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Practice and Procedure - Supreme
Court - Invoked our supervisory
jurisdiction Order of Certiorari
- Order of prohibition - Setting
aside - Customary arbitration -
Traditional Council Arbitral
award – Whether or not there was
a valid customary arbitration
Two gates - Which of the said
two gates is entitled to
nominate and install the
Mankralo of Ada - Section 58,
Section 112 - Alternative
Dispute Resolution Act, 2010
(Act 798) - Article 132 of the
constitution - Rule 61 of the
Supreme Court Rules, 1996 C.I.
16 - Whether or not the
application was brought out of
the statutorily prescribed time
period so same is incompetent -
Whether or not the High Court
acted in excess of its
jurisdiction when it dismissed
the preliminary legal objection
HEADNOTES
There was a long-standing
dispute in Ada between two
gates, the Da Gate and the
Ablaokorm Gate as to which of
the said two gates is entitled
to nominate and install the
Mankralo of Ada in the Greater
Accra Region attempts at
resolving the dispute by various
committees proved futile.
Finally, on the recommendation
of the Ada Traditional Council,
the parties submitted to a
customary arbitration in respect
of the dispute, paid requisite
fees, participated fully and on
the 29th of March,
2012, an arbitral award was
delivered and same was
registered at the High Court,
Tema. The award was to the
effect that, the Mankralo
position should be ascended to
by the Da gate and the Ablaokorm
gate in rotation commencing with
the Da gate. The Award
indicated therefore that the Da
Gate which had, the applicant
herein, as its Mankralo
candidate was to install the
next Mankralo of Ada as opposed
to the Ablaokorm Gate which had
the 6th interested
party as its Mankralo. The High
held that there had been a valid
customary arbitration submitted
to by the parties resulting in
an award interested party,
together with the said elders
from the Ablaokorm gate filed an
appeal against the decision of
the High Court, Tema, but same
was dismissed by the Court of
Appeal - Whether or not the
jurisdiction of the Supreme
Court been properly invoked
HELD
The ruling or the High Court,
Probate and Administration
Division dated 10th
May, 2018, which is the subject
matter for this application for
judicial review, does not turn
on which section of the ADR Act,
Act 798, 1st to 5th
respondents ought to have
commenced their action by. The
preliminary legal objection was
heard and determined by the
court acting within its
jurisdiction. In such a case a
decision made becomes a subject
of appeal rather than
certiorari. The correctness or
otherwise of the ruling of the
Probate Division of the High
Court should be a matter of
appeal The applicant is
obviously in the wrong forum,
seeking the wrong reliefs. The
application is therefore REFUSED
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
Alternative Dispute Resolution
Act, 2010 (Act 798)
Supreme Court Rules, 1996 C.I.
16
CASES REFERRED TO IN JUDGMENT
Republic v High Court, Accra; Ex
parte Commission on Human Rights
and Administrative Justice (Addo
Interested Party) [2003 – 2004]
1 SGLR 312,
in Republic v High Court, Accra;
Ex Parte Industrialisation Fund
for Developing Countries
[2003-2004]1SCGLR 348
Republic v High Court, Kumasi;
Ex parte Fosuhene [1989-90] 2
GLR 315.
Republic v Court of Appeal; Ex
parte Tatsu Tsikata [2005-2006]
SCGLR 612 at 619
Republic vs. High Court, Accra
ex-parte Soku & Another
[1996-1997] SCGLR 525
Republic vs High Court, Accra ex
parte Asakum and Engineering and
Construction Limited and others
[1993-1994] 2 GLR 643
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
BAFFOE-BONNIE, JSC:-
COUNSEL
KWESI AUSTIN FOR THE APPLICANT.
EDWARD SAM CRABBE FOR THE
INTERESTED PARTIES/RESPONDENTS.
_________________________________________________________________________________
BAFFOE-BONNIE, JSC:-
The applicant has brought this
application before us following
the High Court’s ruling
delivered by the High Court on a
preliminary point of law raised
by the said applicant. The
application before us is for,
a. An Order of Certiorari to
quash the ruling of the High
Court, Probate & Administration
Division, Accra, dated 10th
May, 2018 in suit No. GJ1845/17
and,
b. An Order of prohibition
against the High Court from
entertaining, hearing or
determining the suit No.
GJ1845/17 commenced by
originating motion on the 14th
December, 2017;
Attached to the application was
a 24-paragraph affidavit. The
grounds for the application are
as follows:
1.
The High Court, Accra lacks
jurisdiction to entertain or
determine the Motion/Application
filed by the 1-5th.
Interested parties herein to set
aside the arbitral award dated
29th March, 2012 on
grounds of fraud, same having
been brought out of time.
2.
To the extent that the
application to set aside the
arbitral award was brought out
of the statutory prescribed time
lime as circumscribed by Act
798, the High Court acted in
excess of its jurisdiction by
assuming jurisdiction to
entertain the application.
3.
Suit No.GJ1845/17 was commenced
pursuant to the wrong provision
of law, that is, section 58 of
the Alternative Dispute
Resolution Act, 2010 (Act 798)
rather than section 112 of the
same Act.
For ease of appreciation of this
ruling let us give a background
of this application.
There was a long-standing
dispute in Ada between two
gates, the Da Gate and the
Ablaokorm Gate as to which of
the said two gates is entitled
to nominate and install the
Mankralo of Ada in the Greater
Accra Region.
Over the years attempts at
resolving the dispute by various
committees proved futile.
Finally, on the recommendation
of the Ada Traditional Council,
the parties submitted to a
customary arbitration in respect
of the dispute, paid requisite
fees, participated fully and on
the 29th of March,
2012, an arbitral award was
delivered and same was
registered at the High Court,
Tema. The award was to the
effect that, the Mankralo
position should be ascended to
by the Da gate and the Ablaokorm
gate in rotation commencing with
the Da gate. The Award
indicated therefore that the Da
Gate which had, the applicant
herein, as its Mankralo
candidate was to install the
next Mankralo of Ada as opposed
to the Ablaokorm Gate which had
the 6th interested
party as its Mankralo.
The 6th interested
party herein, together with some
elders of the Ablaokorm gate,
filed a petition at the Ada
Traditional Council praying to
set aside the Customary Award.
The applicant herein filed an
application seeking to set aside
the said petition but same was
dismissed by the Judicial
Committee of the Ada Traditional
Council. The applicant herein
and two others brought Judicial
Review proceedings at the High
Court, Tema, to quash the ruling
dismissing the application and
to prohibit the Judicial
Committee of the Ada Traditional
Council from hearing the
petition.
The High Court, Tema, granted
the application for judicial
review and quashed the ruling of
the Judicial Committee, and
prohibited the Judicial
Committee from hearing the
petition brought before it. This
was on 4th June 2013.
In the said ruling ruling, the
High Court determined that,
a. There had been a valid
customary arbitration submitted
to by the parties resulting in
an award delivered on the 29th
March, 2012.
b. The Customary
Arbitral Award had determined
the Ada Mankralo issue in
favour of the applicant’s gate
and same was valid and
subsisting.
c. That, the Arbitral
Award operates as a final,
binding and conclusive decision
from which no party had the
right to rescind.
The 6th interested
party, together with the said
elders from the Ablaokorm gate
filed an appeal against the
decision of the High Court,
Tema, but same was dismissed by
the Court of Appeal per its
judgement dated the 24th
of July, 2014. The judgment of
the Court of Appeal was not
appealed against, and the
applicant has subsequently been
admitted into the Ada
traditional Council as the
Mankralo of the Ada State under
the name NENE AGUDEY OBECHERE
III.
The 6th defendant and
some elders of the Ablaokorm
gate again issued a Writ of
Summons seeking to set aside the
Arbitral Award but the writ was
struck out by the High Court.
Subsequently, some elders of the
Ablaokorm Gate filed an
application before the High
Court seeking to set aside the
Customary Award. Again, this was
dismissed on grounds of law
including the fact that the
applicants had not filed the
application within the
statutorily prescribed time
limits.
Notwithstanding the
pronouncements of the High Court
and Court of Appeal as to the
validity of the customary
arbitration and award delivered
on the 29th March,
2012, in another attempt at
frustrating the applicant herein
from performing his duties as
Mankralo of the Ada State, the 1st
-5th interested
parties herein, purporting to be
heads of some gates of Korgbor,
sued out a writ of summons and
statement of claim against the
applicant herein, in the High
Court on the 2nd of
June, 2017 seeking among other
reliefs, an order setting aside
the customary award dated 29th
March, 2012. Upon application by
the applicant herein, the High
Court struck out the writ of
summons in its ruling dated 31st
July, 2017.
It was after all these
applications and rulings that
the 1st – 5th
interested parties, by an
originating motion, mounted an
action in the High Court, on 14th
December, 2017, seeking an order
to set aside the arbitral award
dated 29th March,
2012 on a number of grounds,
including fraud. The applicant
herein, filed an opposition to
the motion and additionally
raised a preliminary legal
objection to the motion filed by
the 1st – 5th
interested parties herein on the
grounds that;
i. The
ii. The applicants are not
parties to the arbitration, and
do not have the locus standi to
bring the application.
In a ruling delivered on 10th
May 2018, the High Court
dismissed the preliminary legal
objection as unmeritorious and
decided to determine the
application on its merits. It is
the ruling delivered by the High
Court on the preliminary
objection raised by the
self-same applicant herein, that
the applicant is seeking to
quash on the grounds that,
a.
In the first instance the 1st
– 5th interested
parties brought the motion in
suit No. GJ1845 under the wrong
provision of law, the High court
and the Court of Appeal having
adjudged the Award to be a valid
Customary Award; and
b. the High Court acted in
excess of its jurisdiction when
it dismissed the preliminary
legal objection and decided to
assume jurisdiction over the
application that was before it
in complete disregard of the
provisions of the alternative
Dispute Resolution Act, 2010,
(Act 789) relating to time
limits for applications of such
nature.
I must state that the narration
of the facts as recounted here
is that given by the applicant.
The narration of the facts and
events by the respondent is
slightly different. However, as
it will be presently
demonstrated, the accuracy or
otherwise of the facts as
recounted, is not germane to the
resolution of the application
before us.
The applicant has
brought this application
pursuant to Article 132 of the
constitution and Rule 61 of the
Supreme Court Rules, 1996 C.I.
16
Article 132 reads
132. The Supreme Court shall
have supervisory jurisdiction
over all courts and any
adjudicating authority and may,
in the exercise of that
supervisory jurisdiction, issue
orders and directions for the
purpose of enforcing or securing
the enforcement of its
supervisory power.
Rule 61 on the other hand
provides;
61(1). An application seeking to
invoke the supervisory
jurisdiction of the Court under
Article 132 of the constitution
shall be by motion on notice as
specified in the Form 29 set out
in Part IV of the Schedule to
these Rules and shall be filed
with a copy of the decision
against which the application is
sought and accompanied by an
affidavit.
It is pursuant to these
provisions that the applicant
has invoked our supervisory
jurisdiction seeking to quash by
way of certiorari, the ruling
and orders of the High Court
dated 10th May 2018
in suit No GJ 1845/17.
HAS OUR JURISDICTION BEEN
PROPERLY INVOKED?
The first question that we asked
ourselves is; In view of the
facts upon which the applicant
has mounted his application, has
our jurisdiction been properly
invoked?
Without seeking to encase our
answer in any legal niceties, it
is our view that the answer is
No! What exactly is the
applicant asking this court to
quash by a writ of certiorari?
Is it the ruling delivered by
the learned trial judge on the
preliminary point of law he
raised, or the originating
motion issued by the interested
party in the instant
proceedings? If it is the ruling
of the High Court Judge that we
are being asked to quash, what
is the basis for this request?
Is the applicant saying that the
trial High Court did not have
jurisdiction to pronounce on a
point of law that he himself had
raised, or that he is
dissatisfied with the judge’s
pronouncement on the preliminary
objection?
There is abundant case law on
the subject as to when and how
the supervisory jurisdiction of
this court in the form of
certiorari can be invoked. In
the case of Republic v
High Court, Accra; Ex parte
Commission on Human Rights and
Administrative Justice (Addo
Interested Party) [2003 – 2004]
1 SGLR 312, our esteemed
brother Dr. Date-Bah JSC noted,
(as stated in holding (4) of the
headnote at page 316 that;
“where the High Court…has made a
non-jurisdictional error of law,
which was not patent on the face
of the record…the avenue for
redress open to an aggrieved
party was an appeal, not
judicial review. Therefore,
certiorari would not lie to
quash errors of law which were
not patent…An error of law made
by the High Court…would not be
taken as taking the judge
outside the court’s
jurisdiction, unless the court
had acted ultra vires the
Constitution or an express
statutory restriction validly
imposed on it.”
On the same -subject-matter, the
Supreme Court in Republic
v High Court, Accra; Ex Parte
Industrialisation Fund for
Developing Countries
[2003-2004]1SCGLR 348
held (as stated in holding (1)
of the headnote) that;
“Certiorari 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 as to make a decision a
nullity. In the case of errors
of law or fact not apparent on
the face of the ruling, the
avenue for redress is by way of
an appeal.”
In this case, the applicant is
praying for an order of
Certiorari not because the trial
judge did not have jurisdiction
to give a ruling on the matter
but that he is dissatisfied with
the ruling. This may be a
ground of appeal but definitely
not a ground for certiorari.
The judge might have erred in
his appreciation of the facts
and the conclusions drawn from
them. If that is the case, it
would not be an egregious error
on the face of the record to be
cured by certiorari. 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: see
Republic v High Court, Kumasi;
Ex parte Fosuhene [1989-90] 2
GLR 315.
We would therefore reiterate the
famous words of our learned
sister Georgina Wood JSC (as she
then was) in the case of
Republic v Court of Appeal; Ex
parte Tatsu Tsikata [2005-2006]
SCGLR 612 at 619 that;
“The clear
thinking of this court is that,
our supervisory jurisdiction
under article 132 of the 1992
constitution, should be
exercised only in those
manifestly plain and obvious
cases, where there are patent
errors of law on the face of the
record, which errors either go
to the jurisdiction or are so
plain as to make the impugned
decision a complete nullity. It
stands to reason then, that the
error(s) of law alleged must be
fundamental, substantial,
material, grave or so serious as
to go to the root of the
matter.”
Even though from the motion
paper the applicant is seeking
to quash the ruling delivered by
the judge on the 10th
May 2018, the arguments
canvassed in his statement of
case, do not address this at
all. He argued as if he was
seeking to quash the originating
motion, on the grounds of
procedural impropriety and also
in breach of some specific time
lines. Even when respondent’s
counsel tried to draw his
attention to this obvious flaw
in his statement of case, the
applicant’s counsel still never
addressed this basic issue of
whether the court’s jurisdiction
had been properly invoked in his
statement of case in response.
Indeed in the statement of case
attached to the application this
is what the applicant said at
page 3;
“On the 10th of March
2018, the High Court dismissed
the preliminary objection and
issued instructions for an
Application for Directions to be
filed which has been done. It
is in consequence of the
dismissal of the objections
raised that the Applicant herein
has brought the instant
application seeking orders of
certiorari and prohibition.
GROUNDS
Before the originating
application was moved the
Applicant raised a preliminary
objection
before the honourable Court. The
Honourable Court heard
submissions from Counsel on
the preliminary objection
and the instant submissions
are supplementary to the
arguments so far on the
preliminary objection.”
(emphasis added)
The applicant is seeking an
order of certiorari to quash the
ruling of the High Court,
Probate and Administration
Division, Accra dated 10th
May, 2018 in suit No. GJ
1845/17. To our mind counsel for
the applicant in such
applications to invoke the
supervisory jurisdiction of the
Supreme court ought to focus on
the ruling or orders that he
seeks an order to quash. The
gravamen of the instant
application concerns the ruling
of the High Court, dated 10th
May, 2018 and not the
originating motion on notice to
set aside arbitral award on
grounds of fraud and the section
under which the said motion was
commenced.
The law is well settled that in
an application founded on the
court’s supervisory
jurisdiction, the court must
confine or restrict itself to
the decision or ruling
complained of and not the
substance of the suit.
If this court restricts or
confines itself to the ruling
complained of, as we are obliged
to do, and not whether or not
suit No. GJ 1845/17 was
commenced pursuant to wrong
provision of law, that is,
section 58, rather than section
112 of the Alternative Dispute
Resolution Act 2010 Act 798, we
find that it does not constitute
an error going to the wrong
assumption of jurisdiction to
make the ruling of the High
Court Probate and Administration
Division dated 10th
May 2018, a nullity.
In the case of Republic
vs. High Court, Accra ex-parte
Soku & Another [1996-1997] SCGLR
525 @ 526, the Supreme
Court delivered itself as
follows; Holding 2
“Where there was a claim that
there was an error of law
appearing on the face of the
record of a superior court such
as the instance case-warranting
intervention by the exercise of
the Supreme Court’s supervisory
jurisdiction
– it must be such an error
going to the wrong assumption of
jurisdiction as the error was so
obvious as to make the decision
a nullity.”
The ruling or the High Court,
Probate and Administration
Division dated 10th
May, 2018, which is the subject
matter for this application for
judicial review, does not turn
on which section of the ADR Act,
Act 798, 1st to 5th
respondents ought to have
commenced their action by.
The preliminary legal objection
was heard and determined by the
court acting within its
jurisdiction. In such a case a
decision made becomes a subject
of appeal rather than
certiorari. The correctness or
otherwise of the ruling of the
Probate Division of the High
Court should be a matter of
appeal. In Republic vs
High Court, Accra ex parte
Asakum and Engineering and
Construction Limited and others
[1993-1994] 2 GLR 643
the court noted as follows;
“The grounds upon which a
superior court would in the
exercise of its supervisory
jurisdiction issue certiorari to
quash the decision of an
inferior court or tribunal were
that the inferior court or
tribunal had acted without or in
excess of jurisdiction or
breached certain conditions on
the administration of justice or
that there was error apparent on
the face of the record which was
such as to make the decision a
nullity. Consequently, where
the inferior court had
jurisdiction and there was no
error on the face of the record
as to make the decision a
nullity, the superior court
would not grant an order of
certiorari on the ground that it
had misconceived a point of law.
The correctness or otherwise of
the decision of the lower court
or tribunal was in that case
only a matter of appeal.”
If practitioners were to
appreciate the obvious sense in
this statement, we are sure many
of the applications inundating
this court and invoking the
supervisory jurisdiction of this
court will not be brought.
It is our view that the
application for certiorari
before the court is
misconceived. For emphasis we
wish to repeat what we said
earlier in this ruling,
“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”: Republic
v High Court, Kumasi; Ex parte
Fosuhene (supra)
The applicant is obviously in
the wrong forum, seeking the
wrong reliefs. The application
is therefore REFUSED.
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
ADINYIRA (MRS.), JSC:-
I agree with the conclusion and
reasoning of my brother Baffoe-Bonnie,
JSC.
S. O. A. ADINYIRA (MRS.)
(JUSTICE OF THE SUPREME COURT)
DOTSE, JSC:-
I agree with the conclusion and
reasoning of my brother Baffoe-Bonnie,
JSC.
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
YEBOAH, JSC:-
I agree with the conclusion and
reasoning of my brother Baffoe-Bonnie,
JSC.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
PWAMANG, JSC:-
I agree with the conclusion and
reasoning of my brother Baffoe-Bonnie,
JSC.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
COUNSEL
KWESI AUSTIN FOR THE APPLICANT.
EDWARD SAM CRABBE FOR THE
INTERESTED PARTIES/RESPONDENTS.
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