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RULING
DR. DATE-BAH JSC:
The Facts
What is in issue in this suit is
the jurisdiction of the High
Court to hear a fresh action
challenging an aspect of a
consent judgment entered by a
court of coordinate
jurisdiction. The applicant
bank brought action in the
Commercial Division of the High
Court against the interested
parties in this suit in respect
of a loan transaction. The
parties to that suit agreed to
settle their dispute and their
agreement was embodied in a
consent judgment of the
Commercial Division of the High
Court. Subsequently, a dispute
arose between the parties as to
an aspect of that consent
judgment. The writ which had
commenced the suit that had been
settled was indorsed with claims
for: (a) the sum of
1,381,279,658.17 cedis, being
loan and overdraft facility
granted to the first defendant
and guaranteed by the second,
third and fourth defendants; (b)
interest on the sum of
1,381,279,658.17 from 5th
November 2004 until date of
final payment. Thus, the
indorsement did not indicate the
rate of interest claimed by the
plaintiff. The consent
judgment, similarly, did not
specify an interest rate,
although it modified the
duration of the period for the
payment of interest to end on
the date of judgment, namely,
the 20th day of June
2006. This non-specification of
an interest rate was to be the
source of misunderstanding
between the parties to the
consent judgment.
The applicant bank, in its
capacity as plaintiff in the
original suit described above,
had applied for summary judgment
and, after negotiations with the
interested parties, the
compromise it reached with them
was entered as a consent
judgment by the trial judge.
However, the judgment creditor
bank, on filing the entry of
judgment after trial, entered
details regarding the interest
rate which the interested
parties have found
unacceptable. The entry of
judgment after trial, in
addition to claiming the
principal sum, also entered
judgment for
b.
“interest on the said sum at the
current bank rate from 5th
November 2005 to day of judgment
20th June 2006
(interest at 35% p.a.).
c.
Endorsed to levy interest at the
contractual rate from 20th
June, 2006 to date of final
payment.”
It is this entry of judgment
which is the genesis of the
further litigation an aspect of
which is now before this court.
The interested parties, being
dissatisfied with the rate of
interest embodied in the entry
of judgment, initially brought a
motion before the trial judge to
set aside the consent judgment
on account of the dispute as to
the applicable rate of
interest. The trial judge
refused to set the judgment
aside because, in her view, a
consent judgment once entered
cannot be unilaterally varied by
one party. The learned trial
judge relied on Guardian
Assurance Co. v Bridi [1975]
2GLR 387 to reach this result.
The interested parties, taking a
cue from the opinion of
Sarkodie-Addo J. in that case,
brought a fresh action against
the applicant, on 21st
December 2007, claiming:
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“That the portion of the
Judgment of the Commercial
Court in Suit No.
BFS/36/2005 granting the
Defendants herein interest
at the rate of 35% per annum
be set aside
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A declaration that the
Debenture is manifestly
disadvantageous to the
Defendant
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An order that the interest
rate in the said Debenture
be reviewed to reflect the
current interest rates on
the money market in Ghana.”
It is the jurisdiction of the
High Court to entertain this
writ which is at the heart of
the application before this
Court. The applicant initially
made an application to the High
Court (Commercial Division),
seeking the dismissal of the
action on the ground that it was
an abuse of the judicial
process, since the High Court
had already ruled on the
matter. Her Ladyship Torkornoo
J. dismissed this application,
explaining that the High Court
becomes functus officio
only in relation to matters that
it had already dealt with. She
was of the view that the entry
of judgment filed was a manifest
misrepresentation of the
agreement reached by the parties
and which had been recorded by
her sister in her ruling of 20th
June 2006. Accordingly, she
dismissed the application in a
ruling dated 28th
February 2008.
Dissatisfied with that outcome,
the applicant bank has filed the
present application seeking to
invoke the supervisory
jurisdiction of the Supreme
Court over the court below for
an order of certiorari to quash
the ruling of the learned trial
judge dated 28th
February 2008 and prohibiting
her from continuing with
proceedings in this suit. The
ground on which this application
has been brought is that the
High Court has no jurisdiction
to entertain the interested
parties’ fresh action, since to
allow the court below to
exercise jurisdiction would mean
the High Court would effectively
be sitting in judgment over the
final judgment and rulings of
another High Court of
co-ordinate jurisdiction.
The Law
The current law on when the
prerogative writs will be
available from the Supreme Court
to supervise the superior courts
in respect of their errors of
law was restated and then
fine-tuned in the Republic v
High Court Accra, Ex Parte CHRAJ
[2003-2004] SCGLR 1 and
Republic v Court of Appeal,
Ex Parte Tsatsu Tsikata
[2005-2006] SCGLR 612,
respectively. In my view, the
combined effect of these two
authorities results in a
statement of the law which is
desirable and should be
re-affirmed. This Court should
endeavour not to backslide into
excessive supervisory
intervention over the High Court
in relation to its errors of
law. Appeals are better suited
for resolving errors of law. In
the Ex Parte CHRAJ case,
this Court, speaking through me,
sought to reset the clock on
this aspect of the law as
follows:
“The Ruling of this Court in
this case, it is hoped, provides
a response to the above
invitation to restate the law on
this matter. The restatement of
the law may be summarised as
follows: where the High Court
(or for that matter the Court of
Appeal) makes a
non-jurisdictional error of law
which is not patent on the face
of the record (within the
meaning already discussed), the
avenue for redress open to an
aggrieved party is an appeal,
not judicial review. In this
regard, an error of law made by
the High Court or the Court of
Appeal is not to be regarded as
taking the judge outside the
court’s jurisdiction, unless the
court has acted ultra vires the
Constitution or an express
statutory restriction validly
imposed on it. To the extent
that this restatement of the law
is inconsistent with any
previous decision of this
Supreme Court, this Court should
be regarded as departing from
its previous decision or
decisions concerned, pursuant to
Article 129(3) of the 1992
Constitution. Any previous
decisions of other courts
inconsistent with this
restatement are overruled.”
In the the Ex Parte Tsatsu
Tsikata case, Wood JSC, as
she then was, said (at p. 619 of
the Report):
“The clear thinking of this
court is that, our supervisory
jurisdiction under article 132
of the 1992 Constitution, should
be exercised only in those
manifestly plain and obvious
cases, where there are patent
errors of law on the face of the
record, which errors either go
to jurisdiction or are so plain
as to make the impugned decision
a complete nullity. It stands
to reason then, that the
error(s) of law alleged must be
fundamental, substantial,
material, grave or so serious as
to go to the root of the
matter. The error of law must
be one on which the decision
depends. A minor, trifling,
inconsequential or unimportant
error, or for that matter an
error which does not go to the
core or root of the decision
complained of; or stated
differently, on which the
decision does not turn, would
not attract the court’s
supervisory jurisdiction.”
The combined effect of these two
authorities, it seems to me, is
that even where a High Court
makes a non-jurisdictional error
which is patent on the face of
the record, it will not be a
ground for the exercise of the
supervisory jurisdiction of this
court unless the error is
fundamental. Only fundamental
non-jurisdictional error can
found the exercise of this
court’s supervisory
jurisdiction. The issue which
arises, on the facts of this
case then, is whether the trial
High Court either committed a
jurisdictional error or made a
non-jurisdictional error which
is so fundamental as to attract
the supervisory jurisdiction of
this court.
The applicant’s argument is that
the High Court has no
jurisdiction to entertain the
action in respect of which it
has invoked this Court’s
jurisdiction. Its argument is
that a High Court cannot
exercise jurisdiction over
another High Court to set aside
its consent judgment. However,
given that an appeal will not
ordinarily lie against a consent
judgment, the bringing of a
fresh action to challenge the
validity of a consent judgment
is a standard and accepted
procedure. Indeed, in Emeris
v Woodward (1889) 43 Ch.D.
185 North J held that it was
only through fresh proceedings
that a consent order could be
set aside. In that action he
dismissed an attempt to set
aside an agreement for the
compromise of an action by
summons issued in the original
action. He said (at p. 186 of
the Report):
“I think that the Plaintiff’s
proper course is to bring a new
action to set aside the
compromise, and that he cannot
by means of a summons set aside
the agreement and re-open the
controversy.”
This principle was also affirmed
in Ainsworth v Wilding
[1896] 1 Ch. 673, where Romer
J., as he then was, explained
that (at pp. 676-7 of the
Report) that:
“The Court has no jurisdiction,
after the judgment at the trial
has been passed and entered, to
rehear the case. That is
clear. Formerly the Court of
Chancery had power to rehear
cases which had been tried
before it even after the decree
had been entered; but that is
not since the Judicature Acts.”
At first sight, then, the
exercise by the High Court of
its jurisdiction in such
circumstances would not appear
to be erroneous. The main issue
is whether the Interested
Parties’ action in the High
Court falls within the
parameters for an action
challenging a consent judgment.
Wilding v Sanderson
[1897] 2 Ch. 534 is an
illustrative case. In that
case, there was an action in the
High Court to rectify or set
aside a consent judgment, on the
ground of mistake. The Court of
Appeal held that the consent
judgment, as drawn up, was so
worded as to go far beyond what
was agreed and decided in the
judgment given. The court
therefore upheld the decision of
a trial High Court judge in an
action subsequent to that in
which the consent judgment had
been given, in which the trial
judge set aside the consent
judgment. Lindley LJ said (at
p. 550 of the Report) that a
consent order based on, and
intended to carry out, an
agreement concluded between the
parties ought to be treated as
an agreement which could be set
aside on any ground on which an
agreement in the terms of the
order could be set aside.
Similarly, in Huddersfield
Banking Company Ltd. v Henry
Lister & Son Ltd. [1895] 2
Ch. D 273, a consent order was
set aside by Vaughan Williams J.
(as he then was) on the ground
of common mistake, in a
proceeding that was initiated by
a fresh writ. The learned trial
judge had earlier refused to set
the consent order aside in
proceedings initiated by
motion. This is what he said
(at p. 276 of the Report):
“When this matter was brought
before me on motion, I thought
that the authorities prevented
me from putting the matter right
on an application in that form,
and I am still of the same
opinion. But, now that an
action has been brought and the
technical difficulty has been
removed, it seems to me that the
clear result of the authorities
is that, notwithstanding the
consent order has been drawn up
and completed, and acted upon to
the extent that the property has
been sold and the money has been
paid into the hands of the
receiver, I may now set aside
the order and arrangement upon
any ground which would justify
me in setting aside an agreement
entered into between the
parties.”
The trial judge’s order setting
aside the consent order was
confirmed on appeal. In
confirming the order Lindley LJ
declared (at p. 280 of the
Report):
“…the appellants contend that
there is no jurisdiction to set
aside the consent order upon
such materials as we have to
deal with; and they go so far as
to say that a consent order can
only be set aside on the ground
of fraud. I dissent from that
proposition entirely. A consent
order, I agree, is an order; and
so long as it stands it must be
treated as such, and so long as
it stands I think it is as good
an estoppel as any other order.
I have not the slightest doubt
on that; nor have I the
slightest doubt that a consent
order can be impeached, not only
on the ground of fraud, but upon
any grounds which invalidate the
agreement it expresses in a more
formal way than usual.”
These two cases were followed by
Owusu-Addo J. in Guardian
Assurance Co. Ltd. v Bridi
[1975] 2 GLR 387 to set aside,
on the ground of mistake, a
portion of a consent judgment
entered by the High Court,
Kumasi. Owusu-Addo J held that:
“I am fully satisfied that the
clear result of the authorities
and the law is such that
notwithstanding the consent
judgment having been given and
completed, this court has ample
jurisdiction to set it aside
upon any ground which would
entitle it to set aside an
agreement entered into between
the parties on the ground of
mistake.”
This Court is, of course, not
bound to follow this decision of
the High Court, nor of the
English courts. However, they
are sound in principle and there
is no good reason for declining
to follow their persuasive
authority. Vaughan William J
expressed the principle in issue
here well when he said in the
Huddersfield Banking Company
Ltd. case that ([1895] 2 Ch.
273 at p. 275):
“…it seems to me that the law
would be in a very lamentable
condition if an order and
arrangement based upon such a
mistake could not be put right
by the Court,…”
The way of putting the mistake
right cannot be an appeal since
there are sound policy reasons
why an appeal does not, and
should not, lie against a
consent judgment. Where parties
have themselves voluntarily
reached an agreement resolving
their dispute, the advantage of
this course of action should be
that they are saved from the
vagaries of the extended appeal
process. Their agreement should
be treated as final, in the
absence of any vitiating
factors. The absence of an
opportunity to appeal should
not, however, mean that the
judicial process should ignore a
factor such as fraud or mistake
that vitiates the agreement
embodied in the consent
judgment. A fresh action to
establish the fraud, mistake or
other vitiating factor seems a
reasonable procedure for
achieving justice in the
circumstances.
Application of the Law to the
Facts
It is not for this court to
determine whether the
circumstances have been
established which justify the
setting aside of any aspect of
the consent order of 16th
June 2006. That is an issue
that a co-ordinate High Court
will have to determine. What is
clear from the authorities
discussed above is that the
court below has not committed
any jurisdictional error or
fundamental non-jurisdictional
error patent on the face of the
record such as would merit the
supervisory intervention of this
Court. The High Court was not
in error in asserting
jurisdiction to enable the
interested parties to establish
whether there was mistake or
other vitiating factor affecting
the consent order or any part of
it such that it was justifiable
to set aside a portion of the
order. Consequently, the ruling
of the learned trial judge, Her
Ladyship Torkornoo J, dismissing
the applicant’s motion seeking
the dismissal of the interested
parties’ fresh action is not a
nullity and certiorari
does not lie to quash it.
Neither will prohibition lie to
prevent the learned trial judge
continuing to hear the
interested parties’ fresh
action.
S.K. DATE-BAH
(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)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
COUNSEL
REBECCA BOAKYE FOR THE APPLICANT
EBOW BROWN FOR THE INTERESTED
PARTY
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