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Practice and
procedure - Land - Certiorari -
Supervisory jurisdiction of the
Supreme Court – Damages for
trespass and a perpetual
injunction - Jurisdictional
error by an inferior court -
Distinction between
Administrative Tribunals and
Courts of law – Whether or not
the primary avenue of redress
for an error of law by a judge
or magistrate should be an
appeal - Whether or not the
application for certiorari
succeeds will depend on other
factors.
HEADNOTES
The material
facts of the case were briefly
as follows: a son brought
action against his mother and
sisters over
land
situated near Accra, claiming
damages
for trespass and a perpetual
injunction restraining the
defendants from interfering with
the land in dispute. He
succeeded and on 24th
September 2003 the Circuit Court
in Accra gave judgment in his
favour. The defendants then
applied to the High Court for
leave to apply for an order of
certiorari under the old
High
Court Rules (that is, the High
Court (Civil Procedure) Rules,
1954 (LN 140A). Leave was
granted and their application
for certiorari was
granted by the High Court
presided over by Her Lordship
Ashong-Yakubu J. The learned
High Court judge held in her
ruling that the trial Circuit
Court had based its judgment
primarily on a legal document of
title which was defective since
it purported to dispose of Stool
land but did not have the prior
concurrence of the Minister, in
breach of the Administration of
Lands Act (Act 123). She
therefore set aside the document
of title as void and, along with
it, the judgment of the Circuit
Court and all the proceedings
before that court. The plaintiff
appealed to the Court of Appeal
against her order granting
certiorari and the appeal
was allowed. It is against this
judgment of the Court of Appeal
that his siblings have brought
this appeal. (Their mother, the
first appellant, has in the
meantime died.)
HELD
This
clarification of the law on this
second issue will, however, not
affect the outcome of this case,
since this was not an
appropriate case for
certiorari to lie from the
High Court to the Circuit Court
for the reasons earlier
explained. Accordingly, the
appeal is dismissed and the
decision of the Court of Appeal
setting aside the ruling of the
High Court is affirmed.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
Administration of Lands Act (Act
123)
High Court
Rules (that is, the High Court
(Civil Procedure) Rules, 1954
(LN 140A).
CASES
REFERRED TO IN JUDGMENT
Darawi & Sons
v. Dako (1961) 1 GLR 72 S.C. and
Republic v. High Court, Accra;
Ex parte CHRAJ (Addo Interested
Party) (2003-2004) SCGLR 312
Ackah v.
Adjei-Acheampong (2005-2006)
SCGLR 1
Republic v
High Court Accra, Ex Parte CHRAJ
[2003-2004] SCGLR 312
Craig v The
State of South Australia (1995)
184 CLR 149
R v Surrey
Coroner; Ex parte Campbell
[1982] QB 661
O’Reilly v
Mackman [1983] 2 AC 237 at 278
R. v Greater
Manchester Coroner Ex parte Tal
[1985] QB 67 at 81-83
South East
Asia Fire Bricks Sdn Bhd v
Non-Metallic Mineral Products
Manufacturing Employees Union
[1981] AC 363
Public
Service Association (SA) v
Federated Clerks’ Union (1991)
173 CLR132
R v Gray; Ex
parte Marsh (1985) 157 CLR 351
Houssein v
Under Secretary of Industrial
Relations and Technology (NSW)
(1982) 148 CLR 88
Hockey v
Yelland (1984) 157 CLR 124
R v Gray; Ex
parte Marsh (1985) 157 CLR 351
at 374-377
Republic v
High Court (Commercial Division)
Ex Parte The Trust Bank (Ampomah
Photo Lab and 3 ors, Interested
Parties) [2009] SCGLR 164
Republic v
High Court Accra, Ex Parte CHRAJ
[2003-2004] SCGLR 1
Republic v
Court of Appeal, Ex Parte Tsatsu
Tsikata [2005-2006] SCGLR 612
Pearlman v
Governors of Harrow School
[1979] QB 56,
Republic v
High Court, Accra, Ex parte
Aryeetey (Ankrah Interested
Party)
[2003-2004] SCGLR 398
Republic v
High Court, Cape Coast; Ex parte
Ghana Cocoa Board (Nana Kwaku
Apotoi III; Interested Party)
[2009] SCGLR 603.
Republic v
High Court, Accra: Ex parte
Aryeetey (Ankrah Interested
Party). [2003-2004] SCGLR 398
Republic v
High Court, Accra; Ex parte
Pupulampu [1991] 2 GLR 472
R v.
Newborough (1869) LR 4 QB 585
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ATUGUBA,
J.S.C
COUNSEL
SARAH KUSI
FOR THE RESPONDENT.
PRINCE
FREDERICK NEE ASHIE NEEQUAYE FOR
THE APPELLANT
ATUGUBA,
J.S.C:
I have had
the advantage of reading
beforehand the able judgment of
my brother Dr. Date-Bah JSC. I
agree that Ashong-Yakubu, J. was
wrong in quashing the judgment,
the subject matter of the
application for certiorari on
the ground that the conveyance
of title did not have the
requisite Ministerial
concurrence in breach of the
Administration of Lands Act (Act
123). A court cannot give a
judgment contrary to statute.
However, for my part I cannot
see such an error on the face of
the record. I know of no law
which states that the
concurrence of the Minister when
obtained must be stated on the
face of the conveyance. Indeed
it is trite law that such
concurrence need not be
contemporaneous with the grant
but can validly and subsequently
be obtained after the execution
of the conveyance. It may well
be that such concurrence was not
obtained before or at the time
of the Circuit Court’s judgment
in this case. However such
error, if there be, has not been
carried on the face of the
record in this case. If that
error therefore exists it must
be a latent error and certiorari
does not lie for latent errors.
As regards
whether the common law principle
that certiorari normally would
not lie if there is a pending
appeal has been overtaken by the
provision of the
1992
Constitution relating to the
supervisory jurisdiction of this
court, I do not think that
principle has been necessarily
so overtaken. The
supervisory jurisdiction of
this court is derived from the
common law which formulated it
as a prerogative process. See
Darawi
& Sons v. Dako (1961) 1 GLR
72 S.C. and Republic v. High
Court, Accra; Ex parte CHRAJ
(Addo Interested Party)
(2003-2004) SCGLR 312 at
326.
Certiorari is certainly
among the remedies open to an
applicant under the court’s
supervisory jurisdiction. Thus,
article 161, the relevant
interpretation provision,
provides as follows:
“161.
Interpretation
“supervisory
jurisdiction”
includes jurisdiction to issue
writs or orders in the nature of
habeas corpus, certiorari,
mandamus, prohibition and
quo warranto.”
The nature of
the jurisdiction to issue these
remedies has not been stated in
the Constitution. But there is
some law within the Constitution
which spells out that
jurisdiction. That law is the
existing law under article 11 of
the Constitution which is the
law that spells out the common
law nature of those remedies. It
follows that the common law
nature of those remedies has
been adopted by article 132
which provides thus:
“132.
Supervisory jurisdiction of the
Supreme Court
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 power.”
It is for
such reasons that this court was
able to hold in
Ackah
v. Adjei-Acheampong
(2005-2006) SCGLR 1 that the
pre-existing common law power of
contempt under article 126(2) of
the Constitution can be accessed
by individuals and cannot be
overtaken by the prosecutorial
powers of the Attorney-General
under article 188 of the
Constitution. There is judicial
anxiety that if certiorari lies
side by side with an existing
appeal there is the danger that
the decision on certiorari will
avail nothing if the same order
has been confirmed on appeal.
Also, if an applicant for
certiorari can get the reliefs
he is seeking from a pending
appeal (which is ready to be
heard) it is, if anything an
abuse of the process in the
nature of lis alibi pendens
to convoke the supervisory
relief. It must be remembered
that the prerogative origin of
the prerogative orders of
certiorari, mandamus etc holds
that it is a specialised
residual jurisdiction and
therefore has some peculiarities
which the ordinary remedies of
the courts do not entail. The
reality however is that in
practice the courts in recent
times have liberalised the
resort to these remedies to such
an extent that prejudice hardly
arises from the incidence of
appeal and certiorari or other
remedies being pursued
contemporaneously.
However, for
the reasons aforegiven I would
also dismiss the appeal.
(SGD) W. A.
ATUGUBA
(JUSTICE OF THE SUPREME COURT)
DR. DATE-BAH
JSC:
This case
presents, for authoritative
clarification, some interesting
legal issues relating to
judicial review of lower courts
by the High Court.
The
material facts of the case were
briefly as follows: a son
brought action against his
mother and sisters over land
situated near Accra, claiming
damages for trespass and a
perpetual injunction restraining
the defendants from interfering
with the land in dispute. He
succeeded and on 24th
September 2003 the Circuit Court
in Accra gave judgment in his
favour. The defendants then
applied to the High Court for
leave to apply for an order of
certiorari under the old
High Court Rules (that is, the
High Court (Civil Procedure)
Rules, 1954 (LN 140A). Leave
was granted and their
application for certiorari
was granted by the High Court
presided over by Her Lordship
Ashong-Yakubu J. The learned
High Court judge held in her
ruling that the trial Circuit
Court had based its judgment
primarily on a legal document of
title which was defective since
it purported to dispose of Stool
land but did not have the prior
concurrence of the Minister, in
breach of the Administration of
Lands Act (Act 123). She
therefore set aside the document
of title as void and, along with
it, the judgment of the Circuit
Court and all the proceedings
before that court. The plaintiff
appealed to the Court of Appeal
against her order granting
certiorari and the appeal
was allowed. It is against this
judgment of the Court of Appeal
that his siblings have brought
this appeal. (Their mother, the
first appellant, has in the
meantime died.) The
appellants filed no less than 21
grounds of appeal and 6 further
grounds, most of which were
argumentative and prolix. They
also filed a Statement of Case.
In reply, the respondent did not
file any Statement of Case. In
my view, it is unnecessary to
set out these grounds
seriatim and deal with
them. Rather, I will address
the two main relevant legal
issues which arise from them
below.
The first of
the issues mentioned above
relates to the preconditions for
the exercise by the High Court
of its supervisory
jurisdiction. In
Republic v High Court Accra, Ex
Parte CHRAJ [2003-2004]
SCGLR 312, this court
examined extensively the
preconditions for the exercise
of its supervisory
jurisdiction. However, it then
left open the preconditions for
the exercise by the High Court
of its supervisory jurisdiction
over lower courts. It did,
however, note (at p. 339) that:
“From the
discussion earlier in this
Ruling, it must be evident that
we believe there to be a sound
policy reason for keeping narrow
the category of errors by the
superior courts that can be made
subject to judicial review. We
consider, therefore, that the
post-Anisminic cases in
England dealing with inferior
courts and tribunals and
administrative authorities
should be treated with caution
with regard to their relevance
to judicial review of the
decisions of the superior courts
in Ghana. We are strengthened
in this view by a similar
reluctance of the High Court of
Australia to follow Anisminic
in relation to the judicial
review of courts, as opposed to
administrative tribunals.”
The facts of this case raise
directly for decision whether
the sound policy reason for
keeping narrow the category of
errors by the superior courts
that can be made subject to
judicial review necessitate that
judicial review by the High
Court over the lower courts
should be similarly limited.
The view of the High Court of
Australia on this issue is that
inferior courts should be given
a treatment similar to what this
Supreme Court has formulated for
the superior courts in the Ex
Parte CHRAJ case. In a
passage that was approved by
this Supreme Court in the Ex
Parte CHRAJ case, the High
Court of Australia (comprising
Brennan, Deane, Toohey, Gaudron
and McHugh JJ) said in
Craig
v The State of South Australia
(1995) 184 CLR 149:
:
“It was
submitted on behalf of the
respondent State of South
Australia that an inferior court
commits jurisdictional error
whenever it addresses the wrong
issue or asks itself the wrong
question. Particular reliance
was placed, in support of that
submission, upon the well-known
passage of Lord Reid’s speech in
Anisminic Limited v Foreign
Compensation Commission:
(the court
then quotes the well-known
passage of Lord Reid’s speech
and continues as follows)
…
In
Anisminic, the respondent
Commission was an administrative
tribunal. Read in context, the
above comments should, in our
view, be understood as not
intended to refer to a court of
law. That was recognized by
Lord Diplock in In Re Racal
Communications and affirmed
by the English Divisional Court
in R v
Surrey Coroner; Ex parte
Campbell [1982] QB 661
at 675. It is true that
Lord Reid’s comments were
subsequently suggested by Lord
Diplock (O’Reilly
v Mackman [1983] 2 AC 237 at
278) and held by the
Divisional Court (R.
v Greater Manchester Coroner Ex
parte Tal [1985] QB 67 at
81-83) to be also
applicable to an inferior court
with the result that the
distinction between
jurisdictional error and error
within jurisdiction has been
effectively abolished in England
(Pearlman v Harrow School
[1979] QB 56 at 69;
O’Reilly v Mackman [1983] 2
AC 237 at 278. But cf
South
East Asia Fire Bricks Sdn Bhd v
Non-Metallic Mineral Products
Manufacturing Employees Union
[1981] AC 363.) That
distinction has not, however,
been discarded in this country
(See, in particular,
Public
Service Association (SA) v
Federated Clerks’ Union
(1991) 173 CLR
132
at 141, 149, 165;
R v
Gray; Ex parte Marsh (1985)
157 CLR 351 at 371-372. And
see also
Houssein v Under
Secretary of Industrial
Relations and Technology (NSW)
(1982) 148 CLR 88 at 93-95;
Hockey
v Yelland (1984) 157 CLR 124
at 130;
R v
Gray; Ex parte Marsh (1985)
157 CLR 351 at 374-377) and,
for the reasons which follow, we
consider that Lord Reid’s
comments should not be accepted
here as an authoritative
statement of what constitutes
jurisdictional error by an
inferior court for the
purposes of certiorari. In that
regard, it is important to bear
in mind a
critical distinction which
exists between administrative
tribunals and courts of law.”
I am in
agreement with the High Court of
Australia that a distinction
needs to be made between
administrative tribunals and
courts of law, even if they are
lower courts. An error of law
simpliciter should not be
a ground for the exercise of the
supervisory jurisdiction of the
High Court, if the error has
been made by a court. However,
there is a policy justification
for tighter supervision over the
decisions of officials and
administrative tribunals. An
error of law by an
administrative tribunal or
official may well justify the
exercise of the High Court’s
supervisory jurisdiction over
them. The distinction is
justified because of the
presumption that judges and
magistrates should know the law
(“the law is in their bosom”),
whilst lay officials or members
of administrative tribunals are
not presumed to know the law.
There is therefore need for
closer oversight by the High
Court over the latter. The
primary
avenue of redress for an error
of law simpliciter by a
judge or magistrate should be an
appeal.
It is for
this reason that I would uphold
Appau JA’s view that the learned
High Court judge was in error in
quashing the Circuit Court
judgment solely on the ground
that it had relied on an
indenture that had been executed
by a Stool without ministerial
concurrence. He said (at p. 113
of the Record):
“It must be
noted that certiorari is a
discretionary remedy that is
resorted to, to correct a clear
error of law on the face of the
judgment or ruling of a lower
court or tribunal, or an error
that amounts to lack of
jurisdiction in the court so as
to make its decision a nullity,
or further still where the rules
of natural justice have been
clearly breached. There is
therefore a clear distinction
between certiorari and appeal.
Where therefore, a court of
competent jurisdiction acts
within its jurisdiction and gave
all the parties the opportunity
to be heard in the course of its
deliberations but nevertheless
arrives at an erroneous
decision, such a decision
whether founded on law or fact,
can only be corrected on appeal
but not by a quashing order.”
This is a
correct statement of the law,
but I would like to build on it
and go further to unify the
statement of the law in relation
to the High Court’s supervisory
jurisdiction over other courts
with the law that has been
authoritatively stated in
relation to the Supreme Court,
when it is exercising its
supervisory jurisdiction over
the superior courts. In
Republic v High Court
(Commercial Division) Ex Parte
The Trust Bank (Ampomah Photo
Lab and 3 ors, Interested
Parties) [2009] SCGLR 164,
the current law applicable to
the Supreme Court was summarized
as follows (at p.169-171):
“The current
law on when the prerogative
writs will be available from the
Supreme Court to supervise the
superior courts in respect of
their errors of law was restated
and then fine-tuned in the
Republic v High Court Accra, Ex
Parte CHRAJ [2003-2004]
SCGLR 1 and Republic v
Court of Appeal, Ex Parte Tsatsu
Tsikata [2005-2006] SCGLR
612, respectively. In my
view, the combined effect of
these two authorities results in
a statement of the law which is
desirable and should be
re-affirmed. This Court should
endeavour not to backslide into
excessive supervisory
intervention over the High Court
in relation to its errors of
law. Appeals are better suited
for resolving errors of law. In
the Ex Parte CHRAJ case,
this Court, speaking through me,
sought to reset the clock on
this aspect of the law (as
stated at pages 345-346) as
follows:
“The Ruling
of this Court in this case, it
is hoped, provides a response to
the above invitation to restate
the law on this matter. 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 (within
the meaning already discussed),
the avenue for redress open to
an aggrieved party is an appeal,
not judicial review. In this
regard, an 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. To the extent
that this restatement of the law
is inconsistent with any
previous decision of this
Supreme Court, this Court should
be regarded as departing from
its previous decision or
decisions concerned, pursuant to
Article 129(3) of the 1992
Constitution. Any previous
decisions of other courts
inconsistent with this
restatement are overruled.”
In the the
Ex Parte Tsatsu Tsikata
case, Wood JSC, as she then
was, said (at p. 619 of the
Report):
“The clear
thinking of this court is that,
our supervisory jurisdiction
under article 132 of the 1992
Constitution, should be
exercised only in those
manifestly plain and obvious
cases, where there are patent
errors of law on the face of the
record, which errors either go
to jurisdiction or are so plain
as to make the impugned decision
a complete nullity. It stands
to reason then, that the
error(s) of law alleged must be
fundamental, substantial,
material, grave or so serious as
to go to the root of the
matter. The error of law must
be one on which the decision
depends. A minor, trifling,
inconsequential or unimportant
error, or for that matter an
error which does not go to the
core or root of the decision
complained of; or stated
differently, on which the
decision does not turn, would
not attract the court’s
supervisory jurisdiction.”
The combined
effect of these two authorities,
it seems to me, is that even
where a High Court makes a
non-jurisdictional error which
is patent on the face of the
record, it will not be a ground
for the exercise of the
supervisory jurisdiction of this
court unless the error is
fundamental. Only fundamental
non-jurisdictional error can
found the exercise of this
court’s supervisory
jurisdiction. “
Accordingly,
in relation to the High Court’s
supervisory jurisdiction also,
even an error patent on the face
of the record cannot found the
invocation of that jurisdiction
of the court unless it is
fundamental, substantial,
material, grave or so serious as
to go to the root of the
matter. In sum, in addition to
jurisdictional errors, only a
fundamental non-jurisdictional
error of law can be the basis
for the exercise of the High
Court’s supervisory
jurisdiction. A fortiori,
an error of law not patent on
the face of the record cannot
found the High Court’s
intervention by way of its
supervisory jurisdiction, where
such jurisdiction is exercised
in relation to a court. This
position of the Ghanaian law is
to be contrasted with English
law where the modern position is
as set out by Lord Denning MR in
Pearlman v Governors of Harrow
School [1979] QB 56, at
p. 70, where he stated that:
“No court or
tribunal has any jurisdiction to
make an error of law on which
the decision of the case
depends. If it makes such an
error, it goes outside its
jurisdiction.”
This
statement of law, in the
Ghanaian context, applies only
to public bodies and officials,
as distinct from courts. Lord
Denning justified his statement
of the law thus (at p. 70):
“The High
Court has, and should have,
jurisdiction to control the
proceedings of inferior courts
and tribunals by way of judicial
review. When they go wrong in
law, the High Court should have
power to put them right. Not
only in the instant case to do
justice to the complainant. But
also so to secure that all
courts and tribunals, when faced
with the same points of law,
should decide it in the same
way. It is intolerable that a
citizen’s rights in point of law
should depend on which judge
tries his case, or in which
court it is heard. The way to
to get things right is to hold
thus: no court or tribunal has
any jurisdiction to make an
error of law on which the
decision of the case depends.”
Whilst I
agree with the redoubtable Lord
Denning in relation to inferior
tribunals and public bodies and
officials, I beg to differ, in
the Ghanaian context, with
respect to inferior (or lower)
courts. The avenue of redress
for their errors of law
simpliciter should be an
appeal which is provided for in
the Courts Act 1993.
This
clarification of the law on the
scope of the High Court’s
supervisory jurisdiction should
be enough to dispose of this
appeal. The appeal should be
dismissed since the error of law
on which the learned High Court
judge based her order of
certiorari is not
sufficiently fundamental,
substantial, material, grave or
serious to go to the root of the
judgment of the Circuit Court.
Nevertheless, a second point
that was addressed by Appau JA
in his judgment in the Court
below deserves discussion in the
interest of making the position
of the law clear.
The second
issue which presents itself for
clarification in this case is
that relating to whether an
aggrieved party from the court
below can resort to both
judicial review and an appeal at
the same time. On this issue,
Yaw Appau JA, in delivering the
judgment of the Court of Appeal,
stated (at p. 114 of the Record)
that:
“Again, the
authorities are legion that
Certiorari, which is a
discretionary remedy would not
be granted in favour of an
applicant who had already lodged
an appeal to a court against the
impugned decision while the
appeal was pending. See the
Supreme Court case of
REPUBLIC V HIGH COURT, ACCRA, EX
PARTE ARYEETEY (ANKRAH
INTERESTED PARTY) [2003-2004]
SCGLR 398 @ 401.”
However,
subsequent to the delivery of
Appau JA’s opinion, the Supreme
Court has held that the fact
that an aggrieved party has an
appeal pending is no bar to that
party applying for certiorari
in respect of the same matter.
It so held in
Republic v High Court, Cape
Coast; Ex parte Ghana Cocoa
Board (Nana Kwaku Apotoi III;
Interested Party) [2009]
SCGLR 603. In the lead
judgment with which other
members of the Court agreed, I
cast doubt on the authority of
the Ex Parte Aryeetey
case (supra) and said (at
pp. 612-14):
“It is no
answer to this want of
jurisdiction to argue, as does
the interested party’s counsel,
that certiorari is a
discretionary remedy and that
because the applicant has filed
an appeal against Ayimeh J.’s
refusal to set aside the
garnishee order, this court
should dismiss the application.
The right to appeal from the
High Court to the Court of
Appeal and the right to apply
for the exercise of the
supervisory jurisdiction of this
Court are both constitutional
rights and I see nothing in the
constitutional governing
provisions of these rights that
makes them mutually exclusive.
In particular, the supervisory
jurisdiction is conferred as
follows in article 132:
“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 power.”
The exercise
of this jurisdiction is not
expressly made subject to an
applicant not having previously
lodged an appeal in respect of
the same matter. So long as the
separate requirements of an
appeal and of an application for
the exercise of the supervisory
jurisdiction of this court are
complied with, a party should be
able to avail himself or herself
with either avenue of redress at
the same time. If there are any
previous cases decided by this
court which have held otherwise,
I think that this court should
depart from them, pursuant to
article 129(3) of the 1992
Constitution. Counsel for the
interested party cited a case
which he claims supports his
position. This is
Republic v High Court, Accra:
Ex parte Aryeetey (Ankrah
Interested Party).
[2003-2004] SCGLR 398.
Upon close scrutiny, this case
does not assert that there is
rule which prevents an appellant
from at the same time applying
for relief pursuant to the
supervisory jurisdiction of this
court. What the court there
asserted is a practice which, in
my humble view, is not
necessarily conducive to
justice. This is what Kpegah
JSC, delivering the judgment of
the Supreme Court in that case,
said (at p. 410 of the
Report):
“Needless for
us to say that certiorari is a
discretional (sic) remedy
and the conduct of an applicant
can disentitle him to the
remedy. The circumstances in
the instant case, and taking the
conduct of the applicant into
consideration, we feel obliged
to deny him the remedy he
seeks. The scales of justice
are heavily weighted against
him. Moreover, it is not our
normal practice in this court to
exercise our discretion in
favour of an applicant if he has
already lodged an appeal to a
court against the impugned
decision and the appeal is
pending.”
I certainly
consider that we should not
follow this practice on the
facts of this case. I would make
bold and go on to assert further
that it is not a desirable
practice which should be
encouraged. I accept that
certiorari is a
discretionary remedy and agree
with Wuaku JSC’s view in
Republic v High Court, Accra;
Ex parte Pupulampu [1991] 2
GLR 472 at p. 477 that:
“Certiorari
is never granted if the grant
will serve no useful purpose or
where no benefit can be derived
from it. It is in the
discretion of the court to grant
or to refuse an order of
certiorari, and it is not a
matter of right: see
R v.
Newborough (1869) LR 4 QB 585
at 589.”
However, I do
not consider that on the facts
of this case no useful purpose
would be served by granting the
order. Furthermore, I do not
think that the fact alone of the
applicant having filed an appeal
against the impugned ruling
should be an automatic bar to
the exercise of our discretion
whether or not to grant
certiorari. Indeed, Wuaku
JSC himself in the Ex parte
Pupulampu case conceded that
a party could resort to both an
appeal and an application for
certiorari when he said (at
p. 477 of the Report):
“In my
opinion, what the applicant
should have done if he had
wanted to pursue the matter by
praying for an order of
certiorari, was to have applied
for it at the time he lodged his
appeal and then to have the
certiorari application stayed
until the appeal was heard and
disposed of.””
Clearly, I
disagree with Appau JA’s view
that it was an error for the
High Court to have considered a
certiorari application
while an appeal was pending
before the Court of Appeal
against the decision of the
Circuit Court complained of. I
think that the Ex parte Cocoa
Board case (supra)
has overruled the Ex parte
Aryeetey case (supra)
and therefore the mere fact of
the pendency of an appeal from a
decision of a court cannot be a
bar to an application for
certiorari in respect of the
same decision.
Whether
or not the application for
certiorari succeeds will
depend on other factors. This
clarification of the law on this
second issue will, however, not
affect the outcome of this case,
since this was not an
appropriate case for
certiorari to lie from the
High Court to the Circuit Court
for the reasons earlier
explained. Accordingly, the
appeal is dismissed and the
decision of the Court of Appeal
setting aside the ruling of the
High Court is affirmed.
(SGD) DR. S. K.
DATE-BAH
(JUSTICE
OF THE SUPREME COURT)
(SGD)
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
(SGD)
P. BAFFOE-BONNIE
(JUSTICE OF THE
SUPREME COURT)
(SGD)
V. AKOTO-BAMFO(MRS.)
(JUSTICE OF THE SUPREME COURT)
COUNSEL;
SARAH KUSI
FOR THE RESPONDENT.
PRINCE
FREDERICK NEE ASHIE NEEQUAYE FOR
THE APPELLANT |
