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Practice and
Procedure. - Prohibiting order -
invoking the court’s supervisory
jurisdiction – Whether or not
the court lack of jurisdiction
from hearing the said suit –
Whether a person in whose
favour an order has been made is
justified in issuing a writ of
summons at the High Court to
enforce it – Whether or not it
is it is permissible to start a
fresh action in order to enforce
a judgment - rule 28 - Supreme
Court Rules, 1996 (C.I. 16) -
Article 129(4) - 1992
Constitution
HEADNOTES
The
application has been brought
before this court seeking a
prohibiting order against the
High Court on ground that the
said court has no jurisdiction
in the matter brought before it
by the Attorney-General,
Interested Party herein, against
a foreign firm called Isofoton
SA, represented by a Ghanaian
citizen called Anane Agyei
Forson. The basis of the claim
by the Attorney-General is that
this court ordered Isofoton to
refund some sums of money that
the Government of Ghana had paid
to the said Isofoton under a
contract which the court had
declared void. That judgment was
obtained in an action brought
against Isofoton and two others
by a private Ghanaian citizen
named Martin Amidu, a former
Attorney-General of Ghana. In
order to secure the benefit of
that judgment the
Attorney-General brought an
action by way of a writ of
summons at the High Court to
recover the sums of money
Isofoton was ordered to refund
to the Ghana Government. The
reliefs sought by the
Attorney-General at the High
Court against Isofoton are
exactly the awards made by the
Supreme Court in favour of the
Government of Ghana in the above
quoted judgment. Thus, as
rightly pointed out by the High
Court in its ruling dismissing
an application to set aside the
writ of summons, “there is …no
doubt that this writ is to
enforce the judgment of the
Supreme Court referred to
above.” The High Court concluded
that the Attorney-General,
plaintiff in the suit before it
could maintain the action
notwithstanding that it seeks to
enforce a judgment of this
court.
HELD
The High
Court is thus bereft of
jurisdiction to entertain the
suit the issues having been
determined by this court
already. For these reasons and
the reason that the Supreme
Court is capable of enforcing or
ensuring the enforcement of its
own judgments and orders, we
hold the application for a
prohibiting order is apt and
must therefore be granted.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
Supreme Court
Rules, 1996 (C.I. 16).
CASES
REFERRED TO IN JUDGMENT
CHEETAM V.
HOLLINGWORTH, (1914) W.N. 25,
D.C
Re NATERS,
AINGER V. NATERS (1919), 88
L.J.Ch. 521; 122 L.T. 154; 63
Sol. Jo. 800
TAFF VALE RLY.
CO. V. AMALGAMATED SOCIETY OF RLY.
SERVANTS, (1901) A.C. 426; 50
W.R. 44 H.L
Wigram V-C in
HENDERSON V. HENDERSON (1843) 3
Hare 100 at pp 114-115,
FOLI and
Others v. AGYA-ATTA and Others
(Consolidated) (1976) 1 G.L.R.
194 C.A.
FOSUHENE V.
ATTA WUSU (2011) SCGLR 273,
DAHABIEH V. S
A TURQUI & BROS. (2001-2002)
SCGLR 498
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
BENIN, JSC:-
COUNSEL
THADDEUS SORY
ESQ. WITH HIM KWAKU AFRIFA NSIAH
ASARE AND EDZE AGBEVEY FOR THE
APPLICANT.
HELENA FRENCH
( STATE ATTORNEY) FOR THE
INTERESTED PARTY
_______________________________________________________________________________________________________
RULING
_______________________________________________________________________________________________________
BENIN, JSC:-
The
application has been brought
before this court seeking a
prohibiting order against the
High Court on ground that the
said court has no jurisdiction
in the matter brought before it
by the Attorney-General,
Interested Party herein, against
a foreign firm called Isofoton
SA, represented by a Ghanaian
citizen called Anane Agyei
Forson. The basis of the claim
by the Attorney-General is that
this court ordered Isofoton to
refund some sums of money that
the Government of Ghana had paid
to the said Isofoton under a
contract which the court had
declared void. That judgment was
obtained in an action brought
against Isofoton and two others
by a private Ghanaian citizen
named Martin Amidu, a former
Attorney-General of Ghana. In
order to secure the benefit of
that judgment the
Attorney-General brought an
action by way of a writ of
summons at the High Court to
recover the sums of money
Isofoton was ordered to refund
to the Ghana Government.
It is
undisputed that the action
before the High Court arose out
of this court’s judgment in suit
number J1/23/2012 intituled:
MARTIN
ALAMISI AMIDU
V.
1.
ATTORNEY-GENERAL
2. ISOFOTON,
SA
3.
ANANE-AGYEI FORSON
dated 21st
June 2013, unreported. The
material part of the said
judgment reads: “……..It is
consequentially ordered pursuant
to article 2(2) of the 1992
Constitution that the 2nd
Defendant is to pay or refund to
the Government of Ghana the cedi
equivalent of US$325,472.00
received from the Government of
Ghana and any subsequent
payments thereafter made so far
pursuant to the contracts
declared void by this court.
Interest is
to paid on the sum adjudged
above from the date of its
receipt by the 2nd
defendant, in accordance with
the Court (Award of Interest and
post judgment interest
Rules)…..”
The reliefs
sought by the Attorney-General
at the High Court against
Isofoton are exactly the awards
made by the Supreme Court in
favour of the Government of
Ghana in the above quoted
judgment. Thus, as rightly
pointed out by the High Court in
its ruling dismissing an
application to set aside the
writ of summons, “there is …no
doubt that this writ is to
enforce the judgment of the
Supreme Court referred to
above.” The High Court concluded
that the Attorney-General,
plaintiff in the suit before it
could maintain the action
notwithstanding that it seeks to
enforce a judgment of this
court.
The applicant
could have appealed against the
said ruling but instead it chose
to invoke this court’s
supervisory jurisdiction for an
order of prohibition to stop the
High Court from hearing the said
suit for lack of jurisdiction.
Thus the
issue or question raised in this
application is very limited to
matters of practice and
procedure. Is a person in whose
favour an order has been made by
this Court justified in issuing
a writ of summons at the High
Court to enforce it?
Admittedly,
unlike the High Court rules
which make adequate provisions
as to the modes of implementing
its decisions and orders, the
Supreme Court rules do not
contain such provisions.
However, what is important to
note is whether the Supreme
Court has the power and ability
to implement its own decisions.
Before we address this it is
pertinent to make reference to
what pertains in some other
common law jurisdiction. In the
English case of CHEETAM V.
HOLLINGWORTH, (1914) W.N. 25,
D.C., an application to the
county court to enforce a High
Court judgment was not allowed
on ground that the county court
judge had no jurisdiction to try
the case under existing
legislation. In the case of Re
NATERS, AINGER V. NATERS (1919),
88 L.J.Ch. 521; 122 L.T. 154; 63
Sol. Jo. 800 where the court
making the order had no means of
enforcing it, an action,
enforceable by execution, was
allowed. In the case of TAFF
VALE RLY. CO. V. AMALGAMATED
SOCIETY OF RLY. SERVANTS,
(1901) A.C. 426; 50 W.R. 44 H.L.
a judgment or order was made
against a trade union. To
enforce the order only the
property of the trade union
could be attached. Thus in order
to reach the property an action
was commenced against the
trustees of the trade union and
Lord Lindley took the view that
such an action was necessary and
maintainable.
These three
cases cited give an indication
as regards in what type of
circumstance that a court will
allow a fresh action to enforce
a judgment, in other words it is
permissible to start a fresh
action in order to enforce a
judgment or order obtained by a
party in some situations and
circumstances. In RE NATERS,
supra, the fresh action was
allowed because the original
court that made the order had no
means of enforcing it. We have
said the Supreme Court rules do
not provide the means of
enforcing its judgment or order.
However, there are two relevant
provisions which are applicable
to this court’s power of
enforcement. Firstly,
rule 28
of the Supreme Court Rules, 1996
(C.I. 16). It reads:
‘Where the
Court directs any judgment or
order to be enforced by any
other court, certificate in the
Form 12 set out in Part 1 of the
Schedule to these Rules under
the seal of the Court and the
hand of the presiding justice
setting out the judgment or
order shall be transmitted by
the Registrar to that other
court, and the latter shall
enforce the judgment or order in
the terms of the certificate.’
This rule
provides an indirect means to
this court to enforce its
judgments and orders by another
court. The court can do this on
its own initiative or at the
request of a person entitled to
the benefit of the judgment or
order. The court that is
directed to enforce the judgment
or order is required then to
apply the means available to it
by appropriate rules of
procedure and practice to
enforce the judgment or order.
Then
Article
129(4) of the 1992 Constitution
which provides:
For the
purposes of hearing and
determining a matter within its
jurisdiction and the amendment,
execution or enforcement of a
judgment or order made on any
matter, and for purposes of any
other authority, expressly or by
necessary implication given to
the Supreme Court by this
Constitution or any other law,
the Supreme Court shall have all
the powers, authority and
jurisdiction vested in any court
established by this Constitution
or any other law.
This
constitutional provision gives
this court a direct authority to
enforce its own decisions
including judgments and orders
applying any relevant rules of
practice and procedure available
in any court in the country. One
can readily envisage are course
to this constitutional provision
particularly in cases where the
court exercises its original
jurisdiction.
It is thus
clear that there are means
available to this court to
enforce its judgment. For this
reason it is not open to a
person to commence a fresh
action in a lower court for the
sake of enforcing this court’s
judgment or order, unless for
some stated reason the judgment
or order cannot be directly
enforced against the defeated
party or the person against whom
the order was made in the
action, like the situation in
the TAFF VALE RLY CO case,
supra.
The action
mounted by the Attorney-General
at the High Court will amount to
re-litigating the issue of the
liability of Isofoton all over
notwithstanding that issue
estoppel operates as between the
parties and moreover the fresh
action is contrary to the public
policy principle ‘interest
rei publicaeut finis sit litium’;
literally meaning that in the
interest of the public there
must be an end to litigation.
Citing the dicta of
Wigram
V-C in HENDERSON V. HENDERSON
(1843) 3 Hare 100 at pp 114-115,
the Court of Appeal held in
the case of
FOLI and
Others v. AGYA-ATTA and Others
(Consolidated) (1976) 1 G.L.R.
194 C.A. that it was a rule
of law that a person could not
bring an action where the issue
which he sought to have
determined had as between the
parties or their privies already
been disposed of by a competent
court. The same principle has
been affirmed by this court in
the case of
FOSUHENE
V. ATTA WUSU (2011) SCGLR 273,
at p. 283, per Baffoe-Bonnie,
JSC, citing this court’s earlier
decision of DAHABIEH V. S A
TURQUI & BROS. (2001-2002) SCGLR
498, holding 2.
The High
Court is thus bereft of
jurisdiction to entertain the
suit the issues having been
determined by this court
already. For these reasons and
the reason that the Supreme
Court is capable of enforcing or
ensuring the enforcement of its
own judgments and orders, we
hold the application for a
prohibiting order is apt and
must therefore be granted.
(SGD)
A. A. BENIN
JUSTICE OF THE SUPREME
COURT
(SGD)
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
(SGD)
P. BAFFOE BONNIE
JUSTICE OF THE SUPREME
(SGD)
V. AKOTO BAMFO (MRS)
JUSTICE OF THE SUPREME
COURT
(SGD)
J . B. AKAMBA
JUSTICE OF THE SUPREME
COURT
COUNSEL
THADDEUS SORY
ESQ. WITH HIM KWAKU AFRIFA NSIAH
ASARE AND EDZE AGBEVEY FOR THE
APPLICANT.
HELENA FRENCH
( STATE ATTORNEY) FOR THE
INTERESTED PARTY
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