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Judicial review -
Breach of the right to a fair
hearing - Procedural
impropriety - Abridgement of
time Constituency election -
Application for joinder -
HEADNOTES
Following the conduct of
elections in some constituencies
by the New Patriotic Party
(NPP), some members of the
party, feeling aggrieved by the
processes leading to the
election and the declaration of
results in the Kumawu
Constituency, petitioned the
national headquarters of the
party which annulled the
elections and ordered a re-run.
The first three interested
parties herein subsequently
lodged a claim before the High
Court, Accra seeking an order
confirming the annulment of the
results. The plaintiffs in the
said matter named the NPP and
the Electoral Commission as
defendants who were duly served
with the processes and submitted
themselves to the court by
entering notices of appearance
to the action. The applicants
herein who were elected at the
Kumawu elections having become
aware of the pendency of the
action before the High Court,
Accra, applied to be joined to
the action. Although the
application was fixed for a
specified date, when they
realised that by the return date
of the application for joinder
they would have been prevented
from taking part in the re-run
elections and also on account of
an interlocutory injunction
granted restraining them from
taking part in the said
elections, the applicants herein
sought an abridgement of time to
have their application
determined but this was refused
by the court. In the course of
the pendency of the action
before the High Court and at a
time when the application for
joinder at their instance had
been pending, the learned trial
judge was informed in court on
29 August 2014, at the hearing
of an application to vacate an
order of interlocutory
injunction, that the parties to
the cause had reached a
settlement. Having been so
informed, the learned trial
judge adopted the terms of the
compromise as its judgment. It
seems to us that notwithstanding
the failure by the learned trial
judge to clearly indicate on the
face of the order which appears
as the minutes of the
proceedings of that day that it
was made by consent, it was
indeed, an order made with the
consent of the parties to the
action
HELD :-
In our view therefore, the second
ground is inappropriate to the
case before us and it is no
wonder that at the hearing,
learned counsel for the
Applicants based his submissions
mainly on the aforesaid first
ground of the denial of the
right to be heard. For the above
reasons, we refuse the
application for judicial review
in the nature of certiorari.
STATUTES REFERRED TO IN JUDGMENT
CASES REFERRED TO IN JUDGMENT
Green v Rozen
[1955] 2 All ER 797
R (Elphinstone) v
WestminsterCC [2009] ELR 24
BOOKS REFERRED TO IN JUDGMENT
Halsbury’s Laws of England
(4th Edition) Volume
26 paragraph 52
DELIVERING THE LEADING JUDGMENT
GBADEGBE JSC:
COUNSEL
ASIEDU-BASOAH WITH ELIZABETH
HASSAN FOR THE APPLICANT.
ANTHONY K. DABI FOR THE 2ND
INTERESTED PARTY.
GARY NIMAKO-MARFO LED BY DR.
POKU ADUSEI FOR THE 3RD
, 4TH AND 5TH
INTERESTED PARTIES.
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RULING
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GBADEGBE
JSC:
We have before us an application
for judicial review in the
nature of certiorari to be
directed at the judgment and or
decision of the High Court,
Accra dated 29 August in a suit
that concerns the parties herein
numbered as BMISC 634/2014 and
entitled Kwame Owusu Ansah
and Others v the New Patriotic
Party and Another. The
grounds on which the application
is brought are breach of the
right to a fair hearing and what
is described ‘as procedural
impropriety’. The facts that
gave rise to the application are
shortly stated as follows:
Following the conduct of
elections in some constituencies
by the New Patriotic Party (NPP),
some members of the party,
feeling aggrieved by the
processes leading to the
election and the declaration of
results in the Kumawu
Constituency, petitioned the
national headquarters of the
party which annulled the
elections and ordered a re-run.
The first three interested
parties herein subsequently
lodged a claim before the High
Court, Accra seeking an order
confirming the annulment of the
results. The plaintiffs in the
said matter named the NPP and
the Electoral Commission as
defendants who were duly served
with the processes and submitted
themselves to the court by
entering notices of appearance
to the action. The applicants
herein who were elected at the
Kumawu elections having become
aware of the pendency of the
action before the High Court,
Accra, applied to be joined to
the action. Although the
application was fixed for a
specified date, when they
realised that by the return date
of the application for joinder
they would have been prevented
from taking part in the re-run
elections and also on account of
an interlocutory injunction
granted restraining them from
taking part in the said
elections, the applicants herein
sought an abridgement of time to
have their application
determined but this was refused
by the court. In the course of
the pendency of the action
before the High Court and at a
time when the application for
joinder at their instance had
been pending, the learned trial
judge was informed in court on
29 August 2014, at the hearing
of an application to vacate an
order of interlocutory
injunction, that the parties to
the cause had reached a
settlement. Having been so
informed, the learned trial
judge adopted the terms of the
compromise as its judgment. It
seems to us that notwithstanding
the failure by the learned trial
judge to clearly indicate on the
face of the order which appears
as the minutes of the
proceedings of that day that it
was made by consent, it was
indeed, an order made with the
consent of the parties to the
action and accordingly, we shall
in this delivery consider it as
such.
We now turn our attention to the
grounds of the application. In
respect of that which alleges
breach of the right to a fair
hearing, much as we are aware
that this is a fundamental right
that is available to parties to
an action, we are unable to
extend its scope to persons who
have not yet become parties
strictly so to speak on the
record. Indeed, we venture to
say that, although their
applications were pending and
had been on the docket since
April 2014 that does not bring
them within the designation of
‘parties’ such as to entitle
them to be heard on the
settlement. We are of the view
that, at the hearing of the
matter on 29 August 2014, the
parties to the cause were those
whose names appeared as such as
there had been no order for
joinder made by which the title
of the action would have been
amended to include the
applicants herein. Accordingly,
much as we share the concern of
the applicants that, in view of
the pendency of their
application for joinder, it
would have been fairer and more
reasonable that, having made
their interest in the subject
matter of the action known, they
be notified of the settlement
processes. In our view, the
failure to consult them or hear
them does not amount an error of
law that affects jurisdiction
such as to be a good ground for
certiorari. We observe that, in
future, trial judges will be
well advised to ensure they do
nothing which would create any
semblance of preventing any
person, who is interested in an
action, from being heard
timeously on an application for
joinder the grant of which is in
the discretion of the court. We
also observe that the record in
the instant case does not
explain to us why the
application for joinder was not
disposed of from April to the
date the order in question was
entered - 29 August 2014 - but
in our opinion a more diligent
applicant would have
demonstrated greater vigilance
to ensure that it is taken long
before then, since such
applications are, as a matter of
practice, taken early to enable
the action progress towards its
hearing.
According to the settled Court
practice in such matters, the
presiding judge does not
interfere with the agreement and
or compromise reached by the
litigants and, rather, only
sanctions it once it is within
the law and does not raise any
issue of illegality such as
placing an obligation on a party
to undertake an act that is
prohibited by law. The learned
trial judge, from the record of
proceedings of that eventful
day, which is annexed to the
application before us acted in
accordance with the practice of
the court and, although he did
not indicate on the face of the
order the agreement which he
said he had adopted as a consent
judgment, we believe that the
use of the word “adopt” has the
same effect as approving and or
sanctioning the compromise. That
being so it is in substance a
consent judgment. The procedure
adopted by the learned trial
judge in our view satisfies the
various modes that are discussed
in the case of Green v Rozen
[1955] 2 All ER 797 at 799 per
Slade J. In order to make our
thinking on this aspect of the
matter clearer, reference is
made to a statement of the
existing practice contained in
Volume 26 of Halsbury’s Laws of
England (4th Edition)
paragraph 52 at page 257 as
follows:
“If either party is willing
to consent to a judgment or
order against himself or if both
parties are agreed as to what
the judgment or order ought to
be, due effect may be given by
the court to such a consent.”
In our opinion the second ground
of procedural impropriety would
have properly arisen if the
applicants herein were, at the
date the settlement was adopted
by the Court, “parties” in the
matter as the failure to notify
them of the compromise would
have been an instance of breach
of the right to a fair hearing
and consequently had the
attribute of illegality. We
think that, in their essence,
the second ground is just a
restatement of the first ground
as, when this terminology is
employed, it involves the
following concepts:
(a)
The need to comply with
the adopted (and usually
statutory) rules for the
decision making process;
(b)
The common law requirement
of fair hearing;
(c)
The common law requirement
that the decision is made
without an appearance of bias.
The requirement to comply with
any procedural legitimate
expectations created by the
decision maker;
(d)
In respect of
administrative bodies, it may
also connote alleged lack of
consultation; See: In R (Elphinstone)
v WestminsterCC [2009] ELR
24
In our view therefore, the
second ground is inappropriate
to the case before us and it is
no wonder that at the hearing,
learned counsel for the
Applicants based his submissions
mainly on the aforesaid first
ground of the denial of the
right to be heard.
For the above reasons, we refuse
the application for judicial
review in the nature of
certiorari.
(SGD)
N. S. GBADEGBE
JUSTICE OF THE
SUPREME COURT
(SGD)
S. O. A. AKUFFO (MS)
JUSTICE OF THE SUPREME
COURT
(SGD)
J. ANSAH
JUSTICE OF THE
SUPREME COURT
(SGD)
V. AKOTO BAMFO (MRS.)
JUSTICE OF THE
SUPREME COURT
(SGD)
A. A. BENIN
JUSTICE OF THE
SUPREME COURT
COUNSEL
ASIEDU-BASOAH WITH ELIZABETH
HASSAN FOR THE APPLICANT.
ANTHONY K. DABI FOR THE 2ND
INTERESTED PARTY.
GARY NIMAKO-MARFO LED BY DR.
POKU ADUSEI FOR THE 3RD
, 4TH AND 5TH
INTERESTED PARTIES. |
