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RULING
AFREH, J.S.C.:
This is an application for an
order of certiorari directed to
the High Court, Accra presided
over by Nana Gyamera-Tawiah, J,
to quash its judgment given on
29th January, 2001 in the suit
entitled Jupiter Airlines vrs.
Continental Cargo and Trade
Service Inc., Suit No. MISC
258/2000.
The only ground for the
application is that the judgment
is null and void because the
court lacked jurisdiction in the
suit the subject matter of this
application.
The main reason for this
contention is that both the
Plaintiff and the Defendant in
the suit sought to be quashed
were outside the jurisdiction of
the court and the alleged
contract for sale as well as the
subject matter of the sale, an
aeroplane, also were all outside
the jurisdiction and had no
connection with Ghana.
The interested party has raised
a preliminary objection to the
application. His reason is that
the application is woefully out
of time: the judgment sought to
be quashed was delivered on 29th
January, 2001; and the instant
application was filed on 15th
May, 2002, some 15 months
later. Rule 62 of the Supreme
Court Rules, C.I. 16, requires
that an application to invoke
the supervisory jurisdiction of
the court must be filed within
90 days of the date of the
decision sought to be quashed.
The applicant’s answer to the
preliminary objection is that
since the decision of the High
Court was a nullity it can be
set aside at any time.
In applications for an order of
certiorari lawyers for
applicants are fond of saying,
“Where an act is void, then it
is in law a nullity. It is not
only bad but incurably bad.
There is no need for an order of
the court to set it aside. It is
automatically null and void
without more ado, though it is
sometimes convenient to have the
court declare it to be so. And
every proceeding which is
founded on it is also bad and
incurably bad. You cannot put
something on nothing and expect
it to be stay there. It will
collapse”.
See Macfoy v. United Africa
Company Ltd. [1962] A.C. 152;
Mosi v. Bagyina [1963] 1 GLR;
Republic v. High Court, Accra:
Ex parte Darke XII and Anor.
[1992-93] 3 GBR 1138.
This is an impeccable statement
of a common Law principle. But
it contains a logical
difficulty, where the proponent
has invoked the supervisory
jurisdiction or other
jurisdiction of the court
conferred by statute, since
unless an order of a competent
court is obtained there is no
way of establishing the nullity
of the order or the judgment. A
decision of a court is presumed
to be valid until its invalidity
has been established in a court
of competent jurisdiction. In an
oft-quoted passage Lord
Radcliffe Said:
“An order, even if not made in
good faith is still an act
capable of legal consequences.
It bears no brand of invalidity
upon its fore head. Unless the
necessary proceedings are taken
at law to establish the cause of
invalidity and to get it quashed
or otherwise upset it will
remain as effective as the most
impeccable of orders”.
Smith v. East Elloe Rural
District Council [1956] A.C.
736, 769.
If a party is aggrieved by a
decision of a court he may
attack it directly or
collaterally. The methods of
direct attack are the
prerogative orders, declaration
and injunction. A collateral
attack may take the form of
defence to enforcement
proceedings. If the aggrieved
party chooses to launch a direct
Dua attack by seeking a
prerogative order, such as
certiorari, he must comply with
the statutory provisions under
which the supervisory
jurisdiction of the court is
exercised as well as other rules
which must be complied with such
as locus standi.
It is only after a party has
complied with all such rules
that he may hope to obtain an
order. As Wade and Forsyth
state in their Administrative
Law 7th Ed. (1994) pages
342-343:
“The truth of the matter is that
the court will invalidate an
order only if the right remedy
is sought by the right person in
the right proceedings and
circumstances. The order may be
hypothetically a nullity, but
the court may refuse to quashed
it because of the plaintiffs
lack of standing, because he
does not deserve a discretionary
remedy, because he has waived
his rights, or for some other
legal reasons. In any such case
the “void” order remains
effective and is, in reality,
valid. It follows that an order
may be void for one purpose and
valid for another, and that it
may be void against one person
but valid against another. A
common case where an order,
however void, becomes valid is
where a statutory time limit
expires after which its validity
cannot be questioned. The
statute does not say that the
void order shall be valid; but
by cutting off legal remedies it
produces that result”.
[Emphasis supplied]
In the course of arguments on
the preliminary objection
counsel for the applicants kept
saying that since the decision
of the High Court was a nullity,
because it lacked jurisdiction,
it can be set aside at anytime
and lapse of time is immaterial
in such a case. It is clear that
this submission cannot be
correct in a case such as this
where the aggrieved party is
invoking the supervisory
jurisdiction of the court. This
jurisdiction was conferred on
this court by Article 132 of the
Constitution. (See also section
5 of the Courts Act, 1993 Act
459). The procedure for the
exercise of the jurisdiction is
set out in Part VI of the
Supreme Court Rules, 1997 (C.I.
16), Rules 61-66. An application
for an order of certiorari under
Part VI must comply with its
provisions. Rules 62 provides
that an application to invoke
the supervisory jurisdiction of
the court must be filed within
90 days of the date of the
decision against which the
jurisdiction is invoked unless
the time is extended by the
court. And Rule 66 says an
application for the extension
of time within which to invoke
the supervisory jurisdiction of
the court under Rule 62 shall
not be made after the expiration
of the 90 days period within
which an application seeking to
invoke the supervisory
jurisdiction may be filed.
These statutory provisions are
binding on the court which must
enforce them in full.
But counsel for the applicants
contended that these time limits
are not applicable because the
decision against which the
supervisory jurisdiction was
being invoked was null and void
and with such cases time is not
of the essence; it is
immaterial. A similar argument
was rejected in Smith v. East
Elloe Rural District Council
(supra). And if I may adapt the
words of Lord Diplock in
Hoffman-La Roche and Co. A.G and
Others vrs. Secretary of State
for Trade and Industry [1975]
A.C. 295 at 366, It leads to
confusion to use such terms as “voidable”,
“void” or “a nullity” as
descriptive of the legal status
of a decision of a lower court
alleged to be altra vires for
patent or latent defects before
its validity has been pronounced
on by a court of competent
jurisdiction. And that is why
the applicant has come to this
court. But we cannot consider
the merits of the application
unless it is properly before us
in terms of Part VI of C.I. 16.
It is not in dispute that the
application was brought about 15
months after the judgment sought
to be quashed was delivered,
long after 90 days period had
expired. After that period any
legal remedy that could have
been given in exercise of the
Court supervisory jurisdiction
was cut off. Any cause Dua of
action for a prerogative order
that the applicant might have
had became extinguished.
Therefore the application is not
properly before us. The
preliminary objection must be
upheld.
Consequently the application
should be dismissed.
D. K. AFREH
JUSTICE OF THE SUPREME COURT
BAMFORD-ADDO, (MRS) J.S.C.:
I agree.
J.A. BAMFORD-ADDO (MRS)
JUSTICE OF THE SUPREME COURT
KPEGAH, J.S.C.:
I agree.
F. Y. KPEGAH
JUSTICE OF THE SUPRME COURT
ADJABENG, J.S.C.:
I agree.
E.D.K. ADJABENG
JUSTICE OF THE SUPREME COURT
ADZOE, J.S.C.:
I agree.
T. K. ADZOE
JUSTICE OF THE SUPREME COURT
COUNSEL
Justice Tete-Donkor with Tagoe
and Joseph Mante for applicants.
Addo Atuah for Interested Party. |
