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Commercial law - invoking the
supervisory jurisdiction of the
Supreme Court - Securities
market - Revocation of licence –
Regulatory body - Judicial
Review - Resolution of disputes
– Certiorari - Whether or not
the impugned decision was
rendered void by circumstances
such as a want of jurisdiction
in the court at the time it
purported to render the
decision, - Whether or not the
court went in excess of its
jurisdiction regarding the
particular decision
Administrative justice - Whether
or not the court gave the
decision in breach of the rules
of natural justice - Whether
or not such a failure of
jurisdiction would make the
decision a nullity and render it
void - Article 23, 132 140(2)
and 141 of the 1992
Constitution
HEADNOTES
In the course of its regulatory
functions, the SEC revoked the
licence of FirstBanc Financial
Services (FirstBanc) by letter
dated 8th November
2019 for reasons stated in the
letter. On 11th
November 2019, FirstBanc filed
an application for Judicial
Review in the High Court, SEC
also contended that Firstbanc
had written to it for a reversal
of the revocation of the license
a day after it filed the
application for judicial review.
It was their case that that
communication falls within the
ambit of section 19 of Act 929,
therefore the application for
judicial review ought to be set
aside for the procedures
stipulated in Act 929 to be
completed And even if that
communication was not a
complaint (as argued by
Firstbanc), it still would
amount to a dispute of the
decision of SEC to revoke their
licence. As such the court still
ought to set aside the
Application for Judicial Review
and allow the parties to follow
the procedures determined in Act
929 for resolution of disputes,
the high court ruled dismissing
the application (first
application) to set aside the
Judicial Review Application,
SEC, as
Respondent/Applicant/Appellant/Applicant
in this court (hereinafter
referred to as SEC simply) has
applied to
invoke
the supervisory jurisdiction
of this court through an order
of certiorari quashing this
decision of 17th
January 2020
HELD
Our view is that the invitation
in the application before us is
pre-emptory in nature. Indeed,
when the complaint before us is
examined, what is gleaned is
that learned counsel for SEC is
inviting this court to pre-empt
the decision of the high court
regarding what it will utilize
the assumption of its
supervisory jurisdiction to do –
that is, uphold the application
or any of its reliefs for stated
reasons, or dismiss them for
stated reasons. To the extent
that the high court has
jurisdiction to decide one way
or the other regarding the
application for judicial review
placed before it, and that
assumption of jurisdiction to
consider the merits of the
particular application is not a
mistake in law, this application
is misconceived and so is
dismissed. We will end by
commenting on FirstBanc’s
objections to the form applied
in this application. It is
recognizable that SEC has
duplicated the form employed by
Firstbanc to commence its own
application in the high court.
Since the application before us
has been dismissed, we will
reserve a determination on this
“procedural misstep”.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
Supreme Court Rules C.I. 16 1996
Securities Industry Act 2016 Act
929
Land Title Registration Law 1986
(PNDC Law 152),
Legal Profession Act, Act 32
CASES REFERRED TO IN JUDGMENT
Boyefio v NTHC Properties
1997-98 1 GLR 768
Republic v High Court,
Koforidua, Ex Parte: Asare (Baba
Jamal & Others Interest Parties)
2009 SCGLR 460
Gaisie Zwennes Hughes & Co v
Loders Crocklaan BV 2012 SCGLR
363
Republic v High Court, Accra Ex
Parte Industrialization Fund for
Developing Countries and Another
2003 – 2004 SC GLR 348 at 354
Republic v High Court, Accra
Ex-Parte CHRAJ, 2003 – 2004
SCGLR 312
Republic v Court of Appeal
Ex-Parte Tsatsu Tsikata 2005 –
2006 SCGLR 612
R v High Court (Commercial
Division), Accra; Ex Parte
Republic (HFC Bank Limited &
Securities and Exchange
Commission, Interested Parties)
(Unreported: Civil Motion No:
JS/45/2014, 17th
December 2014
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
TORKORNOO (MRS), JSC:-
COUNSEL
THADDEUS SORY WITH ABU JUAN
JAGIARA FOR THE APPLICANT.
GLORIA KOUFIE WITH SHERLEY OTU
FOR THE INTERESTED PARTY.
TORKORNOO (MRS), JSC:-
Background of the Application
for Judicial Review in the High
Court
Section 1(1) of the
Securities Industry Act 2016 Act
929 provides for the
establishment of the Securities
and Exchange Commission (SEC).
Section 2 provides for its
object as follows:
2. The object of the
Commission is to
regulate
and promote the growth and
development of an efficient,
fair, and transparent
securities market in which
investors and the integrity of
the market are protected.
In the course of its regulatory
functions, the SEC revoked the
licence of FirstBanc Financial
Services (FirstBanc) by letter
dated 8th November
2019 for reasons stated in the
letter. On 11th
November 2019, FirstBanc filed
an application for
Judicial Review
in the High Court for the
following reliefs:
A.
A declaration that the
revocation of Applicant’s
licence by Respondent is null,
void and of no effect for want
of compliance with due process
and breach of Applicant’s right
to administrative justice.
B.
An order of certiorari for the
purpose of bringing up for
purposes of quashing and
accordingly quashing
Respondent’s decision of the 8th
November 2019 revoking
Applicant’s fund management
licence.
C.
An order of injunction directed
at Respondent and all its
officers, consultants, advisers,
workmen, assigns or privies
restraining them from
interfering with Applicant’s
business.
The SEC filed an application to
set aside the Judicial Review
application on 9th
December 2019 on the basis that
‘the application is premature
since the Applicant failed to
exhaust the statutory provisions
of the Securities Industries
Act, 2016 (Act 929) prior to
filing its application’.
SEC also contended that
Firstbanc had written to it for
a reversal of the revocation of
the license a day after it filed
the application for judicial
review. It was their case that
that communication falls within
the ambit of section 19 of Act
929, therefore the application
for judicial review ought to be
set aside for the procedures
stipulated in Act 929 to be
completed.
And even
if that communication was not a
complaint (as argued by
Firstbanc), it still would
amount to a dispute of the
decision of SEC to revoke their
licence. As such the court still
ought to set aside the
Application for Judicial Review
and allow the parties to follow
the procedures determined in Act
929 for
resolution of disputes.
High Court Ruling
On 17th January 2020,
the high
court ruled dismissing the
application (first application)
to set aside the Judicial Review
Application (substantive
application) on the grounds that
a.
Act 929 also provided in Section
19 (5) that ‘the hearings
committee shall not determine a
complaint or matter which is the
subject matter of an action
before a court
b.
Act 929 had no provisions
allowing stay of proceedings
when proceedings had been
commenced in court
c.
Therefore once an action has
actually commenced in court,
there will be no legal
justification for referring the
matter to the hearings Committee
as provided for under Section 19
of act 929.
The Application before this
court
SEC, as
Respondent/Applicant/Appellant/Applicant
in this court (hereinafter
referred to as SEC simply) has
applied to invoke the
supervisory jurisdiction of this
court through an order of
certiorari quashing this
decision of 17th
January 2020
on the premise that
a.
Applicant/Respondent/Respondent/Interested
Party (hereinafter referred to
as FirstBanc) failed to comply
with the statutory provisions
stipulated in Act 929 when it
filed the application for
Judicial Review of the SEC’s
order.
b.
The High court’s decision
permitting FirstBanc to invoke
its jurisdiction without first
complying with the procedures
stipulated in Act 929, amounts
to a fundamental error of law on
the face of the record.
In their supporting Statement of
Case, SEC’s counsel submits that
Section 122 (2) of Act
929 empowers the SEC to revoke
or suspend the licence of a
company. Section 122 (4)
provides that a licence should
only be revoked or suspended
after the licence holder has
been given the opportunity to be
heard. Thus even if SEC failed
to hear FirstBanc before the
revocation of the license, that
failure would constitute a
violation of the Act, and bring
it under the ambit of an
administrative hearing under
Section 19 (1)
Section 19 (1) uses mandatory
language in directing that
‘19 (1) A complaint, dispute
or a violation arising under
this Act shall, before any
redress is sought in the courts,
be submitted to the Commission
for hearing and determination in
accordance with this Act. ‘
SEC urges that this provision
does not constitute an ouster of
the court’s jurisdiction but a
direction to resort to internal
remedies before an action is
instituted in court. They cited
dicta from
Boyefio v NTHC Properties
1997-98 1 GLR 768; Republic v
High Court, Koforidua, Ex Parte:
Asare (Baba Jamal & Others
Interest Parties) 2009 SCGLR
460; and Gaisie Zwennes
Hughes & Co v Loders Crocklaan
BV 2012 SCGLR 363.
They submit that it is apparent
on the face of the Substantive
Application (for Judicial
Review) before the high court
that the high court had been
invited to assume jurisdiction
over alleged violations of the
provisions of 929. Further,
Section 19 of Act 929 has
provided internal mechanisms for
resolving disputes prior to
submission of the decisions to
the courts on appeal and so the
court’s assumption of that
jurisdiction is a fundamental
error.
Counsel referred to the
circumstances under which the
supervisory jurisdiction of this
court may be invoked namely
where
a.
there is want or excess of
jurisdiction
b.
there is an error of law on the
face of the record
c.
there is failure to comply with
the rules of natural justice and
d.
on the Wednesbury Principle on
reasonableness
Opposition to the Application
FirstBanc opposed this
application for certiorari on
three grounds. First they
described the present
application as incompetent by
reason of the heading of the
application, which did not
strictly conform to what is
prescribed in Form 29 under rule
61(1) of CI 16.
Second, that for the supervisory
jurisdiction of this court over
the high court to be properly
invoked, it is required that
this court examine whether the
High court in entering the
impugned decision acted without
jurisdiction or breached the
rules of natural justice.
If the high court had
jurisdiction to enter the
decision, then the proper remedy
against the rightness or
wrongness of the decision is an
appeal, and not a resort to
certiorari to quash it. They
said SEC had acted without
candor by not placing before
this court, the fact of the
appeal they had filed against
the decision.
Third, Firstbanc’s counsel drew
attention to the sacrosanct
nature of the supervisory
jurisdiction of the high court
and the settled position that it
cannot be ousted by Statute or
private contract. It was their
submission that FirstBanc had
invoked the jurisdiction of the
high court for their right to
administrative justice under
Article 23 of the 1992
Constitution to be
protected, and this right may
only be enforced in the high
court.
Consideration of the Submissions
SEC is right in identifying that
there are confines to the
circumstances within which this
court exercises the supervisory
jurisdiction given it under
Article
132 of the 1992
Constitution.
First the fundamental question
is
whether the impugned decision
was rendered void by
circumstances such as a want of
jurisdiction in the court at the
time it purported to render the
decision, or
the court
went in excess of its
jurisdiction regarding the
particular decision, or
the court
gave the decision in breach of
the rules of natural justice.
Such a
failure of jurisdiction would
make the decision a nullity and
render it void.
If the answer to the
jurisdictional question
establishes jurisdiction to so
enter that ruling, then the
decision would not come within
the purview of the power to be
quashed by certiorari, unless
the tertiary question of ‘error
of law patent on the face of the
record’ exists.
As stated by Bamford Addo JSC in
Republic v High Court, Accra Ex
Parte Industrialization Fund for
Developing Countries and Another
2003 – 2004 SC GLR 348 at 354
‘since the High
Court had jurisdiction to hear
the application (for a
variation of her earlier order,)
she was acting within the
jurisdiction and her ruling or
decision, even if the applicant
disagreed with it, was a matter
for appeal and not certiorari’
She went on to say that ‘It
is to be noted that there is a
clear distinction between
certiorari and appeal, which is
so often lost on litigants and
their lawyers. When the High
Court, a Superior Court is
acting within its jurisdiction,
its erroneous decision is
normally corrected on appeal
whether the error is one of fact
or law. Certiorari, however, is
a discretionary remedy, which
would issue to correct a clear
error of law on the face of the
ruling of the court; or an error
which amounts to a lack of
jurisdiction in the court so as
to make the decision a nullity.
In the case of errors of law not
apparent on the face of the
ruling or those of fact the
avenue for redress is by way of
appeal’
Where the court has
jurisdiction, then the other
context within which the Supreme
Court would find reason to quash
the decision is if it is
premised on such a grevious,
fundamental and patent error of
law on the face of the record
such as to make the impugned
decision a complete nullity.
In
Republic v High Court, Accra
Ex-Parte CHRAJ, 2003 – 2004
SCGLR 312 at page 345
the Supreme Court speaking
through Date-Bah JSC in what the
Court describes as a
re-statement of the law
governing the exercise of the
Supreme Court’s supervisory
powers over the high court had
this to say: ‘The
re-statement of the law may be
summarized 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 had acted ultra vires the
Constitution or an express
statutory restriction validly
imposed on it’
In
Republic v Court of Appeal
Ex-Parte Tsatsu Tsikata 2005 –
2006 SCGLR 612 at 619,
the court had this to say to
further settle the pillars of
the landscape through Wood JSC,
as she then was:
‘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 intervention. Also
where the proceedings are
regular, the charge that the
court has misread or
misconceived a point of law or
misdirected itself, does not per
se constitute a sufficient
ground for the grant of the
order. Similarly, the complaint
that there has been an improper
exercise of the discretionary
jurisdiction is clearly
insufficient’
In the matter before us, the
jurisdiction of the high court
to entertain and rule on the
first application is not faulted
by SEC.
What SEC complains to us about
is the effect of the decision
regarding the first application
– that the court will assume
jurisdiction over the
substantive application for
supervisory jurisdiction when
Act 992 stipulates other
internal mechanisms to deal with
disputes, complaints and
violations of Act 992. This is
what SEC complains constitute an
error that is patent on the face
of the record.
To use the words of Wood JSC (as
she then was ) on page 620 of
Ex Parte Tsatsu Tsikata
cited supra, ‘It is plainly
trite, but worth reiterating
that, in cases alleging error of
law apparent on the face of the
record, the alleged matter
complained of must be a mistake
in law. Thus, if in the first
place, it is not an error but,
on the contrary, correct in law,
then it does not in any way
qualify for judicial review’
Would the decision that the high
court is seised with
jurisdiction to determine
whether FirstBanc is entitled to
‘A declaration that the
revocation of Applicant’s
licence by Respondent is null,
void and of no effect for want
of compliance with due process
and breach of Applicant’s right
to administrative justice’
be a mistake in law?
We do not think so at all,
because the high court is indeed
clothed with jurisdiction under
Article 140 (2) and 141 in these
words:
Jurisdiction of the High Court
140 (2)
The High Court shall have
jurisdiction to enforce the
Fundamental Human Rights and
Freedoms guaranteed by this
Constitution
Supervisory Jurisdiction of the
High Court
141
The High Court shall have
supervisory jurisdiction over
all lower courts and any lower
adjudicating authority; and may,
in the exercise of that
jurisdiction, issue orders and
directions for the purpose of
enforcing or securing the
enforcement of its supervisory
powers
As part of the above cited
jurisdictions, the high court is
mandated to review the acts of
administrative bodies to
determine their conformity with
the tenets of administrative
justice required under Article
23 of the 1992 Constitution.
Article 23 reads
Administrative Justice
23. Administrative bodies and
administrative officials shall
act fairly and reasonably and
comply with the requirements
imposed on them by law and
persons aggrieved by the
exercise of such acts and
decisions shall have the right
to seek redress before a court
or other tribunal.
Thus whether the reliefs sought
within the context of the
alleged facts, reflect a genuine
case for the exercise of the
supervisory jurisdiction of the
court under Order 55 or not,
this is a decision that the high
court has jurisdiction to make
under its supervisory
jurisdiction. It stands to
reason therefore that, the
assumption of jurisdiction to
consider the case placed before
the court cannot make the
impugned decision a nullity.
We are mindful of the learned
high court judge’s reasoning
that by reason of Section 19 (5)
of Act 992, the high court is
not restrained from assuming
jurisdiction over cases
emanating from the regulatory
functions of SEC, even if the
administrative mechanisms of SEC
had commenced. Is that decision
erroneous? If it is, then it is
an error made within
jurisdiction, and the proper
response is an appeal, and not
an order quashing the ruling.
Counsel for SEC has strongly
pointed us in the direction of
cases such as
Boyefio v NTHC Properties Ltd
1997-98 1 GLR 768, Gaisie
Zwennes Hughes & Co v Loders
Crocklaan 2012 SCGLR 363 and
R v High Court (Commercial
Division), Accra; Ex Parte
Republic (HFC Bank Limited &
Securities and Exchange
Commission, Interested Parties)
(Unreported: Civil Motion No:
JS/45/2014, 17th
December 2014.
He cites them as authorities for
the position of the law, that
where the exercise of the
jurisdiction of the courts is
made subject to the prior
engagement of internal
mechanisms set out in statutes,
those mechanisms must be
exhausted before the
jurisdiction of the courts can
be invoked. This position of the
law is appreciated, though it
must be pointed out that in the
cited cases, and all relevant
cases, the remit of those
internal mechanisms were always
defined and identifiable within
the relevant laws, and the
decisions centered around that
remit. Second, the recognition
of the specified remits before
the court could assume
jurisdiction was a function for
the courts that had exercised
jurisdiction to resolve the
disputes brought to them, as
part of the issues placed before
them. Their ability to do so or
failure to do so turned the
determination to apply the
supervisory power and review
function of the Supreme Court.
In Boyefio v NTHC Properties Ltd
1997-98 1 GLR 768, the Supreme
Court, on reference of a
question from the high court
pursuant to Article 130 (2) of
the 1992 Constitution,
identified that it was specified
disputes relative to land or an
interest in land under the
Land
Title Registration Law 1986
(PNDC Law 152), that were
required under section 12(1) of
the law to be settled by the
internal mechanism of the
adjudication committees under
the law, prior to resorting to a
court. The Supreme Court was
clear that outside this limited
jurisdiction of the adjudication
committees, the adjudication
committees were not committees
with general jurisdiction to
handle any land suit in a
registration district. In such
general jurisdiction cases, a
party could commerce their
actions in court.
In Gaisie Zwennes Hughes & Co v
Loders Crocklaan 2012 SCGLR 363,
the non-compliance with a
mandatory provision of the
Legal
Profession Act, Act 32 prior
to commencement of the court
action was identified as the
defect to the jurisdiction of
the courts below.
In R v High Court (Commercial
Division), Accra; Ex Parte
Republic (HFC Bank Limited &
Securities and Exchange
Commission, Interested Parties),
the action was one that
commenced by Writ for the
substantive resolution of a
complaint and dispute relative
to the role of the Security
Exchange Commission. The Supreme
Court identified that by reason
of the internal mechanisms for
resolving the complaint and
dispute that was brought before
the court, the high court’s
entertainment of the suit and
applications thereon was an
error of law.
We are satisfied that these
cases cited above have
distinctly different
circumstances from the case
before us. In the present
proceedings, Firstbanc makes the
case to us that it run to the
high court to seek the use of
its supervisory power to protect
FirstBanc’s constitutional
rights to administrative justice
under Article 23 of the 1992
Constitution, and to declare the
decision of SEC void because of
the lack of a hearing given to
FirstBanc before the revocation
of the licence. In this wise, it
was not bringing a complaint,
dispute or violation under Act
929 to the court for resolution.
This position cannot be faulted
and barred in limine because the
application is indeed couched as
being grounded on the right to
administrative justice, and the
court’s constitutionally
mandated duty to provide
supervisory review over
administrative justice matters,
rather than an invitation to the
high court to resolve the
dispute and complaint between
the parties.
As to whether the case made by
FirstBanc, within the facts they
recount, the remedies sought,
the tenets of Act 992, and the
relevant constitutional
provisions, is a genuine case
for the grant of the orders
sought under the judicial review
jurisdiction of the high court,
is the decision that the high
court that has assumed
jurisdiction has to make. That
decision to assume jurisdiction
as required by either
Article
140(2) and Article 141 is
not a mistake in law.
Our view is that the invitation
in the application before us is
pre-emptory in nature. Indeed,
when the complaint before us is
examined, what is gleaned is
that learned counsel for SEC is
inviting this court to pre-empt
the decision of the high court
regarding what it will utilize
the assumption of its
supervisory jurisdiction to do –
that is, uphold the application
or any of its reliefs for stated
reasons, or dismiss them for
stated reasons.
CONCLUSION
To the extent that the high
court has jurisdiction to decide
one way or the other regarding
the application for judicial
review placed before it, and
that assumption of jurisdiction
to consider the merits of the
particular application is not a
mistake in law, this application
is misconceived and so is
dismissed.
We will end by commenting on
FirstBanc’s objections to the
form applied in this
application. It is recognizable
that SEC has duplicated the form
employed by Firstbanc to
commence its own application in
the high court. Since the
application before us has been
dismissed, we will reserve a
determination on this
“procedural misstep”.
G. TORKORNOO (MRS.)
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(CHIEF JUSTICE)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
S. K. MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
N. A. AMEGATCHER
(JUSTICE OF THE SUPREME COURT)
COUNSEL
THADDEUS SORY WITH ABU JUAN
JAGIARA FOR THE APPLICANT.
GLORIA KOUFIE WITH SHERLEY OTU
FOR THE INTERESTED PARTY. |
