|
Supreme Court
- Invoking the supervisory
jurisdiction of the Supreme
Court - Certiorari and
prohibition – Newly created
District Assembly - Capital of
the new District Assembly -
Discharge of duties – Assembly
man - Application filed out of
time - Notice of Discontinuance
- article 130 (1) (b) of the
Constitution 1992 - Rule 62 of
the Supreme Court Rules, 1996,
C. I. 16,
HEADNOTES
The Minster
of Local Government, pursuant to
the Local Government (Biakoye
District Assembly)
(Establishment) Instrument, 2007
(L.I.1910) carved out some 27
electoral areas from the then
existing Jasikan District, to
form the nucleus of the newly
created Biakoye District, a
declaration that the creation
and establishment by Executive
and Legislative instruments of a
Biakoye District and District
Assembly together with the
naming of Nkonya/Nkonya Ahenkro
as its District Capital without
prior consultations with the
Electoral Commission, the 1st
Respondent herein, and
constituent stakeholders is in
breach of mandatory legal
requirements as contained in the
Local Government Act, 1993 (Act
462) and therefore illegal and a
nullity in law However, the
Interested Parties on the 13th
May, 2009 obtained another order
of interlocutory injunction and
is in the following terms:
“It is hereby ordered that
the Respondents herein, whether
acting by themselves or by their
agents, employees and officials
or other responsible or allied
departments and agencies of
government, including
particularly the Ministry of
Local Government and Rural
Development and the Volta
Regional Co-ordinating Council
be and are hereby restrained The
Applicants therefore contend
that, even though they are not
parties to the suit, the grant
and operation of the orders of
the Court since 13th
May, 2009 has disabled them from
discharging their duties as
Assembly members.
HELD
The position
can therefore be authoritatively
stated that where the alleged
wrong conduct or behavior
complained about, has by
effluxion of time been resolved
or lapsed and it is also clear
that the said issue will not
re-occur again, and even if it
does, it will not call for a
determination in the forum and
manner in which it has been
instituted, the said issue must
to all intents and purposes be
considered and declared moot.
This is because the courts
should be seen to be dealing
with live issues of law that
will give direction, meaning and
effect to general societal
behavior but not dealing with
dead and buried issues which
have no hope of life.
Save for the decision
of the court on the preliminary
legal objection, the application
itself is struck out on the
grounds that it is moot.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
Local
Government (Biakoye District
Assembly) (Establishment)
Instrument, 2007 (L.I.1910)
Local
Government Act, 1993 (Act 426)
Supreme Court
Rules, 1996, C. I. 16,
CASES
REFERRED TO IN JUDGMENT
Republic vrs
High Court, Kumasi, Ex-parte
Mobil Oil (Ghana) Ltd, (Hagan -
Interested Party) [2005-2006]
SCGLR 312
The Republic
vrs Automated Fast Track High
Court, No. 4, Accra, Ex-parte
State Housing Company
Limited-Applicant, Mrs Dinah
Koranten Amoako – Interested
Party, dated 26th
February 2009
J. H. Mensah
vrs Attorney-General, [1996-97]
SCGLR 321
US vrs Concentrated Phosphate Exp.
Assn 393 US 201 and
US vrs WT Grant & Co. 345 US 629
Amidu vrs President Kufuor [2001 –
2002] SCGLR 86
Bimpong Buta vrs General Legal
Council & others [2003-2004]
SCGLR 1200
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
DOTSE, JSC:-
COUNSEL
JOHN A.
NDEBUGRE ESQ. FOR THE
APPLICANTS.
AKWASI
BOSOMPEM ESQ. FOR THE INTERESTED
PARTIES.
CLARENCE
KUWORNU C.S.A. FOR THE 1ST,
THIRD PARTY.
______________________________________________________________________
R U L I N
G
______________________________________________________________________
DOTSE, JSC:-
On the 15th day of June,
2009, the Applicants herein,
describing themselves variously
as the elected Assembly members
for the Tepo, Tepa-Manya,
Akposo-Kabo and Bowiri Amanfrom
electoral areas in the Jasikan
District of the Volta Region of
the Republic of Ghana
respectively, brought the
instant application seeking to
invoke
the supervisory jurisdiction of
the Supreme Court for
certiorari and prohibition
directed at the High Court Accra
then presided over by Mrs.
Justice Agyeman Bempah for the
following reliefs:
i.
To quash the order of
interlocutory injunction of the
court dated 13th day
of May, 2009 as well as other
proceedings giving rise thereto,
and
ii.
To prohibit the said High Court
from continuing to exercise
jurisdiction in the suit in
which the order of interlocutory
injunction was made, namely suit
No. BMISC. 373/2008 titled
Daasabre Asare Baah III and four
others vrs. The Attorney-General
and Another.
The grounds upon which the
application has been based can
briefly be summarized as
follows:-
1.
That the High Court ordinarily
has no JURISDICTION to strike
down legislation as illegal or
void having regard to the
provisions of
article
130 (1) (b) of the Constitution
1992.
2.
That accordingly, the High Court
lacks jurisdiction to hear and
determine Suit No. BMISC.
373/2008 intituled
Daasebre Asare Baah III and four
others vrs The Attorney General
and Another.
3.
That not having any jurisdiction
in the matter, the orders made
and contained in the
interlocutory injunction orders
of 13th May, 2009 and
attached to these proceedings as
exhibit A were made ultra vires
the powers of the High Court.
4.
That the High Court has wrongly
assumed jurisdiction in the
matter and ought to be prevented
from continuing with the case by
the orders of prohibition.
It is therefore clear that
jurisdiction is at the core of
the grounds for bringing the
application.
WHAT ARE THE FACTS OF THE CASE
The Minster
of Local Government, pursuant to
the Local Government (Biakoye
District Assembly)
(Establishment) Instrument, 2007
(L.I.1910) carved out some 27
electoral areas from the then
existing Jasikan District, to
form the nucleus of the
newly created
BIAKOYE
DISTRICT.
The electoral areas from which the
Applicants herein represent as
Assembly men, namely Tepo,
Tapa-Manya, Akposo-Kabo and
Bowiri Amanfrom form part of the
27 electoral areas that
constitute the new BIAKOYE
District. It was alleged that
Nkonya-Ahenkro had been named as
the
capital of the new District.
Aggrieved by the decision of the
Minister for local Government in
naming Nkonya as the District
Capital, the interested parties
herein, therein plaintiffs on
the 13th day of
February, 2008 issued a writ of
summons in the High Court, Accra
claiming the following:
a.
A declaration that the purported
creation of a Biakoye District
Assembly (L.I. 1910) in so far
as it names ”Nkonya Ahenko” is
in breach of the Local
Government Act, 1993 (Act 426)
and therefore is illegal.
The interested parties subsequently
amended their writ of summons on
the 28th February,
2008, by which they now claim as
follows:-
i.
A declaration that the creation
and establishment by Executive
and Legislative instruments of a
Biakoye District and District
Assembly together with the
naming of Nkonya/Nkonya Ahenkro
as its District Capital without
prior consultations with the
Electoral Commission, the 1st
Respondent herein, and
constituent stakeholders is in
breach of mandatory legal
requirements as contained in the
Local Government Act, 1993 (Act
462) and therefore illegal and a
nullity in law.
ii.
Consequential or further orders.
Consequent to the above, the
interested parties herein on the
4th of March, 2008
successfully obtained an
interlocutory injunction by
which the 1st
Defendant therein, herein 1st
Third Party was restrained from
inaugurating the newly created
Biakoye District Assembly until
the final determination of the
suit.
It should be noted that, all this
while, the Applicants herein had
neither been made parties to the
suit nor had any application
served on them directly.
However,
the Interested Parties on the 13th
May, 2009 obtained another order
of interlocutory injunction and
is in the following terms:
“It is hereby
ordered that the Respondents
herein, whether acting by
themselves or by their agents,
employees and officials or other
responsible or allied
departments and agencies of
government, including
particularly the Ministry of
Local Government and Rural
Development and the Volta
Regional Co-ordinating Council
be and are hereby restrained
from:
a.
Inducting or causing to be
inducted into office members of
the Biakoye District Assembly
b.
Causing to be elected or
approved and inducted into
office a presiding member for
the Biakoye District Assembly,
c.
Causing to be elected or
constituted and inducted into
office members of the Executive
Committee and Sectoral
sub-Committees thereof for the
Biakoye District Assembly.
d.
Causing to be elected or
approved and inducted into
office District Chief Executive
for the said District Assembly
and
e.
Causing generally the said
District Assembly to function or
operate in any way, manner or
form whatsoever”.
The
Applicants therefore contend
that, even though they are not
parties to the suit, the grant
and operation of the orders of
the Court since 13th
May, 2009 has disabled them from
discharging their duties as
Assembly members.
Contending that it is only this
Supreme Court that has
jurisdiction under the
Constitution 1992 to strike down
any law in Ghana as being in
breach of another law or
constitutional provision, the
Applicants filed the instant
application invoking the
supervisory jurisdiction of the
Court for certiorari and
prohibition to issue quashing
the orders of 13/5/2009 and
prohibiting the said High Court
from continuing with the hearing
of the suit any further.
After all the affected parties had
been served and responded, and
upon the reception of arguments,
in this Court, learned Counsel
for the interested parties,
Akwasi Bosompem raised a
preliminary legal objection
pursuant to the notice filed on
17/7/2009.
PRELIMINARY LEGAL OBJECTION
Learned Counsel for the interested
parties contended that pursuant
to Rule
62 of the Supreme Court Rules,
1996, C. I. 16, any
application to invoke the
supervisory jurisdiction of the
Supreme Court ought to be filed
within 90 days. Rule 62 of the
Supreme court Rules, C. I. 16
provides as follows:
“An
application to invoke the
supervisory jurisdiction of the
Court shall be filed within 90
days of the date when the
grounds for the application
first arose unless the time is
extended by the Court”.
Computing time from the date of the
grant of the first interlocutory
injunction on 4th
March, 2008, learned Counsel for
the Interested Parties contended
that the instant application had
been brought after 19 months
when the matter first arose.
This according to learned
Counsel is in clear breach of
Rule 62 of C. I. 16 referred to
supra. Learned Counsel therefore
contended that the
application had been filed out
of time and is therefore
incompetent and prayed that it
be dismissed in limine.
The brief but incisive response of
learned counsel for the
Applicants, Mr. John Ndebugre is
to the effect that the parent
suit and the earlier
interlocutory application save
the one granted on 13/5/2009 did
not affect the Applicants as
parties and in any case they
were not served with any orders
from the Court to apprise them
of the pendency of the suit and
the order of injunction.
According to learned Counsel for the
Applicants, it was after the
grant of the order of injunction
on 13/5/2009 and its subsequent
effect on the Applicants, that a
new cause of action arose as
from that date.
That being the contention, this
application filed on 15/6/2009
is well within the 90 day
requirement of rule 62 of C. I.
16.
Counsel further submitted that the
filing of the instant
application does not amount to a
nullity but at worst an
irregularity which can be cured
by Rule 79 of C. I. 16 by which
the Court is empowered to waive
non-compliance with the rules of
procedure.
Whilst conceding to the submissions
that the Applicants were not
parties to the original suit,
learned Counsel for the
Interested Parties submitted
that they were nonetheless
served since they were affected
by the operations of the orders
granted. Learned Counsel
accordingly sought an
adjournment to supply the
necessary information to the
court.
On the adjourned date, instead of
providing documentary evidence
that the Applicants were served
with the orders of this Court
made prior to 13/5/2009, learned
Counsel for the Interested
Parties relied on depositions
contained in an affidavit filed
by the Applicants herein, in
another pending suit before this
court, Suit No. J1/8/2009
intituled Daasebre Nana
Asare Baah III & Others vrs
Attorney General and Another.
That application is one for the
joinder of the Applicants herein
to the above suit as Defendants.
In the supporting affidavit,
sworn to by the 1st
Applicant herein, some
depositions to the following
effect have been made and since
they formed the bases of the
corresponding linkage that
learned Counsel for the
Interested Party seeks to draw
between this Application and
that case, we will set them out
in extenso for their full force
and effect:
1.
“That I am the Assembly member
for the Tepo Electoral Area and
was elected as such on the 26th
September, 2006”
4
“That the 2nd, 3rd
and 4th Applicants
herein are the respective
Assembly members for the Tapa
Manya, Akposo-Kabo and Bowiri
Amanfrom Electoral Areas and
were all elected as such on the
26th September, 2006”
8. That a
meeting was scheduled for the 29th
February, 2008 to inaugurate the
new Biakoye District Assembly
and possibly to inter alia,
induct us into office as members
thereof.
9. That
even though the meeting
mentioned in paragraph 8 supra
was held, the new Assembly could
not be inaugurated because the 1st,
2nd, 3rd
and 5th,
Plaintiffs/Respondents herein
had issued out of the High Court
a writ of summons and filed a
motion against the Defendants
herein praying for an order for
interlocutory injunction against
the inauguration thereof (see
annexed hereto copies of the
writ of summons and motion for
interlocutory injunction
respectively marked as Exhibits
“B” and “C”).
10.That the
aforementioned interlocutory
injunction was granted on the 4th
March, 2008 (see annexed hereto
a copy thereof marked exhibit D)
11. That the
effect of exhibits “B”, “C”, and
“D” was to frustrate us in the
performance of our functions and
to undermine the development of
the twenty seven electoral Areas
aforesaid.
12.”That the
1st, 2nd
and 3rd and 5th
Plaintiffs, Respondents herein
did again on the 13th
May, 2009 apply for and did
obtain another order for
interlocutory injunction
but this time directly against
our being inducted into office
as members of the Biakoye
District Assembly among other
restraints (see annexed
hereto a copy of the said order
marked exhibit E)”
The above depositions to us
represent a chronology of events
as they happened in this case.
As far as we are concerned, the
depositions are sequence of
events from the deponents point
of view long after they occurred
and as they have become known to
the deponents. This sequence of
events, cannot be substituted
for proof of service that the
Applicants were really served.
We are firmly settled in our minds
that, the depositions referred
to by the Interested Parties in
the affidavit of the Applicants
referred to supra, in
substitution to a properly
conducted search, evidencing
proof of service of the process
emanating from this Court before
13/5/2009 as having been duly
served on the Applicants has not
been properly made out. As a
result, we fail to appreciate
the nexus that the Interested
Parties sought to create.
We are therefore of the view that,
short of a clear document
evidencing that the Applicants
had been served prior to the
grant of the orders of 13/5/2009
the preliminary legal objection
raised by the Interested Parties
must fail.
We find support in the decision we
have reached from the recent
decision of the Supreme Court in
Republic vrs High Court, Kumasi,
Ex-parte Mobil Oil (Ghana) Ltd,
(Hagan - Interested Party)
[2005-2006] SCGLR 312,
where the court spoke with one
voice through Dr. Twum JSc as
follows:
“with the
amendment effected by C. I. 24,
the time limit within which an
application to invoke the
supervisory jurisdiction of the
Court may be filed is determined
by reference to the date when
the grounds for the application
first arose and not the date of
the decision against which the
jurisdiction is invoked. It is
possible the two bases of
reckoning may achieve the same
result in a few cases but it is
most probable that a different
time limit will be determined if
the amended rule 62 is used”
Wood JSC (as she then was) stating
her observations in the same
ex-parte Mobil case
referred to supra, put the
matter beyond per adventure in
the following words:-
“It follows
that until it has become firmly
established that a Judge has
been entrusted with the actual
hearing of a case under
consideration, and that he or
she has evinced a clear
intention not to disqualify
himself or herself, when matters
which call for his or her
recusance are brought to his or
her attention or formal
objections are raised as to his
or her impartiality…”
In the instant case, the High Court
Accra had been handling this
case since its initiation before
the said Court. The Applicants
herein were only alerted and put
on the enquiry after the service
on them of the Court processes
dated 13/5/2009. From an
examination of the cases on the
subject, it is clear that the
circumstances under which time
will begin to run for the
purposes of invocation of this
Courts jurisdiction under rule
62 of C. I. 16 are the
following:
1.
When the Court can positively
ascertain from processes before
it that an Applicant who not
being a party to the initial
proceedings was nonetheless
aware of the pendency of the
proceedings and therefore the
grounds for the application
could be deemed to have first
arisen, and
2.
When the lack or excess of
jurisdiction or objection of any
kind is raised before the trial
court and after determining the
issue the court assumes
jurisdiction.
These issues were addressed by the
Supreme Court, speaking
authoritatively with one voice
through Wood C.J when she stated
in the unreported case of
The
Republic vrs Automated Fast
Track High Court, No. 4, Accra,
Ex-parte State Housing Company
Limited-Applicant, Mrs Dinah
Koranten Amoako – Interested
Party, dated 26th
February 2009, as follows:
“It does
appear to me then that
ordinarily, a Judge’s first
conclusive claim to
jurisdiction, whether express or
implied, is the date of the
decision that he or she does
indeed have jurisdiction, not
the date on which an objection,
if any, whether formal or
informal is raised. I would not
make the date on which the
objection is raised the
reference point, the reason
being that even when a formal
legal objection to jurisdiction
is raised, under normal
circumstances, the Judge must
assume jurisdiction to determine
that jurisdictional question.
The date the Judge proceeds to
hear and determine that
jurisdictional question then
cannot be the reference point,
but the date on which the Judge
rules that he or she has
jurisdiction and perhaps
proceeds to exercise it. Even
so, I hesitate to present this
as the inflexible rule of law”.
It follows then that there cannot be
any hard and fast rule about the
commencement date of when the
grounds for the application
first arose, since this has to
be decided on a case by case
basis taking the prevailing
circumstances of each case into
consideration.
If the Applicants had raised the
issue of lack of jurisdiction on
the part of the High Court to
hear and determine the suit
pending before it, the date when
the grounds for invoking the
certiorari application first
arose would have been the date
the Court decided to assume
jurisdiction and proceeded with
the case.
In the instant case, there is
evidence that it was after the
orders of 13/5/2009 were brought
to the attention of the
Applicants that they invoked the
supervisory jurisdiction of this
court on 15/6/2009 to quash the
decision and orders made by the
Court and prohibit it from
continuing to hear the matter.
Having computed time from the
15/6/2009 when this application
was filed up to 13/5/2009 when
the order complained of was
made, we are of the opinion that
the instant application had been
filed within the remit of rule
62 of the Supreme Court Rules
1996, C. I. 16. The preliminary
objection is accordingly
dismissed as being without
merit.
ISSUE OF APPLICATION BEING MOOT
We would have proceeded to deal with
the merits of the substantive
application and grant same, but
it appears the application CM
J5/26/09 is now moot, for the
following reasons:
1.
On the 21/7/2009 the Interested
Parties herein, therein
plaintiff’s, instituted writ No
J1/8/09 against the Third
Parties herein, therein
Defendants claiming the
following reliefs in the Supreme
Court:
i.
A Declaration that the purported
declaration by the President of
Ghana of a Biakoye District by
E. I. 11 of 2007 is a nullity in
law by reason of failure by the
President to direct the
Electoral Commission to conduct
a study and also to receive the
findings and recommendations of
such a study for his
consideration before declaring
the said new District in breach
of Section 1 of the Local
Government Act, 1993 (Act 462).
ii.
A Declaration that L. I. 1910
purporting to establish a
Biakoye District Assembly
together with the naming of
Nkonya Ahenkro as the capital is
a nullity in law by reason of
the grounds of law contained in
Relief 1 supra coupled with the
fact that there was no
antecedent gazette notification
thereof in breach of the law.
iii.
An order striking down or
otherwise nullifying E. I. 11 of
2007 and L. I. 1910 of 2008.
iv.
An order of injunction
restraining the Defendants
herein together with other
departments and agencies of
government such as the Ministry
of Local Government and Volta
Region Co-ordinating Council and
their officials from
inaugurating or operationalising
in any way whatever a Biakoye
District Assembly by virtue of
the Executive and Legislative
Instruments aforementioned.
v.
Consequential or further Orders.
2.
Secondly, on the 25/1/2010, the
Interested Parties herein, again
filed a process titled “Notice
of Discontinuance”
by which an indication is given
that as plaintiffs, the
Interested Parties have since
22/12/2009 wholly discontinued
their suit, at the High Court
which formed the basis of the
Applicants invocation of the
supervisory jurisdiction of this
Court.
This issue of mootness has been
discussed in a number of
judicial decisions. It is
therefore pertinent at this
stage to refer to some of them
to support and give validity to
the decision we have come to
that, the substantive
application is now moot.
1. In
the case of
J.
H. Mensah vrs Attorney-General,
[1996-97] SCGLR 321
holding 1,
the Supreme Court determined the
principles guiding the courts in
refusing to decide moot
questions. It was held by the
court as follows:
“If the
question, though moot, was
certainly not likely to
re-occur, the courts would not
waste their time to determine
questions and issues. Thus for
the court to decline deciding a
moot question, it must be
established that subsequent
events had made it absolutely
clear that the alleged wrong
behavior could not reasonably be
expected to occur. Where it was
not so established (as in the
instant case) the court would go
into the questions to forestall
a multiplicity of suits”.
In this regard, the Court stated
that it was following the
decisions in the cases of
i.
US vrs
Concentrated Phosphate Exp. Assn
393 US 201 and
ii.
US vrs WT Grant & Co. 345 US 629
2.
The Supreme Court again followed
up with another decision in the
case of
Amidu vrs President Kufuor
[2001 – 2002] SCGLR 86,
where the Court per Acquah JSC
as he then was at page 107
stated and expatiated on the
issue of mootness as follows:
“In Ghana,
this court in J.H.Mensah vrs
Attorney General relying on
the US vrs Concentrated
Phosphate Exp. Assn and US vrs
WT Grant, (both already
referred to supra), held that if
the question, was certainly not
likely to re-occur, the court
would not waste their time to
determine dead questions and
issues. And therefore the court
to decline deciding a moot
question, it must be established
that subsequent events had made
it absolutely clear that the
alleged wrong behavior could not
reasonably be expected to occur”
3.
See also
Bimpong Buta vrs General
Legal Council & others
[2003-2004] SCGLR 1200
at 1222 where Sophia
Akuffo JSC stated thus:-
“In any
event, since the third defendant
has ceased to be an employee of
the first defendant by
voluntarily retiring from the
services of the first defendant,
(General Legal Council), in the
course of these proceedings, how
can we now make the declaration
sought against him and the first
defendant or grant the orders of
perpetual injunction claimed”?
It is therefore clear that the
courts will not countenance an
issue that is moot and has been
considered as not re-occurring
again.
The decision in the instant case
that the substantive application
is moot has been amply supported
by the decisions referred to
supra.
This is because, it was the
contention of the Applicants
herein that the reliefs claimed
by the Interested Parties in the
suit at the High Court called
for interpretation of a
constitutional provision
vis-à-vis a statutory and
subsidiary legislation.
The Applicants contended further
that it is this Supreme Court,
and not the High Court that has
original jurisdiction in such
matters. The interested parties,
by discontinuing this suit in
the High Court, and having
commenced a fresh suit in the
proper forum, the Supreme Court,
it is clear that the issues
involved in this case will not
re-occur again. It is for this
reason that we are of the
considered opinion that the
determination of the substantive
application is moot and the
court will not waste time in
dealing with a dead matter.
The position
can therefore be authoritatively
stated that where the alleged
wrong conduct or behavior
complained about, has by
effluxion of time been resolved
or lapsed and it is also clear
that the said issue will not
re-occur again, and even if it
does, it will not call for a
determination in the forum and
manner in which it has been
instituted, the said issue must
to all intents and purposes be
considered and declared moot.
This is because the courts
should be seen to be dealing
with live issues of law that
will give direction, meaning and
effect to general societal
behavior but not dealing with
dead and buried issues which
have no hope of life.
Save for the decision of the court
on the preliminary legal
objection, the application
itself is struck out on the
grounds that it is moot.
J.V.M. DOTSE
JUSTICE OF
THE SUPREME COURT
G. T. WOOD
(MRS)
CHIEF JUSTICE
J. ANSAH
JUSTICE OF
THE SUPREME COURT
R. C. OWUSU
(MS)
JUSTICE OF
THE SUPREME COURT
ANIN YEBOAH
JUSTICE OF
THE SUPREME COURT
COUNSEL:
JOHN A.
NDEBUGRE ESQ. FOR THE
APPLICANTS.
AKWASI
BOSOMPEM ESQ. FOR THE INTERESTED
PARTIES.
CLARENCE
KUWORNU C.S.A. FOR THE 1ST,
THIRD PARTY. |
