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Certiorari - Invoking
supervisory jurisdiction -
Article 132 of the 1992
Constitution - Mandamus
Diplomatic Immunities Act (1962)
Act 148- Whether the court had
no jurisdiction to make orders
in respect of premises being
used for a diplomatic mission on
account of diplomatic immunity -
Whether the applicant was not a
party to the suit, so he has no
locus standi to apply for
certiorari - Whether application
was filed out of time
HEADNOTES
The brief facts are that by a
writ of summons in Suit No. BC
285/07 dated 28th March,
2007, one Theophilus Leighton
(deceased) instituted an action
against the applicant herein in
the High Court, Accra, claiming
a declaration of title to House
No. 2 East Cantonments
Residential Area, Accra which
the defendant has been occupying
as a tenant since 1987, Payment
of accumulated rent arrears of
by the Defendant for its
occupation of the said House,
and An order of ejection and
recovery of possession, the High
Court, Accra gave summary
judgment in favour of the
plaintiff. The said summary
judgment was however overturned
by the Court of Appeal by
judgment dated 21st July,
2011. The grounds on which the
Court of Appeal overturned the
judgment were that the premises
in issue in the suit before the
High Court were being used as a
diplomatic mission so the courts
of Ghana have no jurisdiction to
entertain a suit in respect of
the premises. Another ground was
that the writ of summons had
expired before it was served on
the defendant so the proceedings
based upon it were all a
nullity. The judgment of the
Court of Appeal notwithstanding,
the 5th interested
party herein Mr. Jojo Hagan,
relying on the judgment of Abada
J, filed a motion in the High
Court, Accra, on 21st July,
2014 as Suit No. BMISC 995/2014
invoking the supervisory
jurisdiction of the High Court
for orders of mandamus against
the Land Title Registry, the
Lands Commission and the
Ministry of Foreign Affairs -
.HELD
-
In our
view, whatever challenges the
applicant faced in the
vindication of his rights cannot
warrant the apparently
deliberate act of undermining
the decision of the Court of
Appeal and applying for orders
that clearly had not been
granted by the trial court. One
instance is that, 5th
interested party prayed for an
order for payment of rent of
US$1.5million when even the
judgment that had been set aside
granted 5th
interested party only
US$598,225.17. To refuse to
quash the orders of the High
Court dated 1st
September, 2014 will be to allow
the 5th interested
party to hold on to the benefit
of a judgment that has ceased to
exist.
For the above reasons we grant
the application.
STATUTES REFERRED TO IN JUDGMENT
Supreme Court Rules, 1996
(CI.16)
Supreme Court (Amendment) Rules
1999 (CI 24)
CASES REFERRED TO IN JUDGMENT
Republic V High Court, Accra; Ex
Parte Salloum [2011] 1 SCGLR 574
and Pobee Tufuhene Elect of Apam
V Yoyoo [2013-2014] 1 SCGLR 208.
Mcfoy v United Africa Co. Ltd
[1961] 3 All ER 1169. PC;
Mosi v Bagyina [1963] 1GLR 337.
Republic v. High Court, Cape
Coast; Ex parte Ghana Cocoa
Board (Apotoi III Interested
Party) [2009] SCGLR 603 at 612
Republic v. High Court, Kumasi;
Ex parte Mobil Oil (Ghana) Ltd
(Hagan Interested Party)
[2005-2006] SCGLR 312
Republic v. High Court Accra; Ex
parte Komley Adams [2012] 1SCGLR
111
Republic v. High Court (Fast
Track Division) Accra, Ex parte
State Housing Corporation Co.
Ltd (No.2) (Koranten-Amoako
Interested Party) [2009]SCGLR
185.
Republic v. High Court, Accra,
Ex parte Speedline Stevedoning
Ltd [2007-2008] SCGLR
Republic v. High Court, Accra Ex
parte Ghana Chartered Institute
of Bankers [2011]2 SCGLR 941.
Republic v. High Court, Ho
Exparte Awusu( No.1) ( Nyonyo
Agdoada( Sri III) Interested
Party)[ 2003-2004] SCGLR. 864.
Republic v. Korle Gonno District
Magistrate Grade I; Exparte
Amponsah [1991] 1 GLR 353, CA;
In
re Appenteng (Decd): Republic v.
High Court, Accra Ex parte
Appenteng [2005-2006] SCGLR 18
Republic v. High Court, Ho: Ex
parte Diawuo Bediako II & Anor
(Odum & Ors Interested Parties
[2011]2SCGLR 704.
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
PWAMANG JSC.
COUNSEL
KWESI AUSTIN ESQ.
FOR THE APPLICANT.
CECIL ADADEVOH (P.
S. A) 3RD AND 4TH
INTERESTED PARTIES.
T. N. WARD -
BREW ESQ. FOR THE 5TH
INTERESTED PARTY.
RULING
This is an application invoking
our supervisory jurisdiction
pursuant to Article 132 of the
1992 Constitution praying for an
order of certiorari to bring
into this court the orders made
on 1st September,
2014 by the High Court, Accra in
Suit No. BMISC 995/2014
for the purpose of being
quashed.
The brief facts are that by a
writ of summons in Suit No.
BC 285/07 dated 28th
March, 2007, one Theophilus
Leighton (deceased) instituted
an action against the applicant
herein in the High Court, Accra
claiming 21 reliefs, key among
which are the following:
(i)
Declaration of title to
House No. 2 East Cantonments
Residential Area, Accra which
the defendant has been occupying
as a tenant since 1987.
(ii)
Payment of accumulated
rent arrears of $598,252.17 by
the Defendant for its occupation
of the said House No. 2, East
Cantonment Residential Area,
Accra.
(iii)
An order of ejection and
recovery of possession of House
No. 2, East Cantonment
Residential Area, Accra.
On
21st October, 2009,
the High Court, Accra presided
over by His Lordship Justice
Anthony K. Abada gave summary
judgment in the said Suit No.
285/07 in favour of the
plaintiff, who is now being
represented by his successor the
5th interested party
to this present application.
The judgment of Abada J. granted
the reliefs as endorsed on the
writ of summons. The said
summary judgment was however
overturned by the Court of
Appeal by judgment dated 21st
July, 2011. The grounds on
which the Court of Appeal
overturned the judgment were
that the premises in issue in
the suit before the High Court
were being used as a diplomatic
mission so the courts of Ghana
have no jurisdiction to
entertain a suit in respect of
the premises. Another ground was
that the writ of summons had
expired before it was served on
the defendant so the proceedings
based upon it were all a
nullity.
The judgment of the Court of
Appeal notwithstanding, the 5th
interested party herein Mr. Jojo
Hagan, relying on the judgment
of Abada J, filed a motion in
the High Court, Accra, on 21st
July, 2014 as Suit No. BMISC
995/2014 invoking the
supervisory jurisdiction of the
High Court for orders of
mandamus against the Land Title
Registry, the Lands Commission
and the Ministry of Foreign
Affairs. He prayed the High
Court in exercise of its
supervisory jurisdiction, to
compel the issuance of a Land
Title Certificate to 5th
interested party, order recovery
of possession, injunction and to
make an order to open and evict
occupants of the property in
dispute being House No. 2, East
Cantonments. 5th
interested party also sought an
order for the Ministry of
Foreign Affairs to use their
machinery to retrieve
accumulated rent of US$1.5
million from the Bulgarian
Embassy.
At
the hearing of the application
for mandamus 5th
interested party and his counsel
were the only persons present
and upon hearing his counsel,
the application was granted as
prayed on 1st
September, 2014 by His Lordship
Justice Bright Mensah.
Applicant herein got to know of
the orders of mandamus when the
5th interested party
went to execute the writ of
possession. So they filed a
motion in the same suit No.
BMISC 995/14 praying the court
to set aside its orders on
grounds that the judgment that 5th
interested party relied upon in
the application for mandamus had
been set aside at the time he
filed the application.
Applicant also brought to the
attention of the court the issue
of diplomatic immunity that had
been decided upon by the Court
of Appeal. This application to
set aside was heard by His
Lordship Justice Anthony Oppong
who refused it on 3rd
June, 2015.
Applicant has therefore filed
this application praying for
certiorari to quash the orders
of Bright Mensah J. on the
following grounds:
(i)
The court had no
jurisdiction to make orders in
respect of premises being used
for a diplomatic mission on
account of diplomatic immunity
pursuant to the Diplomatic
Immunities Act (1962) Act 148.
(ii)
The orders of the court
are void because they were
premised on a judgment that had
been set aside by the Court of
Appeal to the knowledge of the 5th
interested party.
(iii)
The orders of the court
for possession forcing premises
open, eviction of occupants’,
recovery of rents were not
warranted by any law, enactment
or rule of procedure since the
matter that was before the court
was an application for mandamus.
The 4th and 5th
interested parties have resisted
this application for
certiorari. They submitted in
their statements of case that
the applicant filed an appeal
against the orders he is now
seeking to quash by certiorari
and that the two cannot be
maintained simultaneously. They
have also argued that the
application has been filed out
of time since the impugned
decision was made on 1st
September, 2014 and this
application is filed on 9th
July 2015, more than the 90 days
provided under the rules of this
court. It is also their case
that the applicant was not a
party in Suit no. BMISC
995/14 so he has no locus
standi to apply for
certiorari.
Finally the interested parties
argue that on the merits, 5th
interested party is the owner of
the premises as a 50 years lease
applicant is relying on to claim
the premise is invalid.
It
is well-settled that certiorari
will be granted to quash a
decision of a court that has
been made without jurisdiction
or in excess of jurisdiction or
where there is an error of law
apparent on the record that
makes the decision a nullity.
Certiorari will also be granted
to quash a decision given in
breach of a rule of natural
justice. See the cases of;
Republic V High Court, Accra; Ex
Parte Salloum [2011] 1 SCGLR 574
and Pobee Tufuhene Elect of Apam
V Yoyoo [2013-2014] 1 SCGLR 208.
An
examination of the application
for mandamus filed by the 5th
interested party on 21st
July 2014 shows clearly that he
was placing reliance on the
decision of Abada J. which to
his knowledge had been set aside
by the Court of Appeal three
years earlier.
Relief (c) on the motion paper
is as follows;
“(c) for an order of mandamus to
compel the Lands Commission to
fully comply with the orders of
mandamus issued by the High
Court, Accra in High Court,
Accra Suit No.BC285/07.”
Further, at paragraphs 14, 16,
and 18 of the affidavit in
support of the application for
mandamus, 5th
interested party referred to the
suit against Bulgarian Embassy
and stated that judgment had
been given against them for
ejectment, recovery of
possession and accumulated
arrears of rent. We shall quote
the said paragraphs;
“14. The Bulgarian Embassy
entered into a Tenancy Agreement
in respect of the house in
dispute with the late Mr
Theophilus Kofi Leighton on
17/10/79. The initial term was
5years from 1/2/79 to 31/1/84.
16. That when the Bulgarian
Embassy was not paying the
accrued rents that had
accumulated to over US$1.5
million Applicant herein was
forced to take them to court for
redress.
18. That judgment has been given
against the Bulgarian Embassy
for ejectment and recovery of
possession of the premises in
dispute for nonpayment of rent
and accumulated areas of rent.”
From the above facts it is clear
that 5th interested
party was basing on the
non-existing judgment of Abada J
to seek the orders he prayed the
court for. This is a clear
instance of placing something on
nothing and as Lord Denning said
in Mcfoy v United Africa Co.
Ltd [1961] 3 All ER 1169. PC;
“You cannot put something on
nothing and expect it to stay
there. It will collapse”
See also Mosi v Bagyina
[1963] 1GLR 337.
The 5th interested
party was well aware of the fact
that the judgment in his favour
in Suit No. BC 285/07 had been
set aside and the impression we
get is that the application for
mandamus was calculated to
undermine the judgment of the
Court of Appeal and overreach
that court. The processes filed
in this application show that 5th
interested party has filed an
appeal against the decision of
the Court of Appeal to this
court and that is the proper
course of conduct that a party
in 5th interested
party’s position can embark
upon.
It
has long been settled in this
court that the fact that a
person has appealed against a
decision does not preclude him
from applying for that decision
to be quashed under the
supervisory jurisdiction of this
court conferred by Article 132
of the 1992 constitution. In
the case of Republic v. High
Court, Cape Coast; Ex
parte Ghana Cocoa Board (Apotoi
III Interested Party)
[2009] SCGLR 603 at 612 Dr.
Date-Bah JSC. Stated as follows:
“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 provisions
governing these rights that
makes them mutually exclusive.
In particular, the supervisory
jurisdiction is conferred in
article 132”
See also the case of Republic
v. High Court Accra; Ex parte
Komley Adams [2012] 1SCGLR
111
The interested parties in this
case have argued that the
applicant is out of time and
that they ought to have filed
the application within ninety
days of the decision being
sought to be quashed; that is
within ninety days from 1st
September, 2014. It does appear
as if counsel for the interested
parties have not taken note of
the change in the rules of this
court with regard to the
supervisory jurisdiction of the
court.
The original provision in the
Rules of the Supreme Court, 1996
(CI.16) provided as follows;
“62. An application to invoke
the supervisory jurisdiction of
the court shall be filed within
three months of the date of the
decision against which the
jurisdiction is invoked unless
the time is extended by the
court.”
This provision has been amended
by the Supreme Court
(Amendment) Rules 1999 (CI 24)
which states as follows;
“An application to invoke the
supervisory jurisdiction of the
court shall be filed within 90
days of the date when the
grounds for the application
first arose unless time is
extended by the court.”
In
the case of Republic v. High
Court, Kumasi; Ex parte Mobil
Oil (Ghana) Ltd (Hagan
Interested Party) [2005-2006]
SCGLR 312, Dr Twum JSC
delivering the lead judgment of
the court observed as follows:
“With the amendment effected by
CI 24, the time limit within
which an application to invoke
the supervisory jurisdiction of
the court may be filed is
determined by reference to the
date when ‘the grounds for the
application first arose,’ and
not the “date of the decision
against which the jurisdiction
is invoked.’ It is possible the
two bases of reckoning may
achieve the same result in a few
cases but it is most probable
that a different time limit will
be determined if the amended
rule 62 is used.”
This court has been cautious
about laying down strict guiding
principles in determining the
existence, for the first time,
of sufficient grounds for
invoking our supervisory
jurisdiction and the recommended
approach has been to deal with
the issue on a case by case
basis. See the case of
Republic v. High Court
(Fast Track Division) Accra, Ex
parte State Housing Corporation
Co. Ltd (No.2) (Koranten-Amoako
Interested Party) [2009]SCGLR
185.
On
the facts of this case the
applicant, who was not made
aware of the mandamus
application and the orders made
on 1st September 2014
got to know about them when 5th
interested party attempted to go
into execution and applicant
filed a motion before the court
which made the orders to have
the court set aside its own
orders. This application was
determined on 3rd
June, 2015, that is after more
than five months. Applicant then
filed this present application
on 9th July, 2015.
From this set of facts our
interpretation of the date the
grounds for invoking the
supervisory jurisdiction of this
court first arose is the date
the High Court refused
applicant’s motion to set aside
the orders of mandamus.
We
think it is a commendable
practice to first go before the
court which made the impugned
decision to ask it to set aside
its orders the moment you become
aware of those orders. We
should however not be understood
to be laying down a fixed rule
that no matter how long it takes
an applicant to apply to the
high Court to set aside its
decision, this court will
consider the date of refusal of
that application as the date the
grounds for an application to
invoke the supervisory
jurisdiction of this court first
arose. For instance, an
application made to the High
Court in circumstances that is
considered an abuse of the
process of the court will not be
taken into account in
determining the date the grounds
for invoking the supervisory
jurisdiction of this court arose
for the first time.
As
we have pointed out in respect
of this court’s decisions in
Ex parte Mobil Oil (supra) and
Ex parte State Housing
Corporation (supra), this
decision is to be confined to
the facts of this case.
Another reason why the argument
of time-bar in this case does
not impress us is that we have
taken the view that the orders
made by the court in the
application for mandamus were in
excess of the jurisdiction of
the court since there was no
judgment granting the reliefs 5th
interested party was purporting
to enforce. The decision of the
court is patently void and time
limitations do not apply where
the decision sought to be
quashed is a nullity as in this
case. See Republic v. High
Court, Accra, Ex parte Speedline
Stevedoning Ltd [2007-2008]
SCGLR and Republic v.
High Court, Accra Ex parte Ghana
Chartered Institute of Bankers
[2011]2 SCGLR 941.
The interested parties have
argued before us that since the
applicant was not a party to the
motion for mandamus they have no
locus standi to invoke
our supervisory jurisdiction to
quash the decision made in that
suit. On the facts of this case
the applicant is a person who is
aggrieved by the impugned
decision and therefore they have
every right to seek to have it
quashed. Once a person is
aggrieved as being directly
affected by a decision, though
he may not be a party to the
proceedings culminating in the
decision, he has standing to
apply for this court to exercise
its supervisory jurisdiction to
correct the proceedings or quash
the decision. See the case of
Republic v. High Court, Ho
Exparte Awusu( No.1) ( Nyonyo
Agdoada( Sri III) Interested
Party)[ 2003-2004] SCGLR. 864.
This matter of locus standing
for an application for
certiorari has been taken even
further by the decisions in the
cases of Republic v. Korle
Gonno District Magistrate Grade
I; Exparte Amponsah [1991] 1 GLR
353, CA; In re
Appenteng (Decd):
Republic v. High Court, Accra Ex
parte Appenteng [2005-2006]
SCGLR 18 and Republic v.
High Court, Ho: Ex parte Diawuo
Bediako II & Anor (Odum & Ors
Interested Parties [2011]2SCGLR
704. The decision in Ex
parte Amponsah, which has
been endorsed by this court in
the judgments referred to above,
is as follows (as stated in
holding (1) of the headnote to
the case);
“The orders of certiorari and
prohibition, as the form of the
proceedings showed, were means
for ensuring that the machinery
of public administration worked
properly and that justice was
done to individuals. And
because these remedies had a
special public aspect to them,
an applicant for certiorari or
prohibition did not have to show
that some legal right of his was
at stake. If the action
concerned an excess of
jurisdiction or abuse of power,
for example, the court would
quash it at the instance of a
mere strange, although it
retained the discretion to
refuse to quash it if it thought
that no good would be done to
the public. The remedies of
certiorari and prohibition were
therefore not restricted by the
notion of locus standi, and
every citizen had a standing to
invite the court to prevent some
abuse of power; and in so doing
he might claim to be regarded
not as a meddlesome busybody but
a public benefactor.”
We
have taken note of the complaint
of the 5th interested party that
the applicant’s lawyer appears
to be taking inappropriate
advantage of diplomatic immunity
of his client and frustrating
the 5th interested
party’s efforts at
vindicating what he claims to be
his rights in respect of the
property. We however fail to see
that continuing, if that is what
applicant’s lawyer was doing,
for according to the interested
parties, the premises is no
longer being used as a
diplomatic mission.
In
our view, whatever challenges
the applicant faced in the
vindication of his rights cannot
warrant the apparently
deliberate act of undermining
the decision of the Court of
Appeal and applying for orders
that clearly had not been
granted by the trial court. One
instance is that, 5th
interested party prayed for an
order for payment of rent of
US$1.5million when even the
judgment that had been set aside
granted 5th
interested party only
US$598,225.17. To refuse to
quash the orders of the High
Court dated 1st
September, 2014 will be to allow
the 5th interested
party to hold on to the benefit
of a judgment that has ceased to
exist.
For the above reasons we grant
the application.
(SGD) G. PWAMANG
JUSTICE OF THE SUPREME
COURT
(SGD) W. A.
ATUGUBA
JUSTICE OF THE SUPREME
COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME
COURT
(SGD) P. BAFFOE -
BONNIE
JUSTICE OF THE SUPREME
COURT
(SGD) A. A. BENIN
JUSTICE OF THE SUPREME
COURT
COUNSEL
KWESI AUSTIN
ESQ. FOR THE APPLICANT.
CECIL ADADEVOH (P.
S. A) 3RD AND 4TH
INTERESTED PARTIES.
T. N. WARD - BREW ESQ.
FOR THE 5TH
INTERESTED PARTY |
