|
Practice and
procedure - Chieftaincy -
Judicial review, - Extension of
time, - Certiorari, - Whether
the grant of leave for
extension of time has been
taken or made beyond the 6 (six)
months period -
HEADNOTES
An
attempt by some persons to
install a rival chief at Dumase
Wassa in the Wassa Fiase
Traditional Area, led to the
arrest and arraignment of some
people before the Circuit Court,
Tarkwa on charges relating to
breach of the peace. The 1st
Respondent, The Wassa Fiase
Traditional Council, applied to
the Circuit Court, Tarkwa to
have the matter withdrawn and
referred to it for settlement.
The Court granted the request of
the 1st Respondents,
but the attempt at settlement
was not successful, and as a
result, the matter was referred
back to the court. Despite the
clarity of thought exhibited by
the above quoted decision of the
1st Respondents in
referring the case back to the
Circuit Court, Tarkwa for
hearing and determination, the
Applicants herein filed an
application for judicial review
in the nature of Certiorari to
quash the decision of the
arbitration panel set up by the
1st Respondents to go
into the case that was
withdrawn. It is also
instructive to note that, the
decision which the Applicants
sought to quash was purported to
have been taken by the 1st
Respondents on 8th
December, 2005. However, it was
not until August 2011, that the
Applicants applied for leave for
extension of time
HELD :-
Since
there is no such record,
decision, judgment, or order
that can be brought under any of
the ambits of the above stated
ground, the appeal herein must
fail coupled with the other
ground that it has been brought
out of time.Finally, it is worth
mentioning the fact that the
Applicants have also not
convinced me to depart from the
concurring findings of fact made
by the two lower courts. In the
premises the appeal by the
Applicant’s against the judgment
of the Court of Appeal, dated 16th
May 2013 is accordingly
dismissed as being without any
merit whatsoever. The Court of
Appeal judgment of even date is
thus affirmed.
STATUTES REFERRED TO IN JUDGMENT
Interpretation Act, 2009 (Act
792)
High Court, (Civil
Procedure) Rules 2004, C. I. 47
High Court (Civil
Procedure) Rules, LNI40A
CASES REFERRED TO IN JUDGMENT
Obeng v Assemblies of God
Church [2010] SCGLR 300, Achoro
v Akanfela [1996-97] SCGLR 209
Republic v High Court,
(Fast Track Division) Accra,
Ex-parte Macleod and Snowrad
Limited [2009] SCGLR 517,
Republic v High Court,
Accra Ex-parte Continental Cargo
and Trade Services Inc.
[2001-2002] SCGLR 901
Republic v Asogli
Traditional Council and others,
Ex-parte Togbe Amorni VII [1992]
2 GLR 347
Mosi v Bagyina [1963] 1
GLR 337
Republic v High Court,
Kumasi ; Exparte Abubakari (No.
1) [1998-99] SCGLR 84
Republic v Asogli
Traditional Council Counsel Ex
parte; Togbe Amorni already
referred to.
Republic v Commissioner
for Local Government Ex
parte:NiiArmar [1975] 2 GLR
122CCC
Republic v Asokore
Traditional Ex parte; Tiwaa
[1976] 2 GLR 231, CA and
Republic v Cape Coast
District Magistrate Grade II ex
parte Amoo [1976] I GLR 116.
VASQUEZ v Quarshie [1968]
GLR 62
Smith v East Elloe Rural
District Council [1956] AC 736
R v Secretary of State for the
Environment, Ex-parteOstler
[1977] QB 122.
Republic v High Court, Accra
Ex-parte Ghana Medical
Association (Arcmann-Ackumey –
Interested Party) [2012] 2 SCGLR
768
Republic v Court of Appeal
Ex-Parte Tsatsu Tsikata
[2005-2006] SCGLR 612
Republic v High Court, Accra
Ex-parte Commission on Human
Rights and Administration
Justice (Addo – Interested
Party) SCGLR 312
Republic v High Court, Accra
Ex-parte Industrialisation Fund
for Developing countries
[2003-2004] 1 SCGLR 348
R v Northumberland Compensation
Appeal Tribunal, Ex parte Shaw
[1952] 1 KB 338 at 354 per
Denning L.J (as he then was)
R v Logan Ex parte McAllister
[1974] 4 DLR 676
John East Iron Works v Labour
Relations Board of Saskatchewan
[1949] 3 DLR 51
REPUBLIC v NATIONAL HOUSE OF
CHIEFS & ORS; EX PARTE FAIBIL
III & ORS [1984-86] 2GLR 731 CA,
MENSAH & ORS v NSOWAH [1964] GLR
288 SC
STATE v ASANTEHENE’S DIVISIONAL
COURT BI; EX PARTE KUSADA [1963]
2 GLR 238 SC
DANAWI & SONS v DAKO [1961] GLR
72
BOOKS REFERRED TO IN JUDGMENT
Civil Procedure – A
Practical Approach S.
Kwami Tetteh
Understanding Statutes
VCRAC Crabbe
Annual Practice 1952,
p.1306
DELIVERING THE LEADING JUDGMENT
DOTSE
JSC:
COUNSEL
PRINCE KWEKU HODO ESQ. FOR THE
APPLICANTS/APPELLANTS/APPELLANTS.
E. K. AMUA SEKYI ESQ. FOR THE
RESPONDENTS/ RESPONDENTS/
RESPONDENTS.
---------------------------------------------------------------------------------------------------------------------
JUDGMENT
--------------------------------------------------------------------------------------------------------------------
DOTSE JSC:
This is
an appeal by the
Applicants/Appellants/Appellants,
hereafter referred to as the
Applicants, against the judgment
of the Court of Appeal, dated 16th
May2013which was in favour
of the
Respondents/Respondents/Respondents,
hereafter referred to as
Respondents.
From the
above brief narration, what is
certain is that, both the trial
High Court and the first
appellate court, the Court of
Appeal all made findings of fact
against the Applicants and ruled
against them respectively.
There is
no doubt therefore that, on the
present state of the decided
cases, the Applicants have a
difficult task in attempting to
set aside two concurrent
findings of fact made against
them, even though such a task is
not insurmountable. See cases
such as Obeng v Assemblies
of God Church [2010] SCGLR 300,
Achoro v Akanfela [1996-97]
SCGLR 209just to mention
a few.
FACTS OF THE CASE
An
attempt by some persons to
install a rival chief at Dumase
Wassa in the Wassa Fiase
Traditional Area, led to the
arrest and arraignment of some
people before the Circuit Court,
Tarkwa on charges relating to
breach of the peace.
The 1st
Respondent, The Wassa Fiase
Traditional Council, applied to
the Circuit Court, Tarkwa to
have the matter withdrawn and
referred to it for settlement.
The Court granted the request of
the 1st Respondents,
but the attempt at settlement
was not successful, and as a
result, the matter was referred
back to the court.
In order
to appreciate the clarity of
thought and reasoning that
explained the referral of the
case back to the Circuit Court,
it is prudent at this stage to
quote the relevant portions of
the said decision.
“Due to the
recalcitrant attitude of the
culprits coupled with the
refusal to obey the Omanhene’s
call and later instructions by
the panel, we order that the
case be sent back to court to be
determined on it’s merits.”
Despite
the clarity of thought exhibited
by the above quoted decision of
the 1st Respondents
in referring the case back to
the Circuit Court, Tarkwa for
hearing and determination, the
Applicants herein filed an
application for judicial review
in the nature of Certiorari to
quash the decision of the
arbitration panel set up by the
1st Respondents to go
into the case that was
withdrawn.
It is
also instructive to note that,
the decision which the
Applicants sought to quash was
purported to have been taken by
the 1st Respondents
on 8th December,
2005. However, it was not until
August 2011, that the Applicants
applied for leave for extension
of time to apply for the
judicial review which by order
55 rule 3 of the High Court,
Civil (Procedure) Rules 2004
ought to have been filed within
six (6) months without any
provision for extension of time,
save the general provisions for
extension of time provided in
order 80 rules (4) and (5) of
the High Court (Civil Procedure)
Rules, 2004, C. I. 47.
The
learned trial High Court Judge,
Ohene Essel presiding over the
High Court at Tarkwa, and
proceeding under the belief that
he had jurisdiction to grant
extension of time, granted same
as a result of which the
Applicants filed the pursuant
application for the judicial
review, with the following
relevant portions of the
affidavit in support of the said
application set out in full.
3. “That the Dumase
stool was from time immemorial
an inheritable Odikro stool
within the Himan Division of the
Wassa Fiase Traditional Area.
4. That there had been
an earlier valid installation of
the 2nd Applicant as
the Chief of Dumase Wassa in
October 2005.
5. That shortly
thereafter a rival group
purportedly attempted to install
someone as a chief of the same
village whereupon they were
arrested by the Police, on
charges relating to breach of
the peace and arraigned at the
Circuit Court, Tarkwa.
6. That the 1st
Respondent applied to the court
to have the matter referred to
it for settlement since it
concerned chieftaincy.
7. That the
said application or request
having been granted, the 1st
Respondent met the culprits with
a view to dealing with them
according to custom.
8. That the 1st
Respondent met the culprits on
or about 8th December
2005.
9. That without any
prior notice to the applicants
whatsoever the 1st
Respondent set up a so called
arbitration panel and proceeded
to deal with the applicants’
stool affairs and made certain
adverse decision against it.
10. That in the
process, the said panel set up
by the 1st Respondent
decided:
a. That
Dumase has no black stool
b. That the Dumase Oyoko
Royal house was no longer
recognized.
c. The Dumase stool
would subsequently be occupied
by honorary Chiefs.
(d)
The said honorary chiefs would
be appointed by the 2nd
Respondent
(e) All Dumase
lands would go to the 2nd
Respondent herein.
11. That the 1st
Respondent’s decision has
effectively caused serious grief
and anxiety to the applicants as
it sought to terminate their
customary authority over their
own town and stool lands.
12. That the decision of
the said panel set up by the 1st
respondent has made the
applicants lose all their stool
lands and royalties and the real
beneficiary now is the 2nd
respondent.
13. That the said
arbitration was palpably
wrongful in law as it lacked all
the features of a valid
customary arbitration.
14. …It is wrongful on the
part of a body such as the 1st
respondent to alter the
boundaries of a traditional area
as set up by statute (which it
sought to do by its arbitration
panel)
15 …It is against custom
to convert a traditionally
inheritable stool into an
honorary one.
16. That the 1st
respondent has further directed
that the applicant’s stool
should serve the Kokoase stool
instead of the Himan Division.
17. …that a traditional
council has no power whatsoever
to direct that one
Odikro/subdivision should cease
serving a particular Division
and transfer its traditional
allegiance to some other
Division.
18. That this is a good
case in which certiorari would
be appropriate remedy to quash
the wrongful decisions as here
above mentioned.
19. That unless and until
the Honourable Court intervenes
issuing of the order of
certiorari, the above pieces of
injustice against my stool would
persist, and the 2nd
respondent would continue rather
to be the beneficiary.
20. That I have annexed a
copy of the 1st
respondent’s so called
arbitration’s report as Exhibit
NK1A, B and C, in support of our
case.”
The
application was subsequently
heard by the trial court after
the Respondents had responded to
the application.
The
learned High Court Judge, in
dismissing the application for
judicial review, first
dismantled the hurdle by
vacating the order for the grant
of leave for extension of time
to file the application in the
following terms:-
“On the 19/9/2011,
the court granted the lawyer for
the applicants leave to file the
substantive application. I have
painstakingly studied the rules
governing the granting of such
applications and I find that I
did not have the jurisdiction to
grant leave for an extension of
time to file the present
application for judicial review
in this matter since the
decision to be quashed was taken
on the 8/12/2005.”
After the
above decision, the learned
trial Judge concluded his
reasons why the Applicant’s
application was dismissed in the
following terms:
“Certiorari is meant
to quash decisions for good
reasons. I equally do not
find the decision meant to be
quashed. The 1st
respondent was emphatic that the
decision taken on 8/12/2005 was
to refer the matter back to
court. The applicants did not
file any supplementary affidavit
to dispute that fact.Be as it
may, then the application was
improper in the circumstances.”
DECISION OF THE COURT OF APPEAL
Not
satisfied with the above
decision of the High Court, the
Applicants appealed to the Court
of Appeal, sitting at Cape
Coast, which similarly on the 16th
day of May, 2013 dismissed the
said appeal and the Court of
Appeal, speaking through
HonyenugaJ.A stated as follows:-
“After perusing the
record of appeal and the
submission of learned counsel
for the parties, it is my view
that the only issue worth
considering is whether any
decision was made by the 1st
respondent which is amenable to
certiorari.
In conclusion, the
application is void and
therefore a nullity. The appeal
fails and it is hereby
dismissed. The judgment of the
High Court dated the 16th
day of April 2012 dismissing the
application for certiorari is
hereby affirmed.”
APPEAL TO SUPREME COURT
Again,
not satisfied with the decision
of the Court of Appeal, the
Applicants have launched yet
another appeal to this Court
against the decision of the
Court of Appeal with the
following as the grounds of
appeal:
1. That the judgment is
against the weight of evidence.
2. “The learned Justices
of the Court of Appeal failed to
realize that the learned Judge
of the High Court, having
rightfully granted the
Application for Extension of
time within which to apply for
Certiorari, became functus
officio in respect of that
application and lacked the
jurisdiction to reverse the
extension of time already
granted for the substantive
application to be filed.
3. That the Learned
Justices of the Court of Appeal
erred when they agreed with the
High Court Ruling that the
Substantive Application for
Certiorari was filed out of time
and that the Learned Judge of
the High Court did not have the
authority to grant an
Application for Extension of
Time within which to file an
Application for Certiorari.
4. That the learned
Justices of the Court of Appeal
erred when they agreed with the
High Court that they could not
find any decision meant to be
quashed and therefore refused
the application for an Order of
Certiorari.
5. The purported
Arbitration by the Paramount
Chief of Wassa Fiase and the
Wassa Fiase Traditional Council
which was organized under the
guise of settling a criminal
matter pending in the Circuit
Court on the offence of
enstooling a Chief without
Police permit, lacked
jurisdiction and breached the
rules of natural justice when it
went on to pronounce on Wassa
Dumasi Chieftaincy issues, which
have affected and taken away the
rights of the Appellants without
inviting the appellants to part
of the hearing.
6. That the learned
Justices of the Court of Appeal
erred when they held that
Appellants were not affected by
the decisions and findings of
the 1st Respondent.
7. The purported
Arbitration by the Paramount
Chief of Wassa Fiase and the
Wassa Fiase Traditional Council
which purport to have appointed
Nana Korkye II and converted the
hereditary customary succession
to the Dumasi stool into
appointment to be exercised by
the 2nd Respondent as
null and void abinitio and of no
effect for want of
jurisdiction.”
STATEMENTS OF CASE FILED BY THE
PARTIES
I have
read the submissions of
bothcounsel in this case. I
observe that, learned counsel
for the Applicants failed to
appreciate the narrow compass of
the issues germane in this
appeal and went on a frolic of
his own. On the contrary, the
brief submission by learned
counsel for the Respondents was
so incisive that it indeed
addressed to my satisfaction the
relevant issues for
determination in this appeal.
ISSUES FOR DETERMINATION
1.
Whether the grant of leave for
extension of time to bring an
action to quash a decision that
has been taken or made beyond
the 6 (six) months period as
stated in order 55 rule 3 of C.
I. 47 is null and void and can
be vacated suomotu by the trial
Judge.
2.
Whether there was infact an
order, decision or judgment that
was made or rendered by the 1st
Respondents which was attached
or exhibited and which could
have been the basis of an
application for judicial review.
It is
pertinent at this stage to refer
to the following provisions of
the High Court Civil (Procedure)
Rules, 2004, C.I.47.
Order 55
rule 3
Time for
making application
3 (1) “An
application for judicial review
shall be made not
later than six months from the
date of the occurrence of the
event giving grounds for making
the application.” emphasis
(2) “Where an
order of certiorari is sought in
respect of any judgment, order,
conviction or other proceedings,
the date of the occurrence of
the event giving grounds for the
making of the application shall
be taken to be the date of that
judgment, order, conviction or
proceeding.”
Order 55
rule 7
Certiorari
7(1) “Where the applicant
seeks an order of certiorari to
remove any proceedings for the
purpose of quashing them the
applicant shall at least seven
days before the hearing of the
application file in the
registry of the Court a copy of
any order, warrant, commitment,
conviction, inquisition or
record verified by affidavit,
otherwise the applicant shall
not be heard unless the
applicant’s failure to do so
is explained to the satisfaction
of the court.” emphasis
From the
above procedure rules, it is
clear that an application for
judicial review, in the nature
of the instant application for
certiorari can be brought within
six months of the making of the
order complained of.
This
means that, the High Court has
jurisdiction to entertain an
application for judicial review
from the first day when the
grounds for the application
first arose up to a period of
six months without any extension
of time allowed.
Indeed,
if an order had been made on the
1st of October 2013
for example then the period of
six months will be calculated
from that time up to and
including the last day that the
six months will lapse, which in
this imaginary situation will be
31st March 2014,
period.
This
position is well articulated by
order 55 rule 3 (2) of C. I. 47
already referred to supra. This
provides that the date of the
judgment, order, conviction or
of proceedings or of the
occurrence of the events leading
to the application shall be
taken to be the date of the
judgment, order, conviction or
of the proceedings etc.
I have
examined all the contending
positions stated by both counsel
in their statements of case on
this matter. I have also
considered the positions taken
by the trial court and affirmed
by the Court of Appeal.
I have
also examined and considered the
decisions in the following cases
Republic v High Court,
(Fast Track Division) Accra,
Ex-parte Macleod and Snowrad
Limited [2009] SCGLR 517,
Republic v High Court, Accra
Ex-parte Continental Cargo and
Trade Services Inc. [2001-2002]
SCGLR 901 and also
Republic v Asogli Traditional
Council and others, Ex-parte
Togbe Amorni VII [1992] 2 GLR
347which was heavily
relied on by learned counsel for
the Applicants, which
unfortunately was decided on the
old order 59 r. 3 High Court
(Civil Procedure) Rules 1954 (LN
140A) which permitted grant of
extension of time.
I have
also looked critically at the
celebrated and locus classicus
case of Mosi v Bagyina
[1963] 1 GLR 337 holding
4 and the restatement of the
proper scope of the decision in
Mosi v Bagyina as propounded by
Acquah J, (as he then was) in
the case of Republic v
Asogli Traditional Council,
Ex-parte Togbe Amorni,
already referred to supra.
The Court
of Appeal, after reviewing all
the above authorities and the
facts of this appeal, rendered
its opinion on the matter thus:-
“In the instant appeal, the
appellant applied for leave to
file an application for Judicial
Review in the nature of
certiorari to quash the decision
of a panel set up by the 1st
respondent on the 8th
December 2005, to meet certain
persons who had previously been
arraigned before the Circuit
Court, Tarkwa for a purported
installation of a chief without
police permit. The matter was to
be an out of Court settlement.
It is noted that the learned
trial Judge granted leave on the
12th day of September
2011. The date of the purported
arbitration is 8 December 2005.
From the record of appeal, it is
thus obvious that as at the time
the learned trial Judge granted
the application for leave, the
statutory period of six month
has long elapsed and therefore
the order granting the leave was
granted without jurisdiction.
The leave so granted was void
and thus a nullity since it was
not warranted by any rule or
procedure. The said order was
contrary to Order 55 rule 3 (1)
of C. I. 47.
The learned trial
Judge realized that he erred in
law and therefore vacated the
order and stated that the
application is statute barred. I
think that the learned trial
Judge was right in vacating the
order since he had an inherent
jurisdiction to do so. Lapse of
time was no bar to setting the
order aside. The learned trial
Judge was further right in
vacating the order because it
was void and therefore a
nullity. He had an inherent
jurisdiction to set aside a void
order suomotu. See Mosi v
Bagyina (supra). The learned
trial Judge was therefore within
his jurisdiction when he vacated
the order for leave to file
certiorari as same is void
statute barred and a nullity’’
emphasis supplied.
However,
learned Counsel for the
Applicants, has urged us in this
court to look at Order 80 rules
4 (1) and (2) of the High Court
(Civil Procedure) Rules 2002 C.I
47 and by that hold that the
grant of leave by the trial High
Court was valid and by extension
the Court of Appeal decision is
wrong and ought to be vacated.
I have
looked at the relevant
provisions in Order 80 rule 4
(1) which provides as follows: -
4 (1) “The Court
may, on such terms as it thinks
just, or by order extend or
reduce the period within which a
person is required or authorized
by the rules or by any judgment,
order or direction, to do any
act in any cause or matter.”
4(2) The Court may
extend any such period although
the application for extension is
not made until after the
expiration of that period”
The
Interpretation Act, 2009 (Act
792) also provides in section 42
as follows:-
“In an enactment the
expression ‘may’ shall be
construed as permissive and
empowering, and the expression
‘shall’ as imperative and
mandatory”
I observe
that the operative word in order
55 rule 3 of C. I. 47 already
referred to supra is “shall”. By
the ordinary rules of
interpretation, the
Interpretation Act, Act 792 is
to be applied to give meaning,
and operation to the contents
of order 55 r. 3 of C. I. 47.
This by
my understanding means that the
‘shall’ as used therein is to be
construed imperatively and
mandatorily to give meaning to
the context in which the word
‘shall’ has been used.
Going by
that definition, the meaning
ascribed to ‘shall’ as used in
section 42 of Act 792 would mean
that the expression ‘shall’ as
used therein indicates that the
period not later than six months
from the date of the occurrence
of the event giving grounds for
making the application is to be
applied to have a mandatory and
binding effect. In that respect,
the effect would be that,
judicial reviews shall not be
entertained by the High Court
beyond the period of six months
from the date when the grounds
for the application first arose.
Can the
High Court under such a
situation grant extension of
time beyond this six months
mandatory period? I will revert
to this issue later in the
judgment.
The
provisions of section 42 of Act
792 which have been referred to
supra have been made applicable
to enactments like the High
Court, (Civil Procedure) Rules
2004, C. I. 47 by section 2 (1)
and (2) of Act 792 and section 1
thereof which has defined
enactment as meaning an Act of
Parliament, or a statutory
Instrument, or a constitutional
Instrument, or a provision of an
Act of Parliament, or of a
constitutional Instrument (such
as C. I. 47) or of a statutory
instrument. Out of abundance of
caution, let me quote in extenso
sections 2 (1) &(2) of Act 792
to support the point I have
made. These provide as follows:-
2 (1) “This Act
applies to an enactment whether
enacted before or after the
coming into force of this Act,
to a legislative measure
continued in force by the
Constitution, and an instrument
made directly or indirectly
under an enactment unless a
contrary intention appears in
that enactment, measure or
instrument.
(2) This Act
applies to this Act and to an
enactment specified in sub
section (1) and references in
this Act to an enactment so
passed shall be construed
accordingly.”
The above
provisions and the definition of
the word enactment in section 1
of Act 792 thereof bears ample
proof and authority to the fact
that the provisions of C. I. 47,
enacted in December 2009 apply
automatically to all existing
enactments which fall under the
said definition.
However,
the matter cannot end here
because of the provisions
contained in Rule 4 (1)&(2) of
Order 80 already referred to
supra and the many decided cases
under High Court Civil
(Procedure Rules) LN 140A 1953
whose analogous provisions in
Order 59 rule 3 of the High
Court (Civil Procedure) Rules,
LNI40A now repealed by C. I. 47
provides as follows:-
“Leave shall not be
granted to apply for an order of
certiorari to remove any
judgment, order, conviction or
other proceeding for the purpose
of its being quashed, unless the
application for leave is made
not later than six months after
the date of the proceeding or
such shorter period as may be
prescribed by any enactment.”
In the
first place, it is to be noted
that the word used therein in
order 80 rule 4 (1) is ‘may’ and
by section 42 of Act 792, it is
permissive and empowering and
not binding on the court, as is
the word shall which is
mandatory.
I have
had the benefit of the
invaluable book of S. Kwami
Tetteh on “Civil Procedure –
A Practical Approach” who
is of the view that where the
time required for applying for
judicial review has expired, the
party seeking the application
must apply for extension of time
for judicial review. This is how
the respected and learned author
puts it in the book under
reference:
“Where the time for applying
has expired, a party seeking
judicial review must apply for
extension of time. The court may
entertain a combined application
for extension of time and
judicial review or an oral
application for extension of
time at the hearing of the
substantive application. Delay
perse is not fatal to an
application for judicial review
but unexplained delay may be
fatal. In granting extension of
time, the court must consider
the circumstances leading to the
making of the application,
whether the delay was
reasonable, excusable and bona
fide, also the nature of the
application. Delay occasioned by
fruitless lapsed proceedings
taken upon incompetent legal
advice may not be held against
the applicant so may the court
pardon delay where a grant of
the application would abate
illegality as where an
unqualified person was appointed
to a judicial post.”
See pages
757 to 758 of the book. I have
observed that the learned author
based his statement on grant of
extension of time on the old
High Court Civil (Procedure
Rules) LN 140 A already referred
to supra.
As is
evident, all the cases referred
to by the learned author are all
pre-2005 cases which all dealt
with the old Rules in LN 140A.
Some of
the cases relied upon by the
learned author are
1.
Republic v High Court, Kumasi ;
Exparte Abubakari (No. 1)
[1998-99] SCGLR 84
2.
Republic v Asogli Traditional
Council Counsel Ex parte; Togbe
Amorni already referred to.
3.
Republic v Commissioner for
Local Government Ex
parte:NiiArmar [1975] 2 GLR
122CCC
4.
Republic v Asokore Traditional
Ex parte; Tiwaa [1976] 2 GLR
231, CA and
5.
Republic v Cape Coast
District Magistrate Grade II ex
parte Amoo [1976] I GLR 116.
Secondly,
it is apparent that even though
this invaluable book (i.e. Kwami
Tetteh’s book) was first
published in 2012, no reference
whatsoever had been made to the
Interpretation Act 792 and how
it affected order 55 r. 3 (1) &
(2) of C. I. 47.
Thirdly,
in interpreting rule 4 (1) & (2)
of Order 80 of C. I. 47 which
combine to give the High Court
jurisdiction to grant extension
of time to applicants in
deserving cases, it appears
learned counsel for the
appellants did not advert their
minds to the philosophical
underpinning and objectives
inherent in the passage of C. I.
47 which is stated in order 1
rule (2) as follows:
“These Rules shall be
interpreted and applied so as to
achieve speedyand effective
justice, avoid delays and
unnecessary expense, and
ensure that as far as possible,
all matters in dispute between
parties may be completely,
effectively and finally
determined and multiplicity of
proceedings concerning any of
such matters avoided”. Emphasis
supplied
Commenting on the above quoted
rule, Kwami Tetteh writes in his
book page 27 thus:
“A major reform under
C. I. 47 is the provision of an
overriding objective of
adjudication, expressed as
speedy, final, complete and
effective justice, devoid of
delays, unnecessary expense and
avoidance of multiplicity of
actions.”
Continuing further, the learned
author stated on page 27 as
follows:
“The overriding
objective in C.I. 47 thus
serves as a constant statutory
reminder to Judges and lawyers
that effective justice has
become the declared objective of
adjudication, and that the
effective application of the
rule of procedure must depend on
a full appreciation of the
fundamental purpose and spirit
of the Rules.”
Even though the author gave some
caution, it is my respective
view that one sure way of giving
total effect to this overriding
objective is to interprete Order
55 rules 3 (1) and (2) strictly
in terms of section 42 of Act
792 and also to prevent an abuse
of the objectives behind the
passage of the C. I. 47. This
for example will mean that
extension of time will normally
not be granted in respect of
applications for judicial review
where the six months mandatory
period has expired.
However in clear cases where
notice of the decision, order,
judgment or proceedings in
question had not been given to
the applicant or would not have
been known after due diligence,
then in those circumstances
only, extension of time may be
granted reference to the date
when the applicant ought to have
been deemed to have had notice
(after due diligence).
The position might therefore be
stated that, the provisions in
order 55 rules 3 (1) and (2) of
C. I. 47 does not admit the
grant of extension of time to
bring applications for judicial
review outside the statutory six
months period unless special
circumstances exist, such as
lack of notice to the party
applying of the proceedings that
terminated in the decision,
order, ruling, judgment or
action that the subject matter
of the judicial review seeks to
quash or probibit or as the case
might be in appropriate cases. A
case in point where lack of
notice was made an issue and
rendered null and void was
decided by Amissah J.A, sitting
as an additional Judge of the
High Court, in the case of
VASQUEZ v Quarshie [1968] GLR
62 where he held as
follows:-
“A Court making a
decision in a case where a party
did not appear because he had
not been notified would be doing
an act which was a nullity on
the ground of absence of
jurisdiction.”
In circumstances therefore where
the applicant for judicial
review, was not aware of the
proceedings which are the
subject matter of the judicial
review because he was not
notified, it is clear that time
will not run until he was
notified or deemed to be aware
after due diligence. In such
cases it should be possible for
the time to be computed from the
time that notice will be deemed
to be given to the applicant,
but not from the date of the
original date of the order, the
subject matter of the judicial
review. However, since none of
the above situations exist in
this case, this proviso will not
apply.
I have also been persuaded by a
number of respected English
authorities referred to in the
Invaluable book of VCRAC
Crabbe, “Understanding Statutes”
pages 151-155 which state held
that after the expiry of the
specified period judicial review
of the validity of the order was
absolutely cut off.
See case of Smith v East
Elloe Rural District Council
[1956] AC 736, where the
House of Lords refused to allow
the action to proceed since it
was brought outside of the
specified period, that is more
than six weeks after publication
of the notice of confirmation,
Viscount Simonds
said that:
“Anyone bred in the
tradition of the law is likely
to regard with little sympathy
legislative provisions for
ousting the jurisdiction of the
court, whether in order that the
subject may be deprived
altogether of remedy or in order
that his grievance may be
remitted to some other
tribunal…”
See also R v Secretary of
State for the Environment,
Ex-parteOstler [1977] QB 122.
I am therefore of the view that
under the circumstances of this
appeal, the trial Judge properly
vacated the grant of leave for
extension of time to bring the
judicial review outside the six
months period suomotu since the
High Court ordinarily does not
have this jurisdiction to grant
extension of time. The court has
jurisdiction to suomotu set
aside a void order, see case of
Mosi v Bagyina
already referred to supra. Under
the circumstances, this ground
of appeal fails and is
accordingly dismissed.
The
decision I have come to, could
have disposed of the entire
appeal, but for purposes of
emphasis and clarity, I would
want to bring all matters to an
end.
WAS THERE A DECISION THAT THE
APPLICANTS SOUGHT TO QUASH?
I have
already referred to paragraph 20
of the Applicant’s affidavit in
support of their application for
judicial review in the trial
High Court.
In that
paragraph, the Applicant’s were
quite certain that the 1st
respondent’s report in which the
decision they were referring to
are containedare, exhibits NKI
A, B and C.
Exhibit
NKI (A) for instance contains
the following statement: -
“Due to the
recalcitrant attitude of the
culprits coupled with their
refusal to obey the Omanhene’s
call and later invitations by
the panel we order that the case
be sent back to court to be
determined on its merits.”
Even
though I have read portions of
the same exhibit which contains
statements affecting the
position of the Applicants
status as Chief of Dumasi
vis-à-vis their constitutional
relationship with the
Kokoase/Bogoso Chief, those
statements have no effect on
their status as Chiefs and
indeed also has no bearing in
the case.
The
substance of that exhibit lies
in the fact that, at the end of
the day, the 1stRespondent’s
were unable to settle the case
they withdrew from the Circuit
Court and therefore referred the
case back to the court for
determination. In cases like
this, what has to be looked at
critically is the substance of
the contents of the exhibit not
the form and other innuendos
contained therein which have no
bearing whatsoever on the merits
of the case.
Similarly, exhibit “NKIB”
contains words to the following
effect:-
“I have been directed
by Osagyefo Dr. Kwamena Enimil
VI, Paramount Chief of Wassa
Fiase Traditional Area, to
inform you to pursue the case at
the appropriate forum”.
The total
effect of the Applicant’s own
exhibits by which they sought to
prove the existence of an order
or decision which is amenable to
judicial review has proved to be
non-existent.
There was
in fact no decision upon which
the Applicants can put a finger
on and conclude that this is the
order which has changed their
status as Chiefs or owners of a
black stool without hearing
them. This would have been in
breach of the rules of natural
justice. But there was in
reality nothing like that.
However,
from my observations, all the
operative parts of exhibits
NKIA, B and C are not orders
capable of being quashed by
certiorari. This is because no
order has been made which has
affected the rights of the
applicants, save for the
remittance of the case back to
the Circuit Court for
determination on it’s merits.
There is thus no decision to be
quashed.
CONCLUSION
The
authorities are quite certain
that certiorari as a
discretionary remedy would be
used to quash any decision of a
lower court, or administrative
tribunal with judicial or quasi
judicial powers that takes
decisions or makes orders
affecting the rights of others
on stated legal grounds. These
may include errors of law, lack
or excess of jurisdiction,
acting ultra vires, breach of
the rules of natural justice and
indeed on any stated legal
grounds, capable of proof.
See the
following cases which illustrate
these positions: -
1.
Republic v High Court, Accra
Ex-parte Ghana Medical
Association (Arcmann-Ackumey –
Interested Party) [2012] 2 SCGLR
768
2.
Republic v Court of Appeal
Ex-Parte Tsatsu Tsikata
[2005-2006] SCGLR 612
3.
Republic v High Court, Accra
Ex-parte Commission on Human
Rights and Administration
Justice (Addo – Interested
Party) SCGLR 312
4.
Republic v High Court, Accra
Ex-parte Industrialisation Fund
for Developing countries
[2003-2004] 1 SCGLR 348
See also
the following English
authorities which laid the basis
for the grant of judicial review
in cases where there is excess
of jurisdiction, want of
jurisdiction, abuse of power,
and the exercise of powers which
are ultra vires or arbitrary,
breach of the rules of natural
justice, provided there is a
record of the order, decision,
ruling, judgment or proceedings.
1.
R v Northumberland Compensation
Appeal Tribunal, Ex parte Shaw
[1952] 1 KB 338 at 354 per
Denning L.J (as he then was)
2.
R v Logan Ex parte McAllister
[1974] 4 DLR 676
3.
John East Iron Works v Labour
Relations Board of Saskatchewan
[1949] 3 DLR 51
Reference page 144 of “Understanding
Statutes” byVCRAC Crabbe.
Since
there is no such record,
decision, judgment, or order
that can be brought under any of
the ambits of the above stated
ground, the appeal herein must
fail coupled with the other
ground that it has been brought
out of time.
Finally,
it is worth mentioning the fact
that the Applicants have also
not convinced me to depart from
the concurring findings of fact
made by the two lower courts.
In the
premises the appeal by the
Applicant’s against the judgment
of the Court of Appeal, dated 16th
May 2013 is accordingly
dismissed as being without any
merit whatsoever. The Court of
Appeal judgment of even date is
thus affirmed.
(SGD) V. J. M. DOTSE
JUSTICE OF THE SUPREME COURT
ANIN YEBOAH, JSC:
I had the opportunity of reading
the judgment of my illustrious
brother Dotse JSC in this appeal
and I agree with him that the
appeal should be dismissed.
However, I am unable to agree
with him on the issue of whether
or not the High Court under the
current High Court (Civil
Procedure) Rules, 2004, CI47 has
jurisdiction to grant extension
of time in certiorari
proceedings.
As the facts, as usual, have
been accurately stated by my
learned brother I will avoid
repeating them and proceed to
discuss the only issue on which
I was compelled to disagree with
my brother.
Under the Old Rules, that is,
the Supreme Court [Civil
Procedure] Rules, 1954, LN 140
A, Order 59 Rule 3 regulated the
time within which applications
for mandamus and certiorari
could be brought. For a
detailed appreciation of this
opinion I proceed to quote the
Rule as follows:
“3. Leave shall not be
granted to apply for an Order of
Certiorari to remove any
judgment, Order, Conviction or
other proceeding for the purpose
of its being quashed, unless
the application for leave is
made not later than six months
after the date of the
proceedings or such shorter
period as may be prescribed by
any enactment; and where the
proceeding is subject to appeal
and a time is limited by law for
the bringing of the appeal, the
court or Judge may adjourn the
application for leave until the
appeal is determined or the time
for appealing has expired”
Like my esteemed brother, I
agree that the statutory period
within which any application for
leave ought to be brought under
the old rules was six months.
Indeed it was under the said
rule that cases like REPUBLIC
v NATIONAL HOUSE OF
CHIEFS & ORS; EX PARTE
FAIBIL III & ORS [1984-86]
2GLR 731 CA, MENSAH & ORS
v NSOWAH [1964] GLR 288
SC AND STATE v
ASANTEHENE’S DIVISIONAL COURT
BI; EX PARTE KUSADA [1963] 2
GLR 238 SC were decided and
settled the law succinctly that
application brought under Order
59 rule 3 of the old rules must
be brought within the six months
period stated above.
It must be observed after a
careful reading of the said
Order 59 rule 3 that the rule
did not proceed to state that an
application for extension of
time should be applied for after
the expiration of the six months
period fixed by the rule. It
does appear, after a careful
reading of all the cases, that
when the applications for
extension of time were sought at
the High Court, the Courts and
the Supreme Court, on appeal,
considered Order 59 rule 3 in
conjunction with Order 64 rule 6
of the then rules of Court; that
is LN 140 A of 1954, which rule
was a general provision dealing
with extension and abridgment of
time.
I do not think that my brother
Dotse JSC in his usual approach
to resolving complex issues of
law criticized the decisions
which have laid down the law,
that, under the old rules
applications for extension of
time to apply for certiorari or
mandamus could not be granted.
Indeed, he did not see the
decisions as wrong in law. His
position is that: under the
current rules, that is CI 47 of
2004 the High Court has no
jurisdiction to grant extension
of time in certiorari
proceedings.
Under the current rules, that
is, CI 47 of 2004, Order 55 rule
3(1) like order 59 rule 3 LN 140
A of 1954 makes no provision for
extension of time within which
to bring an application for
certiorari. If Order 55 rule
3(1) is read in isolation I
would have been convinced by the
opinion of my esteemed brother.
However, I am of the opinion
that Order 55 rule 3(1) of CI 47
ought not to be read in
isolation as was done in all the
cases decided under the old
rules. In MENSAH v
NSOWAH [1964] GLR 288 SC
Ollenu JSC in discussing the
issue of extension of time in
certiorari applications under
the old rules read Order 59 Rule
3 in conjunction with Order 64
Rule 6….. said at page 296 as
follows:
“But first we must observe
that our Order 59, Rule 3, which
prescribes the time within which
to apply for leave to make
application for an Order of
Certiorari is reproduction of
Order 59, Rule 4 of the English
Rules of the Supreme Court, (see
the Annual Practice 1952,
p.1306) and Order 64, Rule 6
giving the High Court power to
enlarge time is a reproduction
of Order 64, Rule 7 of the
English Rules of the Supreme
Court, (see Annual Practice
1952, p. 1371)”
Order 80 Rule 4(1) appears to be
the rule which the learned trial
court initially read in
conjunction with Order 55 Rule
3(1) of CI 47. In my respectful
opinion, the Order 64 Rule 6 of
the Old Rules and Order 80 Rule
4 of the new rules do not
differ in this area of extension
of time granted by the court in
certiorari applications. Order
80 Rule 4(1) and (2) states as
follows:
“4(1) The court may, on
such terms as it thinks just, by
or order extend or reduce the
period within which a person is
required or authorized by these
Rules, or by any judgment,
Order or direction to do any act
in any cause or matter.
(2) The court may extend
any such period although the
application for extension is not
made until after the expiration
of that period”
The reading of the Rule above
makes it very clear that Order
80 which deals with time is a
general provision which gives
power to the High Court to
extend or limit times required
under the rules in existence.
Like order 81, which is a
general provision dealing with
non-compliance, Order 80 caters
for situations to extend time or
reduce time for taking steps in
the High Court just as the
decided cases under the Old
Rules LN 140A of 1954 read Order
59 Rule 3 in conjunction with
Order 64 Rule 6 and extended
time in appropriate cases, it
sounds strange to me why the
High Court under the current
rules that is CI 47 of 2004
should not have the same power
if Order 80 Rule 4 is read as a
general provision. I think the
Court of Appeal in supporting
the learned High Court judge to
hold that the High Court has no
such power to grant extension of
time was clearly in error.
I would have rested my delivery
at this point but it appears
this issue of extension of time
was as usual fully addressed by
my esteemed brother Dotse JSC so
I have decided to go further
beyond the rules.
Another point which was accepted
by the learned High Court Judge
and was equally endorsed by the
Court of Appeal was that the
lack of express provisions to
provide for extension of time in
the rules amounts to denial of
jurisdiction to extend time.
Apart from the express
provisions under Order 80 Rule
4, the learned trial judge
should have considered whether
he had inherent jurisdiction to
extend time for Certiorari.
This point is settled by
authority in the case of
DANAWI & SONS v DAKO
[1961] GLR 72 SC. The then
Supreme Court after giving
adequate consideration to the
Old Rules, that is Order 59 r 3
of LN 140A of 1954, was of the
opinion that irrespective of the
Order 64 Rule 6 of the rules,
the High Court had inherent
jurisdiction to extend time if
the justice of the case
demands. Sarkodie-Addo, JSC (as
he then was) who delivered the
unanimous judgment of the court
said at page 76 as follows:
“This similarly falls
within the mischief aimed at by
Order 64, rule 6 as indicated in
the said ruling. When it is
found that in Order 59, rule 3
there appear no words referring
to extension of time or limiting
the time in which to make
application for such extension
the matter is left at large, and
therefore in the absence of
any mandatory rules limiting the
time for an application for
extension of time the court has
inherent jurisdiction to extend
time independently of the rules
with a view to avoiding
injustice to the parties”
In my respectful opinion, I
think Order 1 Rule 2 of CI 47
which is also a general
provision to guide the courts in
interpreting the rules for
effective and speedy trials by
avoidance of delays should not
be applied to deny the High
Court the jurisdiction to extend
time both under Order 80 Rule 4
of CI 47 and the inherent
jurisdiction of the court in
deserving cases.
It is for these reasons that I
am unable to agree that the High
Court has no jurisdiction to
grant extension of time in
certiorari proceedings. Save
the above reasons I also from
the opinion that the appeal
lacks merits as the order sought
to be quashed was not any patent
error or jurisdictional one
under the circumstances for the
intervention of the High Court
by way of certiorari.
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE
OF THE SUPREME COURT
(SGD) P. BAFFOE
BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) V. AKOTO BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
COUNSEL
PRINCE KWEKU HODO ESQ. FOR THE
APPLICANTS/APPELLANTS/APPELLANTS.
E. K. AMUA SEKYI ESQ. FOR THE
RESPONDENTS/RESPONDENTS/RESPONDENTS.
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