|
Review -
Interpretation – Article -
181(3) and section 7 of the
Loans Act (ACT 335 - Article
181 (5) Article 133 (1) -
Article 181 (5) - Article 2(2)
-1992 Constitution - Rule 54 -
Supreme Court Rules 1996 (C.I
16) – Whether or not there are
compelling and exceptional
circumstances which have
resulted in a grave miscarriage
of justice necessitating a
review – Whether or not there
was a breach of agreement -
HEADNOTES
In his statement of case and the
other processes filed in the
original suit, the applicant
alleged that the second
defendant entered into two
intentional business agreements
with the Government of Ghana
which were never laid before the
Parliament of Ghana for approval
as enjoined by the
Constitution. The agreements
were with the Ministry of Food
and Agricultural and Ministry of
Energy for the supply of “Solar
PV Powered Water Pumping and
Irrigation Systems in Remote
Areas of Ghana and Solar
Electrification respectively.
The applicant contended that
these agreements fell within the
ambit of article 181(5) of the
Constitution and as the
Government of Ghana failed to
lay them before Parliament for
approval they were void.
According to the second
defendant, soon after the
conclusion of these agreements
the second and third respondents
claimed that the Government of
Ghana approved the execution of
the two projects to other
companies thereby breaching the
agreements as it claimed the
office of the President had
awarded the contracts to these
companies. As a result of the
alleged breach the second
respondent granted a Power of
Attorney to the third respondent
to sue the Government of Ghana
for the breach. Based on the
Power of Attorney, the third
respondent sued at the High
Court claiming damages for
breach of contract. On the 5th
of November, 2008 the second
respondent successfully applied
for and obtained judgment in
default of appearance against
the Government of Ghana. The
Attorney-General filed a motion
to set aside the default
judgment and same was granted
The Court, however, adjourned
the matter to enable the parties
to settle the case out of
court. The office of the first
defendant and representative of
the two ministries who were the
beneficiaries of the two
agreements and the second and
third respondents settled the
matter. It was agreed that the
second respondent should be paid
in respect of the claim against
the Ministry of Energy and an
amount of money against the
Ministry of Food and
Agriculture. Terms of
settlement were accordingly
signed and same entered as
consent judgment on the 29th
of September 2010. The
Attorney-General then wrote to
the Minister of Finance and
Economic Planning to effect
payment of the judgment debt to
the second respondent. The
second respondent subsequently
proceeded to enforce the consent
judgment by garnishee
proceedings. The applicant
herein who was then the
Attorney-General moved the High
Court to set aside the entire
proceedings on the grounds that
the action was flawed and void
under Article 181(5) of the
Constitution. The High Court
refused the application,
culminating in an appeal by the
first respondent. The
Government of Ghana, however,
paid part of the money leaving a
balance the plaintiff
subsequently issued the writ in
these proceedings for the
reliefs referred to above. On
the 21st of June
2013, this court by an unanimous
decision granted the reliefs
sought
HELD
As long as a
point was raised and dealt with
in the impugned decision an
applicant is not entitled to
challenge the decision under the
guise that a different outcome
is a possibility. The review
jurisdiction, it has been noted
in many judicial decisions and
the principles firmly
established that it is a special
one and not intended to provide
an opportunity for appeal. In
the absence of a demonstration
of any exceptional circumstances
occasioning a miscarriage of
justice, I would dismiss the
application as being devoid of
merit. The application is
accordingly dismissed.
MINORITY
OPINION
The question is; if this court
in exercising the same
jurisdiction under Article
133(1) could correct an error
arising out of an omission to
apply the provisions of an
ordinary statute, should this
court shirk its responsibility
when there is a clear omission
to pronounce on a constitutional
provision? I think not! In the
AFRNAIE II case, supra, this
court was of the opinion that a
fundamental and basic error
might have inadvertently been
committed by the court resulting
in gross miscarriage of justice
should be a ground for review.
Exceptional circumstances thus
exist for a review and same is
hereby granted by granting
relief (f) indorsed on the writ.
STATUTES
REFERRED TO IN JUDGMENT
Loans Act
(ACT 335)
Court (Award
of Interest and Post Judgment
Interest) Rules 2005 (CI 52).
Supreme Court
Rules 1996 (C.I 16).
Rent Act,
1962 (Act 220)
Rent
Regulations, 1964 (LI 369)
CASES
REFERRED TO IN JUDGMENT
Re Krobo
Stool No. 2 Nyamekye (No.2 v.
Opoku No.2) 2000 SCGLR 567;
Col . Avtar
Singh Sekhon vs. Union of India
& Ors. 1980(supp) SCC 562 the
Supreme Court of India
Internal
Revenue Service v. Chapel Hill
School Ltd 2010 SCGLR 827 at
850;
in Afranie II
v. Quarcoo [1992] 2GLR 561 at
591-592
Mechanical
Lloyd Assembly Plant v. Nartey
[1987-1988] 2 GLR 598, SC;
Bisi v.
Kwayie [1987-88] 2 GLR 295, SC;
Nasali v.
Addy [1987-88] 2 GLR 286, SC;
Ababio v.
Mensah (No.2) [1989-90] 1 GLR
573, SC;
Quartey v.
Central Services Co. Ltd
[1997-97] SCGLR 398;
Pianim (No.3)
v. Ekwam [1996-97] SCGLR 431;
Koglex (Gh)
Ltd v. Attieh [2001-2002] SCGLR
947;
Attorney-General (No.2) v.
Tsatsu Tsikata (No.2)
[2001-2002] SCGLR 620.
Republic v
Commissioner of Income Tax, Ex
Parte National Employers Mutual
General Insurance Association
Ltd., 556, Taylor J);
In re
Effiduase Stool Affairs (No.3);
Republic v Numapau, President of
the National House of Chiefs; Ex
parte Ameyaw II (No.3) [2000]
SCGLR 59,
Republic v
Duffour, Ex parte Asare
[2007-2008] SCGLR 394
J.H. Mensah v
Attorney-General [1996-97] SCGLR
320
People’s
Popular Party v Attorney-General
(1971) I GLR 138
Attorney-General v Faroe
Atlantic Company, Limited
[2005-2006] SCGLR 271
QUARTEY & ORS
v CENTRAL SERVICES CO. LTD & ORS
[1996-97] SCGLR 398
HANNA ASSI
NO.2 v GIHOC REFERGERATION &
HOUSEHOLD PRODCUTS LTD NO.2
[2007-2008] SCGLR 16,
ATTORNEY-GENERAL NO.2) v TASTSU
TSIKATA NO.2 [2001-2002] SCGLR
620,
TUFFOUR v
ATTORNEY-GENERAL (1980) GLR 63C
AFRANIE II v
QUARCOO & OR [1992] 2 GLR 561
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
AKOTO-BAMFO
(MRS), JSC:
MINORITY OPINION
ANIN YEBOAH JSC: -
COUNSEL
PLAINTIFF/APPLICANT APPEARS FOR
HIMSELF.
GRACE OPPONG
ESQ. (SNR. STATE ATTORNEY) FOR
THE 1ST DEFENDANT
/RESPONDENT.
CARL ADONGO
ESQ. WITH HIM NANA KWEKU NSIAH
ASARE AND EDZE AGBEVEY FOR THE
3RD
DEFENDANT/RESPONDENT.
__________________________________________________________________
RULING
___________________________________________________________________
MAJORITY
OPINIONS
AKOTO-BAMFO
(MRS), JSC:
On the 21st
of June 2013; the Ordinary Bench
in a unanimous decision, entered
judgment for the
plaintiff/applicant hereinafter
referred to as the applicant
against the
defendant/respondents here after
simply referred to as
respondents in these terms:
“In the
result, the plaintiff succeeds
in his action in part. The
reliefs that this court should
grant him are the following:
A declaration
that:
a.
On a
true and proper interpretation
of Article 181(3) and section 7
of the Loans Act , (ACT 335) the
laying before and approval on 1st
August 2005 of the terms and
conditions of the Second
Financial Protocol between the
Republic of Ghana and the
Kingdom of Spain for an amount
of sixty-five million euro
(£65,000,000) for the
implementation of various
development projects and
programmes in Ghana did not
negate the effect of Article 181
(5) of the 1992 Constitution
that requires the further laying
before and approval of any
specific international business
or economic transaction to which
the Government is a party even
if payment had to be made from
the said loan approved by
Parliament.
b.
The
Agreement between Isofoton S.A
of Montalban 9th
28014, Madrid , Spain, a
foreign registered company and
the Ministry of Food and
Agriculture of the Government of
Ghana dated 22nd
September 2005 for the execution
of a project designated as
“Solar PV Powered Water Pumping
and Irrigation Systems in Remote
Rural Areas of Ghana” is an
international business or
economic transaction within the
meaning of Article 181 (5) of
the 1992 Constitution and never
became operative because it was
not laid before and approved by
Parliament and is accordingly
null, void and without effect
whatsoever.
c.
The
Agreement between Isofoton S. A
of Montalban 9, 28014, Madrid,
Spain, a foreign registered
company and the Ministry of
Energy of the Government of
Ghana in 2001 for the execution
of the “Solar Electrification
Project in Ghana Phase II “ is
an international business or
economic transaction within the
meaning of Article 181 (5) of
the 1992 Constitution and never
became operative because it was
not laid before and approved by
Parliament and is accordingly
null, void and without effect
whatsoever.
d.
The
High Court which heard and
granted reliefs in two actions
commenced by the 3rd
defendant on behalf of the 2nd
defendant in consolidated Suit
Nos. BC23/2008 and BC24/2008
pursuant to the said
international business or
economic transaction which had
not become operative under
Article 181 (5) of the 1992
Constitution had acted without
jurisdiction and is amenable to
the supervisory jurisdiction of
this Honourable Court under
Article 132 of the 1992
Constitution for orders and
directions to comply with the
Constitution.
e.
The
High Court, Accra, acted without
jurisdiction and usurped the
exclusive and original
jurisdiction of this Honourable
Court in its ruling dated 24th
April 2012 on an application for
declaration of nullity when it
purported to interpret Article
181 (3), (4) and (5) of the 1992
Constitution to mean that the
approval of the terms and
conditions of the Second Spanish
Financial Protocol loan of
aforementioned in relief (1)
above by Parliament
automatically excluded the
further laying before and
approval by Parliament of
subsequent international
business or economic
transactions arising out of the
said terms and conditions of the
loan to which the Government is
a party as required by Article
181 (5) of the Constitution .
f.
Accordingly, the entire
proceedings in the High Court
culminating in any Garnishee
Order Nisi issued pursuant to
the above inoperative Agreements
and proceedings are, therefore,
also null, void and without
effect whatsoever as having been
made without jurisdiction.
2. It is
consequentially ordered,
pursuant to Article 2(2) of the
1992 Constitution, that the 2nd
defendants do 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.
3. Interest
is to be 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
2005 (CI 52).
It is against
this decision that the applicant
has made this application for
review under Article 133 (1) of
the 1992 Constitution and Rule
54 of the Supreme Court Rules
1996 (C.I 16).
From the
applicant’s affidavit filed in
support of the motion, it is
obvious that the grounds for his
application are that there are
compelling and exceptional
circumstances which have
resulted in a grave miscarriage
of justice necessitating a
review of the decision and
judgment by the Supreme Court in
so far as they affect the
dispute between the applicant,
the 1st and 3rdrespondents.
The applicant
thereafter proceeded to expound
the particulars of the
exceptional circumstances in his
statement of case filed on
19/7/2013 as follows:
“ 1. The
Supreme Court decision and
judgment dated 21st
June 2013 in refusing to grant
the plaintiff/applicant’s relief
(f) endorsed on the writ against
the unconstitutional conduct of
the 1st
defendant/respondent without
assigning any reasons thereto in
spite of the Supreme Court’s
Findings and
orders for unconstitutional
conduct on the part of the 2nd
defendant/respondent was given
per incuriam, inadvertently,
patently mistakenly or
unwittingly and was
fundamentally erroneous and
which have resulted in
miscarriage of justice to the
plaintiff/applicant and the
public interest under the 1992
Constitution.
2. The
decision and judgment of Supreme
Court declining jurisdiction to
hear the complaint of the
plaintiff/applicant for
enforcement of Article 181 (5)
of the 1992 Constitution against
the 3rd
defendant/respondent on the
grounds of lack of cause of
action under Article 2(1)(b) of
the 1992 Constitution was given
per incuriam, inadvertently,
patently mistakenly or
unwittingly and was
fundamentally wrong in
abdicating the exclusive
original enforcement
jurisdiction of the Supreme
Court to enforce
unconstitutional acts or
omission under the 1992
Constitution against any person
who seeks to undermine or
abrogate the constitutional
order and which has resulted in
miscarriage of justice to the
plaintiff/applicant and the
public interest under Articles
2,3, 130(1) and 181 (5)
thereof.”
Under Article
133 of the 1992 Constitution,
the Supreme Court is granted the
power to review its decisions on
such grounds and conditions as
may be prescribed by the Rules
of Court.
Rule 54 of
the Supreme Court Rules (C.I.
16) made pursuant to such powers
spells out 2 grounds on which
this Court may review its
decision, at its discretion, on
an application by a dissatisfied
person thus:
54
“(a)
exceptional circumstances which
have resulted in a miscarriage
of justice
or
(b) the
discovery of new and important
matter or evidence which; after
the exercise of due diligence,
was not within the applicant’s
knowledge or could not be
produced by the applicant at the
time when the decision was
given”
It is evident
that the application herein is
premised on the 1st
of the aforementioned grounds
namely that there are
“exceptional circumstances which
have resulted in the miscarriage
of justice by the judgment of
the Supreme Court dated 21st
June 2013”, as per the 3rd
paragraph of the applicant’s
Statement of Case.
It is settled
in a long line of judicial
decisions that an exhaustive
list of the myriad circumstances
which could be labeled as
exceptional could not possibly
be drawn up. It has been
decided, for instance, that an
applicant must show the
existence of some fundamental or
basic error affecting his
substantial rights. In Re Krobo
Stool No. 2 Nyamekye (No.2 v.
Opoku No.2) 2000 SCGLR 567;
again where the Court has
inadvertently committed a
fundamental error of law such as
want of jurisdiction or error of
fact, the court could correct
such errors on review. Such
errors must, however, be patent
on the face of the record; the
common thread being that such
errors must not only be
fundamental, but, more
importantly, occasion a
miscarriage of justice. The
normal principle being that a
judgment pronounced by this
Court is final and a departure
from the principle is justified
only when circumstances of a
substantial and compelling
character render it necessary to
do so.
In the case
of Col . Avtar Singh Sekhon vs.
Union of India & Ors. 1980(supp)
SCC 562 the Supreme Court of
India, in an application for
review under Article 137 of the
Constitution of India and Rule
1(1) its Code Of Civil
Procedure both of which have
almost identical provisions with
Article 133(1) and Rule 54
respectively, of the 1992
Constitution and C I. 16 the
Supreme Court Rules, the Court
stated; “A review is not a
routine procedure. We cannot
review our earlier order unless
satisfied that material error,
manifest on the face of the
order, undermines its soundness
or results in miscarriage of
justice. In Sow Chandra Kante v.
Sheik Habib this court observed:
“A review of
a judgment is a serious step and
reluctant resort to it is proper
only where a glaring omission or
patent mistake or like grave
error has crept in earlier by
judicial fallibility.”
An error
which is not self-evident and
has to be detected by a process
of reasoning can hardly be said
to be an error apparent on the
face of the record justifying
the court to exercise its power
of review. A review is by no
means an appeal in disguise
whereby an erroneous decision is
re-heard and corrected, but lies
only for patent error. “
In Internal
Revenue Service v. Chapel Hill
School Ltd 2010 SCGLR 827 at
850; the Supreme Court, speaking
through Prof. Date Bah JSC, at
page 850 stated:
“I do not
consider that this case deserves
any lengthy treatment. I think
that the applicant represents a
classic case of a losing party
seeking to reargue its appeal
under the garb of a review
application. It is important
that this court should set its
face against such endeavour in
order to protect the integrity
of the review process. This
Court has reiterated times
without number that the review
jurisdiction of this Court is
not an appellate jurisdiction,
but a special one. Accordingly,
an issue of law that has been
canvassed before the bench of
five and on which the Court has
made a determination cannot be
revisited in a review
application, simply because the
losing party does not agree with
that determination.”
His Lordship
continued on pages 852 to 853
thus:
“Even if the
unanimous judgment of the
Supreme Court on the appeal in
this case were wrong, it would
not necessarily mean that the
Supreme Court would be entitled
to correct that error. This is
an inherent incident of the
finality of the judgments of the
final court of appeal of the
land. The brutal truth is that
an error of law by the final
court of the land cannot
ordinarily be remedied by
itself, subject to the exception
discussed below.
In other
words, there is no right of
appeal against a judgment of the
Supreme Court, even if it is
erroneous. As pithily explained
by Wuaku JSC in Afranie II v.
Quarcoo [1992] 2GLR 561 at
591-592 : “There is only one
Supreme Court. A review court is
not an appellate court to sit in
judgment over the Supreme Court.
However, in
exceptional circumstances and in
relation to an exceptional
category of its errors, the
Supreme Court will give relief
through its review jurisdiction.
The grounds on which this Court
will grant an applications for
review have been clearly laid
out in the case law. Notable in
the long line of relevant cases
are Mechanical Lloyd Assembly
Plant v. Nartey [1987-1988] 2
GLR 598, SC; Bisi v. Kwayie
[1987-88] 2 GLR 295, SC; Nasali
v. Addy [1987-88] 2 GLR 286,
SC; Ababio v. Mensah (No.2)
[1989-90] 1 GLR 573, SC; Quartey
v. Central Services Co. Ltd
[1997-97] SCGLR 398; Pianim
(No.3) v. Ekwam [1996-97] SCGLR
431; Koglex (Gh) Ltd v. Attieh
[2001-2002] SCGLR 947; and
Attorney-General (No.2) v.
Tsatsu Tsikata (No.2)
[2001-2002] SCGLR 620.
The
principles established by these
cases and others are that the
review jurisdiction of the
Supreme Court is a special
jurisdiction and is not intended
to provide an opportunity for
further appeal. It is a
jurisdiction which is to be
exercised where the applicant
succeeds in persuading the court
that there has been some
fundamental or basic error which
the court inadvertently
committed in the course of
delivering its judgment and
which error has resulted in a
miscarriage of justice. This
ground of review is currently
exercised by the court pursuant
to Rule 54 (a) of the Supreme
Court Rules 1996 (C.I. 16),
which refers to exceptional
circumstances which have
resulted in miscarriage of
justice. This is a high hurdle
to surmount”
Clearly
therefore merely disagreeing
with a decision, the formulation
of an order, a rehash or
rephrasing previous arguments or
issues cannot sufficiently
ground an application under Rule
54 of C.I. 16.
The
exceptional circumstances must
be deducible from the peculiar
circumstances surrounding each
case. More importantly, the
applicant must demonstrably
satisfy the Court that such
exceptional circumstances have
resulted in a miscarriage of
justice.
In the matter
under consideration, it is
pertinent to note that the
applicant’s complaint was
essentially that the Ordinary
Bench failed to fully pronounce
on relief (f) in that the
judgment was silent on the 1st
defendant’s conduct even though
findings and pronouncements were
made in respect of the 2nd
defendant.
This is how
he put it in his statement of
case:
“1. The
Supreme Court decision and
judgment dated 21st
June 2013 in refusing to grant
the plaintiff/applicant’s relief
(f) endorsed on the writ against
the unconstitutional conduct of
the 1st
defendant/respondent without
assigning any reasons thereto in
spite of the Supreme Court’s
findings and orders for
unconstitutional conduct on the
part of the 2nd
defendant/respondent was given
per incuriam, inadvertently,
patently mistakenly or
unwittingly and was
fundamentally erroneous and
which have resulted in
miscarriage of justice to the
plaintiff/applicant and the
public interest under the 1992
Constitution. “
Relief (f) as
endorsed was for a declaration
that:
“f. The
conduct of the 1st
defendant accepting the claims
of the 2nd and 3rd
defendants and purporting to
settle same for entry in the
High Court as a consent judgment
when the 1st
defendant knew the said two
agreements between the 2nd
defendant, a foreign registered
and resident company, and the
Government of Ghana constituted
an international business or
economic transaction which had
to be laid before and approved
by parliament to become
operative is inconsistent with
and in violation of Articles 2
and 181(5) of the 1992
Constitution.”
In its
judgment the court considered
the respective claims of the
parties and at page 14 of the
judgment the 2nd
paragraph thereof this is what
the Court stated:
“This
conclusion connotes that the two
impugned agreements entered into
by the 2nd defendant
are null and void, because they
were not approved by Parliament.
It should be added, for the
avoidance of doubt, that the
said agreements are ‘major,
within the meaning established
in the Balkan Energy Case
(Supra). There was thus no
liability on the Republic of
Ghana to the 2nd
defendant. The unconstitutional
contracts, concluded in breach
of Article 181(5), cannot
lawfully found the consent
judgments relied on by the 2nd
defendant. The said consent
judgments are vitiated by the
unconstitutionality of the
contracts on which they are
based and, apart from declaring
those judgments to be in breach
of Article 181(5) of the
Constitution, the court has
jurisdiction under Article 2(2)
of the Constitution to order
that the said judgments be set
aside.”
In the
concluding part of the judgment
the Court, in pronouncing on the
reliefs, stated as follows:
“The
plaintiff succeeds in his action
in part. The reliefs that this
court should grant are the
following among which was this
“(f): Accordingly, the entire
proceedings in the High Court
culminating in any Garnishee
Order Nisi issued pursuant to
the above inoperative Agreements
and proceedings are, therefore,
also null, void and without
effect whatsoever as having been
made without jurisdiction.
2. It is
consequentially ordered,
pursuant to Article 2(2) of the
1992 Constitution, that the 2nd
defendants 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.
3. Interest
is to be 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
2005 (CI 52).”
The gravamen
of the applicant’s complaint was
that even though the conduct of
the 1st defendant was
a subject of relief (f), the
Court failed to make any
specific findings and
pronouncements on the 1st
defendant as opposed to the 2nd
defendant.
Under relief
(f) the plaintiff sought for an
order declaring the conduct of
the 1st defendant in
accepting the claims of the 2nd
and 3rd defendants as
basis for the consent judgments
unconstitutional.
Undoubtedly,
the impugned agreements were the
fountain from which all the acts
and omissions flowed. In the
circumstances where the
agreements were declared
unconstitutional (and therefore
the declaratory relief sought
was granted) owing to the fact
that prior parliamentary
approvals were not sought and
therefore these agreements were
as it were “knocked down”,
obviously nothing was left of
the superstructure worthy of
note for the Court within its
jurisdictional limits. A consent
judgment could not be based on
non existent facts or void
agreements. The conduct of the 1st
defendant having resulted in the
consent judgment which was
declared void and
unconstitutional there was no
need in the absence of a clear
evidence of fraud for the
specifications being urged by
the applicant. It must be noted
that the monies paid as a result
of the settlement were ordered
to be refunded. What then is the
injustice suffered? Even if the
Court had committed an error by
omitting to pronounce on the
whole endorsement under the
relief (f) it is not
permissible, in the exercise of
its review jurisdiction, for the
erroneous decision to be reheard
and corrected without a
demonstration by the applicant
that the omission was material
and had occasioned a miscarriage
of justice. A review has a
limited scope and is undoubtedly
not an appeal in disguise.
Significantly
the Court set down relief (f) in
its orders. The fact that the
applicant would have preferred
some other formulation or
approach should not be a ground
for an application under Rule 54
of C.I 16. It is evident that
the Court did not only consider
at length the respective cases
of the parties but did pronounce
on relief (f), the subject of
the applicant’s complaint in
these proceedings. When a matter
is put before a Court of
competent jurisdiction, it has
the inherent power, after a
Consideration of the issues, to
make orders as it deems fit. It
cannot be tied to a particular
formulation nor required to
grant a relief in the
endorsement in a particular
manner.
A mere
dissatisfaction with the
judgment without a demonstration
of a fundamental error resulting
in a miscarriage of justice
cannot ground an application for
a review.
More
importantly, when the Court
declared that the applicant’s
action had succeeded in part and
proceeded to set out the reliefs
granted, it implied that those
reliefs which were not
specifically set out stood
dismissed. Relief (f) was indeed
considered and granted.
Having regard
to the fact that the Court
considered the claims and made
definite pronouncements on the
said relief (f), the attack
mounted on that relief cannot
succeed. The application on that
limb accordingly fails.
Simply put,
the applicant’s complaint
against the 3rd
respondent was that the
Constitution would be put in
grave danger if it were held
that a citizen could not have a
cause of action against both the
principal and his agent
particularly in circumstances
where the principal had
succeeded in removing himself
from the jurisdiction such that
the orders and directions could
not be enforced against him.
He further
contended that the narrow
interpretation adopted by the
Court of the phrase ‘any person’
was fundamentally erroneous
since it undermined the
individual responsibility
imposed upon every citizen to
defend and uphold the
Constitution against subversion
and abrogation.
Clearly, the
Court fully considered the
issues raised, that is, whether
an agent acting within the scope
of his authority could be held
liable for the
Acts of his
principal and came to a firm
conclusion that there was no
conflict between the common law
principles and the Constitution.
A review is
not re-hearing of the original
matter .It cannot therefore be
confused with appellate power
which enables a superior court
to correct errors made by a
subordinate court. Therefore a
repetition of old submissions is
not sufficient to re-open
concluded adjudications.
The
submissions made in respect of
this ground in the instant
application are nothing new.
They are indeed the old
submissions which have been
rephrased or dressed in new
garments.
As long as a
point was raised and dealt with
in the impugned decision an
applicant is not entitled to
challenge the decision under the
guise that a different outcome
is a possibility.
The review
jurisdiction, it has been noted
in many judicial decisions and
the principles firmly
established that it is a special
one and not intended to provide
an opportunity for appeal. Wuaku
JSC aptly put it in Afranie II
v. Quarcoo supra as follows:
“There is
only one Supreme Court. A review
court is not an appellate court
to sit in judgment over the
Supreme Court.”
In the
absence of a demonstration of
any exceptional circumstances
occasioning a miscarriage of
justice, I would dismiss the
application as being devoid of
merit.
The
application is accordingly
dismissed.
(SGD)
V. AKOTO BAMFO (MRS)
JUSTICE
OF THE SUPREME COURT
ATUGUBA JSC:-
I have had
the advantage of reading the
opinion of my esteemed sister
Mrs. Akoto-Bamfo JSC and I agree
that the application should be
dismissed.
As regards
the complaint relating to the 3rd
Defendant/Respondent, it is
quite clear that the relief
sought by the applicant against
him was considered fully by this
court in its original decision
dated 21/6/2013 and was
dismissed on its merits.
The ratio
decidendi on that issue
cannot be said to be plainly and
fundamentally wrong. That being
so the application in that
regard should fail since the
review jurisdiction is not an
appellate jurisdiction.
As regards
the 1st respondent, I
do not think that the recitals
leading to the infringement of
article 181 (5) of the 1992
Constitution are, with all due
respect to the ingenuity of the
applicant, necessary for the
determination of the
constitutionality of the
impugned agreements. In other
words whatever the frame of mind
of the transgressor of article
181 (5) the determinant matter
is whether the transaction in
question is caught by the
provisions thereof. Causa
proxima non remota spectatur.
What has to
be established by a suitor in
respect of article 181 (5) is
what the ordinary bench of this
court based its judgment on,
namely, whether each of the two
impugned agreements was an
international business or
economic transaction within the
meaning of article 181 (5) of
the Constitution which to be
constitutionally valid ought to
be laid before and approved by
Parliament. Whether the
violation of this article was
premeditated as contended by the
applicant, in essence, or was by
sheer oversight is irrelevant.
Such matters may be relevant
when the court is considering
what orders to make to
effectnate the court’s decision
under article 2 (2) of the
Constitution, very much like
the sentencing stage of a
criminal trial, by analogy. This
thinking is also relevant even
to the grievance in respect of
the 3rd Respondent,
already dealt with. Accordingly,
even if it can be said that
relief (f) of the applicant’s
case was not considered by the
ordinary bench there has been no
ensuing miscarriage of justice.
I would add
that the right of access to the
courts is an inferential
fundamental constitutional right
which should not be hindered. If
a party has a flagrantly, bad or
unconstitutional case that is
for the court to pronounce on.
The courts
have remedies against
incontestably bad or frivolous
and vexatious cases under the
common law which is part of the
laws of Ghana under article 11
of the Constitution.
Those
remedies adequately redress such
situations but the initial
resort by the offending party to
the courts in such circumstances
cannot be regarded as illegal or
unconstitutional. Justices
Edusei and Taylor (when in the
High Court) took the lead in
this direction, ( see
Republic v Commissioner of
Income Tax, Ex Parte National
Employers Mutual General
Insurance Association Ltd., 556,
Taylor J); see also, by
analogy, In re
Effiduase Stool Affairs (No.3);
Republic v Numapau, President
of the National House of Chiefs;
Ex parte Ameyaw II (No.3) [2000]
SCGLR 59, H. (3) of the
headnote thereof, Republic v
Duffour, Ex parte Asare
[2007-2008] SCGLR 394, H.
(3) thereof. The 1st
defendant’s resort to court for
consent judgment in this matter
must therefore be seen in this
light.
In any event
whether the position of
Attorney-General relates to the
particular occupant of that
office or not, see J.H.
Mensah v Attorney-General
[1996-97] SCGLR 320 the
charges the applicant seems to
make against the then
Attorney-General, Mrs. Betty
Mould Iddrisu) eo nomine
(see paragraph 31 of the
Plaintiff/Applicant’s statement
of case dated 24/7/2012),
could not have been fairly gone
into without at least fair
notice to her so as to be heard
on the matter. This has been
stressed by our courts over the
years, see People’s Popular
Party v Attorney-General (1971)
I GLR 138 at 143.
Without such
notice to her even if this court
had in its original decision
overlooked that charge, there
has been no miscarriage of
justice.
As the
applicant has complained that
this court itself has decided
his claims in respect of relief
(f) in the case of the 1st
respondent and the whole relief
against the 3rd
respondent per incuriam it is
difficult to see how it can be
said that the conduct of the
then Attorney-General in this
case was indulged in inspite of
her knowledge of the law on the
matter. I need not further
elaborate this matter and in any
case her perceived shortcomings
in this matter may be inter
alia, of administrative
consequences. A close study of
the facts of the case of
Attorney-General v Faroe
Atlantic Company, Limited
[2005-2006] SCGLR 271 and
those of the present case shows
that they are not the same. In
the present case there was the
preceding complication that the
bulk loan for development
projects had been approved by
Parliament and the consequential
user of that loan (from foreign
source) could not readily
suggest a further resort to
Parliament. There is therefore
no miscarriage of justice in the
alleged overlooking by this
court of such aforesaid matters
in it’s original decision.
For all these
reasons I will dismiss the
application.
(SGD)
W. A. ATUGUBA
JUSTICE OF THE
SUPREME COURT
(SGD)
J. ANSAH
JUSTICE OF THE
SUPREME COURT
(SGD)
S. O. A. ADINYIRA ( MRS)
JUSTICE OF THE
SUPREME COURT
(SGD)
P. BAFFOE BONNIE
JUSTICE OF THE
SUPREME COURT
(SGD)
N. S. GBADEGBE
JUSTICE
OF THE SUPREME COURT
(SGD)
A. A. BENIN
JUSTICE OF THE SUPREME COURT
(SGD)
J. B. AKAMBA
JUSTICE OF THE SUPREME COURT
MINORITY OPINION
ANIN YEBOAH JSC:-
The applicant herein who was the
plaintiff in the original suit
has invoked our review
jurisdiction under article
133(1) to review part of the
judgment given by this court on
21st of June, 2013.
To appreciate the circumstances
leading to the invocation of our
jurisdiction the facts of the
case must be set out in detail
for a fuller record.
The applicant on 24th
of July 2012 filed a writ
against the respondents to this
application and claimed the
following reliefs:
“A declaration that:
a.
On a true and proper
interpretation of Article
181(3)(4) and section 7 of the
Loans Act, (Act 335) the laying
before and approval on 1st
August 2005 of the terms and
conditions of the Second
Financial Protocol between the
Republic of Ghana and the
Kingdom of Spain for an amount
of sixty-five million Euro
(€65,000,000) for the
implementation of various
development projects and
programmes in Ghana did not
nullify the effect of Article
181 (5) of the 1992 Constitution
that mandates further laying
before and approval of any
specific international business
or economic transaction to which
the Government is a party even
if payment had to be made from
the said loan approved by
Parliament.
b.
The agreement between Isofoton
S.A of Montalban 928014, Madrid
Spain, a foreign registered
company and the Ministry of Food
and Agriculture of the
Government of Ghana dated 22nd
September 2005 for the execution
of a project designated as
“Solar PV Powered Water Pumping
and Irrigation Systems in Remote
Rural Areas of Ghana” is an
international business or
economic transaction within the
meaning f Article 181(5) of the
1992 Constitution and never
became operative because it was
not laid before and approved by
Parliament and it accordingly
null, void and without effect
whatsoever.
c.
The agreement between Isofoton
S.A of Montalban 928014, Madrid
Spain, a foreign registered
company and the Ministry of
Energy of the Government of
Ghana in 2001 for the execution
of the “Solar Electrification
Project in Ghana Phase II” is an
international business or
economic transaction within the
meaning of Article 181(5) of the
1992 Constitution and never
became operation because it was
not laid before and approved by
Parliament and is accordingly
null, void and without effect
whatsoever.
d.
The conduct of the 2nd
defendant in suing for breaches
of the said Agreements through
his lawful Attorney the 3rd
defendant when he knew that the
Agreements were international
business or economic transaction
which had never been laid before
and approved by Parliament is
inconsistent with and in
violation of Articles 2 and 181
(5) of the Constitution.
e.
The conduct of the 3rd
defendant, a Ghanaian citizen,
in holding himself out as an
Attorney to sue in the courts of
Ghana on behalf of the 2nd
defendant for damages in an
international business
transaction which has not been
laid before and approved by
Parliament is also inconsistent
with Articles 2 and 181 (5) of
the Constitution.
f.
The conduct of the 1st
defendant accepting the claims
of the 2nd and 3rd
defendants and purporting to
settle same for entry in the
High court as a consent judgment
when the 1st knew the
said two Agreements between the
2nd defendant, a
foreign registered and resident
company and the Government of
Ghana constituted an
international business or
economic transaction which had
to be laid before and approved
by Parliament to become
operative is inconsistent with
and in violation of Articles 2
and 181(5) of the 1992
Constitution.
g.
The High Court which heard and
granted reliefs in two actions
commenced by the 3rd
defendant on behalf of the 2nd
defendant in international
Consolidated Suit Nos. BC23/2008
and BC24/2008 pursuant to the
said international business or
economic transaction which had
not become operative under
Article 181(5) of the 1992
Constitution had acted without
jurisdiction and is amenable to
the supervisory jurisdiction of
this Honourable Court under
Article 132 of the 1992
Constitution for orders and
directions to comply with the
Constitution.
h.
The High Court, Accra, acted
without jurisdiction and usurped
the exclusive and original
jurisdiction of this Honourable
Court in its ruling dated 24th
April 2012 on an application for
declaration of nullity when it
purported to interpret Article
181(3) (4) and (5) of the 1992
Constitution to mean that the
approval of the terms and
conditions of the Second Spanish
Financial Protocol loan
aforementioned in relief (1)
above by Parliament
automatically excluded the
further laying before and
approval by Parliament of
subsequent international
business or economic
transactions arising out of the
said terms and conditions of the
loan to which the government is
a party as mandated by Article
181 (5) of the Constitution.
i.
In the premise the entire
proceedings of the High Court
culminating in any Garnishee
Order Nisi issued pursuant to
the above inoperative Agreements
and proceedings are, therefore,
also null, void and without
effect whatsoever as having been
made without jurisdiction.
ii. An order directing the 2nd
and 3rd defendants to
pay or refund to the Government
of Ghana the sum of
Gh¢488,208.00 being the cedi
equivalent of US$325,472.00 in
March 2011 received from the
Government of Ghana and any
subsequent payments thereafter
so far pursuant to the foregoing
void contracts.
iii. And for such other orders
or directions that this
Honourable Court may consider
necessary and appropriate to
give full effect or enable
effect to be given to the spirit
and letter of the Constitution
in redressing the
unconstitutional conduct
complained of herein”
In his statement of case and the
other processes filed in the
original suit, the applicant
alleged that the second
defendant entered into two
intentional business agreements
with the Government of Ghana
which were never laid before the
Parliament of Ghana for approval
as enjoined by the
Constitution. The agreements
were with the Ministry of Food
and Agricultural and Ministry of
Energy for the supply of “Solar
PV Powered Water Pumping and
Irrigation Systems in Remote
Areas of Ghana and Solar
Electrification respectively.
The applicant contended that
these agreements fell within the
ambit of article 181(5) of the
Constitution and as the
Government of Ghana failed to
lay them before Parliament for
approval they were void.
According to the second
defendant, soon after the
conclusion of these agreements
the second and third respondents
claimed that the Government of
Ghana approved the execution of
the two projects to other
companies thereby breaching the
agreements as it claimed the
office of the President had
awarded the contracts to these
companies.
As a result of the alleged
breach the second respondent
granted a Power of Attorney to
the third respondent to sue the
Government of Ghana for the
breach. Based on the Power of
Attorney, the third respondent
sued at the High Court claiming
damages for breach of contract.
On the 5th of
November, 2008 the second
respondent successfully applied
for and obtained judgment in
default of appearance against
the Government of Ghana.
The Attorney-General filed a
motion to set aside the default
judgment and same was granted on
8th of April 2009.
The Court, however, adjourned
the matter to enable the parties
to settle the case out of
court. The office of the first
defendant and representative of
the two ministries who were the
beneficiaries of the two
agreements and the second and
third respondents settled the
matter. It was agreed that the
second respondent should be paid
US$1,300.000; $450,000 was in
respect of the claim against the
Ministry of Energy and $850,000
against the Ministry of Food and
Agriculture. Terms of
settlement were accordingly
signed and same entered as
consent judgment on the 29th
of September 2010. The
Attorney-General then wrote to
the Minister of Finance and
Economic Planning to effect
payment of the judgment debt to
the second respondent.
The second respondent
subsequently proceeded to
enforce the consent judgment by
garnishee proceedings. The
applicant herein who was then
the Attorney-General moved the
High Court to set aside the
entire proceedings on the
grounds that the action was
flawed and void under Article
181(5) of the Constitution. The
High Court refused the
application, culminating in an
appeal by the first respondent.
The Government of Ghana,
however, paid US$488,208 leaving
a balance of US$974,528.
The plaintiff subsequently
issued the writ in these
proceedings for the reliefs
referred to above. On the 21st
of June 2013, this court by an
unanimous decision granted the
reliefs sought, save relief
(f).
The applicant has invoked our
review jurisdiction on two
grounds set out in his statement
of case as follows:
“1. The Supreme Court decision
and judgment dated 21st
June 2013 in refusing to grant
the plaintiff/applicant the
plaintiff/applicant’s relief (f)
endorsed on the Writ against the
unconstitutional conduct of 1st
defendant/respondent without
assigning any reasons thereto in
spite of the Supreme Court’s
findings and orders for
unconstitutional conduct on the
part of the 2nd
defendant/respondent was given
per incuriam,
inadvertently, patently
mistakenly or unwittingly and
was fundamentally erroneous and
which have resulted in
miscarriage of justice to the
plaintiff/applicant and the
public interest under the 1992
Constitution.
2. The decision and judgment of
the Supreme Court declining
jurisdiction to hear the plant
of the plaintiff/applicant for
enforcement of Article 181(5) of
the 1992 Constitution against
the 3rd
defendant/respondent on the
grounds of lack of cause of
action under Article 2(1)(b) of
the 1992 Constitution was given
per incuriam,
inadvertently, patently
mistakenly or unwittingly and
was fundamentally wrong in
abdicating the exclusive
original enforcement
jurisdiction of the Supreme
Court to enforce
unconstitutional acts or
omission under the 1992
Constitution against any person
who seeks to undermine or
abrogate the constitutional
order and which has resulted in
miscarriage of justice to the
plaintiff/applicant and the
public interest under Articles
2,3,130(1) and 181(5) thereof.
It must be pointed out that the
second ground for this
application for review is based
on this court’s striking out of
the third respondent (the
Attorney of the second
respondent) as not a proper
party to this suit. A careful
reading of the applicant’s
complaint against the judgment
for review under this head as
captured above could be answered
from the judgment sought to be
reviewed. It was very clear in
pages fifteen to seventeen of
the judgment. That in a
detailed discussion of the
capacity of the third defendant,
the court
held, inter alia, that basic
Common law principles on
principal and agent relationship
existed in this case and that
the third defendant was not
liable for acts done on behalf
of the second respondent who was
his principal. In conclusion it
was held thus:
“As the third defendant points
out in his supplementary legal
Agreements, the provisions of
the Constitution embedded in the
common law principle is the
notion that the act or omission
in question is that of the
principal and not of the agent.
This notion holds good, when in
the constitutional context,
unless there is an express
overriding of it. The third
defendant sums up his position
thus ”To the extent that the
lawful attorney is only a
conduit through which the
principal acts and to the extent
that the acts complained of by
the plaintiff were all acts
performed by the third defendant
in his capacity as lawful
attorney, it is submitted that
the joinder of the third
defendant to this action herein
on the sole basis of the
latter’s capacity as the second
defendant’s attorney, is
improper”. We are inclined to
accept this argument and hold
that the third defendant be
struck out as a defendant.
There is a cause of action
against m on the plaintiff’s
pleadings”
With the above consideration of
the issue of whether the third
defendant as agent of the second
defendant was never considered,
the judgment considered the
common law position of the
matter and came to a
conclusion. Indeed, in the
statement of case of the
applicant, the applicant could
not point out any error of law
on this issue to lead us to
consider whether it has
occasioned any exceptional
circumstances which have
resulted in miscarriage of
justice. This court has in
several cases repeated itself
that there must be a fundamental
error which ought to be
corrected by review. In
QUARTEY & ORS v CENTRAL
SERVICES CO. LTD & ORS
[1996-97] SCGLR 398 this
court per Abban CJ said at page
399 as follows:
“A review jurisdiction is a
special jurisdiction and not an
appellate jurisdiction conferred
on the court; and the court
would exercise that special
jurisdiction in favour of an
applicant only in exceptional
circumstances. This implies
that such an applicant should
satisfy the court that there has
been some fundamental or basic
error which the court
inadvertently committed in the
course of considering
its judgment; and which
fundamental error has thereby
resulted in a gross miscarriage
of justice”
In this application it was not
even demonstrated that there was
any fundamental error in the
first place. Secondly, it was
not demonstrated by the
applicant that the alleged
error, if any at all, has
resulted in any gross
miscarriage of justice. The
mere striking out of a party on
the grounds that there was no
cause of action against him when
his principal is adjudged by the
judgment to refund the money
illegally paid to the principal
would not in my view amount to
any miscarriage of justice in
anyway. This ground for review
in my respectful opinion is
without any merits.
The first ground for this review
application touches on relief
(f) indorsed on the writ of
summons. It is the case of the
applicant that this court did
not make any pronouncement on
relief (f) in the judgment under
review. It is plain that the
assertion of the applicant is
right as no pronouncement was
indeed made in respect of that
relief. The applicant complains
that this constitutes a ground
for review as it has occasioned
gross miscarriage of justice.
It must be made clear that his
court in exercising its original
jurisdiction heard this matter
as a trial court. It is the
settled practice in trial courts
that the reliefs sought by a
plaintiff must be considered in
the judgment, for the plaintiff
and the parties to know which of
the reliefs were granted and
those he may enforce. The same
is applicable to counterclaims
if any. In this case under
review, this court as a trial
court considered all the reliefs
save relief (f) indorsed on the
writ of summons. No reason
whatsoever was advanced for this
patent omission. It would appear
that his resulted from
inadvertence on our part.
The applicant is before us to
review our decision as regards
relief (f). He does not seek to
re-argue his appeal or
introduce any new point of law
for our consideration. This
court has on numerous occasions
in cases like
HANNA
ASSI NO.2 v GIHOC
REFERGERATION & HOUSEHOLD
PRODCUTS LTD NO.2
[2007-2008] SCGLR 16,
ATTORNEY-GENERAL NO.2) v
TASTSU TSIKATA NO.2
[2001-2002] SCGLR 620, made
it clear that a sharp
distinction ought to be drawn
between appeal and reviews at
this court and that reviews
which seek to re-argue the
appeals in disguise ought to be
refused and the court has
exhibited remarkable
consistency. In this application
before us, no attempt whatsoever
has been made for us to have a
second look at our decision on
the merits. Our attention has
been drawn to an omission to
pronounce on or consider a very
vital relief indorsed on the
writ which was inadvertently
overlooked by us.
The relief (f) clearly talks of
a violation of Article 181(5),
an important article in our
constitution which article
formed the basis of our decision
in this case. The relief seeks
a declaration against a very
important institution of state,
constitutionally mandated to
represent the Government of
Ghana in such matters under
Article 88 of the Constitution.
To me, this omission on the part
of this court to pronounce on
relief (f) which covers a
constitutional provision ought
to be corrected as it has
occasioned substantial
miscarriage of justice.
As we are fully aware, the
constitution is the fundamental
law of the land on which the
plaintiff sought relief (f), and
this court should correct its
error resulting from our
omission if our attention has
been drawn to same. We cannot as
a Supreme Court refuse to grant
a relief which clearly ought to
have been granted as the conduct
of the institution runs counter
to the clear provisions of the
constitution.
SOWAH JSC (as he then was) in
the oft-quoted case of
TUFFOUR v
ATTORNEY-GENERAL (1980) GLR
63C said at page 659 as
follows:
“This court does not think that
any act or conduct which is
contrary to the express or
implied provisions of the
constitution can be validated by
equitable doctrines of
estoppels. No person can make
lawful what the constitution
says it is unlawful. No person
can make unlawful what the
constitution says it is lawful.
The conduct must conform to due
process of law as laid down in
the fundamental law of the land
or it is unlawful and invalid”
As the first defendant’s conduct
clearly infringed the clear
provisions of Article 181(5) of
the constitution but out of
omission this court ignored it,
it behoves us as the Supreme
Court to correct this error
which is patent on the face of
judgment.
This court in the case of
AFRANIE II v QUARCOO & OR
[1992] 2 GLR 561 seized the
opportunity for the first time
under this current constitution
to correct an error committed by
itself in failing to take into
consideration section 17(i) (h)
of the
Rent Act, 1962 (Act 220) and
Rent Regulations, 1964 (LI 369)
regulation 18.
The
question is; if this court in
exercising the same jurisdiction
under Article 133(1) could
correct an error arising out of
an omission to apply the
provisions of an ordinary
statute, should this court shirk
its responsibility when there is
a clear omission to pronounce on
a constitutional provision? I
think not! In the AFRNAIE II
case, supra, this court was of
the opinion that a fundamental
and basic error might have
inadvertently been committed by
the court resulting in gross
miscarriage of justice should be
a ground for review. Exceptional
circumstances thus exist for a
review and same is hereby
granted by granting relief (f)
indorsed on the writ.
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD)
G. T. WOOD (MRS)
CHIEF JUSTICE
(SGD)
J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT
COUNSEL
PLAINTIFF/APPLICANT APPEARS FOR
HIMSELF.
GRACE OPPONG
ESQ. (SNR. STATE ATTORNEY) FOR
THE 1ST DEFENDANT
/RESPONDENT .
CARL ADONGO
ESQ. WITH HIM NANA KWEKU NSIAH
ASARE AND EDZE AGBEVEY FOR THE
3RD
DEFENDANT/RESPONDENT.
|
