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State proceedings – Certiorari – Error of law apparent on face of record – Meaning of “record” – Whether affidavits with exhibits admissible as part of record.

State proceedings – Mandamus – Nature of, – Whether mandamus lies to compel tribunal to decide matter pending before it in a particular manner.

State proceedings – Prohibition – Principles for grant – Conduct of applicant – Applicants’ counsel applying for directions that oral evidence be dispensed with at the hearing of matter in the court below – Whether application for prohibition to stop further hearing of matter proper.

State proceedings – Supervisory jurisdiction – Nature of, – Supervisory jurisdiction not appellate jurisdiction – Extent of supervisory jurisdiction over High Court – Error of law committed by High Court must go to jurisdiction or result in nullity – Exercise of supervisory jurisdiction over High Court to be with caution – Constitution 1992, article 140(1).

The respondent companies were convicted of certain criminal offences by the National Public Tribunal and pending reparation the tribunal restrained the disposal of their assets without reference to the tribunal. Eventually the tribunal accepted the offer of reparation but ordered the confiscation of both companies. The respondents appealed successfully to the appeals and review division of the National Public Tribunal which ordered reinstatement of those companies. Meanwhile the applicants had taken possession of the assets of the companies pursuant to an alleged sale to them by the Official Liquidator during the pendency of the appeal. Following the sale the respondents obtained a High Court order to take over the companies. Aggrieved with the order of the High Court the applicants invoked the supervisory jurisdiction of the Supreme Court for certiorari to quash the order on the ground of error of law apparent on the face of the record, also for mandamus directing the court to dismiss the suit before it and a further order to prohibit the court from proceeding further in the action. In the course of the application the parties filed various supplementary affidavits and exhibits.

Held: (1) The practice of inundating the court with affidavits and exhibits in an application must be strongly deprecated. Counsel who practiced in the Supreme Court must be conversant with its rulesand must abide by them. It did not speak well for counsel indirectly to abet a client into pretending to supply matter to the court which properly should have either been included in affidavits or statements of case. The “record” in support of the ground of error apparent on the face of the record must be confined to the document initiating the proceeding in issue, the pleadings, if any, and the adjudication but not the evidence or the reasons unless the tribunal chose to incorporate them. Consequently all such affidavits, letters and evidence in the proceedings in the High Court leading to the application or offered before any other tribunal would not be countenanced. R v Northumberland Compensation Appeals Tribunal, ex parte Shaw [1952] 1 KB 338, Asor II v Amegboe [1978] GLR 153, CA referred to.

(2) Mandamus was not available to compel a judicial or an adjudicating body to determine a cause or matter pending before it in a particular way. The application for mandamus to compel the High Court to dismiss the said suit would accordingly be dismissed. R v Kingston JJ 18 TLR 477 referred to.

(3) Prohibition primarily lay to restrain an inferior court from exceeding its jurisdiction but it was counsel for the applicants who implored the High Court to do away with oral evidence. It therefore lay ill in the mouth of the applicants to seek an order to restrain the court from concluding the proceedings. Timitimi v Amabebe (1953) 14 WACA 374 referred to.

(4) The High Court was the lowest court in the hierarchy of superior courts but was a superior court with jurisdiction in all matters as under article 140(1) of the 1992 Constitution. Accordingly nothing was out of its jurisdiction but that which specially appeared to be so. If an error of law appeared on the face of the record of a superior court that warranted invocation of the supervisory jurisdiction of the Supreme Court, it must be such error as the wrongful assumption of jurisdiction or such error as would render the decision a nullity. Timitimi v Amabebe (1953) 14 WACA 374, Anisminic v Foreign Compensation Commission [1969] 2 AC 147, HL referred to.

(5) It was difficult to determine the application without straying into an appeal as the court was not entitled in such application to go into the merits. In any case the High Court had jurisdiction over the matters before it and application before the Supreme Court would be declined. R v Northumberland Compensation Appeals Tribunal, ex parte Shaw [1952] 1 KB 338, Timitimi v Amabebe (1953) 14 WACA 374 referred to.

(6) The Supreme Court had noted the practice, which was gaining currency, whereby the litigant by-passed the Court of Appeal and invoked the supervisory jurisdiction of the Supreme Court for speedier justice. Such applications against superior courts must be dealt with great caution. Republic v Accra Circuit Court, ex parte Appiah [1982-83] GLR 129, CA referred to.

Cases referred to:

Amegbe v Tepa [1960] GLR 7, CA.

Anisminic v Foreign Compensation Commission [1969] 2 AC 147, [1969] 1 All ER 208, [1969] 2 WLR 163, 113 Sol Jo 55, HL reversing [1968] 2 QB 862, [1967] 3 WLR 382, [1967] 3 All ER 986, 111 Sol Jo 374, CA.

Asor II v Amegboe [1978] GLR 153, CA.

Baldwin and Francis Ltd v Patents Appeal Tribunal [1959] AC 663, [1959] 2 WLR 826, [1959] 2 All ER 433, 103 Sol Jo 451, [1959] RPC 221, HL.

Joseph v Jebeile Brothers (1969) CC 98, CA.

R v Kingston JJ, ex parte Davey (1902) 86 LT 589, 66 JP 547, 18 TLR 477, 46 Sol Jo 394, DC.

R v Northumberland Compensation Appeals Tribunal, ex parte Shaw [1952] 1 KB 338, [1952] 1 All ER 122, [1952] 1 TLR 161, 116 JP 54, 96 Sol Jo 29, 50 LGR 193, CA, affirming [1951] 1 KB 711, [1951] 1 All ER 268, [1951] 1 TLR 270, 115 JP 79, 95 Sol Jo 76.

R v Paddignton North and St Marylebone Rent Tribunal, ex parte Perry [1956] 1 QB 229, [1955] All ER 391, [1955] 3 WLR 744, 119 JP 565, 99 Sol Jo 816, 53 LGR 679, DC.

Republic v Accra Circuit Court, ex parte Appiah [1982-83] GLR 129, CA.

Timitimi v Amabebe (1953) 14 WACA.

APPLICATION invoking the supervisory jurisdiction of the Supreme Court over the judgment of the High Court.

HAYFRON-BENJAMIN JSC. The preceding matters leading to the present application originated from the National Public Tribunal before which the respondents were tried of certain criminal offences under the Public Tribunals Law 1984 (PNDCL 78). The respondents, it appears were convicted by that tribunal, but the issue of sentence was not concluded there and then. This situation arose because the respondents decided to take advantage of section 1(1) and (2) of the Public Tribunals (Amendment) Law 1989 (PNDCL 213) by offering restitution or reparations to the State for the losses, if any, which had been occasioned by their offences. The matter of restitution and reparations was finally settled on 8 October 1990. The respondents’, (except the 1st respondent’s) plea bargain was accepted by the tribunal and orders were made confiscating the properties which formed the basis of the case before Brobbey JA sitting as an additional judge of the High Court to the state. The respondents promptly appealed to the appeals and review division of the National Public Tribunal which on or about 16 October 1992 reversed the judgment of the National Public Tribunal and decreed that the assets of the respondents be returned to them.

It is worthy of note that the National Public Tribunal in the orders which it made in the course of the plea bargain, and this is conceded by the applicants, made the following additional orders in its judgment:

“(1) That before full restitution is made by the 1st accused no property of the 2nd and 3rd accused companies, ie, Priorities Ghana Limited and Holex Timber Products Limited shall be disposed of by any person without the consent of the trial tribunal, and;

(2) That the trial tribunal shall make such further orders as it deems fit.” (Emphasis mine.)

It does not appear that any such consent was obtained but the applicants contend that further to an advertisement in the Peoples Daily Graphic of 20 May 1991, they bought the properties in dispute from the Official Liquidator and they were therefore the owners of the properties.

It is agreed that at the time of the alleged purchase by the applicants the respondents’ appeal was pending. It is not the province of this application to delve into the ramifications of the various orders of the National Public Tribunal culminating in their judgment but it is true to say that by a majority decision, and that is the judgment of the appellate and review division of the National Public Tribunal, the decisions of the National Public Tribunal were set aside and the properties restored to the respondents.

The respondents then sued the applicants in the High Court, generally for the recovery of their properties which the applicants contended they had purchased. The applicants having lost in the High Court have chosen the path of seeking relief by the exercise of our supervisory jurisdiction in their favour. Hence this application is presented. It must be noted that even though the suits before Brobbey JA were consolidated the other plaintiff, the Social Security Bank is not interested in this application.

At first blush this application appears to present complex issues. The state of affairs has been largely contributed by the parties. For since the present application was filed on 20 June 1994, the parties, contrary to the rules, have inundated this court with affidavits and letters, the latest of these dated 30 May 1995. This practice must be strongly deprecated. Counsel who practice in this court must be conversant with our rules and they must abide by them; nor does it speak well for counsel indirectly to abet their clients into pretending to supply matter to the court which properly should have either been included in their affidavits or statement of case. However I am satisfied that there has been sufficient compliance with the rules and the practice requirements to merit consideration being given to the present application.

There is on the part of the applicants a certain confusion over the meaning of what constitutes the “record” in the ground that “there is an error appearing on the face of the “record”. In Asor II v Amegboe [1978] GLR 153 at page 163 the full bench of the Court of Appeal held that:

“The record is that which the inferior court or tribunal physically keeps as a formal record of its proceedings, and where it is alleged that there was an error of law in the proceedings the superior courts will not intervene unless the error is no the face of the record”: see Baldwin and Francis Ltd v Patents Appeal Tribunal [1959] AC 663 HL.”

As was stated in the English case of R v Northumberland Compensation Appeals Tribunal, ex parte Shaw [1952] 1 KB 338 at page 352 the record:

“… must contain at least the document which initiates the proceedings; the pleadings, if any, and the adjudication; but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them, if the tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the decision”.

In the instant application therefore the supporting documents to the application must be limited to those stated in ex-parte Shaw, supra, as necessary to enable the court to come to a decision on the

issues raised. Consequently all other matters such as affidavits, letters and evidence either in the proceedings in the High Court leading to this application or which were offered before any other tribunal cannot be countenanced and will be rejected.

The applicants herein pray this court in the exercise of its supervisory jurisdiction to grant them:

“… orders of (1) certiorari to bring up for the purpose of being quashed and quashing the judgment of the High Court, Accra, dated the 3 June 1994, written reasons in support whereof were read by His Lordship SA Brobbey JA sitting as an additional High Court judge on 17 June 1994.”

The applicants also pray for orders of mandamus “directing or compelling that court to dismiss the said suit,” and “prohibiting that court from proceeding further in that action or otherwise taking steps to enforce or implement the said judgment or any order made therein.” By their statement accompanying their application, the applicants state only two grounds upon which they are relying for the grant of the reliefs which they seek from this court. These grounds are tersely stated as:

(2) The High Court lacked jurisdiction to entertain the said suit by reason of the provisions of PNDCL 325 and the Transitional Provisions of the constitution.”

“although on the 16 October 1992 the National Public Tribunal (appellate and review division) had quashed as null and void the order of confiscation and sale of Priorities Limited and Holex Timber Products Ltd, made by the National Public Tribunal and ordered those companies to be restored to their respective owners, the applicants had refused, when called upon to do so, to surrender assets of the companies which had been sold to them.

(i) The High Court judgment was wrong in law so far as it purported to enforce or sanction a judgment which the appellate and review division had no jurisdiction to give.

(ii) Either the decision of the High Court ordering the assets of Priorities and Holex sold to Eastwood Ltd was on the face of the record wrong in law or it was void as based on a judgment which was itself a nullity as having been given by the appellate tribunal which had no jurisdiction to give it.

(iii) The failure by the High Court to appreciate the legal point with regard to the judgment of the appellate and review division of the National Public Tribunal constituted an error of law on the face of the record.

Counsel for the applicants concluded that if the learned judge, Brobbey JA, had appreciated the quality of the judgment of the appeal and review division of the National Public Tribunal he would not have come to the conclusion that has provoked this application for the exercise of our supervisory jurisdiction in their favour.

It must be noted in parenthesis that no serious arguments were advanced on behalf of the applicants in respect of their prayers for the orders for mandamus and prohibition. In any case the applicants were not entitled to those two reliefs.

Mandamus may issue to a judicial tribunal to set it in motion. But mandamus is not available to compel a judicial or an adjudicating body to determine a cause of matter pending before such a body in particular way. See R v Kingston JJ 18 TLR 477 at page 478. In the instant application this court is invited to issue an order of mandamus to compel the High Court “to dismiss the said suit.” This prayer cannot be acceded to and it is accordingly dismissed.

Prohibition primarily lies to restrain an inferior court from exceeding its jurisdiction. In the matter which came before Brobbey JA it was counsel for the applicants – then defendants – who having submitted to the jurisdiction implored the court to do away with the necessity for offering oral evidence. Counsel on all sides having agreed on this course for determining the case, it lies ill in the mouth of the applicants now to proclaim that the court should now be restrained from concluding the proceedings begun before it.

I must at this stage emphasise that we are concerned with a judgment of a superior court – the High Court. In Timitimi v Amabebe (1953) 14 WACA 374 at page 376 Coussey JA summed up the difference between the jurisdiction of a Superior Court and an inferior court as follows:

“In the first place want of jurisdiction is not to be presumed as to a court of superior jurisdiction; nothing is out of its jurisdiction but that which specially appears to be so. On the other hand an inferior court…is not presumed to have any jurisdiction but that which is expressly provided.”

I will in the circumstances also dismiss the prayer for the issuance of an order of prohibition. I will however deal at length in the course of this opinion with the scope and limits of the supervisory jurisdiction conferred on this court by the last two constitutions of our country.

Having thus disposed of these two prayers, it is obvious that the gravamen of the applicants’ presentation is that there is or are errors of law appearing on the face of the judgment of Brobbey JA the reasons for which were delivered on 17 June 1994. In applicants view this court should accede to their prayer and order a certiorari to have that judgment brought up to this court and be quashed.

Now as I have indicated it is only since 1979 that by constitutional authority the supervisory jurisdiction had been conferred on this court. In the 1992 Constitution that jurisdiction is conferred on this court by article 132, which states:

“The Supreme Court shall have supervisory jurisdiction over all Courts and over any adjudicating authority and may in the exercise of that supervisory jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory powers.” (Emphasis mine.)

What those supervisory jurisdictions include are clearly stated in article 161 of the 1992 Constitution. It is however necessary to compare the scope of this jurisdiction with the similar jurisdiction conferred on the High Court by the constitution. In article 141 of the 1992 Constitution the supervisory jurisdiction of the High Court shall be exercised over “all lower courts.” The difference in the areas for the exercise of the respective jurisdiction is clear and need no amplification.

The issue in this application therefore is whether in their instant application the High Court is such a “lower court” that an application to quash errors of law appearing on the face of its record can be maintained. True, the High Court is the lowest court in the hierarchy of superior courts. But the High Court is itself a superior court. Its jurisdiction has been conferred upon it by article 140(1) of the constitution and in recent times several attacks have been launched in this court in attempts to extend its jurisdiction into areas of law in which the constitution and statute expressly exclude the jurisdiction of the High Court. But the dictum of Coussey JA in Timitimi v Amabebe, supra, still stand correct: “Nothing (indeed) is out of its jurisdiction but that which specially appears to be so.” The jurisdiction of the High Court can therefore only be taken away by specific legislation. If therefore there is an error of law appearing on the face of the record of a superior court which warrants intervention by this court by the exercise of our supervisory jurisdiction, it must be such an error as goes to the wrong assumption of jurisdiction or the error is so obvious as to make the decision a nullity.

Most of the English cases upon which such great reliance has been placed within our municipality have emanated from the excess or want of jurisdiction or errors of law appearing on the face of the records of inferior courts and tribunals. But the underlying principle to the exercise of the supervisory jurisdiction are in my view applicable to this new jurisdiction conferred on the Supreme Court “over all courts.” The duty of this court then is to exercise such control over all other courts and to keep them within the bounds of their jurisdiction. The nature of such control was stated by Morris LJ in the English case of Anisminic v Foreign Compensation Commission [1969] 2 AC 147 HL as:

“The control which is exercised by the [High Court] over inferior tribunals (a categorising but not a derogatory description) is of a supervisory but not of an appellate nature. It enables the [High Court] to correct errors of law if they are revealed on the face of the record…

In all cases similar to the present one it becomes necessary therefore, to ascertain what was the question submitted for the determination of a tribunal. What were its terms of reference? What was its remit? What were the questions left to it or sent to it for its decision? What were the limits of its duties and powers? Were they any conditions precedent which had to be satisfied before its functions began?”

In the present application three matters of law are raised. They are (1) that the learned judge based his judgment on the judgment of the appellate and review division of the National Public Tribunal which was a nullity; (2) that in view of the provisions of PNDCL 325 the learned judge had no jurisdiction to embark upon the enquiry and that (3) in any case the 1st respondent had no locus standi to maintain the suit as plaintiff in the suit now under attack.

It is difficult to deal with these matters in an application such as this without straying into the field of appeals. However a critical examination of the judgment, which forms the basis of the application, provides positive answers to the questions raised in the Anisminic case, supra. The final question whether there was any condition precedent, which had to be satisfied before the court could embark upon enquiry must be clearly answered in the negative. It has not been demonstrated that there is any law, which clearly excludes or ousts the jurisdiction of the High Court in that matter.

As to whether the judgments and orders of the appellate and review division of the National Public Tribunal were valid, I am of the view that in so far as these judgments and orders were given by a tribunal which then had been competently established under PNDCL 78, neither the reasoning nor the method which their conclusions were rushed could be “questioned” in any court. See section 24 PNDCL 78. It stands to reason that the appellate and review division of the National Public Tribunal being the heist in the hierarchy of the Public Tribunals its decision was final. In this application it is rather the applicants who are questioning the validity of that judgment.

The issue as to the meaning and effect of PNDCL 325 was a matter of interpretation and the High Court was the pre-eminent forum in which the matter could be resolved. It is in respect of this application neither here nor there that the court interpreted the Law in a manner, which was unfavourable to the applicants.

The locus of a party to litigation is a preliminary issue and must be determined before the case or application is heard on its merits. It is to be determined more by the adduction of oral or documentary evidence than by reference to statute. For a party who ordinarily may not possess the requisite standing to litigate may be invested with the necessary authority so to do. Even if such evidence were available for this court to determine whether in the circumstances the learned judge properly decided the locus standi of some of the parties that would be tantamount to determining the matter as on appeal.

I have said that the applicants chose the path of praying this court for the exercise of its supervisory jurisdiction. There was indeed another path, which haply might have proved beneficial. In this regard I must note the practice, which is recently gaining currency, of bypassing the Court of Appeal and approaching this court in an attempt at obtaining speeder justice. That may well be so. There are English authorities, which counsel that in certain cases such a course of procedure may be quick and beneficial. It must however be borne in mind that in England such writs go principally to inferior courts and administrative tribunals. This court must therefore necessarily deal with the superior courts with great caution in the exercise of our supervisory jurisdiction. Francois JA’s observations in Republic v Accra Circuit Court, ex parte Appiah [1982-83] GLR 129 at page 143 will be useful guides in the approach to the exercise of this jurisdiction. Said His Lordship:

“A court of competent jurisdiction may decide questions before it rightly or wrongly. Procedures for correcting wrong decisions exist. The procedure of appeal is one such avenue for redress. But the remedies of appeal and certiorari are different and must not be blurred. That certiorari and appeals are not alternative remedies but rather are mutually exclusive is restated in Obeng v Ampofo, Court of Appeal, Cyclostyled Judgment, January-June 1958, 143, Again in Amegbe v Tepa [1960] GLR 7, CA, the Court of Appeal deplored the indiscriminate use of prerogative writs. The exhortation was that they should be used carefully and not abused. In Joseph v Jebeile Brothers, Court of Appeal, 5 May 1969, unreported; digested in (1969) CC 98, a decision that has been relied upon in this appeal, the unanimous conclusion, despite the differences in opinion restated the rule that “in certiorari proceedings the court acts as a supervisory court and not as an appellate court. Certiorari cannot be made a cloak for an appeal.” Azu Crabbe, JA, as he then was, went on to say that the supervisory powers of the court could only be exercised where an error of law was disclosed on the face of the record; unlike an appellate court, the court does not interfere merely because the decision is wrong in law. The error must be manifest on the face of the record. Authority for that proposition was cited in the case of R v Paddignton North and St Marylebone Rent Tribunal, ex parte Perry [1956] 1 QB 229, DC. (Emphasis mine.)

In the instant application either the applicants or their legal advisers considered that this application would entitle us to go into the merits. The applicants could not be right. As Morris LJ said in ex parte Shaw supra, at page 357:

“It is plain that certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issue raised in the proceedings. It exists to correct error of law where revealed on the face of an order or decision, or irregularity, or absence of, or excess of, jurisdiction where shown. The control is exercised by removing an order or decision, and then by quashing it.”