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Constitutional law – Practice
and Procedure - Invoking the
supervisory jurisdiction of the
Court – Certiorari - Article
132 of the 1992 Constitutional -
Contempt of court - Committal to
Prison - Audi alteram partem
rule - Order of extension of
time - Leave of the court to
move the application - Whether
or not the learned trial judge
of the High Court, acted within
jurisdiction - Absence of a
transfer order from the Chief
Justice - Article 14 of the 1992
Constitution - Order 13 rule
6(2) of the High Court (Civil
Procedure Rules), 2004, CI 47.
HEADNOTES
The parties
before us was based on the
refusal by the applicant to
comply with orders of the High
Court that were made previously
on the 26 of January 2009 by a
court constituted by a judge
other than the one who delivered
the ruling, the subject matter
of this application. It appears
that the said judgment was
entered by the court under
Order 13
rule 6(2) of the High Court
(Civil Procedure Rules), 2004,
CI 47. A careful examination
of the orders made by the High
Court, Accra reveals that while
relief (1) was substantive, the
other reliefs were ancillary to
it. The question that comes up
is whether in making the said
order the court acted in
accordance with due process.
Since the substantive order made
is a declaration, by the settled
practice of the courts
HELD
For the above
reasons, since the contempt
proceedings that resulted in the
decision of 29 March 2011 is
based on the flawed decision of
26 January 2009, it is as it
were affected by the fundamental
defect that is the basis of the
jurisdiction that the learned
trial judge of the High Court,
Accra purported to exercise and
accordingly in line with settled
judicial opinion in such cases,
we have no discretion in the
matter but to grant the
application in terms of the
prayer before us. The result is
that the application succeeds.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
High Court
(Civil Procedure Rules), 2004,
CI 47.
CASES
REFERRED TO IN JUDGMENT
Metzger v
Department of Health & Social
Security [1977] 3 All ER 444
Wellesteiner
v Moir [1974] 3 ALL ER
217
The Republic
v The High Court, Accra; EX
Parte Salloum & ORS,
Suit No. J5/4/201116 March 2011,
The Republic
v The Court of Appeal & or EX
parte Ghana Chartered Institute
of Bankers, Suit No. J5/21/2011
22 June 2011.
BOOKS
REFERRED TO IN JUDGMENT
Halsbury’s
Laws of England Volume 37
DELIVERING
THE LEADING JUDGMENT
GBADEGBE,
JSC:
COUNSEL
CHARLES
BENTUM FOR THE APPELLANT.
GEORGE
AMPIAH-BONNIE FOR THE
RESPONDENT.
______________________________________________________________________
RULING
______________________________________________________________________
GBADEGBE,
JSC:
We have
before us a notice of motion at
the instance of the Applicant
that seeks to
invoke
our supervisory jurisdiction
under
Article 132 of the 1992
Constitution for an order of
Certiorari quashing the
ruling of the High Court Accra
dated 29th March 2011
in Suit Number BFA.81/2007, by
which the body of the Applicant
was
committed to prison for contempt
of court. In the body of the
motion paper originating the
application herein, the prayer
sought was for an
order of
extension of time within
which to apply for certiorari in
respect of rulings dated 29
March 201, 13 April 2011 and 21
April 2011. When the matter came
up for hearing, learned counsel
for the applicant’s attention
having been drawn to the time
frame spelt out in rule 62 of
the Supreme Court Rules, CI 16
in relation to such
applications, he abandoned his
invitation to us that sought
extension of time and proceeded
with
leave of the court to move the
application substantively
but limited only to the delivery
of 29th March 2011.
Following this, the parties
through their counsel submitted
oral arguments to us on the
application that concerns the
order of the High Court Accra,
by which the applicant was
condemned into prison for a
period of twelve months.
In the course
of his ruling in the matter, the
learned trial judge of the High
Court made a positive finding
against the applicant herein as
follows:
“I find
the conduct of the Respondent by
not complying with the 26th
January order as amounting to
contempt of court. I also find
the conduct to be deliberate and
willful for the reasons stated
earlier in this Ruling and
further for the fact that the
application was first placed
before the court on 11 August,
2009, and before me in
particular on 23 November
2010.The 1st
defendant/respondent since 23
November, 2010, has had a series
of adjournment to his benefit to
resolve the matter out of court
but has failed to do so.”
Pausing here,
we observe that what is before
us in the application herein is
unrelated to the merits of the
contempt application, as the
complaint on which the processes
on which the matter herein are
based is concerned only with
inquiring into
whether
or not the learned trial judge
of the High Court, whose
pronouncement has just been
referred to above, acted within
jurisdiction. In the body of
the motion paper, the applicant
founded his challenge to the
jurisdiction of the High Court
on the fact that the matter was
initially before a judge other
than the judge who conducted the
contempt proceedings and that
the
absence of a transfer order from
the Chief Justice before the
matter was placed before the
learned trial judge who ordered
his incarceration, the
proceedings suffered from the
absence of jurisdiction. From
the explanation offered in
support of the said ground, it
was quite clear to us that the
issue of jurisdiction on which
it turned was a not well
founded, but, noting that the
matter touched the right of a
citizen to be confined by an
order of court and in particular
the provisions of
Article
14 of the 1992 Constitution
that guarantees the right to
personal liberty, we enabled the
application to be proceeded
with. Reference is made to the
constitutional provision
contained in Article 14(1) as
follows:
“Every person
shall be entitled to his
personal liberty and no person
shall be deprived of his
personal liberty except in the
following circumstances and in
accordance with procedure
permitted by law-
(b) in
execution of an order of a court
punishing him for contempt of
court.”
In allowing
the applicant to proceed with
the application, we offered him
the opportunity to have the
benefit of the elaborate
provisions on fundamental human
rights as enshrined in the 1992
Constitution that enjoins us in
Article 12 to give meaning and
content to the said rights by
enforcing their observance. It
repays to make a reference to
clause 1 of Article 12 that is
expressed as follows:
“The
fundamental human rights and
freedoms enshrined in this
Chapter shall be respected and
upheld by the Executive,
Legislature and the Judiciary
and all other organs of
government and its agencies and,
where applicable to them, by all
natural and legal persons in
Ghana, and shall be enforceable
by the courts as provided for in
this Constitution.”
This being
the position, we think it is
competent for us to examine the
circumstances surrounding the
making of the ruling of 29
March 2011 to find out whether
the order made against him was
in the words of Article 14 of
the Constitution “in
accordance with procedure
permitted by law.” The order
,from the processes filed by
the
parties before us was based on
the refusal by the applicant to
comply with orders of the High
Court that were made previously
on the 26 of January 2009 by a
court constituted by a judge
other than the one who delivered
the ruling, the subject matter
of this application. In his
judgment, the minutes of
which are in evidence before us
in these proceedings as exhibit
EAO 2, the learned trial judge
of the High Court made the
following orders.
“BY
COURT: - Application is
granted as prayed. Judgment is
hereby entered against the
defendants in favour of the
plaintiffs’ in respect of
reliefs (1), (111) and (v). …….”
The said
exhibit has inscribed on it in
bold letters “JUDGMENT IN
DEFAULT OF DEFENCE.”
It appears
that the said judgment was
entered by the court under Order
13 rule 6(2) of the High Court
(Civil Procedure Rules), 2004,
CI 47. A careful examination of
the orders made by the High
Court, Accra reveals that while
relief (1) was substantive, the
other reliefs were ancillary to
it. The question that comes up
is whether in making the said
order the court acted in
accordance with due process.
Since the substantive order made
is a declaration, by the settled
practice of the courts,
such orders to be good must be
made only after hearing all the
parties to the action or at
least offering them an
opportunity to be heard. In the
case of
METZGER v DEPARTMENT OF
HEALTH & SOCIAL SECURITY
[1977] 3 All ER 444, MEGARRY
VC at 451, made the following
pronouncement:
“The court
does not make declarations just
because the parties to
litigation have chosen to admit
something. The court declares
what it has found to be the law
after proper argument, not
merely after admission by the
parties. There are no
declarations without argument;
that is quite plain.”
Similarly,
the learned authors in
Volume
37 of Halsbury’s Laws of England
make the following statement
at page 191, paragraph 252:
“A
declaratory judgment or order
should be final, in the sense of
finally determining the rights
of the parties, but should not
be granted in the course of
interlocutory proceedings or by
way of an interim declaration”
See also:
WELLESTEINER v MOIR [1974] 3
ALL ER 217 at 251.
We think that
the purpose of the insistence
that the courts make
declarations only after hearing
the parties is sufficiently
retained in Order 13 rule 6 (
1) and (2) of the High Court
Rules, CI 47 by the requirement
that in actions to which the
claim that resulted in the
judgment in which the
declaratory judgment was granted
(actions not specifically
provided for), the court shall
give such judgment as the
plaintiff may be entitled by his
statement of claim. In our view,
the rule that authorizes the
court to enter judgment in
default of pleadings in the
cases to which Order 13 rule 6
(1) and(2) apply by the words
in which it is expressed make
it subject to among others the
practice of the court as is
contained in previous
determinations and practice
books as regulating the
exercise by the court of its
power to grant default
judgments in respect of
specific reliefs. The said rules
read as follows:
(1)
“ Where the
plaintiff makes against a
defendant a claim of a
description not mentioned in
rules 1to 4 against a defendant,
and the defendant fails to file
a defendant fails to file a
defence to the claim, the
plaintiff may after the
expiration of the period fixed
by these Rules for filing
a defence , apply to the court
for judgment
(2)
On the
hearing of the application the
court shall give such judgment
as the plaintiff appears
entitled to by the statement of
claim of the plaintiff.”
From the
references made in respect of
declaratory judgments in the
course of this delivery, we
think that since declarations
belong to a particular class
or type of relief that may be
allowed by a court in favour of
a party, the use of the words “
such judgment as the plaintiff
appears entitled to…….”, means
that in making such orders the
judge before whom the
application is placed should
take into account matters , such
as for example the practice of
the court that regulates the
exercise of the power conferred
on him. In the instant case, we
think that before making a
declaratory order, the court
should receive evidence from the
parties in the matter as appears
from the statements alluded to
which we accept as correct
expositions on the practice of
the court in such matters. The
insistence on hearing the
parties, in our thinking enables
the judge who is invited to make
the order to hear them before
making pronouncements that are
good and not limited to only the
parties to the dispute. This
requirement in our view is
satisfied when the judge ensures
that the parties to the dispute
particularly the one against its
pronouncement is sought is
served to appear before the
court. From Exhibit EAO2, there
is no indication that the
defendants were served and the
learned trial judge appeared not
to have received any evidence
before acceding to the
declaratory relief. The said
lapse on the part of the court
is an instance of breach of the
fundamental right of hearing and
deprives the court of
jurisdiction in the matter.
Therefore by
not hearing the defendant- the
applicant herein or not
satisfying himself that he was
given an opportunity to be heard
before making the order against
him renders the order amenable
to the supervisory jurisdiction
of the court. In the case of
THE
REPUBLIC v THE HIGH COURT,
ACCRA; EX PARTE
SALLOUM & ORS, an unreported
judgment of this court in Suit
No. J5/4/2011 delivered on 16
March 2011, ANIN YEBOAH JSC
delivering the majority opinion
of the court, said:
“The
courts in Ghana and elsewhere
seriously frown upon breaches of
the audi
alteram partem rule to the
extent that no matter the merits
of the case, its denial is seen
as a basic fundamental error
which should nullify proceedings
made pursuant to the denial.
.. It is our
opinion that as this court has
in several cases held that a
breach of the rules of natural
justice renders proceedings a
nullity, we will declare that
the applicants have sufficiently
made a case to warrant our
supervisory intervention”
In the
instant case the High Court had
committed an error so
fundamental that has the effect
of vitiating its decision of 26
January 2009. The consequence of
a denial of the fundamental
right of hearing is so well
settled and free from conflict
of judicial opinion that we do
not desire to refer to a
collection of cases in
affirmation of the rule that in
all cases of proven default the
judgment that is entered by the
court is so fundamentally flawed
as to be quashed by certiorari.
So fundamental is the right of
hearing that when there is a
breach notwithstanding the clear
provisions of Order 81 of CI 47,
which has brought into being a
new regime of non-compliance
with the rules of procedure,
proceedings that suffer from its
breach cannot be rectified by
courts. When this occurs, we
think that the court has no
discretion in the matter but to
make an accession to the relief
of certiorari. See:
THE
REPUBLIC v THE COURT OF APPEAL &
OR EX PARTE GHANA CHARTERED
INSTITUTE OF BANKERS, Suit
No. J5/21/2011 an unreported
judgment of this court delivered
on 22 June 2011.
For
the above reasons, since the
contempt proceedings that
resulted in the decision of 29
March 2011 is based on the
flawed decision of 26 January
2009, it is as it were affected
by the fundamental defect that
is the basis of the jurisdiction
that the learned trial judge of
the High Court, Accra purported
to exercise and accordingly in
line with settled judicial
opinion in such cases, we have
no discretion in the matter but
to grant the application in
terms of the prayer before us.
The result is that the
application succeeds.
[SGD] N. S.
GBADEGBE
JUSTICE
OF THE SUPREME COURT
[SGD]
DR. S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT
[SGD]
R. C. OWUSU (MS.)
JUSTICE OF THE
SUPREME COURT
[SGD]
J. DOTSE
JUSTICE OF THE
SUPREME COURT
[SGD]
P. BAFFOE-BONNIE
JUSTICE OF
THE SUPREME COURT
COUNSELS;
CHARLES
BENTUM FOR THE APPELLANT.
GEORGE AMPIAH-BONNIE FOR THE
RESPONDENT |
