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State proceedings – Certiorari –
Error apparent on face of record
– High Court ruling that Supreme
Court decision per incuriam –
Ruling resulting in wrongful
assumption of jurisdiction –
Certiorari lies to quash ruling.
Practice and procedure -
Injunction – Interim injunction
– Burial – Injunction
restraining burial of deceased
contrary to public policy and
inexpedient.
In its ruling dated 11 July 1994
and culminating in the appeal to
the Court of Appeal sub nom
Nsiah v Ameyaw II [1994-95]
GBR 588 the High Court, Kumasi
held that under the 1992
Constitution it had jurisdiction
in matters affecting chieftaincy
and that the decision of the
Supreme Court in Rep v High
Court, Denu ex parte Avadali IV
[1993-94] 1 GLR 561 to the
contrary was per incuriam. The
court then granted the
application by the plaintiff who
claimed to be the chief of
Effiduase for an order of
interim injunction to restrain
the defendant, the head of
family of the deceased
Benkumhene of Effiduase from
burying or performing the
funeral without informing the
plaintiff. On the defendant’s
application to the Supreme Court
for certiorari to quash the
ruling,
Held: (1) The High Court judge
was bound by the judgment of the
Supreme Court, Rep v High
Court, Denu ex parte Avadali IV.
In declaring the decision as per
incuriam the court committed an
error which was apparent on the
face of the record. The court
did not have jurisdiction over
the matter and the order would
be quashed.
(2) On grounds of public policy,
it was inexpedient to leave the
body of the late Benkunhene
unburied. Accordingly the court
would revoke the injunction and
order that the body be released
s to the family of the said
deceased for burial forthwith.
The mortuary fees should be paid
by the party in whose favour the
injunction order was made.
Case referred to:
Rep v High Court, Denu ex parte
Avadali IV
[199-94] 1 GLR 561, sub nom
Avadali v Avadali [1992-93]
GLR 733, SC.
APPLICATION to the Supreme Court
for certiorari to quash the
ruling of the High Court.
BY COURT:
This application for certiorari
emanates from the High Court,
Kumasi. In its ruling, the High
Court held among other things
that “section 57 of the Courts
Act 1993 (Act 459) cannot
prohibit the High Court from
hearing causes and matters
affecting chieftaincy for there
is no provision in the 1992
Constitution which excludes that
jurisdiction from the High
Court.”
The High Court judge was bound
by the judgment of this court in
Rep v High Court, Denu ex
parte Avadali IV [1993-94] 1
GLR 561 which the High Court
judge held was given per
incuriam. In so doing, he was
wrong and the error appears on
the face of the record. On this
basis we quash the order of the
High Court Kumasi, made on 11
July 1994.
We are also of the view that on
grounds of public policy, it is
inexpedient to leave the body
unburied. We therefore order
that the body of the late
Benkunhene be released by the
mortuary authorities to the
family of the said deceased for
burial forthwith.
We further order that the
mortuary fees should be paid by
the party in whose favour the
injunction order was made on the
production of the mortuary
receipt. The injunction is
therefore revoked and
discharged.
The applicant is awarded costs
assessed at ¢300,000.
(Sgd) ARCHER CJ
(Sgd) ABBAN JSC
(Sgd) AMUA SEKYI JSC
(Sgd) BAMFORD-ADDO JSC
(Sgd) HAYFRON-BENJAMIN JSC
(Sgd) AMPIAH JSC
(Sgd) KPEGAH JSC
Application for certiorari
granted.
S Kwami Tetteh, Legal
practitioner |
