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Practice and Procedure -
Certiorari and Prohibition - High
Court (Civil Procedure) Rules,
2004 (C.I.47) - Order 19 R 2 of
C.I.47 - Whether
A declaration for extension of
the mandate of the Governing
Council of the 1st
Respondent by the 2nd
Respondent to stay in office to
perform such functions as
properly appointed council was
in breach of Section 8 Act 672.-
HEADNOTES
The crux of the applicant's case
is that the trial High Court
judge committed an error of law
on the face of the record when
he dismissed the challenge to
the propriety of the action and
assumed jurisdiction in the
matter. In the application to
dismiss the action that was
brought before the High Court,
the 2nd and 3rd interested
parties had argued among other
grounds that, in view of the
reliefs sought by the 1st
interested party, the provisions
of the High Court (Civil
Procedure) Rules, 2004 (C.I.47)
required that the action ought
to have been commenced by a writ
of summons and not originating
motion. The 1st interested party
who was respondent to that
application answered the
challenge to the procedure he
adopted in initiating his action
by relying on Order 19 R 2 of
C.I.47 - The applicant has
submitted before us that the
judge committed a fundamental
error of law in his construction
of Order 19 R 2 in that the
provision relates to proceedings
embarked upon to vindicate
rights created under a statute
and not proceedings alleging
breaches of statutes. At
paragraph 3 of his affidavit in
opposition to this present
application the 1st interested
party stated that the gravamen
of his action in the High Court
is the breaches of the
University of Education, Winneba
Act, 2004 (Act 672) and the
Public Procurement Act, 2003
(Act 663)
HELD :-
In the circumstances we grant
the application for certiorari,
quash the decision of the High
Court, Winneba dated 10/7/17 and
set aside the 1st interested
person's originating motion
filed on 23/5/17 with liberty to
him to issue a writ of summons
to have his grievances
redressed. In coming to this
conclusion we are not without
sympathy for the 1st Interested
Party who, apparently out of
public spiritedness, wants the
right thing to be done.
STATUTES REFERRED TO IN JUDGMENT
High Court (Civil Procedure)
Rules, 2004 (C.I.47)
Procurement Act, Act 663,
University of Education,
Winneba Act, 2004 (Act 672)
Companies Act, 1963 (Act
179) section 217
section 39 of the Economic and
Organised Crime Act, 2010 (Act
804)
CASES REFERRED TO IN JUDGMENT
In Re Appenteng (Decd); Republic
v High Court, Accra, Ex parte
Appenteng [2005-2006] SCGLR 18.
Republic v High Court, Koforidua;
Ex parte Asare (Baba Jamal &
Others) Interested Parties
[2009] 460
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
PWAMANG, JSC:-
COUNSEL.
DR. RAYMOND ATUGUBA FOR THE
APPLICANT.
AFENYO KWAMENA MARKIN FOR THE
INTERESTED PARTIES/ RESPONDENTS.
PWAMANG, JSC:-
Before us is an
application for orders of
certiorari and prohibition
against the High Court, Winneba.
The facts giving rise to the
application are as follows. On
23rd May, 2017 the 1st
interested party herein by an
originating motion filed in the
High Court, Winneba sought
against the 2nd and 3rd
interested parties the following
reliefs.
a.
A declaration that the
extension of the mandate of the
Governing Council of the 1st
Respondent by the 2nd
Respondent to stay in office to
perform such functions as
properly appointed council was
in breach of Section 8 Act 672.
b.
A declaration that no
authority or institution of
state has any power to extend
the tenure of a member of the
Governing Council of the 1st
Respondent unless such extension
is in accordance with Act 627.
c.
A declaration that all
appointments made by the defunct
Governing Council which
constituted themselves as the
Government Council of the 1st
Respondent by virtue of the
directives of the 2nd
Respondent are null and void and
of no legal effect.
d.
A declaration that all
decisions taken by the defacto
body of persons who constituted
themselves as Governing Council
is null and void and of no
effect.
e.
A declaration that the
contracts awarded to SparkxxGh
Ltd, Paabadu Construction and
C-Deck were done in breach of
the Procurement Act (Act 663)
and same is null and void.
f.
A declaration that the
Memorandum of Understanding
between Ghana Highway Authority
and the 1st
Respondent was a sham and used
as a decoy to embezzle public
funds.
g.
A declaration that the
procurement of 8 Pickup vehicles
was done in breach of the
Procurement Act (Act 663).
h.
A declaration that all
payment made to Lamas Ltd was
done without the express written
consent of the Ghana Highway
Authority and in breach of the
Memorandum of Understanding and
same must be refunded.
i.
A declaration that the
illegally appointed Principal
Officers of the 1st
Respondent willfully
misappropriated public funds by
failing to put to public tender
for the construction of the
North campus road and thereby
causing financial loss to the
state.
j.
A declaration that the
conduct of the 1st
Respondent in the award of
contract is discriminatory and
does not provide equal
opportunities for potential
eligible bidders.
k.
An order compelling the 1st
Respondent to strictly comply
with its transport policy
particularly on insurance.
l.
An order compelling the 1st
Respondent to enact a Social
Responsibility Policy for the
benefit of the 3 communities
where its campuses are located.
m.
An order compelling the 1st
Respondent to enact Local
Content Policy that will require
contractors executing projects
to employ local artisans except
where reasonable search has
yielded no results.
Upon service of the
originating motion on them the
2nd and 3rd interested parties
applied to the High Court to
dismiss the case on the grounds
that the action ought to have
been commenced by a writ of
summons and also for want of
capacity of the applicant. After
hearing the parties, the High
Court in a reasoned ruling dated
10th July, 2017 refused to
dismiss the action. The court
proceeded to hear an application
for interlocutory injunction by
the 1st interested party and
granted same. The 2nd and 3rd
interested parties appealed
against the 10/7/17 ruling as
well as the grant of the
interlocutory injunction but
they did not pursue the appeals.
Meanwhile, the applicant herein
who is a lecturer at the
University of Education, Winneba
and was President of the Winneba
Chapter of the University
Teachers Association of Ghana
(UTAG) also applied on behalf of
the members of his association
to join the action but the High
Court dismissed his application
as well. Whereas the 2nd and 3rd
interested parties have not
pursued their appeal, the
applicant appears undaunted and
has invoked our supervisory
jurisdiction praying for an
order of certiorari to quash the
High Court's ruling of 10/7/17
and an order prohibiting the
trial High Court judge from
hearing the case.
The crux of the
applicant's case is that the
trial High Court judge committed
an error of law on the face of
the record when he dismissed the
challenge to the propriety of
the action and assumed
jurisdiction in the matter. In
the application to dismiss the
action that was brought before
the High Court, the 2nd and 3rd
interested parties had argued
among other grounds that, in
view of the reliefs sought by
the 1st interested party, the
provisions of the High Court
(Civil Procedure) Rules, 2004
(C.I.47) required that the
action ought to have been
commenced by a writ of summons
and not originating motion. The
1st interested party who was
respondent to that application
answered the challenge to the
procedure he adopted in
initiating his action by relying
on Order 19 R 2 of C.I.47 which
provides as follows;
" 2) Proceedings by
which an application is to be
made to the Court or a Judge of
the Court under any enactment
shall be initiated by motion and
where an enactment provides that
an application shall be made by
some other means, an application
by motion shall be deemed to
satisfy the provision of the
enactment as to the making of
the application."
In dismissing the
objection to the proceedings by
originating motion the trial
judge said as follows;
"From Order 19 R 2 of C.I.47 it
is clear that when one is suing
an enactment such as the
Procurement Act, Act 663, the
action can be commenced at the
High Court and the action must
be commenced by a motion."
The applicant has
submitted before us that the
judge committed a fundamental
error of law in his construction
of Order 19 R 2 in that the
provision relates to proceedings
embarked upon to vindicate
rights created under a statute
and not proceedings alleging
breaches of statutes. At
paragraph 3 of his affidavit in
opposition to this present
application the 1st interested
party stated that the gravamen
of his action in the High Court
is the breaches of the
University of Education, Winneba
Act, 2004 (Act 672) and the
Public Procurement Act, 2003
(Act 663) committed by the
respondents and that the trial
judge by upholding the
procedure of originating motion
for initiation of the
proceedings committed no error
of law. Besides the substantive
legal grounds upon which the 1st
interested party has opposed
this application, he has also
challenged the standing and
capacity of the applicant. He
contended that the interest that
the applicant and the group of
lecturers he was representing
have in the case is coterminous
with that of the 2nd interested
party. He said the 2nd
interested party filed processes
in the High Court and has a
pending appeal against the
ruling of 10/7/2017 so the court
has a discretion to deny the
applicant audience. He further
submitted that the Winneba
Chapter of UTAG that the
applicant was representing have
no separate and distinct legal
existence in the Constitution of
UTAG so they have no capacity to
sue and same goes for the
applicant.
We shall first deal with
the issues of standing and
capacity of the applicant raised
by the Interested Party. This
court has held repeatedly that
applications for prerogative
writs have a special public
aspect to them and are therefore
not restricted by notions of
locus standi, i.e. one does not
need to show that some legal
right of his is at stake. They
may be granted to a total
stranger. See In Re Appenteng
(Decd); Republic v High Court,
Accra, Ex parte Appenteng
[2005-2006] SCGLR 18. Our
opinion is that since the issues
in this application are in
respect of the proper
administration of justice in
conformity with the rules of
court, a stranger to the
proceedings in the High Court
and an unincorporated group of
persons would have capacity to
raise them since it is in the
interest of the public that the
machinery of the administration
of justice works properly.
On the substantive grounds
of the application, our view is
that the trial judge did not
properly direct himself on the
conditions under which Order 19
R 2 of C.I.47 becomes operative
for the purpose of initiating
proceedings in the High Court.
It ought to be noted that the
provisions in Order 19 R 2 talk
of "proceedings by which an
application is to be made to the
court...under any enactment
shall be initiated by
motion...". That refers to court
proceedings that are directed to
be taken by provisions of an
enactment either by way of
application or otherwise. In
many instances, the legislature
in passing statutes create
rights for the benefit of
classes of persons or remedies
for persons aggrieved by the
exercise of authority conferred
by a statute to have recourse to
the courts for redress. The
statute would usually provide
that the beneficiary of the
right or the aggrieved person
may have recourse to the court
by application or some other
means. It is where such
provision has been made in a
statute that a person alleging
to be entitled to a right
created by that statute or
aggrieved by the exercise of
authority under the statute may
properly invoke the jurisdiction
of the High Court by using the
procedure provided for in Order
19 R2 of C.I.47. As was rightly
pointed out by lawyer for the
applicant in his statement of
case, one example of a statute
that creates rights for a class
of persons is section 217 of the
Companies Act, 1963 (Act 179)
which provides as follows;
"217. Injunction or declaration
in the event of illegal or
irregular activity
(1) The Court on the application
of a member may by injunction
restrain the company from doing
an act or entering into a
transaction which is illegal or
beyond the power or capacity of
the company or which infringes a
provision of its Regulations, or
from acting on a resolution not
properly passed in accordance
with this Act and the company’s
Regulations, and may declare
that act, transaction or
resolution already done, entered
into, or passed to be void."
An example of a provision that
gives relief against exercise of
authority under a statute is
section 39 of the Economic and
Organised Crime Act, 2010 (Act
804) which states that;
"39. (1) A person who claims an
interest in property which is
the subject of a freezing order
shall apply to the Court for a
review of the order on notice to
the Executive Director, within
fourteen days after the issue of
the freezing order."
In the instant case the
provisions of Acts 663 and 672
that the 1st interested party
alleged had been breached did
not create rights in him to
apply to the court for redress.
He was simply exercising his
general legal right to seek a
declaration from a court of law
on any matter that is
justiciable and therefore had to
come under Order 2 R 2 of C.I.47
which stipulates the procedure
for initiating civil proceedings
generally. It provides as
follows;
"Subject to any existing
enactment to the contrary all
civil proceedings shall be
commenced by the filling of a
wit of summons."
The declaratory reliefs
and consequential orders sought
by the 1st interested party in
the High Court are regular civil
proceedings and therefore ought
to have been initiated by writ
of summons pursuant to the
provisions of Order 2 R 2 and
not Order 19 R 2. The trial
judge was therefore clearly in
error when in the face of the
reliefs sought he held that the
proceedings were properly
constituted with the use of the
originating motion. In our
opinion, the jurisdiction of the
High Court was not properly
invoked in this case.
This court has held that
where a High Court or Court of
Appeal in a decision commits an
error of law apparent on the
record which error is material,
grave, fundamental, substantial
or is so serious as to go to the
root of the matter, certiorari
will issue to quash the
decision. The error in this case
has to do with the originating
process by which the
jurisdiction of the High Court
was invoked. Jurisdiction is
fundamental to a court's
authority to adjudicate matters
placed before it so where its
jurisdiction is wrongly invoked
a court of law has to correct
that process before it can
proceed with the case, no matter
the importance of the matters
raised in the processes before
it.
The 1st interested party
has argued in the alternative
that certiorari is
discretionary so if even this
court is of the view that the
trial judge committed an error
of law apparent on the record we
should refuse this application
since there is the alternative
remedy of an appeal. He further
submitted that since the
substance of his case is about
breaches of statutes and courts
are required to enforce
statutes, the court ought to
exercise its discretion in
refusing the application. We
have given deep thought to these
matters raised by the 1st
interested party but have taken
the position that the process by
which the jurisdiction of a
court is invoked is so
fundamental to the orderly
administration of justice that
we cannot gloss over the error
in this case and allow it to
persist in the processes before
the High Court. In the case of
Republic v High Court,
Koforidua; Ex parte Asare (Baba
Jamal & Others) Interested
Parties [2009] 460, this
court quashed by certiorari
proceedings which the statute
stipulated ought to be commenced
by petition but were initiated
by a writ of summons. Just as we
have here, in that case the High
Court had refused an application
to set aside the originating
process and proceeded to grant
an injunction in the matter so
the interested party moved the
Supreme Court for certiorari.
This court unanimously held as
follows in the Headnote;
"the decision of the trial
judge, dismissing the motion by
the applicant to strike out the
writ, was an error of law
apparent on the face of the
record and would therefore be
quashed by an order of
certiorari."
Though that case dealt
with a substantive statute, the
reasoning of the court there is
very instructive. From the
nature of the case in the High
Court and the serious
allegations made by the 1st
interested party, justice would
require that the rules of court
be strictly complied with to
ensure complete and effective
adjudication.
In the circumstances we
grant the application for
certiorari, quash the decision
of the High Court, Winneba dated
10/7/17 and set aside the 1st
interested person's originating
motion filed on 23/5/17 with
liberty to him to issue a writ
of summons to have his
grievances redressed. In coming
to this conclusion we are not
without sympathy for the 1st
Interested Party who, apparently
out of public spiritedness,
wants the right thing to be
done.
But before we rest this
delivery, we noticed among the
processes filed before us a
letter from the new Chairman of
the Governing Council of the
University of Education, Winneba
announcing its due constitution
in accordance with the
provisions of Act 672. Since
this case is about the
governance of the University, we
say for the avoidance of doubt
that our decision does not
affect whatever the newly
constituted Governing Council
has done.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
S. O. A. ADINYIRA
(MRS)
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
COUNSEL:
DR.
RAYMOND ATUGUBA FOR THE
APPLICANT.
AFENYO KWAMENA MARKIN FOR THE
INTERESTED PARTIES/ RESPONDENTS. |
