HOME   UNREPORTED CASES OF THE SUPREME

COURT OF GHANA 2009

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA- GHANA

-----------------------------------

CORAM:        DR. DATE BAH, J.S.C (PRESIDING)

OWUSU (MS), J.S.C

DOTSE, J.S.C

ANIN YEBOAH, J.S.C

BAFFOE-BONNIE, J.S.C

CIVIL APPEAL

 J4/18/2009

2^ND  DECEMBER, 2009

THE REPUBLIC                                         

VRS

NATIONAL HOUSE OF CHIEFS                                     ...         RESPONDENT/

RESPONDENT/

RESPONDENT      

EX-PARTE: ODENEHO AKROFA KRUKOKO II          ...         APPLICANT/

RESPONDENT/

APPELLANT

OSAGYEFO KWAMENA ENIMIL VI                                ...         INTERESTED

PARTY/

APPELLANT/

RESPONDENT

J U D G M E N T

DR. DATE-BAH JSC:-       

What is before this Court is an appeal from proceedings that were initiated by an ex parte motion for leave to apply for an order of mandamus which was heard at the High Court, Kumasi.  The motion was filed on 6^th September 2004 and it

sought liberty to apply for an order of mandamus requiring the respondent, namely the National House of Chiefs:

“(1)      to delete from the National Register of Chiefs the name and particulars of Osagyefo Kwamena Enimil VI as Omanhene of the Wassa Fiase Traditional Area, And

(2)          to re-instate in the said Register the name and particulars of the Applicant as the Paramount Chief of the Wassa Fiase Traditional Area,

And for such further or other order as to this Hon. Court may appear just or proper.”

The applicant claims to be the Omanhene of the Wassa Fiase Traditional Area in the Western Region.  He deposed to an affidavit in support of his motion in which he affirmed that he was enstooled the Omanhene of that traditional area in June 1994 in accordance with custom and usage.  His name and particulars were then duly recorded in the National Register of Chiefs by the National House of Chiefs.  In November 1994, two cousins of the applicant brought a petition in the Western Region House of Chiefs challenging his nomination as Omanhene.   The applicant’s affidavit evidence declared that this petition together with an interim injunction restraining him from holding himself out as Omanhene and President of the Wassa Fiase Traditional Council were never served on him.  Nevertheless, in May 1995, the applicant together with his mother, the Queenmother, and all his kingmakers were convicted of contempt by the High Court, Sekondi, for infringing the said interim injunction.  This conviction was subsequently quashed by the Supreme Court in December 1995.   In November 1998, the applicant was again convicted of contempt of the Regional House of Chiefs by the High Court, Sekondi, in respect of an incident involving his receiving an oath of allegiance from a Divisional Chief.  This conviction was also set aside by the Court of Appeal in April 1999.  Finally, the applicant was convicted by the High Court, Sekondi, in April 2002 for continuing to hold himself out as Omanhene in spite of the interim injunction of 1994.  The applicant was sentenced to 14 days imprisonment, without the option of a fine, and he served 14 days in the Central Prison, Sekondi.   Whilst the applicant was in prison, he was informed that the Reverend William Chika Morgan had been nominated, elected and installed as the new Omanhene of Wassa Fiase by persons who, according to the applicant, had no right to do so.  This new Omanhene is Osagyefo Kwamena Enimil VI, the interested party in this suit.

On his release from prison, the applicant learnt further that the name of the new Omanhene had been recorded in the National Register of Chiefs and the applicant’s name deleted from it, without the necessary consultation with the Research Committee of the Western Region House of Chiefs and the Research Committee of the National House of Chiefs.  In July 2003, the applicant’s conviction for contempt was also set aside by the Court of Appeal.

In November 2003, the interested party brought suit in the High Court, Sekondi, against the applicant and the Interim Registrar of the Wassa Fiase Traditional Council for an interim injunction and prohibition.  These remedies were sought by the interested party to restrain the applicant from holding himself out as the Omanhene of Wassa Fiase, pending the determination of a declaratory suit that he had brought against the applicant in the High Court, Sekondi.   The High Court granted him the reliefs but these were quashed by the Supreme Court in January 2004.  Subsequently, the interested party withdrew his declaratory action from the High Court.  Meanwhile in May 2002, the petitioners before the Western Region House of Chiefs discontinued their chieftaincy case against the applicant.

In the light of these developments, the applicant has been engaged, from about October 2002, in a process to persuade the National House of Chiefs to delete the name and particulars of the interested party from the National Register of Chiefs and to reinstate his name and particulars on that Register as the Omanhene of the Wassa Fiase Traditional Area.  The applicant’s leading counsel wrote a letter dated 6^th  February 2004 to the Registrar of the National House of Chiefs, setting out a sequence of requests by various lawyers on behalf of the applicant that his name be restored to the Register.  The letter of 6^th February was expressed to be a final request.  If the applicant’s name was not restored to the Register within 14 days, the applicant’s counsel indicated that legal action would be launched against the respondent.

On 6^th September 2004, Ansu-Gyeabour J, sitting at the High Court, Kumasi, granted the applicant leave to file an application on notice for mandamus.  That application on notice was duly filed and, on 21^st September 2004, the applicant was granted an order for substituted service of it on the interested party.  The answer of the respondent and the interested party  to that step was to file a motion on notice to dismiss the applicant’s suit as incompetent and misconceived.  The respondent and interested party argued that on 28^th November 2003 the applicant had applied to Abraham J. at the High Court, Kumasi, for extension of time to file mandamus.  This application had been dismissed in a ruling of 15^th December 2003 by Abraham J.  Secondly, the events in respect of which the applicant was seeking mandamus had occurred two years before the application for leave to apply for mandamus was filed.  They contended that since the application for leave, which initiated the present proceedings, had been filed without first praying for an extension of time within which to file it, the application was incompetent and the whole action was void.

His Lordship Ansu-Gyeabour J. made two major rulings in this case.  The first was on 20^th May 2005 when he overruled the objections of the interested party and the respondent based on their argument that the mandamus application was in substance a cause or matter affecting chieftaincy and secondly that the case was estopped per rem judicatam on account of the earlier ruling by Abraham J on a motion for enlarging time within which to seek leave to apply for mandamus.  This first tranche of litigation travelled through the Court of Appeal to the Supreme Court, which held that the application was not a cause or matter affecting chieftaincy, reversing the Court of Appeal’s decision to the contrary.  The Court of Appeal had also held earlier that the suit was not estopped per rem judicatam.  The Supreme Court confirmed this and remitted the case to the High Court to consider the application for mandamus on its merits.

It was when the High Court heard the remitted application for mandamus that the second major ruling by Ansu-Gyeabour J. was made on 18^th February 2008. He again dismissed an application from the respondent that the applicant’s initial motion for leave to apply for mandamus was incompetent. The reason adduced this time by the respondent for its challenge was that the leave upheld in the first ruling of Ansu-Gyeabour J. did not cure the mischief in the application, namely that the applicant had not sought nor had he been granted an extension of time within which to apply for leave under the old 1954 civil procedure rules.  The respondent appealed to the Court of Appeal, which upheld his appeal. It is from this second judgment of the Court of Appeal in this case that the applicant has appealed to this Court.  The applicant’s grounds of appeal are as follows:

                          I.    “The Court of Appeal erred by failing to make the primary findings that the remedy of mandamus is based on demand and refusal, and that the conventional 6 months time limit for commencing mandamus proceedings is reckoned from the date of refusal but not from the date of demand.

                        II.    The Court of Appeal further erred by failing to find that since the Appellant’s earlier purported mandamus application before Mr. Justice Abrahams was not based on the Appellant’s failure to apply within 6 months of refusal by the National House of Chiefs of the demand for his name to be restored to the National Register of Chiefs, no issue estoppel arose from the said Justice’s Ruling of dismissing the Appellant’s said application for mandamus (not based on demand and refusal) so as to operate in bar of the instant application for mandamus based, as it was, on demand and refusal.

                       III.    The Appeal Court again erred by failing to appreciate that Order 59 r.3 of the former High Court Civil Procedure Rules (LN 140A), properly construed, applies only to certiorari and not to a mandamus application.

                      IV.    The Court of Appeal misdirected itself by failing to appreciate that its earlier decision in Rep. v National House of Chiefs & Ors; Ex Parte Faibil III & Ors  [1984-86] 2 GLR 731, CA, was given per incuriam of weighty decided authorities holding that mandamus is based on demand and refusal.

                       V.    The Court of Appeal misdirected itself by refusing to accept that in exercising its discretion to elect between its old decision on mandamus based on demand alone on the one hand and on the other hand its conflicting recent decision in mandamus based on demand and refusal, it ought to have properly chosen the modern judicial approach recognizing that mandamus is based on demand and refusal.

                      VI.    The judgment was against the weight of the affidavit evidence.”

On these grounds of appeal, a few general principles of law arise for consideration and elucidation before they are applied to the determination of this appeal.  These include the scope of the doctrine of estoppel per rem judicatam and whether it applies to interlocutory rulings and judgments.   Also needing to be clarified is the scope of the doctrine of judicial precedent in Ghana and the extent to which the Court of Appeal is bound by its own previous decisions.  Thirdly, there is need to examine the preconditions for the invocation of the remedy of mandamus.

The plea of res judicata is a well-established part of our law and it is usually expressed to be based on a final judgment.  Thus Acquah JSC, as he then was, delivering the judgment of the Supreme Court, said in In re Sekyedumase Stool:  Nyame v Kese alias Konto [1998-99] SCGLR 476 at p. 478:

“My lords, the plea of res judicata is never a technical plea.  It is part of our received law by which a final judgment rendered by a judicial tribunal of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.”

He goes on next to express a view on whether interlocutory judgments can found res judicata in the following terms (also on p. 478):

“As to how far interlocutory judgments can give rise to a successful plea of res judicata, one has to distinguish between judgments by defaults (of appearance or defence) and summary judgment under order 14 of the High Court (Civil Procedure) Rules, 1954 (LN 140A), (assuming this is regarded as interlocutory) which, if successful, would require a determination of the merits of the case.  In   Conca Engineering Ltd. v Moses [1984-86] 2 GLR 319, our Court of Appeal held, relying on New Brunswich Railway Co. v British & French Trust Co. Ltd. [1939] AC 1,HL that a default judgment is binding only as to defences which it has necessarily and precisely decided:  see also Laryea v Oforiwah [1984-86] 2GLR 410, CA.”

This statement of the law would at first sight appear to be in conflict with the following statement made in Republic v High Court, Accra (Commercial Division);  Ex parte Hesse [2007-2008] SCGLR 1230 at p. 1247, where Wood CJ, delivering the judgment of the Supreme Court, said:

“And this court’s decision in Dahabieh v SA Turqui & Bros [2001-2002] SCGLR 498 at p. 507, undoubtedly earlier in time, reinforces these legal principles.  It was stated (at page 507 of the Report) that:

“it is well-settled under the rule of estoppel that if a court of competent jurisdiction has tried and disposed of a case, the parties themselves and their privies cannot, thereafter, bring an action on the same claim or issue.  The rule covers matters actually dealt with in the previous litigation as well as those matters which properly belonged to that litigation and could have been brought up for determination but were not raised.”

These legal principles are applicable not only to substantive actions, but interlocutory matters as well.”

The wide statement of law embodied in the last sentence of this passage, however, needs to be narrowed down in the light of the actual facts of the case in relation to which it was formulated.  The Ex parte Hesse case concerned litigation arising from a default judgment.  The plaintiff in the case had obtained a judgment in default of defence in the High Court against the first defendant company for the reliefs claimed.  The first defendant then applied to the High Court to set the default judgment aside.  The High Court, in April 2007, dismissed the application.   To simplify a more complicated story, my summary of the facts would indicate that the first defendant filed another motion to set aside the default judgment in February 2008 and for leave to file a defence. This was granted by the High Court in April 2008.  It was on these facts that the Supreme Court had to determine whether the second application for the default judgment to be set aside was estopped per rem judicatam.  Although the applicant argued that its reason for seeking the setting aside was different for the two applications, the Court was of the view that this was no reason to avoid the effect of estoppel.  Wood CJ explained that (at p. 1245):

“This argument suggests that parties are entitled to break up their defences into parts or segments only to present them as and when they wish.  Our jurisdiction must frown on such practices.  Parties must be held accountable to presenting all of their known and conceivable claims or defences at a go, not piecemeal; for an effectual resolution of all matters in controversy between them, for there must be an end to litigation.  There is an urgent need to discourage piecemeal litigation; it ought not to be granted a foothold in our judicial arena, as it offends all the known principles of law and best practices.”

Whilst the learned Chief Justice is right to emphasise this policy objective, in relation to default judgments, the distinction that Acquah JSC makes in In re Sekyedumase Stool:  Nyame v Kese alias Konto (supra) between default judgments and other interlocutory judgments is an important one and legally significant.  Indeed, some default judgments are final judgments.  The recent decision of this Court in Mensah & Anor v Intercontinental Bank (Gh) Ltd., unreported judgment of the Supreme Court delivered on 26^th November 2009, suit no.  CA J4/13/2009, illustrates a final default judgment which was held to create an estoppel per rem judicatam.  Her Ladyship Sophia Adinyira JSC, delivering the judgment of the Court, observed as follows:

“It is settled law that a party is not estopped by default judgment except as to the matter directly decided. The rule therefore applies even to interlocutory matters. See dictum of the learned Chief Justice Georgina Wood in the case of Republic v. High Court, Accra (Commercial Division); Ex parte Hesse ( Investcom Consortium Holdings SA & Scancom Limited, Interested parties) [2007-2008] SCGLR 1230. We are however of the view that for estoppel to apply in such interlocutory matters, the issue or question involved ought to have been conclusively determined in one way or the other between the parties  in the first action. The above principles have been followed by this court in cases such as Oforiwah v. Laryea [1984-86] 2GLR 410, In re Sekyeredumase Stool; Nyamev. Kesse alias Konto [1998-99] SCGLR 476, Dahabieh v. S.A. Turqui & Bros [2001-2002]SCGLR 498, In re Kwabeng Stool; Karikari v. Ababio II [2001-2002] SCGLR 15.”

It is doubtful whether other interlocutory judgments create estoppel per rem judicatam.  Indeed, Phipson on Evidence (15^th Edition, Sweet & Maxwell, 2000) states (at  p. 990) that:

“The rule that a judgment is open to challenge unless final is of importance principally in other proceedings on different substantive questions between the same parties.  It also has the important practical

effect that the failure of an interlocutory application is no bar to its renewal.”

By way of illustration, Phipson cites Buttes Gas & Oil Co. v Hammer [1982] AC 888, HL, where the House of Lords in 1975 refused leave to appeal against a decision of the Court of Appeal, but in 1980 granted leave to appeal out of time from the same decision.  Thus the assertion in the Ex parte Hesse case that the legal principles on estoppel per rem judicatam are applicable not only to substantive actions, but also to interlocutory matters was probably phrased too broadly and is not part of the ratio decidendi of the case.  A distinction needs to be drawn between interlocutory judgments that are final and other interlocutory judgments.  Interlocutory decisions which determine an issue or question in the course of proceedings which are ongoing can be final and conclusive for res judicata purposes.  It depends upon the particular facts of the case.  A criterion for determining finality has been articulated by Lord Diplock. In D.S.V. Silo-und Verwaltungsgessellschaft mbh v Sennar (Owners), The Sennar (No. 2) [1985] 1 WLR 490, Lord Diplock there said that a decision is final if it “is one that cannot be varied, reopened or set aside by the court that delivered it or any other court of co-ordinate jurisdiction although it may be subject to appeal to a court of higher jurisdiction.” 

In the case of Pocklington Foods Inc. v. Alberta (Provincial Treasurer), (1995) 123 D.L.R. (4^th) 141, the Alberta Court of Appeal determined that res judicata and issue estoppel did not apply to procedural interlocutory motions.  I agree with this view of the law and I am not aware of any Ghanaian precedent to the contrary which is binding on this Court.  I consider therefore that this Court should follow the persuasive authority of that decision.  This view is also in accord with the opinion of the leading textwriter on the Ghanaian law of evidence, the late Justice Ofori Boateng, who in his The Ghana Law of Evidence (at p.18) spells out certain preconditions which have to be established first before estoppel per rem judicatam can apply.  Among these he spells out the following:

“(iii)     that the judgment was final, in that it determined the disputed rights of the parties in the case, and was not just an interlocutory judgment, for example, a preliminary matter such as interim injunction, or committal order in a criminal trial, or a coroner’s finding relating to cause of death.

(iv)         that the judgment was on the merits of the case.  A judgment will not be on the merits of the case if, for example, the case was dismissed for want of prosecution, or in default of appearance or any procedural step.  Nolle prosequi granted will not constitute a decision on merits.  In a civil action a case discontinued before judgment will also not be a judgment on the merits of the case.  But a party to a suit who suffers an adverse judgment through default will be estopped from raising a defence in a subsequent judgment;…”

However, even for those interlocutory decisions that are not final, the fact that res judicata does not apply to them does not imply that a party can endlessly apply for the same reliefs from the courts in those circumstances.  The courts’ power to restrain abuse of process can be used to halt unmeritorious repetitive interlocutory applications.

The next legal issue that needs to be examined is the effect of a binding decision of the Court of Appeal on subsequent cases before the Court of Appeal itself and the High Court.  This issue is poignantly raised and resolved by the judgment of the Court of Appeal (per Apaloo JA) in this case, as follows (at p. 156 of the Record):

“It is of great concern also that when Ansu Gyeabour J. departed from the decision in Ex Parte Faibil’s case he chose to pose for consideration of his court three irrelevant questions concerning the interpretation of Order 59 Rule 3 which in our view, would be unnecessary if he had come to the conclusion that the Court of Appeal was superior to his Court and therefore that Court’s decision was binding on him.  He rather chose to dissect the decision as if he was exercising concurrent jurisdiction with the Court of Appeal.  The beauty in stare decisis is that we respect the views of our Senior Judges as well as ensuring that decisions handed down to us are followed for certainty in the law.”

The view expressed in this passage represents orthodoxy and is reflected in Article 136(5) of the 1992 Constitution which provides that:

“Subject to clause (3) of article 129 of this Constitution, the Court of Appeal shall be bound by its own previous decisions; and all courts lower than the Court of Appeal shall follow the decisions of the Court of Appeal on questions of law.”

The clause 3 of Article 129 referred to in this provision deals with the Supreme Court’s right, while treating the Court’s own previous decisions as normally binding, to depart from its own previous decisions when it appears to it right to do so.  Does the explicit recognition of an exception for the Supreme Court, which is allowed a more liberal doctrine of judicial precedent, imply that the Court of Appeal, and the High Courts when following that court, are bound by a stricter doctrine of judicial precedent?  This would appear to be a logical and rational inference.

The applicant/appellant has sought to soften the rigidity of the stark strict doctrine of stare decisis provided for in Article 136(5) by pointing to the effect of case law as follows:

“The Respondent/Appellant’s complains (sic) of the Applicant/Respondent’s breach or violation of the principle of stare decisis by reference to section 10(5) of the Courts Act, 1993.  But it is immediately submitted that the Respondent/Appellant could not be more wrong.  The application of the classic case of Young v Bristol Aeroplane Co. Ltd.  [1944] KB 718, CA or  [1944] 2 All ER 293, to decisions of the Court of Appeal in England has been accepted with approval and applied in Ghana:  Kobina Osmanu v Kofi Amadu & 2 Ors. (1949) 12 WACA 437;  Tanor v Dapomah [1960] GLR 241 (High Court);  Reindorf & Ankrah v Amadu, Braimah & Nikoi Olai [[1962] 1 GLR 508, SC;  Loga v Davordzi [[1966] GLR 530, SC;  Asare & Ors v The Republic [1968] GLR 37 at 48-49, CA, (Full Bench).  So also the Supreme Court in Sarkodee I v Boateng II [1982-83] GLR 715.  The Bristol Aeroplane case (supra) decided (inter alia) that (in accordance with the principle of stare decisis):

                                          I.    The Court of Appeal is on principle bound to follow its own previous decisions.

                                        II.    Exceptionally, however, it is not bound to follow its previous decisions which were given per incuriam or in oversight of some relevant statutory provision or decided authority.

                                       III.    In the event that there are two conflicting decisions of its own, the Court is entitled to choose which of the decisions it will follow:  see [1944] KB 718 at 726 per Lord Greene, MR.”

With respect, the reference to Sarkodee I v Boateng II (supra) is a little disingenuous, since the judgment in it which refers to the Bristol Aeroplane case is the dissenting judgment of Taylor JSC, which is not necessarily a precedent to be followed.  This is what the learned judge had to say (at pp. 763-764):

“Azu Crabbe C.J. delivering the majority judgment in Sarkodee I v. Boateng II conceded at p. 348 that if it is shown that that his statement of the customary law is “contrary to a decision of the Court of Appeal or the highest court of the land for the time being” (the emphasis is mine) then it ought not to be considered a correct statement. Here is the decision of the highest court in the land delivered by the full bench on 7 September 1892, by Hutchison C.J. then the Chief Justice in Ghambrah v.

Kwamina Ewea (1892) Sar. F.L.R. 64 and Hayes Redwar Ag. J. so well known to the students of our legal system.

And the decision contradicts Azu Crabbe C.J.’s majority decision and the majority decision in this case. My Lord the Chief Justice who has given the majority view in his judgment framed the Azu Crabbe C.J.’s proviso differently. He would only reject the statement of the customary law by the National House of Chiefs if “it is in conflict with a binding judicial decision.” Well, here is a binding judicial decision, and if it is not binding the reason why it is not binding should be [p.764] shown. I think with respect, the decision of my Lord the Chief Justice acquiesced in by my brother Adade J.S.C. was given per incuriam for failure to consider the effect of Order No. 4 of 1904 on the Akwapim destoolment case and the 1892 Ghambrah case and this is so on the authority of Young v. Bristol Aeroplane Co., Ltd. [1944] 1 K.B. 718, C.A. With respect, I am not and would not consider myself as bound by the majority decision in this case: see article 116 (3) of the Constitution, 1979.”

Although the judgment of Taylor JSC was a dissenting one and therefore not necessarily an authoritative source of law, his reliance on the Bristol Aeroplane case and his view that the judgment of the Full Bench of September 1892 was binding on the Supreme Court of 1983 merits discussion.  To rephrase the issue, the question for consideration is this:  is the Court of Appeal under the 1992 Constitution bound by its previous decisions without exception or are the exceptions formulated by the Bristol Aeroplane case applicable to its decisions?  Secondly, is the Court bound by its decisions given since the coming into force of the Constitution in January 1993 only or is it bound by all appellate courts that have exercised jurisdiction in relation to the territory of Ghana?   When I refer to “bound”, I mean a binding precedent, as opposed to a persuasive precedent.  It is reasonable to contend that the only binding precedents are those handed down subsequent to 1993 and that the previous decisions are merely persuasive, although they carry a high degree of persuasiveness.  Such a view of the operation of the doctrine of precedent in our jurisdiction would make for greater flexibility in adapting the law to social change and make the need to resort to the principles of the Bristol Aeroplane case less frequent, assuming that they have any applicability to the existing courts of Ghana.

Addressing the second issue first, I think that the doctrine of precedent established by article 136(5) applies only to the Court of Appeal and the lower courts established by the 1992 Constitution.  I consider that the pre-1993 cases are persuasively binding, but they do not fall into the strict doctrine of precedent underlying article 136(5).

But what of the cases decided by the Court of Appeal since the coming into force of the 1992 Constitution?  Is the Court of Appeal absolutely bound by them or are the exceptions identified in the Bristol Aeroplane case applicable to them and, if so, on what basis?

If all the pre-1993 precedents are of merely persuasive authority, then a strict interpretation of article 136(5) as excluding the Bristol Aeroplane exceptions would be reasonable.  (However, the exception relating to the right to choose between conflicting previous decisions is reasonable and adoption of a similar rule is probably almost inevitable.)  Such an interpretation would vest the task of departing from previous binding decisions exclusively in the Supreme Court, in accordance with article 129(3).  It would buttress certainty and predictability in the case law, alongside the flexibility coming from the clarification that pre-1993 cases are only of persuasive authority.  It would also be in accord with some earlier judicial expressions of opinion in favour of deference for binding precedent.  For instance, Francois J (as he then was) said in Sogbaka v Tamakloe [1973] 1 GLR 25 at p. 27    :

“It seems therefore to some extent material to ascertain whether the suit is to be determined under customary law or the common law. Following Attiase v. Abobbtey (supra), I am of the view that a party need not elect which law he is proceeding with. If it appears on the consideration of the whole facts that the law applicable is customary law it should prevail. I have considered the criticism of Attiase v. Abobbtey on this method of resolving the applicable law, contained in Nkrumah v. Manu [1971] 1 G.L.R. 176. I do not think in principle such a criticism is well founded. Secondly, I feel that whereas I am bound by Attiase v. Abobbtey no such restrictions affect me with regard to the Nkrumah v. Manu case.

If I may borrow from judicial practice elsewhere, I would cite with approval the statement of Davies L.J. in Lane v. Willis [1972] 1 All E.R. 430 at p. 435, C.A. that it is undesirable for a lower court to criticise as wrong a binding authority of a higher court. In that case Lawson J.'s criticism of a judgment of Lord Denning M.R. in Edmeades v. Thames Board Mills, Ltd. [1969] 2 All E.R. 127, C.A. was condemned. And this is as it should be. I have always found it difficult to appreciate the reasoning which acclaims a decision as binding and authoritative and yet subjects it to criticism. The principle of stare decisis as I understand it, prohibits such public ventilation of dissent sometimes dragged to lengths of decrial. On this aspect, I would like to quote an observation of van Lare Ag.C.J. in the case of Kwami v. Quaynor [1959] G.L.R. 269, C.A. where the learned acting Chief Justice decried attacks on previous judgments of superior courts..van Lare Ag.C.J. said at p. 277, "I would not wish to be understood as agreeing with the obiter dicta in which the learned Judge unfortunately indulged when criticising the judgments which came under review by him." If this rule is not strictly enforced the authority of a precedent may be whittled away by gradual and piece-meal judicial nibbling. The judge's duty to allay doubts with positive decisions would then have turned to the creation and multiplication of doubts. “

Francois J, as he then was, of course, was right in asserting that a High Court judge must accept the authority of the Court of Appeal and follow its binding decisions, whether he or she agrees with it or not.

Ofori-Boateng JA, as he then was, also delivered himself of a dictum in Essiem v The Republic [1993-94] 1 GLR 457 at p. 462 that affirms a doctrine of precedent in consonance with what I have propounded above.  This is what he said:

“Article 136(5) of the Constitution 1992 provides:

“(5)      Subject to clause (3) of article 129 of this Constitution, the Court of Appeal shall be bound by its own previous decisions; and all courts lower than the Court of Appeal shall follow the decisions of the Court of Appeal on questions of law.”

Article 129(3) of the Constitution, 1992 also provides:

                        “(3)      The Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law.”

The combined effect of these two articles of the Constitution, 1992 is that the Court of Appeal is compelled to follow its previous decisions, if those decisions are not in conflict with a Supreme Court decision on the same point of law.”

Thus, Ofori-Boateng JA, as he then was, poignantly does not refer to any exceptions along the lines of the Bristol Aeroplane case.  This is a reasonable doctrine of precedent reflective of the letter and spirit of the constitutional provisions on which he bases his view.

However, in the light of the interpretation of the judicial precedent doctrine set out above, his Lordship Ansu-Gyeabour J. was not absolutely bound to follow the pre-1993 case of Republic v National House of Chiefs and Others; Ex parte Faibil III and Others  [1984-86] 2 GLR 731.  The case was, of course, of very high persuasive authority, but the stern reprimand by Apaloo JA (supra) of the learned trial High Court judge was not justified.  A current High Court judge may depart from a Court of Appeal decision, given prior to January 1993, if there are good grounds for doing so.  Such decisions are of high persuasive authority and may not be departed from lightly, but if there are cogent reasons for doing so, a High Court may decide not to follow them.

To say that the existing courts of today may depart from pre-January 1993 cases is not to deny their status as precedents.   They continue to be precedents, though only of persuasive value, and not binding.  It is important to make this point in the light of an argument that was refuted by Abban CJ in Pianim (No. 3)  v  Ekwam and Anor.  [1996-97] SCGLR 431.  Counsel had argued in that case that all the conditions and principles that had been laid down by the Supreme Court in cases decided before the coming into force of the 1992 Constitution should not be used as a yardstick when dealing with review applications brought after the 1992 Constitution.  This argument was decisively rejected by the learned Chief Justice on the ground that the previous authorities remained law as part of the common law.  He percipiently noted that (at p. 436 of the Report):

“The term common law is used in contradistinction to statute law and denotes unwritten law, whether legal or equitable in its origin, which does not derive its authority from any express declaration of the legislature.  It depends for its authority upon recognition given by the courts as recorded in the Law Reports which embody the decisions of the judges together with the reasons which they assign to them.  And since the Constitution makes judicial decisions or case law part of the laws of Ghana, it will be absurd to refuse to make use of those authorities as precedents when the need arises.”

For the avoidance of doubt, I must declare that I completely agree with the learned Chief Justice.   Cases decided before 1993 in the Superior Courts remain precedents that should be followed.  The only distinction that I have sought to draw above is between binding and persuasive precedents.  In practice, most of the time our courts follow judicial precedents, not because they are absolutely binding on them, but because they are persuasive and a good source of the law.  It is only in a few cases that the doctrine of binding precedents comes into play.  This is the situation when a court, if it were free to do so, would decide otherwise than prescribed in a previous binding decision.  Even in such situations, it will often be possible to distinguish the later case from the earlier case or interpret the ratio decidendi of the earlier case in such a way that it is not an impediment to deciding the later case in the way that the court wants to decide the issue concerned in the later case.  The interpretation of the doctrine of judicial precedent which I have set out above will tend to keep the pool of absolutely binding precedents small and therefore there will be fewer occasions on which a superior court will declare that it thinks a previous decision is wrong, but it is bound to follow it.  I do not think that this outcome is achieved at too great a cost in certainty and predictability of the law, since the bulk of the judicial precedents will continue to be followed, as has always been the practice.

It is possible to argue that a successor court should be absolutely bound by the decided cases of the court to which it succeeded.  However, I do not find that the provisions of the 1992 Constitution require me to reach this result and, for the policy reason already set out above, I consider that a more desirable purposive interpretation of the relevant provisions of the Constitution is to hold that the courts established under the 1992 Constitution are only absolutely bound by decisions of other courts established under the same Constitution.  Article 126 of the 1992 Constitution establishes the Superior Courts of Judicature.  I consider these to be new courts, although section 3(1) of the Transitional Provisions of the Constitution (the First Schedule) provides that:

“The Supreme Court, the Court of Appeal and the High Court in existence immediately before the coming into force of this Constitution shall be deemed to have been established under this Constitution and shall perform the functions of the Supreme Court, the Court of Appeal and the High Court specified respectively in Chapter 11 of this Constitution.”

This deeming provision does not alter the character of the courts established by Article 126 as new courts.   Although the Supreme Court, Court of Appeal and High Court succeeded to previous courts bearing the same names, there is no logical necessity for the new courts to be absolutely bound by the cases decided by these previous courts.  The cases of C.F.A.O. v Zacca [1972] 1GLR 366 and West African Bakery v Miezah [1972] 1 GLR 78 contain some tangential discussion relevant to this issue, they did not decide the issue.  In the Miezah case, Azu Crabbe JSC, as he then was, held that by virtue of the 1969 Constitution, the Court of Appeal under that Constitution was a successor to the Court of Appeal set up under the Courts Decree, 1966 (NLCD 84), which in turn was a successor to the Supreme Court established under the 1960 Constitution.  He held that the rule of stare decisis applicable to the former Supreme Court, to the effect that it was bound to follow its own decisions “in principle" was applicable to its successor courts and thus to the Court of Appeal under the 1969 Constitution.  I do not consider that this authority stands in the way of the interpretation of the doctrine of judicial precedent applied above.  Neither does the Zacca case.  In article 125 of the 1969 Constitution the High Court and the Court of Appeal were each described as “successor” courts to their eponymous previous courts.  In relation to the Court of Appeal, there was express language regarding the binding precedents of the previous court, which is missing from the equivalent provision in the 1992 Constitution.  Article 125(2) provided that:

“The Court of Appeal established under the provisions of clause (4) of article 102 of this Constitution, shall be the successor to the Court of Appeal of the Supreme Court of Judicature in being immediately before the coming into force of this Constitution; and accordingly the Court of Appeal as established by this Constitution shall be bound to follow the decisions on questions of law binding on the Court of Appeal as it existed immediately before the coming into force of this Constitution.”

Sowah JA, as he then was, alluding to this Article 125, delivered himself of this relevant dictum (at p. 391 of the Report):

“”Successor” is the key word; though not a term of art, it is pre-eminently the language used in conveyancing; in the context of this article, it connotes the take-over by the present courts of the jurisdiction, rights and privileges of the displaced courts, subject of course, to such correlative restrictions upon jurisdiction as there existed before the take-over.  This is in addition to any extension of jurisdiction that the Constitution might have given.  In effect, the Constitution did not entirely abolish the courts but merged the old into the new and created a new hierarchy of courts.”

Article 125 of the 1969 Constitution is to be contrasted with Article 136(5) of the 1992 Constitution (supra) which makes no express reference to the Court of Appeal  being “bound to follow the decisions on questions of law binding on the Court of Appeal as it existed immediately before the coming into force of this Constitution”.   There is thus sufficient difference in the language of the two provisions to justify my view that the current Court of Appeal is not absolutely bound to follow the previous decisions of Courts of Appeal under different constituent instruments.

There were indeed good grounds for questioning the Ex Parte Faibil III  case.  Its holding that Order 59 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) had set down a six-month time limit within which an application for mandamus should be brought could not be supported in the light of the actual language used in the Order.   Edward Wiredu JA, delivering the lead judgment in the Court of Appeal in 1986, said:

“Our law has set down a six-month time limit within which an application for mandamus may be brought:  see Order 59 of LN 140A.  Where an applicant is out of time provision is made for him to apply for an extension.  In the instant case the matter complained about occurred in 1975 and it was not until a lapse of seven years that the respondents presented their application without applying for an extension of time.  They were statutorily out of court and their application should not have been entertained.”

 The provision on which Wiredu JA based this holding was Order 59 rule 3 states that:

“Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any enactment;  and where the proceeding is subject to appeal and a time is limited by law for the bringing of an appeal, the Court or Judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”

Clearly, there is no mention of mandamus in this rule.  The learned judge’s reliance on Order 59 to prescribe a time limit for the invocation of mandamus does not seem justified.

The second Court of Appeal judgment in this case, given on 5^th February 2009, refused to countenance the criticism by his Lordship Ansu-Gyeabour of the decision in Faibil’s case.  This refusal to countenance criticism was based on a strict doctrine of precedent propounded in the following terms by Apaloo JA (at p. 151 of the Record), after quoting section 10(5) of the Courts Act, 1993 (Act 459) which is in pari materia with Article 136(5) of the Constitution 1992 (supra):

“This substantive law requires the Court of Appeal to follow its own previous decisions which are binding on the Court itself.  The High Court is equally bound by decisions of the Court of Appeal and cannot depart from such decisions (of the Court of Appeal) until and unless the decision is reversed by the Supreme Court.  Obviously, all courts below are similarly bound to follow decisions of the Court of Appeal on questions of law.  There is no doubt that certainty in the law is guaranteed by Section 10 of the Courts Act.”

He did not consider that the Court of Appeal should be able to depart from its previous decision, even if it was given per incuriam.  He went on to express the Court’s conclusion as follows:

“We have followed with keen interest the principles and arguments propounded by counsel that Order 59 Rule 3 of LN 140A applied only to the prerogative writ of certiorari and not at all to mandamus and that the application of a six months time limit to mandamus proceedings was clearly not by LN 140 of 1954, but entirely by operation of English Common Law which has traditionally imposed a six month time limit for prerogative applications.  Even though the arguments and the submissions are attractive, we believe this is not the Court or forum to canvass those submissions.  Counsel himself for years has been using Order 59 R3 in legal practice.  As High Court Judges of first instance, we have delivered many decisions mounted within the purview of that Order.  The Court of Appeal had delivered several decisions based on Order 59 R3 of LN 140A without any litigant or a lawyer going to the Supreme Court to challenge the appropriateness of that particular order governing mandamus applications.  LN140A the High Court Rules 1954 have been replaced by CI 47 and fortunately under Order 55 R3 adequate provisions have been made for mandamus.  We do not feel inclined to depart from the principles enunciated in the Faibil’s case and arising therefrom cause judicial heresy in the sense of a departure from an opinion or belief held within the legal system.  We accordingly state unequivocally that the trial High Court Kumasi presided over by Ansu-Gyeabour J. was duty bound to follow the decision of the Court of Appeal in the case entitled Republic v National House of Chiefs and Anor; Ex Parte Faibil III [1984-86] 2 GLR 731.  Failure on the part of the lower Court to be bound on questions of law was fatal to the decision reached by that Court.”

I am unable to agree with this conclusion since, as I have explained above, I do not consider that pre-1993 decided cases in the Ghanaian superior courts can be absolutely binding in the way that Apaloo JA portrays.  They are of only persuasive authority and therefore where they seem patently wrong, as the Ex Parte Faibil case appears to be, a court established under the 1992 Constitution can refuse to follow them.

In any case, even if the Faibil case were decided after 1993, this Court would have the authority to overrule it and we hereby do so.  Order 59 Rule 3 of LN 140A should not have been interpreted to apply to applications for mandamus.  Moreover, without necessarily here determining this point on time limits for mandamus applications under the 1954 Rules conclusively, even if there were a rule of practice or of the common law laying down a time limit, that time limit should run from the date of refusal to comply with a demand, as I will explain next in this judgment.

The final principle of law that this Court needs to examine relates to the contention by the applicant/appellant in his Statement of Case that the prerogative writ of mandamus depends on demand and refusal:  that is, a demand by an aggrieved applicant on an official to perform a public duty owed to that applicant and a distinct refusal or reluctance to comply with the applicant’s demand.  If this Court confirms that a demand and refusal are generally preconditions to the invocation of mandamus, this would have an impact on the time limit within which an application for mandamus may be made.  Time would begin to run not from the date of occurrence of the act or omission complained of, but rather from the date of refusal to comply with the demand made by the aggrieved applicant in relation to that act or omission.

The facts of the leading case of Republic v National House of Chiefs and Others; Ex parte Faibil III and Others  [1984-86] 2 GLR 731 illustrate what is at stake.  In this case, two Divisional Chiefs from the Wasa Fiase Traditional Area in the Western Region applied to the High Court, Accra, for mandamus to remove the name of their Omanhene from the National Register of Chiefs.  Their application was brought in 1982, but their complaint related to acts that took place in 1975.  Their Omanhene had been enstooled in 1975.  The Western Region House of Chiefs had transmitted a report of his enstoolment to the National House of Chiefs, together with a warning letter that a petition had been filed against his enstoolment and installation by the Queenmother of the
Traditional Area.  The Omanhene’s enstoolment, in spite of the warning letter, was published in the Local Government Bulletin of June 1975.  The applicants in the case had supported the enstoolment of the Omanhene, in their capacity as kingmakers and divisional chiefs of the traditional area.   Their application for mandamus in 1982 was based on the fact the Omanhene’s enstoolment was disputed and therefore should not have been Gazetted.  There was no evidence that the applicants made any demand for the removal of the Omanhene from the Register and that this demand had been refused.  Although, the trial court judge granted the applicants the mandamus they sought, the Court of Appeal allowed an appeal against his decision.  The Court did not however advert to the issue of demand and refusal, when it decided to dismiss their application.

In contrast, in Republic v Chieftaincy Secretariat & Anor; Ex Parte Adansi Traditional Council [1968] GLR 736, Annan J. , as he then was, stated the law as follows (at p. 742):

“Having regard to the clear language of section 1 (2) (a) and in the light of exhibit 4, I am compelled to say that there has been no positive refusal or conduct amounting to a refusal, on the part of the second respondent to perform the duty cast on him by section 1 (2) (a) to take a decision one way or the other.  It is clear law that the court will not order mandamus to go where there has been no demand and refusal to perform the public duty enjoined by statute.”

To Annan J, therefore, a demand and refusal were preconditions to the grant of mandamus.  Similarly,  Asare Korang JA in the first judgment of the Court of Appeal in this case of The Republic v National House of Chiefs; Ex Parte Odeneho A. Krukoko II (Osagyefo Kwamena Enimil VI, Interested Party), a decision of the Court of Appeal dated 11^th November, 2005 (at p. 131 of the Record) explained his understanding of the law on mandamus as follows:

“In this appeal, I would summarise the purport and scope of the reliefs sought by the Respondent and the Interested Party in this manner:

“Is Mandamus a remedy available to the Applicant in all the circumstances of this case?”

What then are circumstances?    Before answering this question, I would first grant that since Mandamus requires as a precondition a demand for the performance of a duty and an unequivocal refusal of one party to not comply, the ruling of Abrahams J. cannot be regarded as Res Judicata since he did not embark on an enquiry as to whether there was a demand and a refusal, that is to say, an enquiry on the merits.”

This statement of the law I consider sound.  However, in the second judgment of the Court of Appeal in this case, given on 5^th February, 2009, the Court found it unnecessary to dwell on this aspect of the law, preferring instead to base their decision on the doctrines of stare decisis and estoppel per rem judicatam.

It was a pity that the Court of Appeal did not take the opportunity of this case to clarify the law on the preconditions for the invocation of mandamus.  That error should not be repeated in this court.  I would like to adopt the statement on demand and refusal as a precondition to the grant of mandamus which is made in Halsbury’s Laws of England  4^th Ed., para. 156 at p. 259 as follows:

“156.   Demand for performance must precede application.           As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that that demand was met by a refusal.  The requirement, however, that before the court will issue a mandamus there must be a demand to perform the act sought to be enforced and a refusal to perform it cannot be applicable in all possible cases, and does not apply where a person has by inadvertence omitted to do some act which he was under a duty to do, and where the time within which he can do it has passed.”

I have already demonstrated above that Ansu-Gyeabour J. was not absolutely bound to follow the Faibil case (supra).  Accordingly the Court of Appeal was in error when it held that he had to.  Ordinarily, time within which to apply for mandamus should begin to run only after a demand to perform a duty has been met with a refusal.  Secondly, from the discussion above of whether non-final interlocutory decisions can estop per rem judicatam, it is obvious that the judgment of Abraham J in 2003 was no bar to Ansu-Gyeabour J.’s ruling in this case.  Since stare decisis and estoppel per rem judicatam were the two legs on which the judgment of Court of Appeal read by Apaloo JA rested, we think that this appeal against it must succeed.  Accordingly, the appeal is allowed and the order made by the learned trial High Court judge for leave to apply for mandamus is hereby restored.  The case is remitted to the High Court, Kumasi, for the application for mandamus to be heard on its merits.

                           DR. S.K. DATE-BAH

            JUSTICE OF THE SUPREME COURT

OWUSU (MS), J.S.C:-

I have read the lead Judgment of my respected brother and I agree with the conclusion arrived at by him that the appeal be allowed. 

He has sufficiently set down the facts and ably dealt with the issues raised in the appeal and in this wise I have nothing useful to add except that like my able brother Dotse whose Judgment I have had the opportunity to read, I also find myself unable to agree with the distinction drawn by my senior brother between the binding nature of the decisions of the pre – 1993 courts i.e. the courts in existence before the coming into force of the 1992 constitution and those which were established by the 1992 constitution.

In the lead Judgment, this is what my respected brother said:

“Addressing the second issue first, I think that the doctrine of precedent established by article 136(5) applies only to the Court of Appeal and the lower courts established by the 1992 constitution.  I consider that the pre-1993 cases are persuasively binding, but they do not fall into the strict doctrine of precedent under lying article 136 (5).”

The said Article reads as follows:

“Subject to clause (3) of article 129 of this constitution the Court of Appeal shall be bound by its own previous decisions; and all courts lower than the Court of Appeal shall follow the decision of the Court of Appeal on questions of law.”

It is for this reason that Apaloo JA said in his ruling that:

“It is of great concern also that when Ansu Gyeabour J. departed from the decision in Ex parte Faibil case he chose to pose for consideration of his court three irrelevant questions concerning the interpretation of Order 59 rule 3 which in our view, would be unnecessary if he had come to the conclusion that the Court of Appeal was superior to his court and therefore that court’s decision was binding on him. (emphasis supplied)’’

Under article 129(3) of the 1992 constitution,

The Supreme Court may while treating its own decisions as normally binding, depart from a previous decision when it appears to it right to do so, and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law.”

The Court of Appeal is therefore bound to follow the decisions of the Supreme Court on questions of law and so is the High Court bound to follow decisions of the Court of Appeal on questions of law unless the lower court distinguishes the previous Judgment from the one before it both on the facts and law that it can get itself out of the strict Jacket to be able to extricate itself from the binding effect.

The provisions of P. N. D. C [Establishment proclamation, 1981 saved and continued in existence all the courts established under article 114 (5) of the 1979 Constitution which the P. N. D. C proclamation suspended.

What this means is that once the Court of Appeal as established under the constitution of 1979 was continued under the same constitutional regime, it was saved with all that it stood for – its functions, composition, Jurisdiction etc remained intact despite the fact that the constitution was suspended thus destroying the legal order by the Military intervention of 31^st December, 1981.

Thus if the hierarchy of the superior courts were saved and continued in existence, then with the coming into force of the 1992 constitution, these courts and the decisions handed down by them have the same binding effect as those established under the 1992 constitution.

My respected brother has in his Judgment referred to the case of PIANIM (No. 3) VRS EKWAM and Another [1996-7] SCGLR 431.  In that case counsel’s argument that all the conditions and principles that had been laid down by the Supreme Court in cases decided before the coming into force of the 1992 constitution should not be used as a yardstick when dealing with review applications brought after the 1992 constitution was rejected.  This argument did not find favour with the court per Abban C.J who decisively rejected same on the ground that the previous authorities remained law as part of the common law.

The eminent C.J. now of blessed memory delivered himself thus:

“  -    -   -

It depends for its authority upon recognition given by the courts as recorded in the Law Reports which embody the decisions of the Judges together with the reasons which they assign to them.  And since the constitution makes judicial decisions or case law part of the laws of Ghana, it will be absurd to refuse to make use of those authorities as precedents when the need arises.”

Indeed my respected brother completely agrees with the learned chief justice that cases decided before 1993 in the superior courts remain precedents that should be followed.  He all the same sticks to the distinction that he sought to draw between binding and persuasive precedents.

This is where I part way with him as in my considered opinion, the pre and post 1993 cases have the same authoritative binding effect on all courts below them.

Again, under Art 3 (1) of the Transitional provisions of the constitution (first schedule)

“The Supreme Court, the court of Appeal and the High Court in existence immediately before the coming into force of this constitution shall be deemed to have been established under this constitution and shall perform the function of the Supreme Court, the Court of Appeal and the High Court specified respectively in chapter 11 of this constitution.”

Therefore if the Supreme Court, the Court of Appeal and the High Court in existence before the coming into force of the Constitution, shall be deemed to have been established under the constitution, where then do we draw the distinction between them vis-à-vis their binding effects on lower courts?

It is for these reasons that I add my voice to that of my brother.  Dotse J.S.C in his opinion on the position of the binding effect of the pre and post 1993 cases on courts down the ladder.

                        R. C. OWUSU (MS)

            JUSTICE OF THE SUPREME COURT

DOTSE, J.S.C.:-

CONCURRING OPINION

I have had the privilege of having read before hand, the well thought out judgment of my distinguished brother, Dr. Date-Bah JSC in the lead judgment just delivered. Even though I agree with part of the reasoning and the conclusions reached therein, there is however an aspect of the reasoning which I disagree with and also wish for purposes of emphasis and elucidation to comment upon the principle of demand and refusal as a criteria for the grant of Mandamus.

In his lead judgment, Dr. Date-Bah JSC has set out the facts of this appeal so graphically that it will be needless on my part to re-state them. I therefore adopt the statement of the facts as stated by my learned brother.

Before deciding the substance of the appeal, Date-Bah JSC, set out three general principles of law which he dealt with. These are :

1.         The scope of the doctrine of estoppel per rem judicatam and whether it applies to interlocutory rulings and judgments. I cannot but agree entirely with the discussions of this principle of law and how he dealt with it.

2.         The second is the scope of Judicial precedent in Ghana and the extent to which the Court of Appeal is bound by its own previous decisions. Whilst I agree with the general statement of the principles and law applicable on the doctrine of judicial precedent or stare decisis as it is described in legal terminology, I disagree with the conclusions reached.

3.         The third is the examination of the preconditions for the invocation of the remedy of mandamus.

This principle was classically and intellectually handled by my brother Date-Bah JSC but I feel the strong urge to make some humble contributions to that aspect of the law.

WHAT IS JUDICIAL PRECEDENT OR STARE DECISIS

The Constitution 1992 is the document that has enshrined this principle of Judicial precedent in Ghana.

Article 129(1) of the constitution 1992 established the Supreme Court as the final Court of Appeal with appellate and other jurisdiction as may be conferred on it by the Constitution or any other law.

Article 129 (2) however states that the Supreme Court is not bound to follow the decisions of any other Court.

This therefore means that, the Supreme Court is at the apex of the Court Structure in Ghana and it is not subordinate to any other Court in Ghana.

In order to appreciate the binding nature of decisions of the Supreme Court on all other Courts in the country, it is necessary to quote in extenso, article 129 (3) of the   Constitution 1992, which states:-

“The Supreme Court may while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so, and all other Courts shall be bound to follow the decisions of the Supreme Court on questions of Law”

In effect, the application of this principle admits of no discretion whatsoever on the part of the Courts lower to the Supreme Court. Whilst the Supreme Court itself is not bound to follow its previous decisions (although in practice it does to a large extent) all other Courts must interpret the law to be what the Supreme Court states it to be, this is a mandatory requirement on all the Courts lower down the hierarchy of Courts to the Supreme Court. This will mean that, the Court of Appeal, High Court, Regional Tribunal, Circuit Court, District Courts and all lower adjudicating tribunals to wit Family Tribunal, Juvenile Court, Judicial Committee’s of the National and Regional Houses of Chiefs and also of the Divisional and Traditional Councils established under the Chieftaincy Act 2008, Act 759 are bound to follow it.

The principle is based first of all on the relevant likeness of the previous decisions or the relevance of the principle of law decided in the previous case and the instant one. If however, there is no likeness between the two, then there is no need to consider whether the previous one should be followed or not.

It is the art of following the decision in the previous case or being able to distinguish the principle of law decided in the previous case from the one before the Court, that will determine its applicability.

For the purposes of the Court of Appeal which is what I am concerned with in this case, the relevant  article in the constitution 1992 is 136 (5) which provides as follows”

“Subject to clause (3) of article 129 of this constitution the Court of Appeal shall be bound by its own previous decision; and all Courts lower than the Court of Appeal shall follow the decision of the Court of Appeal on questions of law”.

I have already dealt with article 129 (3) of the Constitution. By parity of reasoning therefore, it means that, all Courts below the Court of Appeal are bound to follow the decision of the Court of Appeal. In essence, the Court of Appeal would itself have followed any Supreme Court decision on the subject matter, to avoid any conflict situation arising.

What should be noted is that, whilst the Supreme Court has power to depart from its previous decisions, the Court of Appeal has no such privileges and rights, and is bound by any previous decision of that Court.

In the instant case, my brother Dr. Date-Bah (JSC) is of the view that the doctrine of judicial precedent established under article 136 (5) of the Constitution 1992 applies only to the Court of Appeal and the lower Courts established  under the Constitution 1992. He concludes thus:

“I consider that the pre-1993 cases are persuasively binding, but they do not fall into the strict doctrine of precedent underlying article 136 (5)”

This is the area where I disagree with my brother.

Considering the provisions of Section 3 (1) of the transitional provisions of the Constitution 1992, the impression is that all the Superior Courts in existence before the coming into force of the Constitution 1992 are deemed to be in existence under the Constitution 1992.

This is how it is stated:

3 (1) “The Supreme Court, the Court of Appeal and the High Court in existence immediately before the coming into force of this constitution shall be deeded to have been established under this constitution and shall perform the functions of the Supreme Court, the Court of Appeal and the High Court specified respectively in chapter 11 of this Constitution.”

The above provisions give the clearest indication that the framers of the Constitution did not intend to be any vacuum between the Superior Courts of judicature in existence before the coming into force of the Constitution 1992 on 7^th January, 1993 and those in existence after the constitution 1992.

If my analysis is correct, then there should be continuity in the jurisdiction, composition, functions and scope of the Superior Courts from the pre January 7^th 1993 to post 7^th January 1993. In other words, the constitution 1992 does not admit of any difference in the Courts structure, jurisdictional powers and composition.

That being the case, the provisions of Article 136 (5) of the Constitution 1992 would apply equally to all decisions of the Court of Appeal prior to January 7^th 1993 and the principle of Judicial precedent established therein would apply equally. This means that all the decisions of the court of Appeal pre-January 1993 would also be binding not only on the Court of appeal itself, but also on all Courts below the Court of Appeal.

In coming to this conclusion, I am not unmindful of the provisions of PNDC (Establishment) Proclamation, 1981 which continued in existence all the Courts established under article 114 (5) of the Constitution, 1979 which the PNDC Proclamation suspended.

What must be noted and taken due cognisance  of is that, once the Court of Appeal as established under The Constitution, 1979 was continued under the same constitutional regime, it meant, the powers establishing the constitutional basis of the Court, functions, composition, jurisdiction and whatever remained intact despite the destruction of the legal order by the coup d’état of 31^st December, 1981.

In my assessment, the constitutional provisions in article 136 (5) of the Constitution 1992 are similar in nature and content to the constitutional provisions enshrined in the constitution 1979. See article 121 (3) of The constitution 1979 which provides as follows:

“Subject to the provision of clause 3 of article 116 of this constitution, the Court of Appeal shall be bound by its own previous decisions and all Courts inferior to the Court of Appeal shall be bound to follow the decisions of the Court of Appeal on questions of law”

The article 116 (3) of the Constitution 1979 referred to supra is also similar in content to article 129 (3) of Constitution 1992. As a matter of fact, the PNDC Proclamation despite its suspension of The Constitution, 1979 continued the validity of all regular Courts, that were in existence prior to the 31^st December 1981 coup d’état to wit, the Supreme Court, Court of Appeal, High Court and all the lower Courts and adjudicating tribunals under the same constitutional  arrangement, as was contained in The Constitution 1979.

As a matter of fact, the Judicial Council, headed by the Chief Justice continued to exercise responsibility for the effective and efficient administration of the regular Courts under article 131 (3) of the constitution 1979. See S. Y. Bimpong-Buta – “The Role of the Suprme Court in the Development of Constitutional Law in Ghana”, page 37 last paragraph.

It does therefore appear to me that, since there has been no constitutional break or vacuum in the Courts Structure under the Constitution 1979 through the PNDC era to the new Constitution 1992, there cannot be a difference in the weight to attach to decisions of the Court of Appeal or indeed any of the regular Courts pre January 1993 and post January, 1993.

SCOPE OF APPLICATION OF THE PRINCIPLE

What then is the scope of the application of the principle of Judicial precedent or stare decisis? I find the benchmark stated in the case of Young vrs Bristol Aeroplane Co. Ltd. [1944] KB 718, CA or  [1944] 2 A. E. R. 293 which was quoted by my brother Date-Bah JSC as very apt, and very instructive.

1.            On principle, the Court of Appeal should be seen as being bound to follow its own previous decisions in line with article 136 (5) of the Constitution 1992.

2.            Secondly, the Court of Appeal should not feel bound to follow its previous decisions which were given per incuriam or in oversight of some relevant statutory provision or decided authority. For example, if at the time the Court of Appeal gave its decision, it was not aware of a decided Supreme Court case with which it is bound to follow and which would have changed its decision, or a relevant statute on the subject matter was not considered. In any of the above instances, the Court of Appeal will not be bound to follow its own previous decisions.

3.            Finally, where there are two conflicting decisions of the Court, then it will be reasonable to expect the Court to choose which of the two conflicting decisions it will follow.

These were the guidelines stated by Lord Greene in the Bristol Aeroplane case referred to supra.

Under the circumstances of the present appeal, what is the position that the Court of Appeal faced with the previous decision of the Court of Appeal in the Ex-parte Faibil’s case

FACTS OF THE EX-PARTE FAIBIL’S CASE

The appellant was the Omanhene of the Wasa Fiase Traditional Area. He was enstooled in March 1975. A report of the enstoolment was forwarded to the National House of Chiefs in April 1975 by the Western Regional House of Chiefs (W.R.H.C) under Section 51 (1) of the Chieftaincy Act, 1971 (Act 370), together with a warning letter that a petition against the installation has been filed before the judicial committee of the W.R.H.C by the queen mother of the Wasa Traditional Area. The Appellant’s enstoolment, in spite of the warning letter, was published in the Local Government Bulletin in June 1975. The respondents in their capacity as divisional chiefs and kingmakers of the Omanhene stool of the same traditional area, had supported the appellant’s enstoolment and had also dissociated themselves from the petition filed by the queenmother against the enstoolment of the appellant. However, in 1982 the respondents filed an application in the High Court for mandamus to have the appellant’s name removed from the national register of chiefs. They contended, inter alia, that: (a) because of a circular letter sent by the National House of Chiefs to the registrars of all Regional Houses of chiefs regarding disputed enstoolments, the appellant should not have been gazetted; and (b) there had been a pending petition against his enstoolment by the queenmother of the Wasa Fiase paramount stool. The High Court decreed mandamus to issue for the removal of the appellant’s name from the register and the cancellation of his enstoolment in the Local Government Bulletin of 1975.

DECISION OF THE COURT OF APPEAL IN THE EX-PARTE FAIBIL CASE

The Court of Appeal whilst allowing the appeal and setting aside the High Court decree of Mandamus held as follows:

1.            The order of mandamus sought was a discretionary one and the Judge should have carefully weighted the equities before deciding to either exercise the courts discretion in favour of or  refusing  the application.

2.            The second setback to the respondents application is the failure on the part of the trial Judge to have considered the discretionary nature of the relief sought judicially. Two matters of importance militated against the exercise of that discretion. The first is the tardy nature of the application and secondly, the bad faith shown by the conduct of the respondents. The respondents as Kingmakers of the Omanhene Stool supported the enstoolment of the appellant in 1975 and acquiesced in the registration of his name and the publication of his enstoolment in the Local Government Bulletin in June 1975. They dissociated themselves from the petition filed by the queenmother against the enstoolment of the appellant. How can they now be heard to use the same petition they had dissociated themselves from as a justification for undoing what they had supported from the beginning after a lapse of seven years?

3.            The third and perhaps the most important setback is one of jurisdiction. Our law has set down a six-month time limit within which an application for mandamus may be brought: see Order 59 of L.N. 140A. Where an applicant is out of time provision is made for him to apply for an extension. In the instant case the matter complained about occurred in 1975 and it was not until a lapse of seven years that the respondents presented their application without applying for an extension of time. They were statutorily out of Court and their application should not have been entertained.

I am quite certain after a perusal of the facts and the reason underpinning the decision in the ex-parte Faibil case reported supra, that, it is clearly distinguishable from the circumstances of this case. For that matter, the decision of the Court of Appeal setting a six month time limit within which an application for mandamus ought to have been brought under Order 59 of L. N. 140 A should not have been made applicable to the instant case.

From the facts of the ex-parte Faibil case, it is clear the Court of Appeal was expressing its disgust and revulsion against the apparent treachery and bad faith exhibited by the respondents therein. It is clear that, whilst the respondents were bedfellows of the appellant, the Omanhene in the Ex-parte Faibil case, when it suited them, they  abandoned him and turned against him. But for their bad faith and treachery, the matter would have been dealt with much earlier and seven years would not have lapsed before the commencement of mandamus application.

Secondly, it is also certain that, the demand and refusal criteria that had long been stated by the Courts in Ghana as a criteria for grant or refusal of Mandamus was not considered at all by the Court of Appeal in the Ex-parte Faibil case, perhaps because of the peculiar nature of the facts of that case.

The facts of this case are clearly distinguishable from the facts and circumstances of the ex-parte Faibil case.

This is because, it is on record in the record of Appeal (ROA) that the Appellant made several unsuccessful demands for the performance of the duty by the respondents to restore his name to the National Register of Chiefs. Notwithstanding the many successes chalked by the appellant in the law courts the respondents would not accede to these requests.

It was not until the final letter of 6^th February 2004 by Counsel for the appellant that the stoic silence of the respondents was broken as is evident by their reply of 20^th February 2004.

What must therefore be noted is that, if one considers the indecent haste in which the respondents acted to insert the name of the interested party in the National register of Chiefs by the deletion of the appellant’s name, and the sluggish snail space and apparent refusal of the request to undo what they had done, it is clear that the scenario in this case is violently different from that existing in the ex-parte Faibil  case.

If I am to accept the Ex-parte Faibil case as binding, what time frame or period will be used to calculate the six month period if that assumption is correct?  Will it be the date from the 6^th of February 2004 or from 20^th February 2004? May be,  it could be much earlier or much later depending upon which side you are looking at.

Under the circumstances, the better approach  is not to regard the ex-parte Faibil case as being applicable and binding since it has been clearly distinguished from the instant case.

I am therefore of the opinion that, whilst all decisions of the Court of Appeal before the coming into force of the Constitution 1992, and  after 7^th January 1993 are normally binding on the Court of Appeal and are not  only  of persuasive authority, every case has to be decided and evaluated on a case by case basis to determine whether the principle of judicial precedent will apply.

This is because, as I had stated much earlier in this opinion, it is the relevant likeness of the previous decision i.e. the relevance of the principle of law decided in the previous case and the instant one that makes the principle applicable. Thus, where there are marked differences not only in the facts, but also in the principle of law decided, it is certain the principle of judicial precedent cannot apply.

To that extent, I am emboldened to state that the Ex-parte Faibil case did not lay down a general principle of law that in all cases of Mandamus, the application should be brought within a period of six month, failing which an application for extension of time must be obtained.

I WILL NEXT CONSIDER THE DEMAND AND REFUSAL CRITERIA IN MUCH DETAIL AS A PRE-REQUISITE IN CONSIDERATION FOR GRANT OF MANDAMUS                                                                                                                                  

Even though the above principle has been properly dealt with by my brother Date-Bah JSC in the lead judgment I wish to add the following for purposes of emphasis.

From the appeal record, it is clear that the letter dated 6^th February, 2004 on page 25 of the (ROA) from the lead Counsel for the Appellant herein, Mr. Adumoa-Bossman, to the Respondents herein was the letter that was eventually replied by the Respondents after so many other failed attempts.

This letter in my estimation sums up the demands of the appellant that he had repeatedly made to the Respondents.

The reply by the respondents dated 20^th February, 2004 which is on page 27 of the (ROA) is an acknowledgment.

The said letter cannot be described as a refusal of the demand of the appellant, because in it, the Respondents stated thus:

“I am directed by the Research Committee of the National House of Chiefs to acknowledge the receipt of your letter dated 6^th February, 2006 on the above subject as well as the letters mentioned therein and to inform you that the matter is receiving the consideration of the House. I am to inform you that the outcome of the deliberations on the matter will be communicated to you as soon as it is concluded.”

The Appellant, thereafter waited from 20^th February, 2004 until the 30^th day of August, 2004 when he applied for leave for the order of Mandamus. So far as I am concerned, the period during which the appellant waited unsuccessfully for either the positive or negative response from the respondents was long enough to convince him that they did not intend to give any further response.

The inability of the respondents to give any further reply to the appellant’s demand letter, coupled with the stance taken by the respondents during the pendency of the application in the High Court, reference pages 63 – 65 of the ROA are enough testimony that the respondents have refused the demand of the appellant.

The law has been fairly well settled that in order to ground a successful application for MANDAMUS, there must be a demand and a refusal. This issue was addressed by Annan J, as he then was in the case of The Republic vrs Chieftaincy Secretariat Ex-parte Adansi Traditional Council [1968] GLR 736, where an apt summary of the law and the grounds upon which a party may seek the redress for mandamus were stated by the Court. The Court stated thus:

“… an order of mandamus would lie to compel performance of the duty at the instance of a person aggrieved by the refusal to perform that duty unless another remedy was indicated by the statute. But before a Court would make such an order of Mandamus the applicant must satisfy four main conditions, namely,

a.              That there was a duty imposed by the statute upon which he relied

b.              That the duty was of a public nature

c.              That there had been a demand

d.              A refusal to perform that public duty enjoined by statute”

Clearly then, the appellant in my estimation has more than satisfied this demand and refusal criteria to maintain an application for mandamus. See also the decision of Apatu-Plange J as he then was in the case of Republic vrs Nana Akuamoah Boateng II ex-parte Dansoa and Anr [1981] GLR 333, where the Court inter alia held as follows

…”Before the Court would issue a mandamus, there must be evidence of a demand to perform the act sought to be enforced and that the demand was met with a refusal”

Thus, if this basic principle is borne in mind, and an applicants right has accrued several years ago, and he had been demanding performance of that duty and only recently had a response, time would begin to run from the date of  the response.

Even then, the type of response received will determine whether time should begin to run immediately or from a reasonable time thereafter.

If the learned justices of the Court of Appeal had critically considered this demand and refusal criteria and how it was in issue in the case before them, they would have come to a different conclusion.

In the case of The Republic vrs Lands Commission, Ex-parte Vanderpuye Orgle Estates Ltd. [1998-99] SCGLR 677, where the majority of the Court per Bamford Addo, Charles Hayfron-Benjamin, Acquah and Sophia Akuffo JJSC, Ampiah JSC dissenting, held inter alia as follows:-

“The unreasonable delay by the land commission in the way they dealt with the problem created by themselves makes it imperative to take legal action to compel them to sit up to their public duty. For a statutory duty must be performed without unreasonable delay, and that if any such delay occurs,  mandamus may be employed to enforce the performance of such duty”.

It is therefore clear that the courts recognize the existence of duty and its performance by a public body as a criteria for the grant of mandamus.

Indeed the learned authors in DeSmith, Woolf, and Jowell, treating this subject in their usual detail in their book, “Judicial Review of Administrative Action” fifth edition, page 700, paragraph 16 – 012 write on Mandamus as follows:

“Demand and refusal. It is preferable for the applicant to be able to show that he has demanded performance of the duty and that performance has been refused by the authority obliged to discharge it. An applicant, before applying for judicial review, should address a distinct and specific demand or request to the respondent that he perform the duty imposed upon him”

Cases which support the above formulation are:

1.            The State (Modern Homes (Ireland) Ltd.) vrs Dublin Corp. [1953 I. R. 202, 213-216

2.            R.V. Board of Commissioners of Public Utilities, ex-parte Halifax Transit Corp (1971) 15 D.L.R (3d) 720.

However, where the demand made for the performance of the duty has been found to be premature, mandamus will not lie. See case of R. V. Bristol & Exeter Ry (1843) 4 Q. B. 162 and R. V. New West minister (City) exparte Canadian Wirevision Ltd. (1965) 48 D.L.R (2d0 219 which established the principle that whenever the demand was not made in the prescribed form, the application will be refused as it was indeed refused in the New West Minister case

The case of R. V. Secretary of State for the Home Department, ex-parte Phansopkar [1976] QB 606 however states that the mere fact of non compliance with a duty is sufficient ground for the award of a mandamus, where the applicant has been substantially prejudiced by the respondents procrastination.

Considering the total effect of all documents in the ROA and the principles of law related to the grant  or refusal of mandamus, it does appear that there are ample grounds to hold and rule that the appellant has indeed satisfied all the requirements for the demand and refusal criteria set out supra.

The conduct of the respondents in delaying to comply with the demand of the appellant and failing to give a direct answer on the demand is tantamount to a refusal. This is exactly what the respondents conduct has amounted to. See case of City Motor Transit Co. vrs Wijesinghe [1961] N.L.R. 156

The learned Authors of Judicial Review of Administrative Action, at page 701 of the same 5^th edition, state interestingly as follows:

“In some situations, however mandamus has been granted to undo what has been done, the Courts merely treat the unlawful act as a nullity and order the competent authority to perform its duty as if it had refused to act at all in the first”

In R. V. Raddington Valuatiion officer, ex-parte Peachey Property Corp. Ltd. [1966] 1 QB 380, 402 – 403, 413 Lord Denning M. R and Dankwerts L. J held that mandamus could issue to order the preparation of a proper valuation list even if the original list was only voidable (pending the award of certiorari to quash).

From a review of the authorities and leading text book writers like De Smith, Wade, Administrative Law 6^th Edition, it is  quite clear that the scope of and application of mandamus is now very wide and quite liberal.

I am thus very well satisfied that, had the Court of Appeal done the proper evaluation using the demand and refusal criteria it would have dismissed the appeal which came before it and allowed the High Court to consider the mandamus application on the merits.

It must be noted that the basic duty of a Court is to expound the law and its application, but not to necessarily expand it. A court must therefore decide what the LAW is and not what it might be. A court, such as this Supreme Court, should not shy away from doing substantial justice even if it means abandoning old principles of law and decadent technicalities see Hanna Assi No. 2 V. GIHOC Refrigeration & Household Products Ltd. No. 2 2007 SCGLR 16

However, in the instant appeal, the issues are so simple and straight forward that it does not admit of any complexities whatsoever. In the circumstances, save as stated above, I agree with my distinguished brother Date-Bah JSC that his appeal succeeds and the order made by the learned High Court Judge for leave for Mandamus is hereby restored.

I will further direct that a time frame of say 28 days be given the parties and their Counsel to update their processes before the High Court and for them to argue the substantive application.

Is it not regrettable that a simple application like this mandamus should take more than five years to see the light of day. During this five year period, the parties have had to pursue interlocutory appeal processes from the High Court, via the Court of Appeal to the Supreme Court on two occasions.

It should be noted that, the parties and their Counsel should spare the communities from which the parties come from the agony of embarking upon another set of needless litigation.

The appeal therefore succeeds, case is remitted to the High Court for substantive application of mandamus to be heard on the merits.

                        J.V. M. DOTSE

                                                                        JUSTICE OF THE SUPREME COURT

ANIN YEBOAH, J.S.C.:-

I had the opportunity of reading beforehand the opinion of my learned brother Dr. Date-Bah, J.S.C.  I agree with him on the opinions expressed in his judgment.

            ANIN YEBOAH

JUSTICE OF THE SUPREME COURT

BAFFOE-BONNIE, J.S.C.:-

On my part I have also read the opinions of my learned brothers Dr. Date-Bah  and Jones Dotse JJSC and I a agree that the appeal should be allowed and the substantive mandamus application remitted to the High Court for hearing.  But like my learned brother Jones Dotse, I am unable to support my learned senior brother Dr. Date-Bah’s  position that the pre-1993 precedents are only of persuasive effect  and not binding.  To argue that way, will mean distinguishing between the hierarchy of courts as they existed before the coming into effect of the 1992 Constitution and the courts as they exist now.

This line of thinking will clearly run counter to the reasoning behind Article 3(1) of the Transitional Provisions of the 1992 constitution which states:

“The Supreme Court, the Court of Appeal and the High Court in existence immediately before the coming into force of this constitution shall be deemed to have been established under this constitution and should perform the functions of the Supreme Court, the Court of Appeal and the High Court specified respectively in Chapter II of this Constitution”

The literal and obvious interpretation to be put on this article is that the Constitution 1992 expects continuity in judicial administration and adjudication in the country and that there is deemed to be no break in the judicial set up between the pre- and post 1992 Constitution eras.  The jurisdiction, composition, role and functions of the Supreme Court and the Superior courts in these two eras are the same.  Flowing from this therefore it is my view that the provisions of  Article 129(3) and 136 (5) of the 1992 Constitution regarding  the binding effect of decisions of the Supreme court and Court of Appeal on all other courts are applicable to  the Decisions of these courts be they pre or post 1992  decisions.

Subject to this contrary view, I support my learned brothers and sister that the appeal should be allowed.  

            P. BAFFOE-BONNIE

JUSTICE OF THE SUPREME COURT

COUNSEL:

ADUMUA BOSSMAN FOR THE APPELLANT

SIR DENNIS AGYEI FOR THE RESPONDENT

E. K. AMOAH-SEKYI FOR THE INTERESTED PARTY