|
R U L I N G
ANSAH, J.S.C. :
The applicants herein applied to
this court, pursuant to article
132 of the 1992 Constitution,
for an order of
certiorari
directed at the High Court,
Koforidua presided over by
Anyimiah J, to quash a ruling by
the said court dated 12 June
2008 in Suit No E149/2008
intituled
Koans Building Solutions Ltd
v
William Ansah-Otu & Another.
The ground for the application
was that: “There was an error of
law apparent on the face of the
record.”
According to the supporting
affidavit, the first applicant
deposed that he had negotiated
with the plaintiff-company,
Koans Solutions Ltd (hereinafter
called the interested party),
through its managing director on
behalf of the other applicant,
for the hire or purchase of a
farmland at Okotokrom-Asuboi.
The interested party paid ¢60
million old cedis (Gh¢6,000.00)
and a second payment of Gh¢700
(seven million old cedis) for
the preparation of a site plan.
The interested party was put in
possession of the land and
started cultivating corn on part
of it. Before then, the
applicants had cultivated some
economic crops like palm trees,
cassava and plantain on part of
the land. It was agreed that if
by 31 December 2005, the
interested party failed to
complete the applicants'
uncompleted family house
situated at another place at
Aburi, the applicants reserved
unto themselves the right to
terminate the agreement. When
the interested party failed to
complete the building within the
period agreed upon, the
applicants abrogated the
agreement. By then, the
interested party had harvested
the cash crops cultivated on the
land and had nothing left
there. However, the first
applicant offered to reimburse
him of the sum of Gh¢1,000.
Later the interested party sued
the applicants for specific
performance of the contract and
prayed for an order of
interlocutory injunction. On 12
June 2008, the High Court (per
Anyimiah J) gave its ruling,
granting the application
exhibited as exhibit WKA 119.
It was the case of the
applicants that there was an
error of law apparent on the
face of WKA 119 for it was not
warranted by the rules of court.
The ground of the application in
a nutshell was that the rule of
court which governed the order
of interlocutory injunction gave
the court the discretion not
only to grant the order sought
but also to attach conditions to
it. Where the application was
opposed, then the rule had the
effect of fettering the
discretion of the court as
provided in rule 1(1) of Order
25 of the High Court (Civil
Procedure) Rules, 2004 (CI 47),
by imposing a precondition for
the exercise rule 9(1) and (2)
of the same Order 25 of CI 47.
For the sake of clarity, I would
set out
in extenso
the said Order 25, rr 1(1) and
9(1) and (2) which respectively
state as follows:
“1(1) The Court may grant an
injunction by an interlocutory
order in all cases in which it
appears to the Court to be just
or convenient to do so, and the
order may be made either
unconditionally or upon such
terms as the Court considers
just.”
9(1) Where an
application is made under rules
1 and 2 of this Order the Court
shall, if the application is
opposed, require, before making
an order, that the applicant
shall give an undertaking to the
person opposing the application
to pay any damages that person
may suffer as a result of the
grant of the application if it
turns out in the end that the
applicant was not entitled to
the order.
(2) The giving of an undertaking
required under sub-rule (1)
shall be a precondition to the
making of any order under rules
1 and 2 of this Order.”
The applicants have submitted
before us that they opposed the
application in the court below
(as per their exhibit WKA 117.
Consequently, by the mandatory
terms of Order 25, r 9(1) and
(2) (supra) the
court, before making the grant,
should have ordered the
interested party to give an
undertaking to the applicants to
pay damages if it turned out
that the interested party was
not entitled to the granting of
the order sought. The failure by
the court to comply with the
mandatory terms in Order 25, r
9(1) and (2) constituted an
error apparent on the face of
the record, entitling the
applicants to have the offending
ruling to be brought up to this
court for same to be quashed.
Counsel for the interested party
treated this court to an
excursus to rules 1(1) and 9(1)
and (2) of Order 25 referred to
above. Counsel’s submission was
that Order 25, r 1(1) did not
contain any fetters to the power
of the courts to grant an
injunction; it was only Order
25, r 9(1) and (2) which did by
introducing the word ‘shall’ in
its wording. Counsel prayed this
courts to give a liberal and
purposive meaning to the word
"shall" to mean "may" and
thereby remove the fetters on
the rule and hence the
contradiction in the two clauses
of the same rule. In the view of
counsel, when that was done, the
conflict in the rule would be
removed and they will become
congruous in meaning to each
other.
I think there ought to be
symmetry in the meaning of the
two rules, namely, rules 1(1)
and 9(1) and (2) of Order 25 on
the same subject of injunction.
I believe the submissions by
counsel for the interested party
is deserving of consideration. I
would endorse his call to adopt
a broad and liberal purposive
approach in interpreting the
rules in the manner advocated
by him. Either "shall" in rule
9(1) and (2) is amended and
substituted for by "may" by the
law makers, or the courts
interpret and apply the rule as
such. I must make myself clear
I am saying all this out of
deference to counsel’s
submission which may not be
decisive of the application
before us.
The High Court (Civil Procedure)
Rules, 2004 (C I 47) must be
studied for the effect of
non-compliance with the rules of
court. It is provided by rules
1(2) and (2) of Order 81 of CI
47 that:
“1(1) Where, in beginning or
purporting to begin any
proceedings or at any stage in
the course of or in connection
with any proceedings, there has,
by reason of anything done or
left undone, been a failure to
comply with the requirements of
these Rules, whether in respect
of time, place, manner, form or
content or in any other respect,
the failure shall ... be treated
as an irregularity and shall not
nullify the proceedings, any
step taken in the proceedings ,
or any document, judgment or
order in it.
(2) The Court may, on the
grounds that there has been such
a failure as stated in sub-rule
(1), and on such terms as to
costs or otherwise as it
considers just
(a)
set aside either wholly or in
part the proceedings in which
the failure occurred, and any
step taken in those proceedings
or any document judgment or
order therein; or
(b)
exercise its powers under these
Rules to allow such amendments
to be made and to make such
order dealing with the
proceedings generally as it
considers just.”
And as further stated by rule
2(2) of Order 81 of CI 47, the
party affected by the
non-compliance with the rules of
court, may apply to the trial
court to set aside the
proceedings for irregularity,
provided an application was
made timeously and without
taking any fresh step in the
matter after knowledge of the
irregularity. Indeed, the
provisions in Order 81 of the
High Court (Civil Procedure)
Rules, 2004 (CI 47), are not new
in our rules of court procedure
for they had existed as Order 70
under the High Court (Civil
Procedure) Rules, 1954 (LN
140A). Both rules provide in
clear terms that non-compliance
with the rules do not render the
proceedings null and void but is
a mere irregularity, a voidable
but not a void act which may be
set aside on terms.
The applicants have submitted
that the error in question went
to as far as destroying the
jurisdiction the court
originally had in the matter and
as same was apparent on the face
of the record, made it amenable
to be quashed by an order of
certiorari.
This calls for a statement of
the law on the scope of the
order of
certiorari
which this court is empowered by
law to issue under article 132
of the 1992 Constitution. In
connection herewith, I can do no
better than to quote what Dr
Date-Bah JSC masterfully stated
in his didactic judgment in
Republic
v
High Court, Accra; Ex parte
Commission on Human Rights and
Administrative Justice (Addo
Interested Party)
[2003-2004) 1 SCGLR 312. After
an exhaustive review of
authorities local and abroad on
the subject, his Lordship said
(at pages 345-346 of the Report)
that:
“The restatement of the law may
be summarised as follows: where
the High Court (or for that
matter the Court of Appeal)
makes a non-jurisdictional error
of law which is not patent on
the face of the record…, the
venue for redress open to an
aggrieved party is an appeal,
not judicial review. In this
regard, the error of law made by
the High Court or the Court of
Appeal is not to be regarded as
taking the judge outside the
court’s jurisdiction, unless the
court has acted ultra vires the
Constitution or an express
statutory restriction validly
imposed on it.”
It was also held in
Okofo Estates Ltd
v
Modern Signs Ltd
[1996-97] SCGLR 224 (as stated
in holding (4) of the headnote)
that:
"(4) Even though the trial High
Court judge had jurisdiction to
hear the application
__ being an application
under Order 25, r 4
__ he had committed an
error of law apparent on the
face of the record by taking
into account extrinsic evidence.
He fell beyond the bounds of his
jurisdiction and the ruling
would therefore be set aside.
Dicta of Lord Reid in
Anisminic
v
Foreign Compensation Commission
[1969] 2 AC 147 at 171 and of
Charles Hayfron-Benjamin JSC in
Republic
v
High Court, Accra; Ex parte
Eastwood,
Supreme Court, 20 June 1995
cited.”
In his opinion in
Okofo Estates
(supra), Aikins JSC said (as
stated in the headnote at page
226) that:
"certiorari would lie to quash
the decision of a court on the
ground of error of law on the
face of the record if such error
went to jurisdiction, or was so
obvious as to make the decision
a nullity."
In the case of
Republic
v
High Court; Ex parte Eastwood
[1995-96] 1 GLR 689 at 698, SC
Hayfron-Benjamin JSC said that:
“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.”
As earlier stated, the error
complained of in the instant
case, was not as to the wrong
assumption of jurisdiction, it
being a case of the granting of
an order of injunction
manifestly within the
jurisdiction of the court; the
error complained of was
non-compliance with the
mandatory rules of court in not
ensuring that the party who
succeeded in obtaining the order
in his favour in the teeth of
opposition by the losing side,
was made to give an undertaking
to pay damages in the event of
losing the suit. I would
maintain that the trial judge
erred in not complying with the
mandatory terms of rule 9(1) and
(2) of Order 25 of CI 47, which
error of law was also apparent
on the face of the record.
Beyond that, the error did not
go to the jurisdiction of the
court in the sense that it did
not emanate from a wrongful
assumption of jurisdiction or in
violation of a constitutional
provision; nor was it a nullity
by any standard. It was a mere
irregularity curable under Order
81 of the new High Court (Civil
Procedure) Rules, 1997 (CI 47):
see
Republic
v
Akyem Abuakwa Traditional
Council; Ex parte Sakyiraa II
[1977]2 GLR 115 and the cases
cited therein.
An order of
certiorari
being a discretionary remedy,
the conduct of the applicant
would also be considered in
deciding to grant or refuse the
application. Where an applicant
takes fresh steps after
knowledge of the irregularity,
he minimizes his chances of
succeeding on his application.
Indeed (as earlier stated),
Order 81, r 2(2) provides that:
"No application to set aside any
proceedings for irregularity
shall be allowed unless it is
made within reasonable time and
the party applying has not taken
any further steps after
knowledge of the irregularity."
In the instant case, the
applicants had applied to the
trial High Court for a review of
the injunction order sought to
be quashed. Thus, in paragraphs
(32) and (33) of the affidavit
in support of the instant
application, the first applicant
stated as follows:
"(32) That upon our application
for a review and appointment of
receiver and manager, the High
Court made [an order]...
(33) That I verily believe that
the review order is inequitable
and unfair as it allows the
interested party to join us to
harvest crops on our land whose
cultivation we undertook without
its involvement or
contribution."
By taking recourse to that fresh
step, the applicants imperilled
their instant chances of success
in the instant application: see
Republic
v
Akyem Abuakwa Traditional
Council
(supra).
For these reasons, the
application is dismissed.
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH, J.S.C.:
I had the opportunity of reading
beforehand the opinion of my
learned brother Ansah JSC. I
agree with him that the
application ought to be
dismissed. As we have been
called upon to interpret the
provisions of the new High Court
(Civil Procedure) Rules, 2004
(CI 47), I have decided to
briefly state my own opinion in
support of the dismissal of the
application.
The jurisdiction to grant the
interlocutory injunction is
exercisable by both the Superior
Court of Judicature and the
Lower Courts in Ghana. Both the
1992 Constitution and the Courts
Act, 1993 (Act 459), have
conferred jurisdiction on the
courts to grant this equitable
relief. It is relief which the
common law courts have always
granted, in the exercise of
their discretion, when the
circumstances appear to be just
and convenient. It is, however,
granted to protect rights and in
some cases prevent any injury or
damage in accordance with laid
down legal principles which have
developed as a result of case
law over the years.
In my opinion, the rules of
court merely regulate the
procedure for applying for
judicial reliefs. It does not
confer the jurisdiction on the
courts to grant injunctions. In
my view, Order 25, r 9(1) and
(2) of the High Court (Civil
Procedure) Rules, 2004 (CI 47),
which learned counsel for the
applicants has forcefully
pressed on this court, is not
meant to impose any serious
fetters on the discretion of the
court in granting an
interlocutory injunction, it
being a discretionary relief. I
think the circumstances of the
case must be looked at in
considering the grant or refusal
of the application for
interlocutory injunction.
Even though rule 9(1) and (2) of
Order 25 requires of an
applicant to give an
undertaking, it is procedural
and should not be interpreted to
limit the jurisdiction imposed
on the courts by the 1992
Constitution and the Courts Act,
1993 (Act 459). Undertakings
are made upon the grant of
interlocutory injunctions in
some cases to balance the scales
evenly to avoid any loss to the
respondent to the application
should the applicant in the end
fail to make a case. In
Halsbury's Laws of England
(4th ed), Vol 25 at page 454,
para 865 the learned authors
state the position as follows:
"Undertakings. The court
will take care that the order
for an injunction is so framed
that neither party will be
deprived of the benefit he is
entitled to, if in the event it
turns out that the party in
whose favour it was made is in
the wrong. For this purpose it
will, if necessary,
impose terms upon the plaintiff
as a condition of granting the
injunction. He may also be
required to undertake to
prosecute the action with due
diligence or, if the action has
reference to the payment of
money, to pay the amount in
dispute into court." (The
emphasis is mine).
It is therefore not the case
that in all interlocutory
injunction applications before
the courts, where rule 9(1) and
(2) of Order 25 is applicable,
the refusal or failure of the
court to make an order for
undertaking should nullify the
grant of interlocutory
injunction. In my opinion, if
the courts should consider
themselves bound by strict
adherence to interpret the word
"shall" in rule 9(1) and (2) of
Order 25 to be so mandatory so
as to nullify the grant of
interlocutory injunctions in the
absence of any undertaking, the
courts would be placing serious
utters on their jurisdiction to
grant this important and helpful
relief. It was through the
development of case law in this
area of the law that led to new
relief like
Mireva injunction
which has come to stay as a
useful relief in other
jurisdictions. The
discretionary powers vested in
the courts should not be limited
in the manner counsel for the
applicants has advocated. The
circumstances of each case must
inform the judge whether it is
necessary or not to make an
order of undertaking in any
particular case as the
discretion is inherent in the
court itself. I think the time
has come for the Rules of Court
Committee established under
article 157 of the 1992
Constitution, to examine the
insistence on undertaking in
interlocutory injunctions as the
rule under consideration, ie
rule 9(1) and (2) of Order 25
of the High Court (Civil
Procedure) Rules, 2004 (CI 47),
being a subsidiary legislation,
clearly seeks to limit the
court's discretion vested in it
by the 1992 Constitution and the
Courts Act, 1993 (Act 459).
I think the application ought to
be refused.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
I have had the benefit of
reading beforehand the opinion
of my learned brother Ansah JSC.
I agree with him and have
nothing useful to add.
S. A. BROBBEY
( JUSTICE OF THE SUPREME COURT)
I have also had the benefit of
reading beforehand, the opinion
of my learned brother Ansah JSC.
I agree that the application for
certiorari
be dismissed for the reasons
given by his Lordship.
S. O. A. ADINYIRA (MRS)
( JUSTICE OF THE SUPREME COURT)
I also agree with the opinion of
my learned brother Ansah JSC.
J.
V. M. DOTSE
( JUSTICE OF THE SUPREME COURT)
COUNSEL:
SOMUAH ASAMOAH FOR THE
APPLICANTS.
ENOH-AMAH ANDOH FOR THE
INTERESTED PARTY. |
