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Immigration - Deportation -
Certiorari - Habeas Corpus -
Mandamus.- Whether
Comptroller can cancel the
residence/work permit of the
interested party. - Whether the
High Court has power to, revoked
the deportation order - Whether
court exceeded its jurisdiction,
when it ordered the restoration
of the work/resident permit of
the interested party. - Whether
there was a breach of the
natural law of Justice.
HEADNOTES
The background facts recount
that the interested party
herein, an Indian national, has
been lawfully resident in this
country for a number of years
prior to his deportation from
the country on the orders of the
rand carried out by Immigration
Service, the High Court, revoked
the deportation order hat
decision is the subject of a
pending appeal before the Court
of Appeal. Three days later the
interested party returned to the
country without a visa. On
arriving at the Kotoka airport,
the interested party was denied
a visa on arrival by the
Immigration authorities who also
detained him for having entered
the country without visa, the
interested party was released
from custody. The Court also
directed the interested party to
approach the Comptroller to
regularize his stay. Comptroller
did not accede to the interested
party's request; the interested
party went back to the High
Court with an application for an
order of mandamus to compel the
Minister and the Comptroller to
grant his requests -
HELD :- But for the reason that
the conditions precedent to the
invocation of the court’s
jurisdiction had not yet arisen
in view of section 46 of Act
573, and therefore the court
lacked jurisdiction to entertain
the application, this
application for an order of
certiorari succeeds. All the
orders made by the High Court,)
made on the 18th day
of September, 2017 are ordered
to be brought up into this court
to be quashed and same are
hereby quashed.
STATUTES REFERRED TO IN JUDGMENT
Immigration Act, 2000 (Act
573)
1992Constitution Article
129(3)
CASES REFERRED TO IN JUDGMENT
of Republic v. High Court,
ex parte Soku (2001-2002) SCGLR
901
Republic v. Court of
Appeal, ex parte Ghana Cable
Limited (2005-2006) SCGLR 107.
Republic v. High Court,
Denu; ex parte Kumapley (Dzelu
IV Interested Party (2003-2004)
SCGLR 79
Republic (No. 2) v.
National House of Chiefs; ex
parte Akrofa Krukoko II; (Enimil
VI interested party) (No.2)
(2010) SCGLR 134.
The Republic v.
Chieftaincy Secretariat, ex
parte Adansi Traditional Council
(1968) GLR 736
Larbie Mensah IV alias
Aryee Addoquaye v. National
House of Chiefs & Another (2011)
2 SCGLR 883,
Trivedi v. Minister for
Immigration and Border
Protection (2014) 220 FCR 169
Kishore v. Minister for
Immigration and Border
Protection (2017) FCA 1254
Tularley v. Abaidoo (1962)
1 GLR 411.
Boyefio v. NTHC Properties
Ltd (1996-97) SCGLR 531 at 546.
BOOKS REFERRED TO IN JUDGMENT
Halsbury's Laws of England
(4th ed) para 156 at 159
DELIVERING THE LEADING JUDGMENT
BENIN, JSC:-
COUNSEL
JASMINE ARMAH, SENIOR
STATE ATTORNEY FOR THE
APPLICANTS.
GARY NIMAKO-MARFO WITH HIM NANA
BENYIN AKON FOR THE INTERESTED
PARTY/ RESPONDENT.
BENIN, JSC:-
The applicants herein seek
to invoke this court's
supervisory jurisdiction for an
order of certiorari to quash the
decision and/or order of the
High Court, General Jurisdiction
5, dated 18th September 2017.
The background facts recount
that the interested party
herein, an Indian national, has
been lawfully resident in this
country for a number of years
prior to his deportation from
the country on the orders of the
1st applicant herein, the
Minister for the Interior
(hereafter called the Minister)
dated 15th May 2017 and carried
out by the 2nd applicant herein,
the Comptroller-General of
Immigration Service (hereafter
called the Comptroller), on 1st
June 2017. On the same day of
his deportation, the Comptroller
cancelled the residence/work
permit of the interested party.
Following an application made on
behalf of the interested party
herein, the High Court, presided
over by His Lordship Justice
Kweku T. Ackaah-Boafo, revoked
the deportation order in a
ruling delivered on 31st July
2017. That decision is the
subject of a pending appeal
before the Court of Appeal.
Three days later on the 2nd day
of August 2017, the interested
party returned to the country
without a visa. On arriving at
the Kotoka airport, the
interested party was denied a
visa on arrival by the
Immigration authorities who also
detained him for having entered
the country without visa.
An application for an
order of Habeas Corpus was
granted by the High Court on 4th
August 2017 so the interested
party was released from custody.
The Court also directed the
interested party to approach the
Comptroller to regularize his
stay. Subsequently, on 8th
August 2017 the interested party
approached the Comptroller for
the regularization of his stay
in the country by the issuance
of a visa and a restoration of
his residence/work permit. To
cut a long story short, the
Comptroller did not accede to
the interested party's request;
he even refused to accept the
processing fee from the
interested party. Consequently,
the interested party went back
to the High Court with an
application for an order of
mandamus to compel the Minister
and the Comptroller to grant his
requests. The reliefs sought
before the High Court were the
following:
(1)
A declaration that the decision
by the 2nd respondent not to
accept the application for visa
on arrival with the requisite
statutory fees is a deliberate
attempt to decline to process
the said application and that
decision made by the 2nd
respondent as an administrative
official was unfair,
unreasonable and same is not
supported by any law.
(2)
An order of Mandamus directed at
the 2nd respondent to accept the
requisite statutory fees to
process the visa on arrival and
to issue same.
(3)
An order of Mandamus directed at
the respondents to restore the
applicant's residence/work
permit which was cancelled by
the 2nd respondent on the basis
of the Deportation Order dated
15th May 2017 and which same has
been quashed by the High Court
in a ruling dated 31st July
2017.
(4)
An order of injunction
restraining the respondents,
agents, assigns, privies,
servants or anyone acting on the
authority of the respondents
from making any attempt to
remove the applicant from the
jurisdiction or harass the
applicant in whatever shape or
form until this application is
heard and disposed of.
The High Court granted the
application. By the said
decision, the High Court
presided over by Her Ladyship
Justice Naa Adoley Azu (Mrs.)
made these material orders:
“1. An order of mandamus is
hereby directed at the 2nd
respondent herein, to restore
the applicant's residence or
work permit which was cancelled
by the 2nd respondent on the
basis of the deportation order
dated 15th May 2017 which has
been quashed by the High Court
in a ruling dated 31st July
2017.
2. The court further
orders the said residence or
work permit to be issued within
7 days of this order.
1.
The court further grants an
order of injunction restraining
the respondents, their agents,
assigns, privies, servants or
anyone acting on the authority
of the respondents, from making
any attempt to remove the
applicant from the jurisdiction,
or harass the applicant in
whatever shape or form, until
the said residence or work
permit is duly and effectively
issued by the Immigration
Service."
The instant application is
in reaction to these orders. The
grounds are the following:
i. The court exceeded its
jurisdiction, when it ordered
the restoration of the
work/resident permit of the
interested party when the
conditions precedent for the
grant were not present.
ii. There was a procedural
irregularity such as the issuing
of two different
rulings/judgments on the same
matter (one, a 22 page ruling
and the other a 1 and a half
page ruling) with the same date,
the 18th September 2017.
iii. The court committed
errors of law patent on the face
of the record by wrongly
assuming jurisdiction in making
orders for the restoration of
resident/work permit and visas,
when the conditions precedent
for that grant were not present,
thus totally usurping the powers
of the Executive arm of the
Government of Ghana.
if. The precedent or
grounds upon which a court could
make an order of mandamus were
not present but the court still
held that mandamus could lie.
v. There was another
procedural irregularity such as
the court ordering that its
ruling be executed within 7
days, when by law the applicant
herein had a right of appeal and
an automatic 7 day stay of
execution.
vi. There was breach of
the rules of natural justice by
the court when it absolutely
refused to let the applicant
herein even refer to an exhibit
"exhibit AG12" a video coverage
which formed a very vital part
of their case.
Counsel for the applicants
re-classified the grounds into
only three issues and argued
same in support of this
application and we share in that
view. The issues as formulated
are these:
A. Whether the High Court
exceeded its jurisdiction.
B. Whether there was an
error of law patent on the face
of the record.
C. Whether there was a
breach of the natural law of
Justice.
The first two issues
listed above are dispositive of
this application. The third one
was literally rejected by the
court in the course of the oral
arguments for the reason that
the television interview which
they sought to tender was not
relevant to a determination of
the application before the
court, if indeed the applicants
herein had failed to perform a
statutory duty. Moreover, the
effect of the refusal to admit
the exhibit was not a patent
error on the face of the record,
its determination would depend
on other factors, thereby making
it an appealable question. That
piece of evidence is still
available to be used in any
subsequent inquiry, if need be,
as long as it has not received
any judicial pronouncement as to
create res judicata. It is thus
not necessary and indeed an
unfit subject for this court's
supervisory jurisdiction. The
principle being that an
application founded on the
court's supervisory jurisdiction
must be confined or restricted
to the decision and/or order
complained of. Wrongfully
excluded evidence is a proper
subject for appeal, as that is
an error committed within
jurisdiction. On issues A and B
supra, the argument was that the
"High Court General Jurisdiction
5, exceeded its jurisdiction
when it made orders for the
restoration of the work/resident
permit which had been legally
revoked by the applicants herein
when the conditions precedent
for that grant were not
present."
Counsel cited section 6 of
the Immigration Act, 2000 (Act
573) and stated that this
provision imposes a duty on the
Immigration authorities to make
necessary enquiries to ascertain
the truthfulness or otherwise of
the assertions made by an
applicant. Such enquiries are
purely administrative in nature,
and belong to the executive arm
of government to make, counsel
opined. Counsel was of the view
that by the orders made, the
court below was wrongly ignoring
the conditions precedent to the
issuance of a permit to a
foreigner by ordering the
applicants to issue one to the
interested party. They cited the
case of Republic v. High
Court, ex parte Soku
(2001-2002) SCGLR 901 which
explained error of law apparent
on the face of the record to be
error going to the wrong
assumption of jurisdiction and
that the error must be so
obvious as to make the decision
a nullity. In counsel's candid
view, certiorari does not look
to the merits of the decision
but focuses on issues of
jurisdiction or those related to
procedural impropriety. For this
proposition, they relied on the
case of Republic v. Court of
Appeal, ex parte Ghana Cable
Limited (2005-2006) SCGLR
107. They also cited the
case of Republic v. High
Court, Denu; ex parte Kumapley
(Dzelu IV Interested Party
(2003-2004) SCGLR 79, where
the court held that the High
Court, having wrongly assumed
jurisdiction over the Anlo
Traditional Council, had
committed an error of law
apparent on the face of the
record.
Counsel forcefully argued
that the court below erred by
not considering the conditions
precedent to the issuance of a
permit under Act 573. They
relied on this court's decision
in the case of Republic (No.
2) v. National House of Chiefs;
ex parte Akrofa Krukoko II;
(Enimil VI interested party)
(No.2) (2010) SCGLR 134.
In that case, the court, relying
on the case of The Republic
v. Chieftaincy Secretariat, ex
parte Adansi Traditional
Council (1968) GLR 736 set
out the four conditions that an
applicant for an order of
mandamus must satisfy, namely:
1. that there was a duty
imposed by the statute upon
which he relied;
2. that the duty was of a
public nature;
3. that there had been a
demand;
4. that there was refusal
to perform that public duty
enjoined by statute.
According to counsel,
these four conditions were not
present when the order was made.
Counsel stated that "there was
no duty imposed by statute upon
which the interested party
relied for his application for
mandamus, which compelled the
Ghana Immigration Service to
restore a resident/work permit
which had been legally
revoked...........
The interested party had
no right to demand the
restoration of a resident/work
permit which had been legally
revoked.
And indeed there was
actually no demand and a refusal
to perform a public duty
enjoined by statute."
Counsel also had issues
with what purported to be a
second ruling by the court
bearing the same date and said
the second one was procedurally
wrong. Counsel for the
interested party sought to
justify the second ruling saying
the judge read it from an
electronic equipment. This last
assertion was not backed by any
affidavit in verification and
was thus not acceptable. We were
not enthused by the explanation
offered by counsel for the
interested party. It is clear
that the 22-page ruling was
produced subsequent to the
proceedings recorded and
certified for 18th September
2017. It sought to expand the
ruling delivered in open court
that day. We would have found
nothing wrong with that if the
Learned Judge had made an
indication in the proceedings
that she would produce a fuller
and more detailed reasoning of
the decision and orders. Whether
by oversight or mistake, there
was no such indication or
reservation on the record, so
the second document, a 22-page
ruling, was not procedurally and
legally justified. We
accordingly reject that piece of
document and indeed expunge it
from the record and we hereby
order the Registrar of the said
court not to issue it out again
as an authentic ruling of the
said court. However, we decline
the applicants' invitation to us
to quash the lower court's
decision on account of the
second ruling, as there is a
valid ruling on the record for
our consideration. Moreover,
this entire application has been
based on the ruling which forms
part of the proceedings of 18th
September 2017.
Now in response to the
substantive arguments on the
patent errors as outlined above,
learned counsel for the
interested party urged the court
to discountenance those
arguments. Rather unfortunate to
recall, counsel for the
interested party did not address
the core point raised in this
application, which is that the
court below ignored the existing
legislation and assumed the
powers entrusted to the
executive arm of government.
Counsel devoted a lot of the
statement of case on unrelated
or immaterial points. He talked
at length about what constitutes
'the record' for purposes of
exercising the court's
supervisory jurisdiction. This
was not an issue in this matter.
He talked about what constitutes
the essential portion of the
record that the court may quash,
if need be. This was also not in
issue. He also talked about the
requirement of the common law
for a demand before an
application for mandamus would
lie. He cited this court's
decision in the case of
Larbie Mensah IV alias Aryee
Addoquaye v. National House of
Chiefs & Another (2011) 2
SCGLR 883, holding 1 where
according to him the court cast
doubt on the continued
existence of the requirement of
prior demand, in view of article
23 of the 1992 Constitution. He
went on to say that the
interested party nonetheless
made a prior demand on the
Comptroller to issue a visa on
arrival.
Having devoted virtually
the entire address on these
immaterial matters, counsel
concluded thus: "My Lords, we
shall now turn our attention to
the ruling itself to ascertain
whether there is any error
apparent on the ruling. My Lords
respectfully, we do not find any
error apparent on the face of
the ruling delivered by the High
Court on 18th September, 2017 by
Her Ladyship Justice Naa Adoley
Azu (Mrs.) My Lords, in
conclusion, we humbly submit
that the Applicants have failed
to meet the legal requirements
worth considering to warrant
this Honourable Court's
discretion to issue Certiorari
to quash the decision of the
High Court. We humbly pray that
this application be dismissed
with cost."
It is convenient to
commence this discussion on the
requirement of prior demand
before commencing proceedings
for mandamus. It was a point
raised by counsel for the
applicants, relying on the
authority of Republic v.
National House of Chiefs; ex
parte Akrofa Krukoko, supra.
The court held that as a general
rule the order of mandamus would
not be granted unless the party
complained of had known what it
was he was required to do, so
that he had the means of
considering whether or not he
should comply; and it must be
shown by evidence that there was
a distinct demand of that which
the party seeking the mandamus
desired to enforce and that
demand was met with a refusal.
The court was quick to add that
this was not applicable in all
cases and would not apply where
a person had by inadvertence
omitted to do some act he was
under a duty to do, and where
the time to do the act had
passed. The court added that
mandamus would also lie where
the applicant has been
substantially prejudiced by the
respondent's procrastination.
Counsel for the interested
party stated that the Supreme
Court has made an "authoritative
decision" in Larbie Mensah v.
National House of Chiefs,
supra, that there was no
requirement for a prior demand
before mandamus would lie. With
all due respect to learned
counsel, his submission is not
borne out of a careful reading
of that decision. At page 888 of
the report, the court speaking
through Atuguba JSC said this:
"On the issue of prior
demand before the pursuit of the
remedy of mandamus, the relevant
law has been stated in the
recent decision of this court in
Republic (No. 2) v. National
House of Chiefs; ex parte Akrofa
Krukoko......(supra). That case
plainly approved the exception
stated in Halsbury's Laws of
England (4th ed) para 156 at
159....."
It is apparent counsel was
relying entirely for his
submission on the head note by
the editor. It must be noted
that the editor's summary is for
quick reference and guidance
only and is not the court's
decision, though most often it
is reflective of what the court
has said. But where, as in the
instant case, counsel was
relying on the decision as
having upset existing case law,
he ought to have delved into the
decision itself. If he had done
so he would have discovered that
the court had unreservedly
endorsed the existing case law.
It was only in the context of
that particular case that the
court doubted whether the common
law requirement of prior demand
was applicable.
It is to be stated that
where the court casts doubt on
existing case law or principle,
it does not amount to laying
down any new law or principle,
let alone departing from the
existing case law. Article
129(3) of the Constitution 1992
enables this court to depart
from its previous decision. And
it means the existing law must
be clearly stated and the
point/s of departure must
equally be clearly stated,
without equivocation. Merely
casting doubt or even
criticizing an existing decision
is not tantamount to departing
therefrom. We therefore state
with emphasis that the law
remains the same as stated in
Republic v. National House of
Chiefs; ex parte Akrofa
Kukroko, supra.
We now turn attention to
the core issue that was raised
herein, namely errors patent on
the face of the record. There is
no dispute as to the facts. The
Comptroller cancelled the
residence/work permit of the
interested party on 1st June
2017 before he was deported from
the country. The High Court has
ordered the Comptroller to
restore the said permit to the
interested party. The court also
issued order of injunction
against the applicants herein,
pending a restoration of the
permit. The applicants are
saying that the court committed
patent error by these orders
since it failed to take
cognizance of the relevant
provisions of Act 573.
Section 20 of Act 573
permits the Comptroller to
revoke a permit which has been
issued to a foreign national, on
grounds of fraudulent
misrepresentation or concealment
or any other illegal practice.
In the instant case the
Comptroller relied on what was
said to be a fake marriage
certificate presented to his
outfit for consideration to
become a citizen of Ghana, which
fact was partly relied on by the
Minister to order the
deportation of the interested
party. It must be noted that the
deportation order is independent
of the revocation of the permit;
the former was the act of the
Minister under section 36 of Act
573, whilst the latter was the
act of the Comptroller under
section 20 of the said Act 573.
Consequently, the fact that the
deportation order was quashed by
the High Court did not result in
an automatic restoration of the
permit which was revoked by the
Comptroller, even if the
Comptroller relied on the facts
constituting the deportation
order to cancel the permit. The
Comptroller acts independently
of the Minister when it comes to
cancellation of a permit. The
same set of facts may be acted
upon by different persons or
institutions and may thus result
in different consequences, and
as such actions taken pursuant
to those facts should be
examined independently in the
context of the existing law.
Section 6 of Act 573
enjoins the Immigration
authorities to make enquiries to
satisfy themselves "as to the
truth of any statement made in
the application for the permit."
In the affidavit in opposition,
the interested party annexed a
letter written by his solicitor
wherein he had stated that no
court had made a finding of
fraud against the client, and
that it is only the court which
can make that determination. He
also sought to say that the
marriage certificate was the
handiwork of some staff of the
Kumasi Metropolitan Assembly
(KMA) who his client had
identified. In short, the
interested party did not know
the certificate was faked as
stated by the authorities of the
KMA in response to the inquiry
made by the Comptroller. These
depositions were put in in order
to justify the decision taken by
the High Court. Without going
into any details, it suffices to
state that (i) the applicant
bears the ultimate
responsibility for the
truthfulness of the information
and authenticity of the
documents presented for the visa
or permit; (ii) the enquiries to
be made do not extend to
judicial finding of fraud before
the Immigration authorities
could make a determination as to
the veracity or otherwise of the
statement made in the
application for permit. If a
document is annexed to an
application, for instance, a
certificate of company
registration, it suffices for
the purposes of section 6 of Act
573 for the Immigration
authorities to seek confirmation
from the Registrar-General's
department and to rely on their
response. If the
Registrar-General says they have
no records of the company, the
Immigration officer is not
obliged to seek a court’s
finding of criminal culpability
for fraud before deciding to
reject the application for
permit on account of illegality
or misrepresentation. If such
were the requirements, a lot of
decisions would be indefinitely
deferred, and independent state
institutions could hardly
operate. Certainly that is not
the object of the provisions of
articles 23 and 296 of the
Constitution, 1992, and
certainly not that of section 6
of Act 573. An objective test to
be applied is whether the
official’s decision or action is
reasonable. Since the ultimate
responsibility rests with an
applicant, whether he was
complicit in the contents of a
document or not is a matter of
no moment; he cannot be absolved
on account of his lack of
knowledge of the contents of a
document or its preparation.
Two decisions from the
courts in Australia are worth
citing in respect of this
discussion. The case of
Trivedi v. Minister for
Immigration and Border
Protection (2014) 220 FCR 169
decided that it was not
necessary for the Department
(responsible for Immigration) to
show that a visa applicant was
knowingly complicit in the use
or production of a false
document that he/she lodged or
caused to be lodged with the
Department. The court was of the
view, which we agree with, that
it would impose an impossible
task on those administering the
visa system for them to
determine whether a visa
applicant was himself or herself
complicit in a document being
false. Hence in the case of
Kishore v. Minister for
Immigration and Border
Protection (2017) FCA 1254
the court upheld the decision of
the Immigration authorities in
rejecting the applicant’s
application for a visa because
the bank statement annexed to
his application was denied by
the issuing bank on ground that
it did not emanate from them.
The court rejected the
applicant’s assertion that the
bank statement was procured at
the instance of his grandfather
in India to support his
application in Australia and
that he was in no way involved.
The court relied on the ultimate
responsibility test as well as
the reasonableness of the
Immigration in relying on the
correspondence from the Bank.
The fact that the applicant was
not involved in the issuance of
the statement or did not know of
its falsity was of no
consequence.
It is the duty of an
applicant to ensure that any
document he presents in support
of his application is true and
authentic, failing which the
Immigration may refuse an
application under section 6 of
Act 573; and to rely on the
false presentation to cancel an
approval already given under
section 20 of the said Act.
What happens after the
Comptroller has revoked a permit
under section 20 of Act 573? The
procedure is clearly set out in
section 46 of the Act 573. It
provides:
(1)
Any person other than a
prohibited immigrant aggrieved
by a-
(a) refusal to grant
or renew a permit under this
Act,
(b) revocation of a
permit under this Act, or
(c) repatriation
ordered by an immigration
officer may submit a petition to
the Minister within seven days
of such action and the Minister
shall subject to subsection (3)
take action as he considers
appropriate.
(2) Subsection (1) does
not apply to a deportation order
issued under an executive
instrument under the hand of the
Minister.
(3) The Minister shall in
determining a petition under
subsection (1) be assisted by a
committee comprising the
following persons:
(a) a representative
of the Attorney-General not
below the rank of a Senior State
Attorney, who shall be the
chairman of the committee,
(b) a representative
of the Minister for Foreign
Affairs not below the rank of a
Director, and
(c) one other person
appointed by the Minister who
shall not be an officer or
employee of the Immigration
Service.
These provisions are clear
and unambiguous. When the
immigration authorities revoke a
permit, they have nothing to do
with the matter of its
restoration in the first place,
unless ordered by the Minister
following a petition to him. The
statute has designated the
Minister for the Interior as the
person to be petitioned. The
statute has also set out what
procedure the Minister is to
follow upon receipt of a
petition. Section 46 is akin to
an appeal procedure enabling an
aggrieved person the opportunity
to have his case re-heard by a
different group of people. Hence
the Act totally excludes any
worker in the Immigration
Service in the consideration of
a petition under this section.
It is for the Committee set up
by the Minister to advise him
whether the Immigration
authorities acted rightly or not
and to make appropriate
recommendations to the Minister.
Upon receipt of the
recommendations, the Minister in
turn may issue appropriate
directions to the Immigration
authorities who will then be
bound by the Minister’s
directions in the matter.
It is common knowledge
that where a statute has
provided a right with remedies
and has also prescribed the
procedure to follow in order to
secure the right or remedy, it
is only that procedure which
must be followed. The point was
made clear by the Supreme Court
in its early days in the case of
Tularley v. Abaidoo (1962) 1
GLR 411. It was endorsed by
this same court in the case of
Boyefio v. NTHC Properties
Ltd (1996-97) SCGLR 531 at 546.
Thus the High Court did
not have jurisdiction to
entertain an application for
mandamus when the interested
party had not commenced, not to
talk of having exhausted the
procedure provided under section
46 of Act 573. The Comptroller
has no role to play in the sense
that there is no public duty
cast on him in respect of
proceedings under section 46 of
the Act. Once he has cancelled a
permit, the act does not confer
on him a right of review of his
decision. An aggrieved party, as
earlier pointed out can only
petition the Minister for
redress. Consequently, the
application for, and the court’s
order of mandamus issued against
the 2nd applicant
was clearly misconceived and
incompetent in law.
And the order made against
the Minister too was patently in
error, as the interested party
did not send any petition to him
as required by the law, within
seven days but dragged him
straight before court. It is
noted that the interested party
had the opportunity to have
complied with this provision
following the revocation of the
deportation order by the High
Court on 31 July 2017. He did
not act but rather allowed the
time to elapse. The expiration
of the seven days deadline did
not entitle a party affected by
the order of revocation of a
permit to proceed to court. Like
an appeal process, it amounts to
forfeiture of the right to
petition the Minister to
overturn the Comptroller’s
decision. The High Court,
therefore, had no jurisdiction
to go into the case when at the
point in time the Minister had
not been given the opportunity
to make a determination which
task he had failed or refused to
perform. Wrongful assumption of
jurisdiction or as often
described as lack of
jurisdiction by a court, as
occurred in this case, is a
perfect reason for certiorari to
lie.
We observed at the hearing
that at the time the application
for an order of mandamus was put
in, there was an appeal pending
before the Court of Appeal
against the very decision which
constituted the foundation of
the application. Indeed the
application was premised on the
fact that the deportation order
had been cancelled by the High
Court. We are aware an appeal
does not operate as a stay of
execution, yet since an
application for an order of
mandamus seeks the court’s
discretion the pendency of an
appeal is a factor to consider.
This is so because where there
is an alternative remedy or
avenue for redress, mandamus
will not lie. However, the
interested party cannot be
faulted as the application was
founded on failure to restore
the permit which is quite
different from the
subject-matter on appeal which
is in respect of the deportation
order. Thus he could not obtain
a restoration of the work permit
in the appeal before the Court
of Appeal in view of the
provisions of Act 573.
Consequently, the High Court
could not be faulted for taking
the application on this ground
of the pendency of the appeal;
it committed no error of law
here.
But for the reason that
the conditions precedent to the
invocation of the court’s
jurisdiction had not yet arisen
in view of section 46 of Act
573, and therefore the court
lacked jurisdiction to entertain
the application, this
application for an order of
certiorari succeeds. All the
orders made by the High Court,
presided over by Her Ladyship
Justice Naa Adorley Azu (Mrs)
made on the 18th day
of September, 2017 are ordered
to be brought up into this court
to be quashed and same are
hereby quashed.
A. A.
BENIN
(JUSTICE OF THE SUPREME COURT)
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
COUNSEL
JASMINE ARMAH, SENIOR
STATE ATTORNEY FOR THE
APPLICANTS.
GARY NIMAKO-MARFO WITH HIM NANA
BENYIN AKON FOR THE INTERESTED
PARTY/ RESPONDENT.
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