Practice and Procedure -
Certiorari - Section 217
for Injunction and Declaration -
Companies Act 1963 (Act 179) -
Stay of execution -
Resolution passed –Whether or
not the resolution passed
appointing the 1st
Respondent and the 2nd
Respondent as Directors was
irregularly passed and a nullity
- Whether or not the resolution
passed was inconsistent and in
contravention of the Regulations
of the 3rd Respondent
Company and the Companies Act,
1963 (Act 179) and therefore
void - Whether or not the 1st
Respondent and the 2nd
Respondent are directors of the
3rd Respondent
Company – Whether or not the
High Court judge committed a
jurisdictional error of law when
he appointed an interim
committee of two to supervise
the duties of the General
Manager of the Company without
regard to the Companies Act, Act
179 and Regulations of the
Company.
HEADNOTES
On the 8th of March
2018, the Applicant herein,
therein as the Plaintiff
commenced an action in the High
Court, Accra seeking
cancellation of certain
resolutions passed and or taken
by Respondents therein, herein
Interested Parties, in respect
of the Latex Foam Company and
claimed specific reliefs against
the named Respondents A
declaration that the resolution
passed on 27th August
2015 appointing the 1st
Respondent and the 2nd
Respondent as Directors was
irregularly passed and a nullity
as same was inconsistent and in
contravention of the Regulations
of the 3rd Respondent
Company and the Companies Act,
1963 (Act 179) and therefore
void and A declaration
that the 1st
Respondent and the 2nd
Respondent are not directors of
the 3rd Respondent
Company and an order of
injunction restraining the
Respondent from acting on the
resolution passed on 27th
August 2015. In an affidavit in
opposition filed by the 1st
and 2nd Interested
Parties herein, therein
Respondents, they proposed to
the High Court, the setting up
of an interim management
committee, to steer the affairs
of the 3rd Interested
Party/Company pending the
determination of the suit. This
request was rejected by the
Applicant.
HELD
In this instance, the Interested
Parties cannot therefore be seen
to blow hot and cold in respect
of the same matter. Once they
argue that it was perfectly
legitimate for the learned trial
Judge to refer to the previous
Ruling of 27th June
2018 in the Ruling of 2nd
November 2018, the argument of
the application being time
barred fails and is accordingly
dismissed.
What must be noted is that, it
was the Applicant who invoked
the jurisdiction of the court,
for an application to injunct
the Interested Parties. In their
response to this application,
they in turn proposed the
appointment of an interim
management committee. In a
supplementary affidavit, the
Applicant herein made counter
proposals, so in essence it can
safely be accepted that the
Applicant did not oppose the
establishment of the Interim
Management Committee.
In any case, a reference to the
reliefs which the Applicant
filed in the originating motion
in the High Court clearly
indicated that the Applicant
would have been better off if he
had been advised to pursue the
said reliefs in the substantive
case rather than spend all his
energies on interlocutory
issues.
For the reasons enumerated
above, the application for
certiorari to quash the orders
of the High Court, Commercial
Court Division 6, presided over
by Jerome Noble-Nkrumah dated
27/6/2019 and 2/11/2019 fails
and is accordingly refused
In the instant case however, it
was rather the Applicant in
whose favour series of Rulings
were given by the learned trial
Judge. It thus lies ill in his
mouth, and in very bad faith for
the self same Applicant to cast
these aspersions against the
trial judge.
Based on the above rendition, we
accordingly dismiss the
prohibition as well. We however
direct that the learned trial
Judge be granted the option to
recuse himself from the case if
he deems that option prudent.
STATUTES REFERRED TO IN JUDGMENT
Companies Act 1963 (Act 179)
Supreme Court Rules 1996 (C. I.
16).
1992 Constitution
CASES REFERRED TO IN JUDGMENT
Republic v High Court, Accra,
Ex-parte State Housing Co. Ltd.
[2009] SCGLR 187
Samuel Bervell Ackah v Express
Maritime Services Limited &
Others, CM 299/2002 dated 23rd
January 2003
Republic v High Court, (General
Jurisdiction “5” Ex-parte, The
Minister for the Interior and
Another, C.M. No. J5/10/18 dated
8th March 2018. S.C
In Re-Speedline Stevedoring Co.
Ltd, Republic v High Court Ex-parte
Brenya [2001-2002] SCGLR 775.
Republic v Court of Appeal,
Accra Ex-parte Tsatsu Tsikata
[2005-2006] SCGLR 612, at
holding 1
Republic v High Court, Accra,
Ex-parte Joseph Danso (New
Patriotic Party and 4 Others,
Interested Parties) C M No.
JS/5/2015 S.C and
Republic v High Court, Accra,
Ex-parte Deborah Atakorah (Billy
Cudjoe- Interested Party)
[2015-2016] 1 SCGLR 298
Republic v High Court,
(Commercial Division) Ex-parte,
The Trust Bank Ltd, [2009] SCGLR
164 at pages 169-171.
Republic v High Court, ex-parte
CHRAJ, [2003-2004] 1 SCGLR 312
at 326-327
Essilfie and Others v Anafo and
Others [1992] 2 GLR 654
The Republic v High Court
Kumasi, Ex-parte Bank of Ghana
and Others, (Sefa and Asiedu-
Interested Parties) No. 1,
Republic v High Court, Kumasi;
Ex-parte Bank of Ghana and
Others, (Gyamfi and Others –
Interested Parties) (No. I)
(Consolidated) 2013-2014 1 SCGLR
477 at 509 -511
Republic v High Court, Kumasi,
ex-parte Fosuhene [1989-90] 2
GLR 315
Adzaku v Galenku [1974] 1 GLR
198 at 202
In Re-Appenteng (Deceased)
Republic v High Court, Accra
Ex-parte Appenteng & Another
[2005-2006] SCGLR 18.
Republic v High Court, Denu,
Ex-parte Agbesi Awusu II (No.1)
(Nyonyo Agboada Sri III)
Interested Party [2003-2004] 864
Attorney-General v Sallah, Court
of Appeal, 17/4/1970, digested
in (1970) C.C 54 and (1970) 2
G&G 487
The Republic v The High Court,
(Financial Division 3) –
Respondent, Accra Ex-parte Ms
Arch Adwoa Company Ltd –
Applicant, 1. The
Auditor-General and Attorney
General – Interested Parties
Suit No. CMJ5/32/19 dated 10th
April 2019
Sasu v Amua Sekyi, [1987-88] 2
GLR, 221 at 225.
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
DOTSE, JSC:-
COUNSEL
SAMUEL ADU BOAHEN WITH HIM EUNAS
ESHUN FOR THE APPLICANT.
AUGUSTINE KUDICIL WITH HIM PAA
KWAME LARBI FOR THE 1ST
AND 2ND INTERESTED
PARTIES.
DOTSE, JSC:-
PROLOGUE
This is a Ruling, premised on an
application at the instance of
Nowfill Solomon Laba, the
Applicant herein, seeking an
order of Certiorari to quash the
orders of the High Court,
(Commercial Division 6) dated 27th
June 2018 and 2nd
November 2018 respectively
presided over by Noble-Nkrumah J
and also to prohibit the said
Judge from hearing suit, No.
Misc 0032/2018, pending before
the said court.
Even though the application in
substance is against all three
Interested Parties named herein,
it is only 1st and 2nd
Interested Parties, Wissam Laba
and Louis Khater Abi Habib
Khater who have filed and sworn
to affidavits in opposition.
The 3rd Interested
Party, Latex Foam Rubber
Products Limited, the corporate
entity founded by the Applicant,
and the deceased father of the 1st
Interested Party and brother of
the Applicant, (and is the
reason why the Applicant and
Nephew are in court) has for
very good reasons in our opinion
stayed clear of the ensuing
legal quagmire that has engulfed
the 3rd Interested
Party’s business operations for
the past couple of years.
CAPACITY OF APPLICANT
In paragraph 4, of the 55
paragraphed affidavit in support
of this application, sworn to by
the Applicant on 29th
November 2018 he deposed to as
follows:-
“That I am one of the two
founders of Latex Foam Rubber
Products Limited, (“3rd
Interested Party” or the
Company”) the Managing Director
and a holder of 50% of the
issued shares of the company”.
Emphasis
FACTS
On the 8th of March
2018, the Applicant herein,
therein as the Plaintiff
commenced an action in the High
Court, Accra by an Originating
Motion seeking cancellation of
certain resolutions passed and
or taken by Respondents therein,
herein Interested Parties, in
respect of the Latex Foam
Company and claimed specific
reliefs against the named
Respondents therein in Suit No.
MISC. 0032/2018.
In order to lay bare the facts
from the genesis of this
dispute, it is considered
worthwhile to set out in
extenso, the title of the suit
and the reliefs which the
Applicant claimed in this
Originating Motion against the
Respondents therein:-
In the Matter of the Companies
Act 1963 (Act 179)
And
In the Matter of an Application
under Section 217 for Injunction
and Declaration
Nowfill S. Laba
H/No. 5
1st Rangoon Close
Cantonments Accra
Vrs
1. Wissam Laba
No. 6 Shippi Close
Plot No. 167 East
Cantonments
2. Louis Khater Abi
Habib Khater
Abi Habib Building
Roumieh
El Metn, Lebanon
3. Latex Foam Rubber
Products Ltd.
No. 16 Dadeban Road
North Industrial
Area, Accra”
RELIEFS
a.
“A declaration that the
resolution passed on 27th
August 2015 appointing the 1st
Respondent and the 2nd
Respondent as Directors was
irregularly passed and a nullity
as same was inconsistent and in
contravention of the Regulations
of the 3rd Respondent
Company and the Companies Act,
1963 (Act 179) and therefore
void.
b.
A declaration that any steps and
or action taken based on the
said resolution of 27th
August 2015 are void to the
extent that such step or action
is/are founded on that
resolution.
c.
A declaration that the 1st
Respondent and the 2nd
Respondent are not directors of
the 3rd Respondent
Company.
d.
A declaration that the 1st
Respondent and the 2nd
Respondent not being directors
of the 3rd Respondent
Company have no right to
requisition or convene a board
meeting of the 3rd
Respondent Company.
e.
An order of injunction
restraining the Respondent from
acting on the resolution passed
on 27th August 2015.
f.
An order cancelling the
resolution made on 27th
August 2015 and all appointments
made therein; and
g.
Such other orders as the Court
think fit.” Emphasis
Pursuant to the said Originating
Motion, the Applicant sought and
obtained from the High Court on
8th March 2018 an
Ex-parte interim injunction
restraining the 1st
and 2nd Interested
Parties herein from holding
themselves out as Directors and
from requisitioning or holding
any board meetings for a period
of 10 days. This order has been
attached to these proceedings as
Exhibit NS2.
It is the case of the Applicant
that, whilst the suit referred
to supra was pending, but after
the expiration of the duration
of the interim injunction
referred to in Exhibit NS 2, the
1st Interested Party,
purporting to act as a Director
of the 3rd Interested
Party served notice of a board
meeting dated 4th
June 2018 of the 3rd
Interested Party/Company, and
had it fixed for the 8th
June 2018.
The meeting scheduled for the 8th
June 2018, which the Applicant
described as illegal was again
restrained by him as he obtained
a second order from the High
Court dated 6th June
2018 restraining the 1st
Interested Party from
requisitioning the said Board
meeting marked therein as
Exhibit NS.3.
An attempt by the 1st
Interested Party to vary the
order of injunction restraining
him from holding the scheduled
Board meeting fixed for the 8th
of June 2018 by the High Court
was unsuccessful. Despite this
setback, the Board meeting of
the 3rd Interested
Party/ Company was held on the
said 8th June 2018.
In paragraph 14 of the affidavit
in support, the Applicant
deposed to as follows:-
“That at the said illegal
meeting, with one J. Opoku
Boateng acting as Secretary,
Louis Khater Abi Habib Khater
the 2nd Interested
Party and one Haifa Kyriakos
Laba were purportedly appointed
as Executive Directors and one
Charles Laba was purported to
have been appointed Chief
Executive officers.”
The Applicant went back to the
High Court and for the third
time succeeded in obtaining an
order of interim injuction to
restrain the persons appointed
and listed supra from holding
such offices for a limited
period of 10 days on the 11th
of June 2018 and this exhibit is
marked as NS.7.
Following from these successes,
the Applicant on the same 11th
June, 2018 then filed another
application against the said
appointed officers and listed
supra, and urged the court to
restrain them from holding
office and prayed that the
order was to last during
the entire pendency of the
suit.”
In an affidavit in opposition
filed by the 1st and
2nd Interested
Parties herein, therein
Respondents, they proposed to
the High Court, the setting up
of an interim management
committee, to steer the affairs
of the 3rd Interested
Party/Company pending the
determination of the suit. This
request was rejected by the
Applicant.
RESPONSE OF THE COURT
The reaction of the High Court,
(Commercial Division 6) presided
over by Jerome Noble-Nkrumah J,
after hearing Counsel for the
Parties was to request the
parties to the suit pending
before him to name two persons
each to the court. According to
the Applicant, whilst the
purpose of the submission of the
names were not made known to
them, ( a fact which was
disputed by the Interested
Parties) he nevertheless
submitted the two names, whilst
the 1st and 2nd
Interested Parties submitted two
names a piece, making four names
for them, and six in all.
It is the case of the Applicant
that, on the 27th
June 2018, the High Court
proceeded to appoint two persons
as forming an Interim Management
Committee to supervise the work
of the General Manager of the 3rd
Interested Party.
Since this order is one of the
two orders that the Applicant
wants this court to quash, we
will out of abundance of
caution, set out in extenso the
said orders of 27th
June 2018 accordingly.
THE ORDER OF 27TH
JUNE 2018
“By Court: The parties have
supplied court with names of
their Representatives.
Respondents have supplied court
with 4.
The court will elect Saqib Nazir
from the 1st and 2nd
Respondents side to partner Alex
Shoueiry from the Applicant’s
side.
They shall basically for the
pendency of the matter supervise
the work of the General Manager
of the 3rd Respondent
in the running of the business
of the 3rd
Respondent.
The General Manager shall report
to them. They shall give
directions on the running of the
3rd respondent, it is
hoped that this measure aids in
the efficient running of the 3rd
Respondent. The mentioned
representatives will submit
quarterly report to this court
on their activities regarding 3rd
respondent.
Further to this there are
outstanding guarantees to be
renewed. In the interim while
the matter is pending, Haifa
Kyriakos Laba, wife of the
deceased partner of the 3rd
Respondent Company shall jointly
be responsible for issuing
personal guarantees should the
need arise with Nowill Laba.
By this order the Applicant’s
Application for Interim
Injunction is struck out.
Adjourned to 4th July
2018 at 11.00am.” Emphasis
supplied
This is the order made on the 27th
July 2018. The Applicant has
made a number of allegations
against the drawing up of the
order of 27th June
2018 and how he felt the order
was impugned.
An attempt by the Solicitors of
the Applicant to prevail upon
the Chief Justice to transfer
the case from the Presiding
Judge, Noble-Nkrumah J, failed.
As a result, the Applicant
appealed against the said order.
We will revert to this matter
later.
STAY OF EXECUTION OF 27TH
JUNE 2018 ORDER
Undaunted in his attempt to seek
a reversal of the orders of the
High Court, dated 27th
June 2018, the Applicant applied
to the court to stay execution
of the orders therein, alleging
that the order had placed the
management of the company in the
hands of people who owed no
fiduciary duties to the company
but who could still expose the
Managing Director to
liabilities.
ORDERS OF 2ND
November 2018
On the 2nd November
2018, the High Court, as
presided refused the application
for stay of execution.
In view of the fact that, this
is also one of the two orders
that the Applicant wants this
court to quash, it is imperative
for the court to set out in
detail the contents of this 2nd
November 2018 order as well.
“On the 11/7/2018 the
Applicant/Appellant/Applicant
filed the present Motion on
Notice of stay of Execution
Pending Appeal. The Applicant
seeks an order of court staying
execution of ruling/orders of
this court dated 27/6/2018. For
this application parties were
ordered to file their written
submissions by the 23/10/2018
for a ruling on the 2/11/2018.
Respondents filed their written
submission on the 23/10/2018. As
at 31/10/2018 when I am writing
this ruling there is no written
submission from the Applicant.
According to the Applicant at
paragraph 22 of his affidavit in
support.
The pith of the appeal is that
this court erred when it
purported to strike out an
interim injunction (application)
when all interim injunction that
had been had lapsed.
The brief genesis to events of
the preceding paragraph was an
11th June 2018
application for interlocutory
injunction filed by the
Applicant seeking to restrain
certain persons. As was to be
expected the Respondents opposed
this application.
In view of the heated exchanges
that had characterized virtually
every hearing in this matter,
this court on the 26 of June
2018 decided to invite the
parties to nominate one
representative each to be
appointed by the court to
supervise the General Manager of
the 3rd Respondent
instead of going on with the
hearing of the motion, as it
then appeared to the court that
the parties had taken entrenched
positions.
This court took an adjournment
to the next day to enable the
parties make their nominations.
On the 27th June
2018, the parties presented the
court with the names and two
persons were constituted to
supervise the General Manager of
the 3rd Respondent in
a bid to free the parties
especially the Applicant for a
quick resolution in court of
issues between the parties in
court and also to prevent the 3rd
Respondent from total collapse.
Having so acted this court
was of the view that the
application for injunction had
been rendered unnecessary and
therefore considered it struck
out.
It is this decision of court,
this application seeks to stay
while it is appealed against.
In opposing this application the
Respondents in their affidavit
in opposition raise basically
four arguments:-
a.
This Courts orders of the 27th
of June 2018 are not executable
b.
The Applicant consented to the
appointment of the two persons
to supervise the General Manager
of the 3rd
Respondent.
c.
Balance of convenience tilts
unfavorably against the 3rd
Respondent should the court
grant the present application.
d.
The Applicant has no interest or
right that needs protection by
the grant of the instant
application.
In the first place as stated
earlier on in this ruling, the
court’s decision of the 27th
of June was in no way foistered
on the parties. It was largely
driven by the parties own
reaction to each other in court.
The parties were given a day to
nominate their representatives.
Further to this the courts
appointment of the two coincided
with a proposal by the
Respondents in their affidavit
in opposition to that
application. It is rather
strange now that the Applicant
by this application seeks (sic)
pull out from this arrangement.
Basically the Applicant seeks a
stay of execution which simply
means suspend the enforcement of
a judgment or order see
Amankwa v Kyere [1963] 1 GLR
409.
In NB Land mark Ltd v Lakiani
[2001-2002] SCGLR 318, the
Supreme Court has held that
where a decision is incapable of
being enforced by any of the
known processes of execution, an
application for stay of
execution of such a decision
cannot arise.
If it is the appointment the
Applicant seeks to stay I do not
see how that is possible in the
light of a clear line of
authorities in that regard.
Should it be directed at my
striking out of the application,
I fail again to see how my
refusal to grant an
interlocutory injunction is an
executable order.
The appointment of the two to
supervise the General Manager
pending the litigation was to
shield the 3rd
Respondent from orders and acts
of court which affected the
parties and in turn had the
effect of disrupting the
activities of the 3rd
Respondent. This being the case
should this order of court be
stayed, the odds will greatly
affect the fortunes of the 3rd
Respondent and its work force.
In any case in the event that
this application fails and the
Applicants appeal succeeds, he
retains his position as
director, the appointed two will
account for their stewardship
and hand over. This matter has
suffered some amount of delay.
Such applications add on more
time. The life of a business
is at stake here and we must be
seen to be conscious of that.
I will decline to grant the
Applicants prayer and same is
dismissed.” Emphasis
RATIONALE FOR THE CERTIORARI
APPLICATION
The Applicant contends that the
reasons stated by Noble-Nkrumah
J, in his orders of 2nd
November 2018 referred to supra
are untenable because
(1)
The learned Judge erred when he
inserted “interim Injunction
order struck out” and that
this was not part of the
original order read out and that
this error is akin to
judicial impropriety.
(2)
That the Judge had no power to
appoint an interim management
committee without regard to the
Regulations of the 3rd
Interested party/Company,
contending however that the
Judge could have appointed a
Receiver/Manager under the
Companies Act 1963 (Act 179).
(3)
That the learned Judge by reason
of the above, exceeded his
jurisdiction in the orders he
made on the 27 June 2018.
GROUNDS FOR THE CERTIORARI AND
PROHIBITION
The following are the grounds
the Applicant has stated in his
motion for the instant
Certiorari and Prohibition
applications seeking to quash
the orders of Jerome
Noble-Nkrumah J dated 27th
July 2018 and 2nd
November 2018 respectively and
prohibit him from hearing the
suit accordingly.
“GROUNDS OF APPLICATION
1. Error of Law on the
face of the record
1.1 That His Lordship
Justice Noble Nkrumah sitting in
the High Court (Commercial
Division 6), Accra on 27th
June 2018 committed a
jurisdictional error of law when
he appointed an interim
committee of two to supervise
the duties of the General
Manager of the Company without
regard to the Companies Act, Act
179 and Regulations of the
Company.
1.2 That His Lordship
Justice Noble Nkrumah sitting in
the High Court (Commercial Court
6), Accra on 2nd
November 2018 committed a
jurisdictional error of law when
he read into his previous Order
of 27th June 2018
that he erroneously described as
Consent Order, the “accounting
of the two of their stewardship
and hand over” to the Applicant
when nothing like that was
stated on the face of the said
order.
2. JUDICIAL IMPROPRIETY
2.1 That His Lordship
Justice Nobel Nkrumah sitting in
the High Court (Commercial
Division 6), Accra on 27th
June 2018 committed judicial
impropriety when he inserted
“interim injunction struck out”
in the drawn up order, which was
not part of the ruling delivered
in open court.
2.2 That His Lordship
Justice Noble Nkrumah sitting in
the High Court (Commercial
Division 6), Accra on 2nd
November 2018 sacrificed
judicial propriety by his ruling
on the said date in implying the
suspension of the Applicant’s
position as a director by his
Order of 27th June,
2018 in favour of the interim
committee of two when nothing
like that was stated on the face
of the said order.
2.3 That the cumulative
judicial impropriety inherent in
the Orders on 27th
June 2018 and 2nd
November 2018 respectively erode
any confidence and perception
that justice will be done in the
final determination of the
case.”
1st AND 2ND
INTERESTED PARTIES RESPONSE
In a 71 paragraphed affidavit in
opposition, sworn to by the 1st
Interested Party on behalf of
the 2nd Interested
Party as well, these Interested
Parties vehemently opposed the
twin applications of Certiorari
and prohibition on substantially
the following grounds:-
1.
That the application is without
merit, incompetent and should be
dismissed.
This argument was premised on
the fact that, according to 1st
and 2nd Interested
Parties, the date of the 27th
June 2018 order, which the
Applicant wants this court to
quash, has been filed beyond the
90 day limit as regulated and
sanctioned by Rule 62 of the
Supreme Court Rules 1996 (C. I.
16).
According to the 1st
and 2nd Interested
Parties, the order of 27th
June 2018 is distinct and
separate from that of 2nd
November 2018 and therefore the
latter order cannot and did not
revive the rights of the
Applicant which have long
lapsed, and must be considered
as dead and buried.
2.
Secondly, the Interested Parties
contend in their affidavit that,
a review of the application of
the Applicant’s application
indicates quite clearly that the
proper remedy which the
Applicant should have filed was
for an appeal against those
orders and not to have invoked
the supervisory jurisdiction of
the court as had been done,
because the error if any is not
jurisdictional, whether excess
or lack thereof.
We observe that, the Interested
Parties then sought to justify
on legal grounds why the 1st
Interested Party who was
restrained by the order of 8th
June 2018 did not violate the
said order as he did not attend
the meeting of the 8th
June 2018.
Since it is not within our remit
in this application to go into
the merits of the grant or
otherwise of the Interim
Injunction orders, violations if
any of the said orders, are
immaterial, and we decline the
invitation made to us to go on
that tangent.
3.
Thirdly, the Interested Parties
contend that, the ideal of an
Interim Management Committee was
mooted and or suggested by both
parties. For example, in
paragraph 29 of their affidavit
in opposition, the Interested
Parties deposed to in part as
follows:-
“The Applicant supported the
constitution of an Interim
Management Committee but
suggested a different
unreasonable composition of
himself and the General Manager
of the 3rd Interested
Party as the members of the
Interim Management Committee.”
Emphasis
Whilst the Interested Parties
concede that they proposed the
idea of an alternative solution
to the court for the appointment
of an Interim Management
Committee “comprising the
Applicant, Charles Laba and a
Senior Partner of any of the Big
Four (4) Accounting Firms”.
Emphasis
Besides the above, issues
relating to the appointment of
an interim management committee
had been extensively argued
before the court by learned
counsel for the parties. In this
respect, we take note of
paragraphs 32, 33, 34, 35, 36
and 38 of the 1st
Interested Party’s affidavit in
opposition and agree that the
issues of the appointment of an
Interim Management Committee had
been extensively discussed which
led the learned trial Judge to
request the parties to make
nominations of candidates to be
considered by the court for
consideration for appointment to
that effect. This phenomenon
infact found expression in the
orders of 2nd
November 2018.
4.
The 1st and 2nd
Interested Parties therefore
prayed this court to dismiss the
application with punitive costs.
ISSUES
1. Is the application in
respect of 27th June
2018 distinct and separate from
that of 2nd November
2018 and time barred in lieu of
Rule 62 of C. I. 16?
2. Are the orders of 27th
June 2018 and 2nd
November 2018 amenable to the
orders of Certiorari as claimed
by the Applicant.
3. Has the Applicant
made a genuine case for the
grant of Prohibition against the
learned trial Judge?
DECISIONS
In deliberating on our opinion
in this case, we have taken into
serious consideration all the
processes filed by the parties,
to wit, affidavits in support
and in opposition, as well as
supplementary affidavits, all
the many relevant and irrelevant
exhibits and the statements of
case of the parties filed on
their behalf by learned counsel.
We decided to be very elaborate
in our narration of the facts of
this case for the reason that,
we want all and sundry to
understand the basis of our
short but incisive decision on
the points of law, but not the
many issues of emotion, passion
and repetitions which were
canvassed before the trial court
and before us in this court.
ISSUE ONE (1)
The Interested Parties relied on
Rule 62 of the Supreme Court
Rules, 1996 (C.I.16) which
provides as follows:-
“An application to invoke the
supervisory jurisdiction of the
court shall be filed within
ninety days of the date when the
grounds for the application
first arose unless the time is
extended by the court.”
Learned counsel for the
Interested Parties, Samuel Adu
Boahen relied on the Supreme
Court case of Republic v
High Court, Accra, Ex-parte
State Housing Co. Ltd. [2009]
SCGLR 187 where this
court speaking with one voice
through Wood C. J, held as
follows:-
“The statutory period of
ninety days was determinable 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” as
existed under the old rule 62.
A plain reading of the
amended rule presupposes that
the legislature envisages a
situation where the grounds
could even arise a second or
some other subsequent time, but
clearly, the time limit begins
to run from the “date when the
grounds for the application
first arose.” Emphasis
Whether or not the order of 27th
June 2018 could be said to be
the actual date for the
computation of time or the 2nd
of November 2018 is the date
when the grounds for the
application first arose as was
explained in the Supreme Court
decision referred to supra, is
the crux for resolution of this
issue.
A fundamental reason why this
preliminary point cannot be
sustained is that, it was the
Applicant who sought by his
application to stay the
execution of the orders of 27th
June, 2018 that made the
operation of the earlier orders
ambulatory till 2nd
November 2018.
In effect, the consequent Ruling
of the Court on 2nd
November 2018 was upon the
effect or otherwise of the
Ruling of 27th June
2018. It was from that date that
the Ruling of 27th
June 2018 became absolute unless
set aside on appeal or
otherwise. We are indeed
fortified by this line of
reasoning when the 1st
Interested Party himself in
paragraph 31 of his affidavit in
opposition to the instant
application deposed to as
follows:-
“Lastly, we submit that the
learned High Court Judge, acted
within his jurisdiction when an
application for stay of
execution on 2nd
November 2018 he considered and
commented on his decision of 27th
June 2018 whose execution, the
Applicant sought to stay.”
Emphasis
In this instance, the Interested
Parties cannot therefore be seen
to blow hot and cold in respect
of the same matter. Once they
argue that it was perfectly
legitimate for the learned trial
Judge to refer to the previous
Ruling of 27th June
2018 in the Ruling of 2nd
November 2018, the argument of
the application being time
barred fails and is accordingly
dismissed.
ISSUE TWO (2)
In further articulating the
submissions of the Applicant in
respect of the resolution of
issue 2, learned counsel for the
Applicant in the Statement of
Case in support of the instant
application argued thus:-
1.
The main thrust of the
Applicants argument in support
of the application for
Certiorari is that, although a
court under the Companies Act,
1963 (Act 179) can appoint a
Receiver/Manager under the
appropriate circumstances, it
cannot appoint an interim
management committee contrary to
the Regulations of the company.
In this respect, learned counsel
for the Applicant referred
copiously to sections 88 and 236
– 238 of Act 179 respectively.
After referring to the relevant
statutory interventions referred
to supra, learned counsel
referred to the case of Samuel
Bervell Ackah v Express
Maritime Services Limited &
Others, CM 299/2002
dated 23rd January
2003 and concluded that there is
nothing in Act 179 or in the
Regulations of the 3rd
Interested Party’s, for the
appointment of the said two
member Interim Committee
2. That the order of 27th
June 2018 is illegal and this
goes to jurisdiction because of
the untenable nature of the
application in the manner the
Interim Management Committee was
appointed coupled with the risk
the Applicant and the company
will suffer and that, these
constitute exceptional
circumstances that warrant the
grant of the certiorari.
3. The Applicant further
urges in the statement of case
that the patent error of law in
the appointment of the interim
committee to run the company
goes to jurisdiction causing
serious miscarriage of justice.
Based on the above arguments
learned counsel for the
Applicant contended that the
rulings of 27th June
2018 and 2nd
November, 2018 are susceptible
to the supervisory jurisdiction
of this court in the nature of
certiorari. Apart from relying
on article 132 of the
Constitution as the basis for
the instant applications,
learned counsel also referred to
the following cases in support
of the grant of the Certiorari
application:-
i. Republic v High
Court, (General Jurisdiction “5”
Ex-parte, The Minister for the
Interior and Another, C.M. No.
J5/10/18 dated 8th
March 2018. S.C
ii. In Re-Speedline
Stevedoring Co. Ltd, Republic v
High Court Ex-parte Brenya
[2001-2002] SCGLR 775.
iii. Republic v Court of
Appeal, Accra Ex-parte Tsatsu
Tsikata [2005-2006] SCGLR 612,
at holding 1
3. Finally, learned
counsel for the Applicant
labored under the erroneous and
wrong presumption that because
the learned trial Judge was
wrong in his labeling of the
order of 27th June
2018 as consent judgment, the
orders are erroneous and ought
to be quashed. In this respect,
learned counsel referred to the
cases of
i. Republic v High
Court, Accra, Ex-parte Joseph
Danso (New Patriotic Party and 4
Others, Interested Parties) C M
No. JS/5/2015 S.C and
ii. Republic v High
Court, Accra, Ex-parte Deborah
Atakorah (Billy
Cudjoe- Interested Party)
[2015-2016] 1 SCGLR 298
ARGUMENTS BY COUNSEL FOR THE 1ST
AND 2ND INTERESTED
PARTIES IN THEIR STATEMENT OF
CASE IN OPPOSITION TO THE GRANT
OF CERTIORARI APPLICATION
Learned counsel for the 1st
and 2nd Interested
Parties argued in their
statement of case in opposition
to the grant of the order of
Certiorari that, the
learned High Court Judge acted
within his jurisdiction
when he appointed the interim
management committee pursuant to
the consent of the parties.
Learned Counsel also argued that
the contention that the learned
trial Judge committed a
jurisdictional error of law when
he appointed the interim
management committee is flawed
and misconceived.
Learned counsel for the
Interested Parties also
contended that the entire
applications for Certiorari and
Prohibition are misplaced and
should be dismissed.
In support of their submissions,
learned counsel referred to the
following cases:-
i.
Republic v High Court,
(Commercial Division) Ex-parte,
The Trust Bank Ltd, [2009] SCGLR
164 at pages 169-171.
ii.
Republic v High Court, ex-parte
CHRAJ, [2003-2004] 1 SCGLR 312
at 326-327
iii.
Essilfie and Others v Anafo and
Others [1992] 2 GLR 654
iv.
Learned Counsel for the
Interested Parties in relying on
the following case also referred
to the decision of the Supreme
Court as follows:-
The Republic v High Court
Kumasi, Ex-parte Bank of Ghana
and Others, (Sefa and Asiedu-
Interested Parties) No. 1,
Republic v High Court, Kumasi;
Ex-parte Bank of Ghana and
Others, (Gyamfi and Others –
Interested Parties) (No. I)
(Consolidated) 2013-2014 1 SCGLR
477 at 509 -511,
the Supreme Court examined and
re-stated the parameters upon
which it will grant an
application for Certiorari and
stated the broad principles as
follows:-
“It was settled that the
Supreme Court would exercise
it’s supervisory jurisdiction
on grounds of want or excess of
jurisdiction, failure to comply
with the rules of natural
justice, breach of the
Wednesbury principle, namely
an administrative action or
decision would be subject to
judicial review on the grounds
that it was illegal, irregular
or procedurally improper, and
the superior court must have
made an error patent on the
face of the record. In
case of an error not patent on
the face of the record the
avenue for redress was by way of
appeal. Furthermore, an
erroneous decision of a High
Court, acting within its
jurisdiction, would normally be
corrected by appeal whether the
error was one of fact or law,
and that, the supervisory powers
of the Supreme Court under
article 132 of the Constitution
was wide. Instead of specific
orders, the court might issue
directions as a means of
enforcing its supervisory
powers.” Emphasis
ANALYSIS OF THE ARGUMENTS
We have reviewed the facts and
the law of the application for
Certiorari in respect of the
above principles.
In the instant case, on the
issue of want or excess of
jurisdiction, we are of the
considered opinion that, the
Applicant has not satisfied us
that the learned trial Judge was
either bereft of jurisdiction or
acted in excess of it’s
jurisdiction.
What must be noted is that, it
was the Applicant who invoked
the jurisdiction of the court,
for an application to injunct
the Interested Parties. In their
response to this application,
they in turn proposed the
appointment of an interim
management committee. In a
supplementary affidavit, the
Applicant herein made counter
proposals, so in essence it can
safely be accepted that the
Applicant did not oppose the
establishment of the Interim
Management Committee.
The only points of divergence
was in the nature of the
appointments, hence the request
the learned trial Judge made to
the parties to nominate persons
from whom the Judge picked the
nominations. From the records,
this request was made after
heated and lengthy submissions
on same by the respective
counsel. In order to allow them
to consider the request in
contest, the court adjourned the
case to the following day to
enable them make the
nominations.In the case of
Republic v High Court,
Kumasi, ex-parte Fosuhene
[1989-90] 2 GLR 315, it
was stated that, “where a
judge has jurisdiction, he has
jurisdiction to be wrong as well
as to be right and the
corrective machinery to a wrong
decision in the opinion of a
party is an appeal.”
Indeed, there are a number of
respected judicial opinions that
where a lower court such as the
instant trial High Court had
jurisdiction and there was no
error of law patent on the face
of the record as to make the
decision a nullity, the superior
court such as this court would
not grant an order of certiorari
on the grounds that the court
had misconceived a point of law.
To correct the misconception or
otherwise of the wrong decision,
the remedy opened to the party
aggrieved was an appeal and not
certiorari.
In the instant case, the entire
record of the court is not
before us to examine it as to
what happened during the
reception of arguments during
the appointment of the Interim
Management Committee.
That is why it is settled law
that in circumstances like this,
the best remedy opened to the
parties was an appeal.
In this respect we rely on cases
of this court such as the
following:
Republic v High Court, Ex-parte
CHRAJ,
already referred to supra
Republic v High Court
(Commercial Division) ex-parte
The Trust Bank Limited
referred to supra where this
court held as follows:-
“This court should endeavor 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” emphasis
We have also reviewed the effect
of the decision of the Supreme
Court in the cases of Ex-parte
Brenya already referred to supra
as well as those in
Ex-parte Minister for Interior
and Comptroller-General of
Immigration Service and
Samuel Bervell Ackah v
Express Maritime Services Ltd &
Others all referred to
supra and conclude that those
cases do not apply to the
circumstances of the instant
case.
Whilst the thrust of the
decision of the Supreme court in
the ex-parte Brenya case was to
intervene because the High Court
had purported to appoint
Directors of the company,
instead of receivers and
managers and this the Supreme
Court held was in excess of the
powers of the court, the thrust
of the issue in the instant case
was the confirmation of some
nominees of the parties as
indicated to the court as a
result of which the order was
made to ensure the continuous
operation of the 3rd
Interested Party as a going
concern. Since the Applicant had
already exercised his right of
appeal, we do not find our way
clear in granting the
application for Certiorari in a
matter which appears to have
been generated by consensus.
In any case, a reference to the
reliefs which the Applicant
filed in the originating motion
in the High Court clearly
indicated that the Applicant
would have been better off if he
had been advised to pursue the
said reliefs in the substantive
case rather than spend all his
energies on interlocutory
issues.
For the reasons enumerated
above, the application for
certiorari to quash the orders
of the High Court, Commercial
Court Division 6, presided over
by Jerome Noble-Nkrumah dated
27/6/2019 and 2/11/2019 fails
and is accordingly refused.
ISSUE THREE (3)
In what appears to be incoherent
arguments by the Applicant in
support of the claim that the
learned trial Judge, presiding
over the suit in the High Court,
Commercial Court ‘6’ Jerome
Noble-Nkrumah J, should be
prohibited from further
presiding over the suit, learned
counsel for the Applicant
concluded without any basis
whatsoever that “the
cumulative judicial impropriety
inherent in the Order on the 27th
June 2018 and 2nd
November 2018 respectively
eroded any confidence and
perception that justice will be
done in the final determination
of the case.”
Emphasis supplied
Furthermore, in what appears to
be a lecture on the common law
principle of bias or real
likelihood of bias, learned
counsel for the Applicant stated
that, “a Judge, Magistrate or an
independent arbitrator would be
disqualified from adjudicating
whenever circumstances pointed
to a real likelihood of bias, by
which was meant “an
operative prejudice”,
whether conscious or
unconscious in relation to a
party or an issue before him.
In support of the above
proposition, learned Counsel
referred to the following
cases:-
Adzaku v Galenku [1974] 1 GLR
198 at 202
and In Re-Appenteng
(Deceased) Republic v High
Court, Accra Ex-parte Appenteng
& Another [2005-2006] SCGLR 18.
Based on the above decided cases
and others, the Applicant
concluded that, the judicial
improprieties, borne out of the
proceedings in the trial High
Court and which have been
highlighted in the facts of the
case, lead to only one
irresistible conclusion that the
learned Judge has formed an
opinion on the matter as to
pre-judging, which disables him
from further conduct of the
case.
The brief but incisive
submissions of learned counsel
for the 1st and 2nd
Interested Parties are very much
on point on this Prohibition
argument.
Learned counsel for the
Interested Parties, rightly in
our view concluded that, in the
end whilst the Applicant merely
cast aspersions on the integrity
of the learned trial Judge, he
failed to meet the judicial
standard required for the
accusation of bias which is
required to be met before he can
be prohibited.
The Supreme Court, in the case
of Republic v High Court,
Denu, Ex-parte Agbesi Awusu II
(No.1) (Nyonyo Agboada Sri III)
Interested Party [2003-2004] 864,
laid down the following as a
standard test of conditions for
grant of prohibition against
Judges in the following words:-
“A charge of bias or real
likelihood of bias must be
satisfactorily proved on balance
of probabilities by the person
alleging same.
Whether there existed a real
likelihood of bias or apparent
bias was an issue of fact
determinable on a case to case
basis.” Emphasis
See also the celebrated case of
Attorney-General v Sallah,
Court of Appeal, 17/4/1970,
digested in (1970) C.C 54 and
(1970) 2 G&G 487 where
the court stated with clarity
and in detail the law on
judicial bias as follows:-
“Bias in a Judge disqualifies
him from adjudication upon a
case. And in this regard the
law recognizes not only actual
bias as a disqualifying factor
but a likelihood of bias as
well.” Emphasis
In the recent and unreported
Ruling of this court, delivered
in the case of The
Republic v The High Court,
(Financial Division 3) –
Respondent, Accra Ex-parte Ms
Arch Adwoa Company Ltd –
Applicant, 1. The
Auditor-General and Attorney
General – Interested
Parties Suit No. CMJ5/32/19
dated 10th April 2019
this court coram: Dotse
(JSC) Presiding, Yeboah, Appau,
Pwamang, Marful-Sau (JJSC)
in considering the standard test
required for proof of
prohibiting a Judge, held as
follows:-
“We however do not find any
reason to grant the order of
Prohibition against the learned
trial Judge. There are clear
legal grounds upon which a court
or Judge might be prohibited
from determining a suit. To
disqualify a Judge, the ground
of the objection had to be
supported by cogent and
convincing evidence. A mere or
reasonable suspicion of bias was
not enough, the law recognized
not only actual bias, but also
that interest other than direct
pecuniary or proprietary nature
which gave rise to real
likelihood of bias. The fact
of the trial Judge serially
giving Rulings against the
Applicant by itself does not
qualify to disqualify the Judge
on the basis of real likelihood
of bias which is the standard
test in this jurisdiction.” See
case of Sasu v Amua Sekyi,
[1987-88] 2 GLR, 221 at 225.
In the instant case however, it
was rather the Applicant in
whose favour series of Rulings
were given by the learned trial
Judge. It thus lies ill in his
mouth, and in very bad faith for
the self same Applicant to cast
these aspersions against the
trial judge.
Based on the above rendition, we
accordingly dismiss the
prohibition as well. We
however direct that the learned
trial Judge be granted the
option to recuse himself from
the case if he deems that option
prudent.
CLOSING REMARKS
In the premises, the application
by the Applicant for the orders
of Certiorari to quash the
Rulings of the High Court, Accra
Commercial Court 6, presided
over by Jerome Noble Nkrumah J,
dated 27th June and 2nd
November 2018 respectively and
also to prohibit the said Judge
from continuing to hear and
adjudicate Suit No. MISC.
0032/2018 hereby fails in it’s
entirety and same is accordingly
dismissed as being without any
merit and substance.
EPILOGUE
1.
During the pendency of the
hearing of the application we
advised the parties to settle
the case out of court. Even
though that attempt failed, we
again appeal to the parties in
the interest of the business
entity, that is the 3rd
Interested Party and their
family relations to go back to
the negotiating table and
attempt to settle the case
amicably.
2. We also advised both
counsel to take their personal
emotions out of the case and
handle it more professionally.
This is because we have not been
impressed by the unnecessary and
irrelevant documents that have
been filed in this simple
application invoking our
supervisory jurisdiction.
3. Thirdly, the conduct
of learned counsel for the
Applicant in deposing to the
fact that they had ex-parte
discussions with the learned
trial Judge is reprehensible,
and this must be frowned upon.
This is because this is contrary
to the Code of Ethics of the
Judges and magistrates, as well
as of the Bar.
In the unreported unanimous
judgment of the Supreme Court,
in C.A. J4/4/2019 dated 3rd
April 2019 in a suit intitutled,
Atuguba & Associates –
Plaintiff/Respondent/Appellant v
Scipion Capital (U.K) Ltd & Anr.
–Defendant/Appellants/Respondents,
where a similar request by the
instructing Solicitors based in
England suggested to their
Ghanaian counterparts acting for
them to engage the learned trial
Judge in an Ex-parte
communication was condemned by
the Supreme Court. This is what
the Supreme Court, speaking
through Amegatcher JSC stated on
such unethical phenomenon
“The instruction from the
respondent to the Appellant is
to request the appellant to
engage in an ex-parte
communication with the Judge. We
find this request unfortunate
especially coming from a firm of
Solicitors in the United
Kingdom. We condemn the
directive in no uncertain terms
and reiterate that Ghana is not
one of the countries where ex-parte
communication with Judges is
sanctioned or encouraged. The
rules of judicial conduct in
Ghana prohibit Judges from
engaging in ex-parte
communications.”
We wholly adopt the said words
supra, and hereby sound a note
of caution to all lawyers that
such conduct will in future be
reported to the Disciplinary
Committee of the General Legal
Council, the appropriate
regulatory body of Lawyers for
sanctions against erring
Counsel. This is because, in the
past couple of years, some of
our own colleagues have had to
suffer the ultimate sanctions,
(dismissals) in some cases.
Save for the above, the
application stands dismissed as
stated supra.
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
BENIN, JSC:-
I agree with the conclusion and
reasoning of my brother Dotse,
JSC
A. A. BENIN
(JUSTICE OF THE SUPREME COURT)
PWAMANG, JSC:-
I agree with the conclusion and
reasoning of my brother Dotse,
JSC
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
DORDZIE (MRS.), JSC:-
I agree with the conclusion and
reasoning of my brother Dotse,
JSC
A. M. A. DORDZIE (MRS.)
(JUSTICE OF THE SUPREME COURT)
AMEGATCHER, JSC:-
I agree with the conclusion and
reasoning of my brother Dotse,
JSC
N. A. AMEGATCHER
(JUSTICE OF THE SUPREME COURT)
COUNSEL
SAMUEL ADU BOAHEN WITH HIM EUNAS
ESHUN FOR THE APPLICANT.
AUGUSTINE KUDICIL WITH HIM PAA
KWAME LARBI FOR THE 1ST
AND 2ND INTERESTED
PARTIES. |