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Practice and
Procedure - Certiorari -
Judicial Review - Prerogative
writs – Assumption of wrongful
jurisdiction. - Whether or not
the processes, being committal
processes, had been filed in the
wrong court - Whether or not
what was filed in the High Court
was a charge sheet and not an
indictment – Commencement of
committal proceedings - nolle
prosequi - Section 54 section
182 of the Criminal and Other
Offences (Procedure) Act 1960
(Act 30)
HEADNOTES
The applicant
contends that a prepared
committal processes (bill of
indictment together with the
facts of the case) was file in
the Registry of the District
Court, Adjabeng, Accra, The said
processes were filed at the
District Court, but when the
case was called the District
Magistrate declined
jurisdiction, after listening to
the legal submissions on behalf
of the applicant and the
accused., On the directions of
the District Court, Adjabeng and
for the avoidance of doubt, he
prepared two sets of processes;
one for filing in the registry
of the District Court, Accra,
and the other for filing in a
division of the High Court,
Accra. Both sets of processes
were handed over to the relevant
judicial officers for filing in
the appropriate forum.
Consequent on the filing of the
process in the High Court, the
High Court assumed jurisdiction
in the matter by taking the plea
of the accused person. It also
granted the accused bail, upon
an oral application made by his
counsel. The applicant’s
argument is that
the
processes, being committal
processes, had been filed in the
wrong court. He maintains
that they should have been filed
in the District Court and not in
the High Court and therefore the
High Court has wrongfully
assumed jurisdiction. The
Attorney-General is seeking to
quash proceedings that he
himself has initiated before the
High Court against the
interested party. After
initiating the proceedings
before the High Court and that
Court had assumed jurisdiction
over the matter, without any
objection on his part, he has
now turned round to apply to the
Supreme Court to quash those
same proceedings that he himself
has initiated, on the ground
that the High Court lacks
jurisdiction in the matter.
HELD
The applicant
here, by his conduct, has
clearly acquiesced in whatever
want of jurisdiction attended
the High Court’s conduct of this
case. Whilst such acquiescence
may not cure any want of
jurisdiction, it can found the
basis for a negative exercise of
discretion in relation to the
grant of an order of
certiorari. We would like to
reiterate that we have
deliberately not examined the
merits of the argument of the
applicant that the High Court
lacks jurisdiction in this
case. Given our view of this
case, it is unnecessary to go
into the merits of that issue.
For these reasons, we consider
that the Honourable
Attorney-General’s application
for an order of
Judicial
Review in the nature of
Certiorari to quash the order
should be dismissed and it is
hereby dismissed.
STATUTES
REFERRED TO IN JUDGMENT
Criminal and
Other Offences (Procedure) Act
1960 (Act 30),
CASES
REFERRED TO IN JUDGMENT
Republic v
High Court, Denu; ex parte
Agbesi Awusu II (No. 2) (Nyonyo
Agboada (Sri III) Interested
Party) [2003-2004] 2 SCGLR 907
in Republic v
High Court, Accra; ex parte
Aryeetey (Ankrah Interested
Party) [2003-2004] 1 SCGLR 398
Republic v
High Court, Accra; Ex parte
Tetteh Apain [2007-2008] SCGLR
72
Barraclough v
Brown [1897] AC 615.)
In re
Appenteng (Decd); Republic v
High Court, Accra (Commercial
Division); Ex parte Appenteng
[2010] SCGLR 327
BOOKS
REFERRED TO IN JUDGMENT
De Smith,
Woolf & Jowell’s Principles of
Judicial Review (1999),
DELIVERING
THE LEADING JUDGMENT
DR DATE-BAH
JSC:
COUNSEL
KWAME AMOAKO
(ASA), LED BY ANTHONY REXFORD
WIREDU (PSA),
ASIAMAH
SAMPONG (PSA), JOHN TULASI OFORI
(ASA), OWUSU AMEYAW(ASA) FOR THE
REPUBLIC.
AYIKOI OTOO
WITH FRANK DAVIS AND ATTA AKYEA
FOR THE INTERESTED PARTY.
______________________________________________________________________
R U L I N G
______________________________________________________________________
DR DATE-BAH
JSC:
This
is the unanimous ruling of the
Court. The remedy of
certiorari has always been a
discretionary one. The authors
of De
Smith, Woolf & Jowell’s
Principles of Judicial Review
(1999), in discussing
the historical development of
judicial
review remedies and
procedures, make the following
pronouncement (at p. 530) in
relation to the four
prerogative writs of
certiorari, mandamus,
prohibition, and habeas corpus:
“Though the
four writs had acquired their
“prerogative” characteristics by
the middle of the seventeenth
century, strangely it was not
until a century later, in 1759,
that anybody (Mansfield) seems
to have thought of classifying
the writs as a group. Those
shared characteristics included
the following:
1)
They were not writs of course
which could be purchased by or
on behalf of any applicant from
the Royal Chancery; they could
not be had for the asking, but
proper cause had to be shown to
the satisfaction of the court
why they should issue.
2)
The award of the prerogative
writs usually lay within the
discretion of the court. The
court was entitled to refuse
certiorari and mandamus to
applicants if they had been
guilty of unreasonable delay or
misconduct or if an adequate
alternative remedy existed,
notwithstanding that they have
proved a usurpation of
jurisdiction by the inferior
tribunal or an omission to
perform a public duty. But
although none of the prerogative
writs was a writ of course, not
all were discretionary.
Prohibition, for example, issued
as of right in certain cases;
and habeas corpus ad
subjiciendum, the most famous of
them all, was a writ of right
which issued ex debito justitiae
when the applicant had satisfied
the court that his detention was
unlawful. These two writs,
therefore, were not in the
fullest sense writs of grace.
3)
…”
This Court
has on numerous occasions
accepted and stressed the
above-mentioned discretionary
character of the remedy of
certiorari. For instance, in
Republic
v High Court, Denu; ex parte
Agbesi Awusu II (No. 2) (Nyonyo
Agboada (Sri III) Interested
Party) [2003-2004] 2 SCGLR 907,
Atuguba JSC explained (at p.
914) that:
“It is
well-known that certiorari is a
discretionary remedy and
therefore it does not follow
that when the technical grounds
upon which certiorari lies are
established, it will be pro
tanto granted.”
Kpegah JSC
has also said,
in
Republic v High Court, Accra; ex
parte Aryeetey (Ankrah
Interested Party) [2003-2004] 1
SCGLR 398 at p. 410, that:
“Needless for
us to say that certiorari is a
discretional (sic) remedy and
the conduct of an applicant can
disentitle him to the remedy.”
in
Republic
v High Court, Accra; Ex parte
Tetteh Apain [2007-2008] SCGLR
72, Atuguba JSC, delivering
the ruling of the Supreme Court,
said (at p. 75):
“In any case,
an order of certiorari, as has
often been said, is a
discretionary remedy. Therefore
assuming that the High Court
should not have proceeded in the
matter pending the determination
of the applicant’s application
for prohibition pending before
this court, as the applicant
could have applied to the Court
of Appeal for an interim order
to prevent the trial court from
proceeding pending the
determination of his application
for stay of proceedings thereat,
he had another remedy open to
him which was not less
convenient but which he failed
to pursue. The applicant was
clearly forum-shopping, which is
an abuse of the process of this
court. In the circumstances,
this court ought to shut the
doors of the discretionary
remedy of certiorari against the
applicant and we hereby so do.”
In this last
case, Atuguba JSC is making the
point that where an applicant
has a remedy other than
certiorari open to him or her,
this is a factor that may be
taken into account in denying
the applicant the discretionary
remedy that is certiorari, even
if the other preconditions for
the grant of the remedy have
been established. The existence
of an alternative remedy is one
of the factors that a court can
rely on to exercise its judgment
against the grant of
certiorari. (See, for instance,
Barraclough v Brown [1897] AC
615.)
Also, in
In re
Appenteng (Decd); Republic v
High Court, Accra (Commercial
Division); Ex parte Appenteng
[2010] SCGLR 327, Atugaba
JSC, again delivering the ruling
of the Supreme Court, said (at
p. 339):
“Against a
background such as this, we have
no difficulty in holding that
though certiorari is a
discretionary remedy, the
omission of a party to raise
objection to a proceeding in an
inappropriate forum should
disentitle the applicant to that
remedy where the omission was
willful and an abuse of the
process of the court.”
This dictum
is relevant to the facts before
this court in this application.
The
Attorney-General is seeking to
quash proceedings that he
himself has initiated before the
High Court against the
interested party. After
initiating the proceedings
before the High Court and that
Court had assumed jurisdiction
over the matter, without any
objection on his part, he has
now turned round to apply to the
Supreme Court to quash those
same proceedings that he himself
has initiated, on the ground
that the High Court lacks
jurisdiction in the matter.
The grounds
for his application as stated on
his motion paper are as follows:
1.
“The High Court committed
jurisdictional error through
want of jurisdiction when it
purported to assume jurisdiction
in the matter before it.
2.
The High Court lacked
jurisdiction to grant bail in
the matter.”
By an
affidavit sworn to by Anthony
Rexford Wiredu, Principal State
Attorney,
the applicant contends that the
said Mr. Wiredu prepared
committal processes (bill of
indictment together with the
facts of the case) to file in
the Registry of the District
Court, Adjabeng, Accra, in a
case entitled The Republic v
Kennedy Ohene Agyapong. The
said processes were filed on 18th
April at the District Court, but
when the case was called the
District Magistrate declined
jurisdiction, after listening to
the legal submissions on behalf
of the applicant and the
accused. Mr. Wiredu further
deposed that on 19th
April 2012, on the directions of
the District Court, Adjabeng and
for the avoidance of doubt, he
prepared two sets of processes;
one for filing in the registry
of the District Court, Accra,
and the other for filing in a
division of the High Court,
Accra. Both sets of processes
were handed over to the relevant
judicial officers for filing in
the appropriate forum.
Consequent on the filing of the
process in the High Court, the
High Court assumed jurisdiction
in the matter by taking the plea
of the accused person. It also
granted the accused bail, upon
an oral application made by his
counsel.
The
applicant’s argument is that the
processes, being committal
processes, had been filed in the
wrong court. He maintains that
they should have been filed in
the District Court and not in
the High Court and therefore the
High Court has wrongfully
assumed jurisdiction.
The
interested party has in turn
deposed to an affidavit opposing
the application, in which he
challenges the facts of the case
as narrated in the affidavit of
Mr. Wiredu, the Principal State
Attorney. He swears that
what was
filed in the High Court was a
charge sheet and not an
indictment. He contends
that the Principal State
Attorney cannot in good faith
and in all conscience say that
the processes filed in the High
Court ought to have been filed
at the District Court. He
states that if the Principal
State Attorney intended to
commence
committal proceedings, he
ought to have complied with the
provisions of
section
182 of the Criminal and Other
Offences (Procedure) Act 1960
(Act 30), which provides for
the Court and the accused to be
furnished with not only a bill
of indictment, but also a
summary of evidence and a list
of the documents and things the
prosecution proposes to put in
evidence at the trial. The
interested party further deposes
to the fact that the Charge
Sheet had as its heading:
“IN THE
HIGH COURT
ACCRA – A.D.
2012”
Furthermore,
it had no bill of indictment or
summary of evidence annexed to
it as evidence that the
Principal State Attorney
intended a trial on indictment.
In paragraph 17 of his
affidavit, the interested party
states that:
“Assuming
without admitting that the case
was filed in the wrong Court,
then it was due to the Heading
of the Charge Sheet prepared by
the Prosecutor and he cannot
therefore be allowed to take
advantage of his own
wrong-doing.”
He further
states in paragraphs 22, 23 and
24 that:
“22. This
application is targeted at the
bail granted me and nothing more
and therefore have (sic) been
brought in very bad faith. This
Court ought not therefore to
exercise its discretion in
favour of the applicant.
23. I
am advised by Counsel and verily
believe same to be true that the
Learned Principal State Attorney
has other remedies open to him
in rectifying any anomaly caused
by himself. There are options
available to the Prosecutor to
withdraw charges or do other
things to bring the proceedings
to a halt. Therefore, he does
not need to apply to the Highest
Court of this Land for a relief
which he himself can grant.
24. I
am advised by Counsel and verily
believe same to be true that the
wrong which the Learned
Principal State Attorney is
complaining about was created by
him. He acquiesced in the
proceedings and failed to take
objection and therefore he is
deemed to have waived his right
to complain.”
The points
made in these three paragraphs
are quite telling and render it
unnecessary to determine whether
on the facts of this case the
High Court had jurisdiction or
not. This is because the
Attorney-General has in his own
hands and control a “remedy”
that he can deploy to achieve
the same result as if this court
had granted him the relief of
certiorari. That ”remedy” is
nolle prosequi which is provided
for in
section 54 of the Criminal
and Other Offences (Procedure)
Act, 1960 (Act 30) in the
following terms:
“(1) In
any criminal case, and at any
stage of a criminal case before
verdict or judgment, and in the
case of preliminary proceedings
before the District Court,
whether the accused has or has
not been committed for trial,
the Attorney-General may enter a
nolle
prosequi, either by stating
in Court or by informing the
Court in writing that the
Republic does not intend to
continue the proceedings.
(2) Where
the Attorney-General enters a
nolle prosequi under subsection
(1),
(a) the
accused shall be discharged
immediately in respect of the
charge for which the nolle
prosequi is entered, or
(b) the
accused shall be discharged
where the accused has been
committed to prison, or
(c)
the recognisances of the accused
shall be discharged where the
accused is on bail.
(3) The
discharge of the accused shall
not operate as a bar to any
subsequent proceedings against
the accused in respect of the
same case.
(4) Where the
accused is not before the Court
when the nolle prosequi is
entered the registrar or clerk
of the Court shall ensure that
notice in writing of the entry
of the nolle prosequi is given
to the keeper of the prison in
which the accused is detained
and where the accused has been
committed for trial, to the
District Court by which he was
so committed.
(5) The
District Court shall cause a
similar notice in writing to be
given to any witness bound over
to prosecute and to their
sureties, and also to the
accused and the sureties of the
accused where the accused has
been admitted to bail.”
“It is well-established that
this remedy being discretionary,
a suitor for it, even on the
ground of want or excess of
jurisdiction, will not obtain it
ex debitio justitiae unless he
can show that he had raised an
objection to the want of
jurisdiction if he was aware of
it.”
The applicant
here, by his conduct, has
clearly acquiesced in whatever
want of jurisdiction attended
the High Court’s conduct of this
case. Whilst such acquiescence
may not cure any want of
jurisdiction, it can found the
basis for a negative exercise of
discretion in relation to the
grant of an order of
certiorari. We would like to
reiterate that we have
deliberately not examined the
merits of the argument of the
applicant that the High Court
lacks jurisdiction in this
case. Given our view of this
case, it is unnecessary to go
into the merits of that issue.
For these
reasons, we consider that the
Honourable Attorney-General’s
application for “an order of
Judicial Review in the nature of
Certiorari directed at the High
Court, Accra to quash the order
of that Court presided over by
His Lordship Justice Charles
Quist and given on the 19th
day of April, 2012 in a case
entitled The Republic vrs.
Kennedy Ohene Agyapong SUIT NO.
ST 36/2012” should be dismissed
and it is hereby dismissed.
[SGD] DR. S.
K.
DATE-BAH
JUSTICE
OF THE SUPREME COURT
[SGD] J.
ANSAH
JUSTICE OF THE
SUPREME COURT
[SGD] ANIN YEBOAH
JUSTICE OF THE
SUPREME COURT
[SGD] N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
[SGD] V.
AKOTO-BAMFO
[MRS.]
JUSTICE OF THE SUPREME COURT
COUNSEL;
KWAME AMOAKO
(ASA), LED BY ANTHONY REXFORD
WIREDU (PSA),
ASIAMAH
SAMPONG (PSA), JOHN TULASI OFORI
(ASA), OWUSU AMEYAW(ASA) FOR THE
REPUBLIC.
AYIKOI OTOO
WITH FRANK DAVIS AND ATTA AKYEA
FOR THE INTERESTED PARTY. |
