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Practice and
Procedure - Supreme Court -
Invoking the supervisory
jurisdiction of the court -
Order of certiorari - Order of
prohibition - Supplementary
affidavit without leave of the
court - Statement was filed out
of time - Land - Recovery of
possession - Perpetual
injunction - Likelihood of bias
- Whether or not the court has
breached the audi alteram partem
rule of natural justice -
Whether or not there was breach
of the nemo index causae suae
rule - Article 132 of the
1992 Constitution -
HEADNOTES
The
applicant, commenced legal
proceedings at the High Court
(Land Division Court 2) Accra
against the interested party,
claiming a declaration of title
to a piece or parcel of
land
situated or lying at Dzornaman,
East Legon, Accra,
recovery
of possession, and perpetual
injunction among other
reliefs. The applicant applied
for an order for Interlocutory
Injunction to restrain the
interested party from continuing
with the development of the
land. The interested party
contested the application for
Interlocutory Injunction by
filing an affidavit in
opposition and a statement of
case. The applicant filed a
supplementary affidavit in
reaction to the affidavit in
opposition of the interested
party. The interested party took
objection to the supplementary
affidavit filed by the applicant
on the grounds that it was not
warranted by law and filed
without
leave of the court. This
objection came by way of a
motion on notice to the High
Court to have the supplementary
affidavit set aside. The High
Court upheld the objection and
set aside the
supplementary affidavit with
the reasoning that the filing of
the supplementary affidavit was
not warranted by the relevant
rules under Order 25 of the
High
Court (Civil Procedure) Rules,
2004, (C.I. 47). He held
further that since he did not
find any material difference
between the supplementary
affidavit and the affidavit in
support of the motion for
interlocutory injunction, except
the attachment of an affidavit
of X, which he considered
irrelevant for the application
pending in Court, he was unable
to grant him leave to file the
process
HELD
The remedies
of appeal and certiorari are
different and must not be
blurred. [That] certiorari and
appeals are not alternative
remedies but are mutually
exclusive”. As stated earlier
if the applicant was
dissatisfied with the decision
of the High Court, the remedy
open to him in the circumstances
of this case, was by way of
appeal to the Court of Appeal,
and not by invoking our
supervisory jurisdiction. For
the above reasons the writ of
certiorari does not lie to quash
the ruling of 5 July 2010, the
application is misconceived and
it is refused
We do not
find any evidence to
substantiate the allegation of
bias or a real likelihood of
bias against Justice Awuah. In
the result the application for
the issue of the order of
prohibition against the High
Court Judge is refused. For the
above reasons the application
for the orders of certiorari and
prohibition fails. The
application is dismissed.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
Supreme Court
Rules, 1996, C.I.16
High Court
(Civil Procedure) Rules, 2004,
(C.I. 47).
CASES
REFERRED TO IN JUDGMENT
Republic v.
High Court Accra; Ex parte
Agbesi Awusu II (No.2) (Nyonyo
Agboada Sri III) Interested
Party [2003-2004] 2SCGLR 907.
Aboagye v.
Ghana Commercial Bank
[2001-2002]SCGLR 796
Awuni v West
African Examination Council
[2003-2004] 1SCGLR 471.
The Republic
v. Circuit Court Accra; Ex parte
Appiah [1982-83] GLR 129
R
v.Northumberland Compensation
Appeal Tribunal; Ex parte Shaw
[1952] 1 K.B. 338
The Republic
v, High Court Accra; Ex parte
Commission on Human Rights and
Administrative Justice (CHRAJ)
(Addo Interested Party)
[2003-2004] 1 SCGLR 312
The Republic
v. Court of Appeal, Accra; Ex
parte Tsatsu Tsikata [2005-2006]
SCGLR 612
The Republic
v. High Court (Commercial
Division) Accra; Ex parte The
Trust Bank Ltd. (Ampomah Photo
lab Ltd. & Three Others
(Interested Parties) [2009]
SCGLR 164
The Republic
v. High Court Accra; Ex parte
Industrialization Fund For
Development Countries and
Another; [2003-2004] SCGLR 348.
Adzanku v.
Galenku [1974 1 GLR 198
The Republic
v. High Court, Denu; Ex parte
Agbesi Awusu (No.1) (Nyonyo
Agboada (Sri III) Interested
Party [2002-2004] SCGLR 864
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ADINYIRA
(MRS), JSC:
COUNSEL
KWABLA SENANU
FOR THE APPLICANT
YONNY KULENDI
FOR THE INTERESTED
PARTY/RESPONDENT
R U L I
N G
ADINYIRA
(MRS), JSC:
“The right of
appeal is jettisoned frequently
for an immediate tryst with
prerogative proceedings. I think
the time has come when the
distinction should be punitively
maintained.”
Per Francois J.A. (as he then
was) in The Republic v. Circuit
Court Accra; Ex parte Appiah
[1982-83] GLR 129 at page 145.
The
applicant, Al-Hassan Limited, a
real estate development company
has
invoked the supervisory
jurisdiction of the Supreme
Court under Article 132 of the
Constitution of Ghana, 1992
for an
order of certiorari for the
purpose of quashing a ruling
dated 5 July 2010, of the High
Court (Land Division, Court 2)
Accra presided over by Justice
F.K. Awuah and a further
order of
prohibition to prevent the
said judge from sitting on the
Applicant’s Motion for an Order
of Interlocutory Injunction and
the substantive land suit
entitled Al-Hassan Limited v.
Thaddeus Sory .
The grounds
for the application are
that:
1)
“The Order by the Trial High
Court precluding the Applicant
from relying on the Applicant’s
Supplementary Affidavit filed on
4/5/2010 in support of the
Motion on Notice filed on
7/4/2010 by the Applicant for an
Order of Interlocutory
Injunction was a grave violation
of the rules of natural justice,
especially in its audi alteram
partem ambit, as the said Order
denied the Applicant the
opportunity to respond to the
Interested Party’s Affidavit
filed on 15/4/2010 in opposition
to the Applicant’s Motion for an
Order of Interlocutory
Injunction that the trial Judge
adjourned to 9/7/2010, not to
mention the sequel of such
preclusion to Applicant’s
Motion.
2)
While making the Order on
5/7/2010 precluding the
Applicant from relying on the
Applicant’s Supplementary
Affidavit filed on 4/5/2010 in
support of the Motion on Notice
filed on 7/4/2010 by the
Applicant for an Order of
Interlocutory Injunction, the
trial judge, Mr. Justice F.K.
Awuah, J, prejudged the issues
raised by the Applicant’s Motion
for an Order of Interlocutory
Injunction by making such
statements, amongst others, to
the effect that:
1)
The Application for
Interlocutory Injunction must be
taken without the Supplementary
Affidavit quickly because the
Defendant was suffering
hardship. This is a clear
indication that the Judge is so
biased against the Applicant
herein that he has already made
up his mind to dismiss the
Applicant’s application for an
Order of Interlocutory
Injunction even before same is
heard on 9/7/2010;
2)
The Supplementary Affidavit
filed on 4/5/2010 by the
Applicant was not necessary for
the determination of the Motion
for Interlocutory Injunction.
3)
The combined effect of the
foregoing shows uncalled for
bias by the Trial Judge against
the Applicant and the
Applicant’s case pending before
him.”
Facts
The
applicant, commenced legal
proceedings at the High Court
(Land Division Court 2) Accra
against the interested party,
claiming a declaration of title
to a piece or parcel of land
situated or lying at Dzornaman,
East Legon, Accra, recovery of
possession, and perpetual
injunction among other reliefs.
The applicant applied for an
order for Interlocutory
Injunction to restrain the
interested party from continuing
with the development of the
land.
The
interested party contested the
application for Interlocutory
Injunction by filing an
affidavit in opposition and a
statement of case. The applicant
filed a supplementary affidavit
in reaction to the affidavit in
opposition of the interested
party. The interested party took
objection to the supplementary
affidavit filed by the applicant
on the grounds that it was not
warranted by law and filed
without leave of the court. This
objection came by way of a
motion on notice to the High
Court to have the supplementary
affidavit set aside.
The High
Court upheld the objection and
set aside the supplementary
affidavit with the reasoning
that the filing of the
supplementary affidavit was not
warranted by the relevant rules
under Order 25 of the High Court
(Civil Procedure) Rules, 2004,
(C.I. 47). He held further that
since he did not find any
material difference between the
supplementary affidavit and the
affidavit in support of the
motion for interlocutory
injunction, except the
attachment of an affidavit of
one Benjamin K. Annan, which he
considered irrelevant for the
application pending in Court, he
was unable to grant him leave to
file the process.
Preliminary
issue
In his
statement of case the interested
party indicated that his
statement
was filed out of time and
therefore prayed the court to
exercise its discretion to
extend the statutory period of
14 days and adopt the present
statement. We exercise our
discretion under rule 79 of the
Supreme
Court Rules, 1996, C.I.16
and waive the irregularity.
Submissions
by Parties
The
applicant in its statement of
case alleges that the order of
the High Court in setting aside
its supplementary affidavit in
support of the Motion for
Interlocutory Injunction pending
before the Court; denied it the
opportunity to respond to the
Interested Party’s Affidavit in
opposition; and that this
preclusion was a grave violation
of the audi alteram partem rule
of natural justice. Furthermore,
the rules of natural justice
require the High Court Judge to
act fairly and reasonably, and
so he ought to have allowed the
applicant to be heard on its
supplementary affidavit in order
to respond the allegation
averred to in the Interested
Party’s affidavit in opposition.
He concluded that:
“The
preclusion of the Applicant’s
Supplementary affidavit
aforesaid by the order of the
High Court handed down on
5/7/2010 is a stab in the back
of natural justice and same
ought to be quashed by an order
of certiorari emanating from
this Honorable Supreme Court.”
In response,
the interested party stated that
both parties were heard and if
the Applicant was dissatisfied
with the reasoning of the court
his remedy was to appeal against
the ruling. He stated further
that:
“It is our
submission that it is stretching
the rules of natural justice to
absurd limits if it is contended
as Applicant suggests in its
present application that once a
court takes the view after
hearing a party that that a
party ought not to rely on a
particular document then
the court
has breached the audi alteram
partem rule of natural justice.”
The rules of
natural justice
It is a basic
principle of common law that
certiorari and prohibition would
automatically be granted to
quash a judgment or prevent a
biased judge from hearing a suit
upon satisfactory proof of the
breach of any principles of the
rules of natural justice.
Accordingly proof of a breach of
any of the rules of natural
justice is a proper ground for
grant of certiorari and
prohibition independent of
grounds of error on the face of
the record or excess of
jurisdiction. See the
Republic
v. High Court Accra; Ex parte
Agbesi Awusu II (No.2) (Nyonyo
Agboada Sri III) Interested
Party [2003-2004] 2SCGLR 907.
There is a
plethora of authorities in
respect of the rules of natural
justice providing the minimum
standards of fair
decision-making by the common
law on adjudicating bodies.
These include the principles
that parties should be given
prior notice and an opportunity
to be heard, the requirement to
act fairly and reasonably and an
entitlement to an unbiased
decision maker. Counsel for the
Applicant referred us to the
cases of
The Republic v. High Court,
Denu; Ex parte Agbesi Awusu ii
(No.2) (Nyonyo Agboada (Sri III)
Interested Party [2002-2004]
SCGLR 907; Aboagye v. Ghana
Commercial Bank
[2001-2002]SCGLR796 at 806 and
Awuni v West African Examination
Council [2003-2004] 1SCGLR 471.
Date-Bah JSC
in the Ex parte Awusu II
(No.2) (supra) at pages 924
to 925 stated:
‘‘Natural
justice or procedural fairness
demands not only that those
affected by a decision should be
given prior notice and an
opportunity to be heard (audi
alteram partem rule), but also
that there should be an
entitlement to an unbiased
decision maker (nemo index
causae suae and allied ideas)’’
Consideration
The
applicant’s complaint is that
the learned judge is in breach
of both ambits of the rule of
natural justice, namely the audi
alteram partem rule and the nemo
index causae suae rule.
Breach of the
Audi alteram partem rule
In applying
the above rules and authorities,
our first focus is whether
Justice Awuah breached the audi
alteram partem rule by setting
aside the supplementary
affidavit. On the face of the
ruling complained of, it is
clear that both parties were
heard on the issue as to whether
or not the supplementary
affidavit filed on behalf of the
Applicant could be admitted as
part of the process for
determining the motion for
interlocutory injunction. In our
opinion the High Court judge
having heard both parties
beforehand acted fairly and
within jurisdiction to determine
the issue. It was a matter
entirely within his discretion
as required under Order 81 of
the High Court (Civil
Procedure) Rules, 2004,
(C.I. 47). The learned judge may
well be wrong in the decision
made, but the avenue of remedy
open to the applicant in such
circumstances is not by way of
certiorari. A complaint that
there has been an improper
exercise of the discretionary
jurisdiction is insufficient A
charge that a court has
improperly misconceived a point
of law or misdirected itself
cannot per se constitute
sufficient ground for the grant
of certiorari, in the absence of
any jurisdictional error on the
face of the record. Even then
that is not the complaint by the
applicant before us.
We take
notice of the fact that the
motion for Interlocutory
Injunction is still pending
before the High Court and in the
circumstances the Applicant
still has a chance and the right
to be heard on his application.
Though the Judge by the order of
5/7/2010 has set aside the
supplementary affidavit in
answer to the affidavit in
opposition there are other
procedures that his counsel
could possibly adopt under the
rules of procedure and the law
of evidence to challenge any of
the facts deposed to in the
affidavit in opposition to his
motion.
We hold that
from the circumstances of this
case the High Court Judge did
not breach the audi alteram
partem rule. If the applicant
disagreed with the decision, the
remedy open to him in the
circumstances of this case, was
by way of appeal, not by
certiorari to quash that ruling.
There is the need to keep the
distinction between appeals and
certiorari.
Distinction
between Appeal and Certiorari
Francois
J.A. (as he then was) stated in
the case of
The
Republic v. Circuit Court Accra;
Ex parte Appiah [1982-83] GLR
129 at page 145 that:
“The right of
appeal is jettisoned frequently
for an immediate tryst with
prerogative proceedings. I think
the time has come when the
distinction should be punitively
maintained.”
It is our
thinking that parties fancy
prerogative proceedings as it is
faster and concise. The only
record required for prerogative
proceedings are the document
that initiated the proceedings,
the pleadings if any and the
adjudication. See
R
v.Northumberland Compensation
Appeal Tribunal; Ex parte Shaw
[1952] 1 K.B. 338 at
p.352, C.A. cited with approval
in Ex parte Appiah (supra).What
seems to be oblivious to parties
and their lawyers is that the
Supreme Court sparingly
exercises its supervisory
jurisdiction over a superior
court and it does so only where
there is a clear fundamental
non-jurisdictional error or a
breach of the rules of natural
justice. Unlike an appellate
court, the Court in its
supervisory role cannot
interfere merely because a
decision is wrong in law.
This Court
restated the law regarding the
exercise of its supervisory
jurisdiction over the superior
courts of judicature in two
cases of
The Republic v, High Court
Accra; Ex parte Commission on
Human Rights and
Administrative Justice (CHRAJ)
(Addo Interested Party)
[2003-2004] 1 SCGLR 312 at
pages 345 to 346 per Date-Bah
JSC ; and The Republic v.
Court of Appeal, Accra; Ex parte
Tsatsu Tsikata [2005-2006] SCGLR
612 at 619 per Georgina
Wood JSC (as she then was). The
legal principles laid down in
these two cases were
subsequently summarized by
Date-Bah JSC in the case of
The
Republic v. High Court
(Commercial Division) Accra; Ex
parte The Trust Bank Ltd.
(Ampomah Photo lab Ltd. & Three
Others (Interested Parties)
[2009] SCGLR 164 at page
169 of the Report as follows:
“The combined
effect of these two authorities,
it seems to me, is that even
where a High Court makes a
non-jurisdictional error which
is patent on the face of the
record, it will not be a ground
for the exercise of the
supervisory jurisdiction of this
Court unless the error is
fundamental. Only fundamental
non-jurisdictional error can
found the exercise of this
court’s jurisdiction.”
This
distinction between certiorari
and appeals was drawn by the
eminent Bamford -Addo JSC (as
she then was) in the case of
The
Republic v. High Court Accra; Ex
parte Industrialization Fund For
Development Countries and
Another; [2003-2004] SCGLR 348.
She said at page 354
that:
“It is to be
noted that there is a clear
distinction between certiorari
and appeal, which is 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 lack of jurisdiction in the
court so as to make the decision
a nullity. In the case of error
not apparent on the face of the
ruling or those of fact the
avenue is by way of appeal.”
Francois J.A.
(as he then was) also stated at
page 143 in Ex parte Appiah
(supra) that:
“The
remedies of appeal and
certiorari are different and
must not be blurred. [That]
certiorari and appeals are not
alternative remedies but are
mutually exclusive”.
As stated
earlier if the applicant was
dissatisfied with the decision
of the High Court, the remedy
open to him in the circumstances
of this case, was by way of
appeal to the Court of Appeal,
and not by invoking our
supervisory jurisdiction.
For the above
reasons the writ of certiorari
does not lie to quash the ruling
of 5 July 2010, the application
is misconceived and it is
refused.
Breach of the
nemo index causae suae rule
The Applicant
further seeks an order of
Prohibition restraining the High
Court Judge from hearing the
motion of interim injunction and
the substantive land suit, due
to some statements he made
during the delivery of his
ruling exhibiting bias against
it.
The
supervisory jurisdiction of this
Court will be exercised to
ensure that no superior court
judge decides a case where there
is bias or a real likelihood of
bias. However a charge of bias
or the
likelihood of bias has to be
established on balance of
probability by the person
alleging same. The test which
has been applied to the
determination of whether there
is apparent bias is the real
likelihood of bias test. See
Adzanku
v. Galenku [1974 1 GLR 198
at 202 and The Republic v.
High Court, Denu; Ex parte
Agbesi Awusu (No.1) (Nyonyo
Agboada (Sri III) Interested
Party [2002-2004] SCGLR 864 at
page 894
We therefore
need to review carefully the
evidence which has been put
forward by the Applicant in
support of the allegation of
bias against Justice Awuah, to
find out whether there is or is
not under the circumstances a
real likelihood of bias.
It will be
recalled that the pronouncements
that the Applicant complains
they suggest the impartiality of
the judge were contained in two
statements which were in the
following terms:
3)
While making the Order on
5/7/2010 precluding the
Applicant from relying on the
Applicant’s Supplementary
Affidavit filed on 4/5/2010 in
support of the Motion on Notice
filed on 7/4/2010 by the
Applicant for an Order of
Interlocutory Injunction, the
trial judge, Mr. Justice F.K.
Awuah, J, prejudged the issues
raised by the Applicant’s Motion
for an Order of Interlocutory
Injunction by making such
statements, amongst others, to
the effect that:
1)
The Application for
Interlocutory Injunction must be
taken without the Supplementary
Affidavit quickly because the
Defendant was suffering
hardship. This is a clear
indication that the Judge is so
biased against the Applicant
herein that he has already made
up his mind to dismiss the
Applicant’s application for an
Order of Interlocutory
Injunction even before same is
heard on 9/7/2010;
2)
The Supplementary Affidavit
filed on 4/5/2010 by the
Applicant was not necessary for
the determination of the Motion
for Interlocutory Injunction.
The combined
effect of the foregoing shows
uncalled for bias by the Trial
Judge against the Applicant and
the Applicant’s case pending
before him.”
Counsel for
the applicant contends in his
statement of case that:
“It is true
that (the) statements made by
(the) High Court Judge at the
time of handing down his order
dated 5/7/2010 were obiter. But
in the view of the applicant,
those statements made it
impossible for the judge to
bring a completely impartial
mind to bear upon his
determination of the application
for interlocutory injunction
pending before him as well as
the actual substantive land
suit.”
With respect
to the first statement, the
Interested Party stoutly denied
in an affidavit in opposition to
this application and at the
hearing before us that such
statement was made and that Mr.
Sonny Mould a director of the
Applicant who deposed to these
facts though not present in
Court the day the ruling was
given failed to disclose his
source of information of the
facts he deposed to in his
supplementary affidavit.
We have
examined the ruling of the Court
dated 5 July 2010 and it is
clear on the face of the record
that no representative of the
Applicant, a limited liability
company, was present in Court on
the said date. Furthermore the
statement complained of is not
contained in the record.
Accordingly we hold that there
is no evidence to substantiate
the alleged prejudicial
statement.
Regarding the
second statement we find that
words to that effect formed part
of the reasoning for setting
aside the supplementary
affidavit in the ruling of
5/7/2010. For clarity we set out
the statement in the context
that it was made. They are as
follows:
“In the final
analysis, the court is inclined
to grant the instant application
brought at the instance of the
Defendant for the following
reasons:
a)
That the filing of the
supplementary affidavit is not
warranted under Order 25 of C.I.
47
b)
That the Plaintiff failed to
seek leave of the Court before
filing same
c)
The Court does not find the said
supplementary affidavit dominant
and crucial for the
determination of the pending
interlocutory
injunction as same is
substantially the same as the
main affidavit in support.(Emphasis
mine)
The
supplementary affidavit of the
Plaintiff filed on 4 May 2010 is
hereby set aside for the purpose
of the interlocutory injunction”
We fail to
see how the words complained of
(highlighted above) “shows
uncalled for bias by the Trial
Judge against the Applicant and
the Applicant’s case pending
before him,” as is being claimed
by the Applicant. The Judge was
giving reasons for issuing that
order and there is no such
evidence before us to suggest
that the judge was biased or a
suspicion of a real likelihood
of bias. If the Applicant was
dissatisfied with the reasoning,
the remedy then open to Counsel
is to challenge the ruling on
appeal to the Court of Appeal
rather than to invoke the
supervisory jurisdiction of the
Supreme Court.
It would be
absurd to issue an order of
prohibition to restrain a judge
of the superior court from
exercising his judicial function
simply because he has ruled to
exclude a document or a piece of
evidence that a party seeks to
rely on in support of his or her
case. A court of competent
jurisdiction may decide
questions before it rightly or
wrongly. The appeal process
exists for correcting all errors
as to the facts and to the law
made by a High Court. Unless of
course there is substantiated
evidence constituting legal bias
such as the personal interest of
the judge in the subject matter,
relationship between the judge
and counsel or one of the
parties, or in some other way
his conduct or behavior that may
give rise to a suspicion that he
is not impartial. Such instances
would automatically disqualify a
judge from hearing the case. In
such circumstances the
prerogative writs of certiorari
and prohibition will
respectively lie to quash the
proceedings and orders made by
such a judge and to restrain the
judge from continuing with the
case.
Speaking
generally, we are of the view
that short of appealing against
interlocutory decisions made by
a trial court during the
pendency of a case, a party by
his counsel may prudently find
other ways of making out his
case as provided by the rules of
procedure and the law of
evidence. A counsel must have an
intuitive recognition of what
the circumstances of the case
require as it unfolds itself
before the court. This may help
to expedite proceedings in court
and minimize the delays that
have characterized the
administration of justice in
this country.
We do not
find any evidence to
substantiate the allegation of
bias or a real likelihood of
bias against Justice Awuah. In
the result the application for
the issue of the order of
prohibition against the High
Court Judge is refused.
For the above
reasons the application for the
orders of certiorari and
prohibition fails.
The
application is dismissed.
S. O. A. ADINYIRA (MRS)
JUSTICE OF THE SUPREME
COURT
ANIN YEBOAH
JUSTICE OF THE
SUPREME COURT
P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
N. S. GBADEGBE
JUSTICE
OF THE SUPREME COURT
V. AKOTO-BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
COUNSEL
KWABLA SENANU
FOR THE APPLICANT
YONNY KULENDI
FOR THE INTERESTED
PARTY/RESPONDENT |
