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Judicial review - Stay of
execution - Order of prohibition
- Relistment of their motion
Whether or not it was proper to
have struck out. the case -
Whether or not the court acted
without jurisdiction - whether
in the circumstances there was
any miscarriage of justice -
HEADNOTES
The applicant per his
lawyer, Ray Ayersen moves this
court for “an order of
certiorari directed to the High
Court, Accra, presided over by
his Lordship Justice Kenneth A.
Okwabi to remove into this hon.
Court to be quashed the order or
ruling of the Court dated 21st
day of May, 2014; and for a
further order of prohibition,
prohibiting the respondent from
hearing Suit No. B. MISC
493/2013 entitled (1) Akan
Printing Press (2) Vickram
Rajwani v (1) Eric Jeff Owusu
Boateng (2) Kwame Eyiti”.
The crux of the
application is that the
interested parties obtained a
relistment of their motion for
stay of execution which had been
struck out for want of
prosecution and upon an oral
application.
HELD :-
In the result, the application for
certiorari succeeds and the
ruling of the High Court, Accra
dated 21 May 2014 in suit number
B Misc. 493/2013 entitled:
Akan Printing Press and Another
v Eric Jeff Owusu and Another
are accordingly brought up into
this court and same is hereby
quashed.
DISSENTING OPINION
Applying the foregoing principles I
hold that no error of law has
been shown on the face of the
record. And in any case since
certiorari is a discretionary
remedy, the conduct of the
applicant, approbating and
reprobating the proceedings and
the absence of any miscarriage
of justice or prejudice to the
applicant; this application
fails and is dismissed. I regret
that I cannot agree with the
decision of my brethren to the
contrary.
STATUTES REFERRED TO IN JUDGMENT
High Court (Civil
Procedure) Rules, 1954 (LN 140A)
High Court (Civil
Procedure Rules, 2004 (C I 47).,
Court of Appeal
Rules, 1997 (CI 19)
Supreme Court
Rules, 1996 (CI 16);
CASES REFERRED TO IN JUDGMENT
Ashchkar v Karam [1972] 1
GLR 1
Fori v Akrobettoe [1971] 2
GLR 137
Republic v Committee of
Inquiry into NunguaTraditional
Affairs Ex-Parte Odai IV and
Others [1996-97] SC GLR 401.
Akan Printing Press and
Another v Eric Jeff Owusu and
Another suit number B Misc.
493/2013 21 May 2014
Hanna Assi (No.2) v Ghana
Refrigeration and Household
Products Ltd (No. 2) [2007-2008]
SCGLR 161
Bugden v Ministry of
Defence [1972] 1 ALL ER 1, CA
Real Estate Developers Ltd
v Fosua [1984-86] 2 GLR 334, CA
Daws v Daily Sketch &
Sunday Graphic Ltd. [1960] 1 ALL
ER 397, CA
Michelletti Polla Ltd v
Crabbe [1976] 1 GLR 108, CA
Halle & Sonns SA v Bank of
Ghana & Warm Weather Enterprise
Ltd. [2011] SCGLR 378
Harkness v Bell’s Asbestos
& Engineering Ltd. [1967] 2 QB
729 at 735-736,
Gihoc Refrigeration &
Household Products v Hanna Assi
[2005-2006] SCGLR 458
Royal Exchange Assurance v
Brew [1971] 1 GLR 371 C.A
Ofori v Donkor [1976] 1
GLR 275.
Republic v High Court,
Koforidua; Ex parte Ansah-Otu &
Another (Koans Building
Solutions Ltd – Interested
Party) [2009] SCGLR 141
Republic v Akyem Abuakwa
Traditional Council; Ex parte
Sakyiraa II [1972] 2 GLR 115
Mosi v Bagyina [1963] 1
GLR 337
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
GBADEGBE (JSC):
DISSENTING
ATUGUBA
JSC:
COUNSEL
RAY AYERSEN ESQ. FOR THE APPLICANT.
GEOFFREY H. QUIST FOR THE 1ST
AND 2ND INTERESTED
PARTIES.
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RULING
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MAJORITY OPINION
GBADEGBE
(JSC):
There is before us a notice of
motion praying for an order of
judicial review in the nature of
certiorari and prohibition on
grounds contained in the
supporting affidavit of the
applicant. The circumstances in
which the application has arisen
are free from conflict and are
as follows. In the course of an
action brought to set aside a
previous judgment between the
parties to these proceedings,
the Respondent herein applied by
way of a motion in the cause for
an order of stay of execution of
the judgment in respect of which
the action was mounted. It
appears that on 06 May 2014 when
the said application came on for
hearing, learned counsel for the
Respondent (Applicant therein)
being absent without cause, the
application was struck out for
want of prosecution as borne out
by exhibit APP1. On a subsequent
date, 21 May 2014, the learned
trial judge, notwithstanding an
objection from counsel for the
Applicant, received an
explanation from counsel for the
Applicant in regard to his
absence from court and recalled
his prior order of 06 May 2014
by which he had struck out the
application for stay and
directed that the application
for stay of execution be argued
on the merits. The proceedings
of 21 May 2014 resulting in the
order recalling the previous
order that struck out the
application for stay of
execution is evidenced by
exhibit APP2.
In arguing the application
before us, learned counsel for
the Applicant contended that,
having had the application
struck out on 06 May 2014, the
court acted without jurisdiction
when it received an explanation
from counsel at the Bar and
restored the application to the
list. Our understanding of the
argument pressed on us by
counsel for the Applicant is
that, as the High Court is a
court of record, following the
order previously made striking
out the application, the learned
trial judge should not have
received an oral explanation
from the Respondent and then
recalled his order without an
application to relist same. The
Applicant’s complaint thus
appears to raise the question
whether before the matter was
called, the Applicant would have
had any reasonable notice that,
at the hearing of the
substantive matter, a motion in
the cause that was previously
struck out with costs might be
restored to the list. So stated,
the Applicant’s complaint speaks
to the absence of due process
requirement which, if
established, affects
jurisdiction.
On the other side of the fence,
so to say, the Respondent, while
admitting that the application
was struck out previously, said
his client was present in court
on that day but he had to go to
another court to adjourn a case
as the presiding judge was in
chambers conducting other
proceedings. He added that no
sooner had the application been
struck out than he turned up in
court. In his opinion, if the
attention of the learned trial
judge had been drawn to the fact
that counsel for the Applicant
had earlier on come to the
court, he would not have
proceeded to strike out the
application on 06 May 2014.
Although the applicant also
seeks from us an order of
prohibition directed at the
learned trial judge, neither in
the affidavit in support of the
application herein nor in the
statement of case was any
reference made to the second
limb of the application. The
result is that he is deemed to
have abandoned that relief. This
delivery therefore, is limited
to the prayer of the Applicant
for judicial review in the
nature of certiorari only. We
have examined the processes
before us on which the instant
application turns and have had
regard to the arguments
presented to us by learned
counsel in the matter. We have
come to the conclusion that as
the application for stay was
previously struck out, it could
only have been restored to the
list by an application based on
grounds contained in a solemn
deposition by the Respondent
herein. In our view, it was
wrong for the learned trial
judge to allow counsel for the
Respondent herein to utter from
the Bar matters that required
proof in a case that was being
contested and on the basis of
such utterance reverse his
earlier decision, particularly
when the facts on which his
decision was based were contrary
to the record of proceedings for
that date. In this regard, we
do not think that even if on 21
May 2014 counsel for the
Applicant herein had not
objected to the relistment of
the application, it would have
had the effect of conferring
jurisdiction on the court as
in point of fact there was no
such pending application on the
docket. The learned trial judge
in our opinion ought to have
directed the Respondent herein
to file an application to relist
the motion which was on 06 May
2014 struck out instead of what
transpired on 21 May 2014. It is
our view that it is reasonable
to require that a process which
is based on a motion that has
been struck out can only be
restored to the list through the
same formal process.
When parties appear before a
court pursuant to a schedule of
appointment, the only business
that can be carried out on a
given date is that which was
listed before the court and any
other matter that might
reasonably be connected there
with. This is important for the
assurance of procedural
integrity and predictability.
The question that emerges is,
following the order of 06 May
2014 by which the application
for stay was struck out and
without any notification of a
pending application to have it
restored to the list, it could
not have been in the
Applicant’s reasonable
expectation and indeed that of
the learned trial judge that at
the hearing of the substantive
matter on the subsequent date,
an oral application to recall
his order of 06 May 2014 would
be made, as its hearing was more
likely to hold up the progress
of the action towards its
earlier disposal. This view of
the matter accords with settled
practice of the court which
requires motions that have been
struck out to be restored to the
list by formal applications in
that behalf. In the course of
preparing this delivery, we
tried in vain if we could come
across any previously decided
case in regard to the procedure
for restoring applications that
have been struck out but there
are reported cases involving
appeals that were struck out
such as Ashchkar v Karam
[1972] 1 GLR 1 and Fori v
Akrobettoe [1971] 2 GLR 137,
which decided that in such cases
an application can only be made
to restore the appeals to the
list for a trial on the merits.
Although the said cases were
pronounced upon in regard to
appeals, we think we should be
guided by the principles which
were applied in those cases; and
develop by analogy similar
principles in regard to
applications that are struck
out. This approach recognises
the potential of an existing
precedent case to create a new
precedent where, as in this
case, the circumstances to which
it is subsequently applied are
not the same with that of the
previous case in which the
principle was pronounced upon.
In our opinion, this is one of
the strengths of the common law
tradition in which one of the
features is judge made law. It
seems to us that, as
applications are commenced by a
solemn process of depositions
supporting them, a relaxation in
the practice would undermine the
purpose for which affidavits are
to serve namely swearing to the
truth of the facts grounding
applications.
We think that the learned trial
judge having done that which
falls outside the settled
practice of the court can be
said to have acted without
jurisdiction and rumblings
whether in the circumstances
there was any miscarriage of
justice are of no moment as an
application for judicial review
in the nature of certiorari
concerns itself with due process
requirements and not the merits.
See: Republic v Committee of
Inquiry into NunguaTraditional
Affairs Ex-Parte Odai IV and
Others [1996-97] SC GLR 401.
In her judgment at page 14,
Bamford-Addo JSC (as she the n
was) observed as follows:
“A decision made in breach of
the rules of natural justice
would be quashed even if made
correctly….”
In any event, we are inclined
to the view that when a court
acts in a manner not sanctioned
by the settled practice of the
court, having regard to the
adversarial nature of
proceedings in our jurisdiction,
it is indeed, an instance of
miscarriage of justice as the
person affected by the order
made consequent upon the said
non-compliance is deprived of
the benefit of having a
reasonable opportunity to answer
the application mounted against
a regularly obtained order of
the court. We add that the
situation in our courts whereby
trial judges conduct themselves
in the same manner as that which
resulted in the order of 21 May
2014 with which we are concerned
in these proceedings is a
deviation from the practice of
the court, which is intended to
foster orderly proceedings, and
should not be sanctioned by the
highest court in the land. There
is also the need for us to
ensure that the current unhappy
trend in our courts whereby
proceedings are conveniently
conducted without due regard to
the settled practice of the
Courts, in a misapplication of
the policy of promotion of
timely disposal of cases, must
be resisted by us in order to
ensure compliance with due
process requirements.
In the result, the application
for certiorari succeeds and the
ruling of the High Court, Accra
dated 21 May 2014 in suit number
B Misc. 493/2013 entitled:
Akan Printing Press and Another
v Eric Jeff Owusu and Another
are accordingly brought up into
this court and same is hereby
quashed.
(SGD) N. S.
GBADEGBE
JUSTICE OF THE SUPREME
COURT
(SGD) S. A. B.
AKUFFO (MS)
JUSTICE OF THE SUPREME COURT
(SGD) P. BAFFOE
BONNIE
JUSTICE OF THE SUPREME
COURT
(SGD) V. AKOTO BAMFO
(MRS)
JUSTICE OF THE SUPREME
COURT
DISSENTING OPINION
ATUGUBA JSC:
The
applicant per his lawyer, Ray
Ayersen moves this court for “an
order of certiorari directed to
the High Court, Accra, presided
over by his Lordship Justice
Kenneth A. Okwabi to remove into
this hon. Court to be quashed
the order or ruling of the Court
dated 21st day of
May, 2014; and for a further
order of prohibition,
prohibiting the respondent from
hearing Suit No. B. MISC
493/2013 entitled (1) Akan
Printing Press (2) Vickram
Rajwani v (1) Eric Jeff Owusu
Boateng (2) Kwame Eyiti”.
The crux
of the application is that the
interested parties obtained a
relistment of their motion for
stay of execution which had been
struck out for want of
prosecution and upon an oral
application.
It is a
well-established practice that a
matter that has been struck out
can be relisted upon application
except if statutorily otherwise
provided.
I think
that this application has been
brought per incuriam of the
several decisions of this court
upholding substantial justice
over and above procedural
niceties. Indeed in Hanna
Assi (No.2) v Ghana
Refrigeration and Household
Products Ltd (No. 2)
[2007-2008] SCGLR 161 (with the
concurrence of Sophia Akuffo,
Georgina Wood and Aninakwah
JJSC), I stated at 29 thus:
“The courts have
indeed gone to extraordinary
lengths to uphold the substance
against the form. In the
remarkable case of Bugden v
Ministry of Defence [1972] 1 ALL
ER 1, CA an application was made
to the Master for the issue of a
concurrent writ. This was
granted. But the Master,
perceiving that the writ was
approaching expiry, suo motu
extended its validity. Under the
relevant rule Order 6, r 8 (2)
of the English Rules of the
Supreme Court that could be done
upon application to the court.
On appeal the court led by Lord
Denning MR (Stephenson LJ
concurring) held that the
absence of application was a
mere irregularity and that there
were good grounds upon which the
Master had acted, on the merits.
Similarly
in Real Estate Developers Ltd v
Fosua [1984-86] 2 GLR 334, CA it
was stated per holding (1) of
the head note as follows:-
“(1)on
the facts, the trial judge was
right in making the order of
consolidation. Even if the
consolidation was ordered
without regard to proper
procedure in that there was no
written application by way of
motion or summons,
the answer was to be found in
Order 70 of the High Court
(Civil Procedure) Rules, 1954
(LN 140A), ie the rule dealing
with the effect of
non-compliance. In any event,
counsel had been unable to show
how prejudiced or
damnified the defendant company
was by the consolidation. Daws v
Daily Sketch & Sunday Graphic
Ltd. [1960] 1 ALL ER 397, CA
cited”. (The emphasis is mine)
In view
of this judicial trend I doubt
whether the court which decided
(per Sowah JA (as he then was)
the case of Michelletti Polla
Ltd v Crabbe [1976] 1 GLR 108,
CA would today have nullified a
judgment on the grounds
that application for the same
was oral and not by motion.”
Similarly
in Halle & Sonns SA v Bank of
Ghana & Warm Weather Enterprise
Ltd. [2011] SCGLR 378 it is
stated in the headnote as
follows:
“ (2) It
was not possible for an honest
litigant in the courts in Ghana
to be defeated by any mere
technicality, any slip and any
mistaken step in litigation in
view of rule 79 of the Supreme
Court Rules, 1996 (CI 16); rule
63 of the Court of Appeal Rules,
1997 (CI 19), and Order 81 of
the High Court (Civil Procedure
Rules, 2004 (C I 47).
Consequently, in the instant
case, the notice of appeal filed
by the defendants, pursuant to
the leave for extension of time
granted by the Court of Appeal
was proper and the Court of
Appeal had jurisdiction to
entertain the appeal. Dictum of
Lord Denning MR in
Harkness v Bell’s Asbestos &
Engineering Ltd. [1967] 2 QB 729
at 735-736, CA cited.
Per
curiam. We must allow
flexibility in the rules of
procedure to enable courts to
make such orders as it considers
just or necessary for doing
justice to the case. We
therefore agree with Prof. Ocran
JSC that we must totally reject
what his Lordship referred to in
the case of Gihoc Refrigeration
& Household Products v Hanna
Assi [2005-2006] SCGLR 458 at
492 as “technicism… as a
judicial approach to case
resolution.” In our opinion,
rule 63 of the Court of Appeal
Rules, 1997 (CI 19), gives the
Court of Appeal the flexibility
in resolving such technicalities
in the event of a breach or
non-compliance with any rules of
procedures.
Per
curiam. Our Courts have now come
so far that any wrong step taken
in legal proceedings should
not have the effect of
nullifying the judgment or
proceedings, except in those
cases where the court has no
jurisdiction. A court
has discretion in such matters
to waive or set aside the
proceedings depending on the
circumstances of each case: see
Order 79 of the
Supreme Court Rules, 1996 (CI
16); Order 63 of the Court of
Appeal Rules, 1997 (CI 19) and
Order 81 of the High Court
(Civil Procedure) Rules, 2004
(CI 47).” (The emphasis is
mine).
Mr.
Ayersen also complains that the
trial Judge dealt with the
motion without having first
relisted it. Again this is
formalism. In Royal Exchange
Assurance v Brew [1971] 1
GLR 371 C.A the court was faced
with a situation in which
without expressly vacating a
prior interlocutory judgment the
trial court allowed an
intervener, Kofi Mensah to fight
the case on its merits and deny
vicarious liability.
Consequently, Apaloo J.A (his
brethren concurring) held at 375
thus
“It is this fact
that led the learned judge to
hold that the interlocutory
judgment must have been vacated
by necessary implication. In my
opinion this is a reasonable
view to take of the matter.”
(The emphasis is mine)
In this
case upon the oral application
for relistment, the record of
proceedings (App.2) states as
follows:
“Counsel:- Geofrey
H. Quist for Plaintiff
Ray Ayerson for defendant
On the 6th
May 2014 the motion for stay was
struck out. Counsel for the
applicant is in court today and
has explained that on the day
that the motion was struck out
he was in Court but left for
another Court. His clients
were present when the motion was
struck out Counsel therefore
submits that the court must use
it discretion to relist the
motion.
Objection: The review of the
Court’s decision would delay
proceedings. The order was
clear.
By Court:
Applicant is given the
opportunity to argue on the
grounds of natural justice. The
delay complained of would had to
any injustice.
Before
the court is motion for Stay of
execution of the judgment of the
Circuit Court dated 28th
day of May.
Counsel
moves in terms of motion paper,
and supporting affidavit.
Counsel relies on all the
depositions in support of the
applications.”
Counsel
Ray Ayerson also addressed the
court on the motion for stay of
execution. It is quite clear
that mutatis mutandis the trial
Judge in this case did impliedly
relist the motion for stay of
execution for argument and
counsel on both sides addressed
the court in extenso before the
court ruled on it.
In this
case the applicant never
objected to the irregularity of
the oral application to relist
the motion for stay of execution
but was heard on the merits
throughout the proceedings to
which this application relates.
Had the
applicant attempted to impeach
the proceedings under Order 81
r. 2 of the High Court (Civil
Procedure) Rules , 2004 CI 47 he
would have failed because that
rule inter alia requires that “the
party applying has not taken any
further steps after knowledge of
the irregularity”. Here the
applicant took full further
steps in arguing the proceedings
on their merits, see Ofori v
Donkor [1976] 1 GLR 275.
He cannot
be allowed to succeed by a side
door of this court. In
Republic v High Court,
Koforidua; Ex parte Ansah-Otu &
Another (Koans Building
Solutions Ltd – Interested
Party) [2009] SCGLR 141 this
court unanimously held in
holding (3) of the headnote
thus:
“An order of
certiorari being a discretionary
remedy, the conduct of the
applicant would also be
considered in deciding to grant
or refuse the application. Under
Order 81, r 2 (1) and (2) of CI
47, a party affected by the
non-compliance of the rules of
court might apply to the trial
court to set aside the
proceedings for irregularity,
provided an application was
made timeously and
without taking any fresh step in
the matter after knowledge of
the irregularity. Where an
applicant took fresh steps after
knowledge of the irregularity,
his chances of succeeding on his
application, would be minimized.
In the instant case, the
applicants had earlier applied
to the trial High Court for a
review of the injunction order
sought to be quashed. By taking
recourse to that fresh step,
they imperiled their chances of
success in their application for
certiorari. Republic v Akyem
Abuakwa Traditional Council; Ex
parte Sakyiraa II [1972] 2
GLR 115 cited.” (The emphasis is
mine).
I would
say that there is no error of
law on the face of the record of
these proceedings, properly so
called. It has been held over
and over again by this court
that the errors of law that
would earn certiorari from this
court are those that are
serious, fundamental or so grave
that they nullify the decision
in question. For my part,
however, since nullity evinces
the idea of lack or excess of
jurisdiction but certiorari is
not limited to such situations,
I would add that where the error
of law renders the decision
obviously wrong, certiorari also
lies. Obviously where the
error, if any is healed,
recalled or negated by some
other considerations of the law,
such as Order 81 r 2 of CI 47 it
would be a truncated view of the
relevant applicable law to apply
parts of it and ignore other
competing parts of it in a
certiorari application, even
though one does not deal with
the merits of such an
application. Order 19 r. 1 which
requires applications to be by
motion is subservient to Order
81.
It is
even noticeable, though the
interested parties do not take
the point, that even though
their counsel was absent when
the motion for stay was called
the interested parties were
present.
Therefore
it was non pars judicis to
peremptorily strike out their
motion for alleged non
prosecution. There is nothing on
the record to indicate that the
interested parties were asked of
their stance in view of the
absence of their counsel.
Therefore the trial Judge lacked
jurisdiction to summarily strike
out their motion. Consequently,
even if to some minds he was in
error in relisting the motion on
an oral appicaition his course
of action is sustainable under
the principle of Mosi v
Bagyina [1963] 1 GLR 337 in
vacating his earlier order and
dealing with the motion on its
merits and it matters not that
he professed to be acting on the
practice of relisting a struck
out process. For a superior
court can even suo motu vacate a
void order no matter the method
by which it came to its notice.
Applying
the foregoing principles I hold
that no error of law has been
shown on the face of the record.
And in any case since certiorari
is a discretionary remedy, the
conduct of the applicant,
approbating and reprobating the
proceedings and the absence of
any miscarriage of justice or
prejudice to the applicant; this
application fails and is
dismissed.
I regret
that I cannot agree with the
decision of my brethren to the
contrary.
(SGD) W. A. ATUGUBA
JUSTICE OF THE SUPREME
COURT
COUNSEL
RAY AYERSEN ESQ. FOR THE APPLICANT.
GEOFFREY H. QUIST FOR THE 1ST
AND 2ND INTERESTED
PARTIES.
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