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MRS. WOOD, C.J.:
The case which triggered this
instant application has suffered
a series of dramatic twists and
turns. Little wonder that we
have been invited to intervene
by issuing an order of
certiorari to quash an order of
the High Court presided over by
Mrs Justice Ivy Ashong –Yakubu,
dated the 22nd of
January 2007.
The self explanatory grounds of
the application to invoke our
supervisory jurisdiction are
that:
“The High Court acted without or
in excess of jurisdiction by
hearing the said suit which has
been transferred from another
High Court without the seal and
authorisation of His Lordship
the Chief Justice.
There was a patent error on the
face of the record when the said
High Court assumed it had
jurisdiction and ordered a bench
warrant for the arrest of the
applicant.
That the orders of the High
Court, Accra were made without
jurisdiction and as such are
null and void.”
The facts leading to this
application are quite
straightforward. In September
2006, the applicant caused a
writ of summons to be issued
against the interested parties
in respect of a plot of land he
claimed the respondents have
trespassed on, and successfully
applied for an order of interim
injunction against them for the
statutory ten day maximum
period.
On the 1st of
November, however, the
respondent initiated contempt
proceedings against the
applicant. Curiously, none of
the affidavits offer any
explanation as to why this step
was taken against the applicant.
The lapse is however not fatal
to these present proceedings.
The more crucial issue however
is that the contempt application
was placed before Mrs Justice
Owusu –Arhin, where, in line
with court management practices,
it continued to be managed by
her court clerk during the
period she was away on leave.
Indeed, when the matter came up
in her absence on 15th
November, 2006, it was
accordingly adjourned, in the
presence of both parties to the
18th of January 2007
by the court clerk.
Soon after this adjournment, the
respondent, through his counsel
succeeded in having the
Registrar of the court not only
abridge the date by bringing it
forward to the 14th
of December 2006, but without an
order from the Chief Justice,
caused the matter to be
transferred to an entirely
different court and placed
before a new judge.
The new Judge ordered a bench
warrant to issue against the
applicant when he failed to
attend court on the 14th
of December, 2006. As if not to
be outdone in what I may
describe as a game of charades,
the applicant in turn manoeuvred
and made an appearance before
yet an entirely different judge
sitting in another court, who
rescinded the warrant.
Subsequently, the judge who
issued the original warrant of
arrest nonetheless ignored the
rescission order by the other
court of concurrent
jurisdiction, and on the 22nd
of January 2007, made further
orders of arrest against the
applicant. In making the order
she reasoned:
“So far as this Court is
concerned, the bench warrant was
issued on 14/12/06, and so far
as the person it was directed
has not appeared in response to
the warrant, the warrant still
subsists and remains valid,
notwithstanding any intervention
by another court of concurrent
jurisdiction.”
It is against this order of 22nd
January, 2006, that this instant
application has been lodged on
the grounds stated. While the
applicant contends that the
contempt proceedings which was
pending before Mrs Justice
Owusu-Arhin, could not be
removed from her court without a
formal transfer order under the
hand and seal of the Lord Chief
Justice, the respondent, as is
to be expected, argues that no
formal order were required, it
being an ordinary motion, albeit
in the nature of contempt
proceedings, a matter which
needed to be dealt with
expeditiously, given that the
applicant, cited as the
contemnor, was persisting in his
contemptuous act.
On the facts, the respondent
admits per his affidavit that
generally, the power to transfer
cases resides exclusively in the
Chief Justice. His main argument
however is that there are
exceptions to the rule and that
the power to do so extends to
the registrar of a court,
particularly with regards to
those motions needing urgent
attention, as in the contempt
proceedings he had filed.
The arguments raise a number of
primary and secondary issues.
Basically, it calls for an
interpretation of S. 104 (1) -
(3) of the Court’s Act 1993, Act
459 as amended by the Courts
(Amendment) Act, 2002, (Act
620), s. 7 and sched.
The broad issue we would have to
resolve is what is the proper
construction to be placed on
this important statutory
provision, in the context of the
word “case” as appears in the
legislation?
It is imperative that we clearly
spell out the parameters of this
law, for reasons that will
become evident in due course.
Indeed, my first quick reaction
is that it is these very chaotic
events which bedevilled the
contempt application, happenings
which in my view amount to
nothing more than the parties,
with the active connivance of
their counsel and registrar
having gone forum shopping for
judges of their choice, which
underscores the importance of
these statutory provisions.
Paradoxically, it is these self
same matters that will assist us
to unravel the true and proper
construction of the S.104 of the
Act 459.
Indeed, if we must eliminate the
spectre of perceived judicial
manipulation and other
negativities that is alleged to
be walking our judicial
corridors, then it is absolutely
critical that all the principal
powers who drive the system,
particularly, judges, ought
strictly to ensure compliance
with this rule which is clearly
intended to inject order,
transparency, accountability and
sanity into the entire justice
system. I find that the rule is
intended to promote credibility,
general efficiency and should be
allowed to function as such.
The key issue in this case is
whether the judge who purported
to hear the contempt application
and issued the order of arrest
and re-arrest, had power to do
so without the express
authorisation of the Chief
Justice acting under S. 104 of
the Act 459 as amended?
Differently stated, does the
Registrar have power to transfer
proceedings, be they ordinary
motions or contempt proceedings
from one judge to another?
The applicant contends that no
judge has jurisdiction to
determine a committal case
pending before another judge
without a transfer order from
the Chief Justice, and
registrars can only effect such
transfers under the hand and
seal of the Chief Justice. The
respondent contends otherwise,
arguing that the need for an
expeditious hearing allows a
registrar to act suo moto,
without the express
authorisation; in other words,
that power is reserved in
registrars to transfer causes or
matters from one judge to the
other or from one court to
another.
Given that this application
calls for an interpretation of
the statutory provision under
reference, the subsidiary
crucial question is this: should
the word “case” as appears in
the provision lend itself to a
dictionary, strict and narrow
interpretation so that it
applies to purely substantive
actions proper, begun by either
a writ or some other legal mode
of initiating substantive
actions properly so called? Or,
do we give it a liberal, or
broad purposive oriented
construction so that all
proceedings, without exception,
whether simple ordinary
applications or motions or
otherwise, are subject to the
rule?
In Soro v Frans [2005-2006]
SCGLR 1003, I emphasised that a
supervising High Court Judge and
the Chairman of the Regional
Tribunal are also empowered to
order the transfer of cases
under S106 of Act 459. I however
pointed out that this power is
subject to the powers of the
Chief Justice. I never
discovered even from a cursory
reading of the provisions that
power was also vested in
Registrars to transfer causes
and matters from one judge to
the other or from one court to
another.
I spelt out the limits of the
law, of the S. 104 of Act 459,
in terms of substantive actions
or cases strictly so called,
whether they are partly heard or
fresh. I did not raise issue
with motions or applications
generally, in whatever form.
While Soro v Frans may be a good
and helpful starting point, it
does not directly answer the
issue raised in this application
to invoke our supervisory
jurisdiction. This calls for an
expansion, of the rule in Soro v
Frans (supra), since the
committal proceedings, though a
separate cause or matter, is not
a substantive case properly so
called, but one flowing from an
original action, a land case. In
a manner of speaking, it is a by
product of the original action.
The question is whether or not a
motion deriving from a
substantive action and which is
pending before one judge may be
transferred by a registrar to
another judge without the
express authorisation of the
Chief Justice as provided for
under S. 104 of the Act 459 as
amended. As already noted, the
answer lies in the
interpretation we give to the
above legislation.
It is well established, that as
a general rule, the correct
approach to construing statutes
is to move away from the
literalist, dictionary,
mechanical or grammatical to the
purposive mode. Admittedly,
there may be instances where the
ordinary or dictionary or
grammatical meaning of words or
phrases yield just results and
there remains little one can do
about that. Even so, it can be
said that the purposive is
embedded in the grammatical. In
other words, the ordinary
meaning projects the purpose of
the statutory provision and so
readily provides the correct
purpose oriented solution.
Indeed, the purposive rule of
construction is meant to assist
unearth or discover the real
meaning of the statutory
provision, where an application
of the ordinary or grammatical
meaning, produces or yields some
ambiguous, absurd, irrational,
unworkable or unjust result or
the like. The following
decisions by this court,
starting from the classic case
of Tuffuor v Attorney –
General [1980] GLR 637,
Asare v Attorney- General
[2003-2004] SCGLR 823,
Ampofo v Commission on Human
Rights [2003-2004] SCGLR 227,
New Patriotic Party v Attorney-
General [1993-1994] SCGLR 823
and lately The Republic v
Fast Track High Court, Ex Parte
Chraj, Hon. Dr Anane, interested
Party, Unreported case of
the Supreme Court C.M. J5/10
2007, dated 21st
December 2007.
In the Anane case, I made
reference to the mechanics of
the purposive approach as
expounded by Bennion, the
learned author on statutory
interpretation. He stated that:
“A purposive construction of an
enactment is one which gives
effect to the legislative
purpose by-
(a)
following the literal meaning of
the enactment where that meaning
is in accordance with the
legislative purpose (in this
code called purposive - and-
literal construction) or
(b)
applying a strained meaning
where the literal meaning is not
in accordance with the
legislative purpose (in this
code called a purposive-and
strained meaning”.
Similarly, I made reference to
the two tier approach to
interpretation, commended by my
brother Dr. Justice Date – Bah,
in the Asare case. In bringing
out the difference between two
approaches, namely, the
objective based and subjective
based purpose, a theory espoused
by the President of the Supreme
Court of Israel, Justice Aharon
Barak, which undoubtedly is a
helpful guide to constitutional
or statutory interpretation, my
respected brother observed:
“The subjective purpose of a
constitution or statute is the
actual intent that the authors
of it, namely, the framers of
the constitution, or the
legislature had at the time of
making the constitution or the
statute. On the other hand, the
objective purpose is not what
the author actually intended but
rather what a hypothetical
reasonable author would have
intended, given the context of
the underlying legal system,
history and values of the legal
system for which he is making
the law.”
I fully endorse these views. It
does appear to me that where
the purposive and literalist
approach, advocated by Bennion,
which in my view is synonymous
with the subjective purpose
theory of Justice Barak,
advances the legislative intent
and does not lead to any
ambiguities or injustice, then
it is not proper to apply the
“purposive and strained” meaning
or “objective purpose” rule.
By way of emphasis, in the
construction of statutes, if the
subjective purpose would bring
out the legislative intent,
leaving no ambiguities,
absurdities or injustices that
the purely literalist approach
would result in; the objective
purposive approach does not come
into play. In other words, the
objective purpose, which does
not constitute the actual intent
of the authors but rather the
intentions of a hypothetical
reasonable man, should only be
deployed if upon application of
the subjective purposive rule,
the statute is still clouded in
absurdity, irrationality,
mystery or will prove
unworkable. The objective
purpose is a useful guide, where
with the best of efforts, namely
reading the statute as a whole
and conscientiously applying all
the known guides to
interpretation, the meaning of
the statute still remains
unclear, or has elements or even
traces of the absurd, the
irrational, the unjust or the
like.
It is provided under section
104(1)-(3) of the Courts Act,
1993 (Act 459) as amended by the
Courts (Amendment) Act, 2002
(Act 620), s 7 and sched that:
“104. (1) Subject to the
provisions of the Constitution,
the Chief Justice may by order
under his hand transfer a case
at any stage of the proceedings
from any Judge or Magistrate to
any other Judge or Magistrate
and from one court to another
court of competent jurisdiction
at any time or stage of the
proceedings and either with or
without an application from any
of the parties to the
proceedings.
(2)
The order may be general or
special and shall state the
nature and extent of the
transfer and in any case of
urgency the power of transfer
may be exercised by means of
telegraphic, telephonic or
electronic communication from
the Chief Justice.
(3)
A transfer of a case made by
telegraph, telephone or
electronic communication and not
confirmed immediately by order
signed and sealed in a manner
specified by the Chief Justice
or any other person authorised
in that behalf by him shall be
of no effect.”
In my opinion, read as a whole,
which is the proper approach to
interpreting statutes, this
statutory provision applies to
all matters pending in the
courts, whether motions or
applications, whether standing
on their own or arising or
flowing from a substantive
action. I would inteprete the
word “case” broadly to include
committal proceedings, which in
reality are serious substantive
quasi- criminal matters carrying
custodial punishment. The
subsection (2) buttresses the
point that the legislation is
not intended to be limited to
substantive actions only. The
subsection makes reference to
general or special transfers and
mandates the transferor to state
the nature and extent of the
transfer. This presupposes that
a transfer need not necessarily
cover an entire substantive
case, but parts or segments of
it dealing with particular
matters. I explain further. As
we know too well, a case may be
made up of not only the
substantive action, i. e. writ,
together with the pleadings, but
also interlocutory applications
such as motion for bail, stay of
proceedings or execution,
injunction, appointment of a
manager receiver, or for the
recall of a witness; indeed all
the other well known interim
applications associated
generally with criminal or civil
trials. All of these
interlocutory applications also,
provided they emanate from the
main substantive action, can
properly be described as forming
part of or constituting the
case. A pending substantive
action may contain a number of
motions or applications; the
Chief Justice has authority to
transfer to another judge or
court, the entire case together
with all the motions, or only
one or more of the motions.
In my opinion then, a motion or
an application is a case within
the meaning and intendment of S.
104 of Act 459. A motion does
not fall outside the ambit of
this law on the sole ground that
it did not commence by way of a
writ. The position of contempt
applications is even plainer, it
being a substantive matter
standing on its own as a
separate cause or matter.
A contempt application is
therefore a case within the
meaning of the above
legislation. None of these, when
pending, may be transferred from
one court to the other, or from
one judge to another, without
the express authorisation of the
Chief Justice and in the manner
described under the Act.
A broad or liberal
interpretation or strained
meaning of “case” to include any
motion or application arising
from an original substantive
action unearths the legislative
intent and provides the best
legal framework and environment
needed to promote credibility,
justice, and the integrity of
the judicial process.
Thus, once any matter as
explained above has been placed
before a judge, in the absence
of an order of transfer from the
Chief Justice or the Supervising
High Court Judge under S.104 of
Act 459 as the case may be, it
is only that judge who has
exclusive jurisdiction to deal
with the matter or any part
thereof.
It follows rather emphatically
that no registrar, and this
extends to Magistrates and
Judges, has power to remove
matters pending before a judge
or court to another judge or
court without the express
authorisation of the Chief
Justice or the Supervising High
Court Judge or Chairman of the
Regional Tribunal as the case
may be and, in the manner
subscribed under the law. Any
such purported transfer by a
registrar is unlawful and a
complete nullity.
This statutory provision is
intended to serve both ethical
and administrative purposes. It
is not for nothing that the
ultimate power of transfer is
reserved exclusively in the
Chief Justice. Indeed, the mere
codification of the power of
transfer of cases from one judge
or court to the other, coupled
with what I may term as an
elaborate mode of effecting
transfers emanating even from
under the hand of the Chief
Justice himself or herself, and
by this I mean the statutory
requirement for confirmation of
orders made in urgent cases, by
means of signatures and seals,
reinforces the fact that this
discretionary power has not
been left at large to be
exercised by all and sundry, but
is exclusive to the Chief
Justice, to be exercised by him
or her with utmost restraint.
The policy reasoning behind it,
based no doubt on plain good
sense, is to prevent parties and
their lawyers from forum
shopping; manoeuvring to picking
and choosing their own judges.
Reserving such authority or
power in parties, lawyers and
registrars would breed mistrust
and corruption. It will cause
unnecessary delays and defeat
the ends of justice. Matters are
disposed of on a first come
first served basis, and
consequently where a case is
transferred it is expected to
join the existing queue in the
new court.
Allowing parties to choose their
own courts would place
unnecessary burdens on judges
generate confusion and anarchy
in the judicial system, and make
the entire system inefficient,
ineffective and unworkable. May
we imagine for a moment a
situation where in one matter,
the applicant for whatever
reason, engineers to have his or
her application moved from one
judge to another and the next
day his opponent makes a similar
move, and yet on a third and
fourth occasion, it is moved to
another, which is exactly what
the parties in the contempt
proceedings sought to do! How
would our registries and other
equally important in-house
administrative units responsible
for the monitoring and tracking
of cases, including the Chief
Justice who has overall
responsibility for the smooth
and efficient running of the
system succeed in the effective
discharge of their respective
mandates? What will happen to
lawyers and their clients if the
courts before which parties are
expected to appear keep changing
by the day? It would be absolute
bedlam.
The power of transfer resides
exclusively in the Chief
Justice, not the registrar, not
even judges, (save perhaps the
supervising High Court Judge, or
Chairman of the Regional
Tribunal under circumstances
prescribed by the law), and in
the manner described under the
law, namely by a written order
under his or her hand and seal.
The force of the law lies in
the fact that where for reasons
of urgency the Chief Justice
effects a transfer order
electronically, telegraphically,
or telephonically, the law
requires an immediate
confirmation of the order by a
formal order under the hand and
seal of the Chief Justice or any
other person authorised in that
behalf by him or her. The legal
requirement is so strict that
the law states expressly that
where no written confirmation is
made in accordance with the
legal requirement, the transfer
shall be of no effect. This
strict statutory regime
reinforces the point that the
power to transfer causes and
matters from one judge to
another or from one court to
another is one which should not
be toyed with. It resides in
the Chief Justice, with no part
being reserved in the registrar
of court.
For that reason, arguments to
the effect that in the instant
case, there was an urgent need
to have the registrar transfer
the matter as quickly as
possible are lame and totally
unjustifiable. First, the
statute does not expressly or by
necessary implication provide
exceptions to the rule and our
business is not to create any.
Had the law makers intended to,
they would not have lacked the
resources to do so. Second, it
is on account of such emergency
or urgent situations that the
law in its wisdom has made
provision for the use of
electronic, telephonic or
telegraphic transfers by the
Chief Justice. In other words,
the law requires that cases
requiring urgent attention could
be brought to the immediate
attention of the Chief Justice
who may then use any of these
quick means of communication to
effect the needed transfer.
Without doubt the, transfer of
the contempt proceedings from
Mrs Justice F Owusu Arhin
sitting at Court 11 to another
court and before another judge,
the issue of the two bench
warrants, the “original” and the
subsequent, even when another
court has rescinded it, albeit
wrongfully, because the judge
also lacked jurisdiction, are
all in clear violation of the
Sections 104 and 106 of Act 459
and a complete nullity.
Similarly, the second judge’s
rescission of the warrant of
arrest, was wrongful, and a
complete nullity, in that he
acted without jurisdiction. I
would, in the exercise of this
court’s supervisory jurisdiction
grant the order of certiorari to
quash the entire proceedings and
all orders relative to the
application. I would further
order the contempt application
to be placed before the judge
originally seized with
jurisdiction, Mrs Justice
Owusu-Arhin, sitting at Court
11, for the matter to be heard
de novo.
G.T. WOOD (MRS)
CHIEF JUSTICE
F. Y. KPEGAH
JUSTICE OF THE SUPREME COURT
W.A. ATUGUBA
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME COURT
S.O.A. ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT
COUNSEL:
A. G. Boadu for the Respondents.
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