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R.C. OWUSU, J.S.C:-
In an application to invoke the
supervisory Jurisdiction of
this Court under Article 132 of
the 1992 constitution, the
Applicant is praying for an
order of certiorari directed to
the Fast Track High Court 3,
presided over by His Lordship
P.K. Gyeasayor J, (as he then
was) to move into this court
for the purpose of quashing same
the ruling of that court dated
10th March 2008 and
the entire proceedings before
the said court. The Applicant
seeks a further order to
prohibit the Respondent from
further hearing suit No. AL
109/06 intituled ANNA VICTORIA
MENSAH VRS. THE REGISTRAR, THE
CHIEF BAILIFF and others pending
before the said court.
Article 132 of the
Constitution states as follows:-
1.
The Supreme Court shall have
supervisory Jurisdiction over
all courts and over any
adjudicating authority and may,
in the exercise of that
supervisory Jurisdiction issue
orders and directions for the
purpose of enforcing or securing
the enforcement of its
supervisory power”.
At the hearing of
the application, counsel for the
interested party, raised a
preliminary objection to the
competency of the application
before the court.
Counsel argued that
assuming Gyeasayor J. (as he
then was) had erroneously
assumed jurisdiction, the
application is time barred. It
is his contention that the
application having been brought
under rules 61 and 62 of the
Supreme Court Rules, C.I. 16 as
amended by C.I. 24, same was
brought outside the statutory
Period of 90 days as required
under rule 62 which reads as
follows:-
“An application to invoke the
supervisory Jurisdiction of the
court shallbe filed within
ninety days of the date when the
grounds for the application
first arose unless the time
is extended by the court”
(emphasis supplied).
Counsel therefore asked, “when
did the ground for the
application first arise?
To this question counsel’s
answer is that Gyaesayor J. (as
he then was) assumed
Jurisdiction on 26/10/06 when he
heard and granted the Ex-Parte.
application for Judgment in
default of appearance against
the 1st defendant for
the reliefs endorsed on the
writ of summons and therefore,
the ground for the application
first arose on that day.
Anna Victoria
Mensah, the Interested party in
this application had issued a
writ against the Registrar, High
Court, Accra and the Chief
Bailiff, Accra for:-
“(i) A declaration that by
virtue of a Lease agreement
entered between the plaintiff
and the State Housing
Corporation on the 4th
of October, 2005 she is Lease
Hold owner of all that property
known as plot No. 5C Osu East
X’borg Housing Estates.”
(ii) A declaration that
by virtue of the plaintiff’s
ownership of the above-mentioned
property, the purported
attachment of the said property,
its fixtures and fittings is
irregular, unlawful, void and of
no effect” among other reliefs.
Calculating 90 days
from 26/10/2006 the application
filed on 9/6/2008 was woefully
out of time, counsel submitted.
He sought to distinguish the
instant application from that in
the case of THE REPUBLIC VRS.
HIGH COURT, KUMASI; EX-PARTE;
MOBIL OIL (GHANA) LTD (HAGAN
INTERESTED PARTY) [2005-6] SCGLR
312.
In reply, counsel
for the Applicants told the
court the preliminary objection
has no basis at all. He
submitted that the time for
determination of when the
grounds for the application
first arose should be referable
to the circumstances of the
case. He therefore referred the
court to paragraph 17 of the
Applicants’ reply to the
interested party’s statement of
case. In this paragraph,
counsel submitted that the
grounds for the application
first arose when Gyeasayor J.
(as he then was) refused to set
aside his void orders and
proceedings and decided to
proceed with the case despite
the Applicants protests.
In support of his
submission, counsel relied on
the Mobil House case already
referred to contending that the
grounds for the application
first arose on 10th
March, 2008 when Gyeasayor J.(as
he then was) refused to decline
Jurisdiction
The issue for the court to
resolve is when the grounds for
the application first arose.
In the Mobil case, Wood J.S.C. (
as she then was) had this to say
that:-.
“On the facts, it is
the trial Judge’s decision of 22nd
April, 2005, to proceed with the
hearing, despite the applicant’s
protests that provoked this
instant application. Time
therefore began to run from that
date on which the cause of
action arose”.
The facts in the
Mobil case are not principally
the same as in the instant
case. In that case, the
Applicant sought an order of the
Supreme Court to prohibit the
trial Judge from hearing the
substantive matter pending
before him in suit No. E2/36/04
after making interlocutory
orders of injunction against the
defendant in the court below and
the Applicant therein. The
ground upon which the
application was based was stated
as follows:-
“there is the real
likelihood of bias and a breach
of the rules of natural justice
on the part of justice Winfred
Kpentey in view of the fact
that in two rulings of an
application for injunction and a
stay of execution, he held that
the applicant had breached the
rules of natural justice in
terminating the appointment of
Stephen Hagan which said holding
constitute the only issue for
trial in this case. By, so
holding, without taking evidence
and without regard to the
Judgment of the Court of Appeal
in Texano Africa Ltd. V. Bedu
[1978] G.L.R 307 which is
binding on him, the learned High
Court judge had prejudged and
predetermined the only issue for
determination in the case and is
incapable of sitting as an
impartial arbiter”
In the instant case,
the ground for the application
is want of Jurisdiction.The
question therefore is when did
the court assume Jurisdiction in
the matter ? The answer from
the record is 26th
October, 2006 when the
application for Judgment in
default of appearance was
granted. This application was
at the instance of the plaintiff
in suit No. AL/09/2006, the
interested party in this
application.
It was after the
entry of judgment in default
that Mary Mcleod and Snowrad
Ltd. were joined to the suit as
co-Defendants on an application
at their instance.
As Co-Defendants,
they applied to the court and
got the Judgment set aside.
This was before, according to an
affidavit sworn to by their
counsel, it came to their notice
that “the transfer of the case
from Justice Baffoe-Bonnie to
justice Gyeasayor was ill
motivated and Clandestinely
done in a manner that violates
the Rules of court” he
contended.
On 11th January,
2008, counsel conducted a search
in the Registry wanting to know
:
1. “When the case first
went to court ?
2. “Which judge was the
case put before ?’
3. “What was the
decision of the court on the day
the case went before
it ?”
4. “Whether or not the
chief Justice directed the
transfer of the case to another
Judge ?”
5. “If so ,when ?”
6. “And to which Judge
was the case transferred ?”
Answers to these
questions were received on
21/1/08 by counsel and they
revealed that the case was first
put before Baffoe-Bonnie J. (as
he then was), and that there has
not been transfer of it to any
judge. Therefore if Gyeasayor J.
(as he then was) had wrongly
assumed Jurisdiction, as he
contends, then that fact came to
his knowledge on 21/1/08 when he
received the outcome of the
search but not on 26th
October, 2006 when his Clients
were not even parties to the
suit. It is therefore irrational
to reckon the 90 days from that
date.
Having received the result of
the search however, counsel did
not file an application to
invoke the supervisory
Jurisdiction of the court
immediately but rather chose to
go back to the fast Track High
Court with an application to set
aside the proceedings before
it. This I find to be most
unreasonable if counsel was
mindful of the fact that time
was of the essence.
On 10th
day of March, 2008, the court
below refused the application
and thereafter on 9th
June, 2008, the present
application was filed, hence
counsel’s contention that the 90
days within which the
application should have been
brought must be reckoned from
that date.
If time will not run from
26/10/06 against them, then so
far as they are
concerned, the grounds for the
application should reasonably be
reckoned
from 21/1/08 when they got to
know that Gyaesayor J. had
wrongly assumed Jurisdiction, if
indeed his assumption of
jurisdiction was wrongful.
Under section 22 of
the Limitation Decree (Act)
1972 (N.R..C.D. 54)
“(1) Where, in an action
for which a period of Limitation
is fixed by this act.
(a) the action is based on
the fraud of the defendant or
the agent of the defendant or of
a person through whom the
defendant or the agent claims,
or
(b)
the action is for relief from
the consequences of a mistake,
the period of limitation shall
not begin to run until the
plaintiff has discovered the
fraud or mistake, or could with
reasonable diligence have
discovered it.
Our reference to this
section of the Decree is by way
of an instructive analogy to
buttress our reasoning that the
90 days under rule 62 did not
start to run until the applicant
discovered that the grounds for
the application had arisen .
In the instant
application, 90 days from
21/1/08 will end on 20th
April, 2008.
The application filed on 9th
June, 2008 without an order of
the court for
extension of time is woefully
out of time. The preliminary
objection is well grounded and
is therefore upheld. The
application is struck out as
incompetent.
R.C. OWUSU
(JUSTICE OF THE SUPREME COURT)
S. K. DATE-BAH
(JUSTICE OF THE
SUPREME COURT)
J. ANSAH
(JUSTICE OF THE
SUPREME COURT)
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
COUNSEL
L.S.N. AKUETTEY (WITH TEKI
AKUETTEY) FOR THE APPLICANTS
L N. OTOO FOR THE INTERESTED
PARTY
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