.
Again, going
by the sequence of the facts of
this case, upon the service on
him of the notice dated the 28th
day of October, 2013 for Ruling
on the motion for injunction, it
should have been clear to the
applicant and his counsel that
since it was Elizabeth Ankumah J
who had earlier set it down on
the 26th day of
August, 2013 for Ruling on the 2nd
day of September 2013 (as per
Exhibit “NYK1”, supra) she was
the judge who was going to
deliver the Ruling on the said
motion once the applicant’s
obstructive motion to this court
for prohibition against the same
had been struck out by this
court as withdrawn on the 22nd
day of October 2013. Yet the
applicant did not apply to this
court for prohibition on the
ground that Elizabeth Ankumah
J’s vacation jurisdiction over
the matter had lapsed.
Consequently
the applicant’s conduct culpably
frustrated the determination of
the said motion before Elizabeth
Ankumah J before the expiration
of the vacation period.
Secondly, he had another equally
effective remedy, aforesaid of
applying for prohibition against
the delivery of the impugned
Ruling of Elizabeth Ankumah J,
thereby not only raising
objection to her lack of
jurisdiction but preventing its
exercise; but did not avail
himself of it, thereby aiding
and abetting , as it were, the
alleged unjurisdictional Ruling
by Elizabeth Ankumah J.
In these
circumstances the applicant’s
conduct should disentitle him to
the discretionary remedy of
certiorari. The unanimous
decision of this court in
Republic v. High Court; Accra;
Ex parte Attorney-General (Ohene
Agyapong Interested Party)
[2012] 2 SCGLR 1204 is very
apposite to the present
application and bears quotation
in extenso. In that case at 1207
to 1209 the eminent Dr. Date-Bah
JSC delivering the Ruling of
this court masterly stated the
law thus:
“The remedy
of certiorari has always been
discretionary. The authors of De
Smith , Woolf and Jowell’s
Principles of Judicial Review
(1999) , in discussing the
historical development of
judicial review remedies and
procedures, make the following
pronouncement (at page 530) in
relation to the four prerogative
writs of certiorari, mandamus,
prohibition, and habeas corpus
“Though the
four writs had acquired their
‘prerogative’ characteristics by
the middle of the seventeenth
century, strangely it was not
until a century later, in 1759,
that anybody (Mansfield) seems
to have thought of classifying
the writs as a group. Those
shared characteristics included
the following:
1)
They
were not writs of course which
could be purchased by or on
behalf of any applicant from the
Royal Chancery; they could not
be had for the asking, but
proper cause had to be shown to
the satisfaction of the court
why they should issue.
2)
The
award of the prerogative writs
usually lay within the
discretion of the court. The
court was entitled to refuse
certiorari and mandamus to
applicants if they had been
guilty of unreasonable delay or
misconduct or if an adequate
alternative remedy existed,
notwithstanding that they have
proved a usurpation of
jurisdiction by the inferior
tribunal or an omission to
perform a public duty. But
although none of the prerogative
writs was a writ of course, not
all were discretionary.
Prohibition, for example, issued
as of right in certain cases;
and habeas corpus ad
subjiciendum, the most famous of
them all was a writ of right
which issued ex debito justitiae
when the applicant had satisfied
the court that his detention was
unlawful. These two, therefore,
were not in the fullest sense
writs of grace...”
This court
has on numerous occasions
accepted and stressed the
above-mentioned discretionary
character of the remedy of
certiorari. For instance, in
Republic v. High Court, Denu; Ex
parte Agbesi Awusu II (No.2)
(Nyonyo Agboada (Sri III)
Interested Party) [2003-2004] 2
SCGLR 907, Atuguba JSC explained
(at 914) that:
“It is
well-known that certiorari is a
discretionary remedy and
therefore it does not
necessarily follow that when the
technical grounds upon which
certiorari lies are established,
it will be pro tanto granted.”
Kpegah JSC
has also said, in Republic v.
High Court, Accra; Ex parte
Aryeetey (Ankrah Interested
Party) [2003-2004] 1 SCGLR 398
at 410, that:
“Needless for
us to say that certiorari is a
[discretionary] remedy and the
conduct of an applicant can
disentitle him to the remedy.”
In Republic v
High Court, Accra; Ex parte
Tetteh Apain [2007-2008] 1 SCGLR
72, Atuguba JSC, delivering the
ruling of the Supreme Court,
said (as stated at page 75):
“In any case,
an order of certiorari, as has
often been said, is a
discretionary remedy. Therefore
assuming that the High Court
should not have proceeded in the
matter pending the determination
of the applicant’s application
for prohibition pending before
this court, as the applicant
could have applied to the Court
of Appeal for an interim order
to prevent the trial court from
proceeding pending the
determination of his application
for stay of proceedings thereat,
he had another remedy open to
him which was not less
convenient but which he failed
to pursue. The applicant was
clearly forum-shopping, which is
an abuse of the process of this
court. In the circumstances,
this court ought to shut the
doors of the discretionary
remedy of certiorari against the
applicant and we hereby so do.”
In this last
case, Atuguba JSC is making the
point that where an applicant
has a remedy other than
certiorari open to him or her,
this is a factor that may be
taken into account in denying
the applicant the discretionary
remedy of certiorari, even if
the other preconditions for the
grant of the remedy have been
established. The existence of an
alternative remedy is one of the
factors that a court can rely on
to exercise its judgment against
the grant of certiorari. See,
for instance, Barraclough v.
Brown [1897] AC 615. Also in In
re Appenteng (Decd); Republic v.
High Court, Accra (Commercial
Division); Ex parte Appenteng
(Appentengs Interested Parties)
2010 SCGLR 327, Atuguba JSC
again delivering the ruling of
the Supreme Court, said (as
stated at page 339):
“Against a
background such as this, we have
no difficulty in holding that
though certiorari is a
discretionary remedy, the
omission of a party to raise
objection to a proceeding in an
inappropriate forum should
disentitle the applicant to that
remedy where the omission was
wilful and an abuse of the
process of the court.” ...”
For all these reasons, the
application is hereby dismissed.
(SGD) W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
(SGD)
J ANSAH
JUSTICE OF THE SUPREME COURT
(SGD) P. BAFFOE
BONNIE
JUSTICE OF THE SUPREME COURT
(SGD)
N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD)
V. AKOTO BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
CONUSEL
J.
OPPOKU - AGYEI FOR THE
APPLICANT
OSAFO BUABENG
FOR THE INTERESTERED PARTY
|