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RULING
MRS. JOYCE BAMFORD-ADDO, J.S.C.:
This is a motion invoking the
supervisory jurisdiction of the
Supreme Court, under Article 132
of the Constitution for the
Order of Certiorari directed to
the High Court Accra to quash
its judgment given on 25th
January 2002 in Suit No.C398/7.
The ground for this application
is that:
“The judgment is null and void
because at the time it was
given the six week period
prescribed by the rules for it
to be delivered had elapsed.”
The facts are that the present
applicant was Defendant in the
High Court case Suit No.
C898/97. The plaintiff therein
instituted an action against the
applicant seeking the following
reliefs:—
a) The export value of sea food
assessed at FF.88,318,50 or its
equivalent.
b) Interest at the commercial
bank lending rate calculated
from the date of 1st demand
until the date of payment and
c) Damages for breach of
contract.
After the hearing of evidence
in the case had been completed,
the plaintiff filed its address
on 8th December 1999 and
Defendant also filed its address
on 28th January 2000. The case
was then adjourned for judgment
by the trial High Court which
was eventually delivered on the
25th January 2002 in favour of
the Plaintiff for all the
reliefs sought.
According to the applicant since
the judgment was delivered
almost 2 years after the close
of the case in the High Court,
instead of the stipulated 6
weeks as contained in Order 63
(2A) of L.N. 140A as amended by
L.I 1107 the judgment is null
and void and ought to be so
declared and quashed by
certiorari. The relevant rule
relied on is L.I 1107 which
amends Order 63 by adding rule
2A to Order 63 as contained in
the High Court (Civil Procedure)
(Amendment) Rules 1977 L.I 1107.
Rule 2A is contained in S.7 of
L.I. 1107 and states:
“2A (1) At the close of a case
before it the Court shall fix a
date, which shall be not later
than six weeks after the close
of that case, for the delivery
of judgment therein.
(2) It shall be the duty of the
Court to deliver judgment as
soon as possible after the close
of each case before it, and in
any event not later than six
weeks after the close of any
such case.
(3) For the purposes of this
rule a case shall be deemed to
be closed when the evidence has
been given to the Court and the
speeches subsequent thereto have
been concluded.
(4) The times of the vacations
in any year shall not be
reckoned in the computation of
the period of six weeks referred
to in this rule.
(5) Where for any reason
judgment has not been delivered
within the period of six weeks
referred to in this rule, the
Court shall forth with inform
the Chief Justice in writing of
that fact and shall state the
reasons for the delay in so
delivering judgment and the date
upon which it is proposed to
deliver judgment.
(6) Where judgment has not been
delivered within the period of
six weeks referred to in this
rule, any party to the
proceedings may in writing
notify the Chief Justice of that
fact and request that a date be
fixed for the delivery of
judgment.
(7) Upon receiving a
notification from the Court or a
party under paragraph (5) or (6)
the Chief Justice may fix a date
for the delivery of judgment by
the Court and notify the Court
accordingly, and it shall be
the duty of such Court to
ensure that judgment is
delivered upon the date so
fixed by the Chief Justice.”
As can be seen even though rule
7 of L.I. 1107 provided seven
subrules only the first three
were relied on by the applicant
to support his case and
arguments. The other four sub
rules which are more relevant
to the issue before us were
completely ignored.
In non of the rules set out
earlier was provision made
either directly or by necessary
implication for the taking away
of a court’s jurisdiction in a
part heard case thus preventing
the delivery of judgment and
nullifying same if given after
six weeks after the close of the
case.
On the contrary the intention of
the law maker as gathered from
L.I. 1107 is to ensure the
early delivery of judgment
after a case has been heard
either within 6 weeks or
thereafter.
For this reason time for
delivery of judgment is given as
6 weeks after the close of the
case. Thereafter when judgment
has not been delivered within
the stipulated time and this
fact has been reported in to the
C.J. in writing, either by the
Judge himself with reasons or a
party to the proceeding, then in
the case of the Judge he may
fix another date himself or the
C.J. would in either case fix a
new date for delivery of
judgment after the six week
period and it would be the
duty of the Judge to comply
with the order of the C.J. to
deliver judgment at the
stipulated time.
This simply is the
interpretation of L.I. 1107. The
interpretation sought to be put
on it by applicant so as to
nullify any judgment given
after 6 weeks is wrong because
if it were so why would the
Rules provide procedure for
delivering a delayed Judgment so
as to complete a part heard
case, only for same to be
declared a nullity as given
without jurisdiction? It would
be an exercise in futility
considering sub rules 4-7 of
Order 63(2A) and produce an
undesirable and erroneous effect
quite contrary with the
intention of the law and the
mischief meant to be cured or
prevented.
The proper interpretation which
is to be given to L.I. 1107 can
be clearly seen when that law is
considered vis-à-vis the
constitution, if this is done
there would be no room left for
making implications such as the
depriving a court of
jurisdiction in a part heard
case and nullifying the
resultant judgment.
Indeed once a court has acquired
jurisdiction in a case such
Jurisdiction continues until the
case is completed by delivery of
judgment. Then and only then
does a Judge become functus
officio in any case. See Article
157(3) of the Constitution.
As provided in Article 145(4) of
the Constitution once a Judge
has started hearing a case, even
if he goes on retirement he has
to continue in office for a
period of six months thereafter
as may be necessary to enable
him deliver judgment or do
anything in relation to
proceedings that were commenced
before him previous to his
attaching that age.
Further Article 157(3) says:
“Article 157(3) without
prejudice to clause (2) of this
article, no person sitting in a
Superior Court for the
determination of any cause or
matter shall, having heard the
arguments of the parties to that
cause or matter and before
judgment is delivered, withdraw
as a member of the Court or
Tribunal, or as a member of
panel determining that cause or
matter nor shall that person
become functus officio in
respect of that cause or matter,
until judgment is delivered”.
See also section 103 of Act 459
which repeats the same provision
of the Constitution.
These Constitutional Provisions
referred to above make it
crystal clear that regardless
of rules of practice and
procedure of all courts a Judge
became functus officio only
after delivery of judgment in a
case he has finished hearing and
that such judgment is anything
but invalid then can it be said
to be void. These Constitutional
provisions together with Article
2(a) of Order 63 does not
support applicant's
interpretation of L.I. 1107. It
is my view that Rule 7 of L.I.
1107 cannot be interpreted to
make a delayed judgment void as
such interpretation put on L.I.
1107 by applicant would be in
conflict rather than in
conformity with the
Constitution when properly
interpreted as I have indicated
above.
In support of Applicant's case,
the case of Republic versus
Judicial Committee of the
Central Region House of Chiefs
Exparte Supi Mark Aaba and
others C.A. No 1/99 of 25/7/2001
was cited.
In that case it was decided that
the provision of L.I. 1107 were
mandatory and judgment must be
delivered after the stipulated
time of six weeks, otherwise it
would be void. The respondent
has asked that we depart from
that finding by virtue of our
power under Article 129(3) the
constitution namely:
“Article 129(3) the Supreme
Court may while treating its own
previous decisions as normally
binding, depart from a previous
decision when it appears to it
right to do so, and all other
courts shall be bound to follow
the decisions of the Supreme
Court on question of law”.
I have carefully considered the
above mentioned case. It appears
to me that the Courts attention
was not directed, to nor did not
consider the relevant provisions
of the Constitution which I have
referred to in this judgment. In
my opinion if it had done so, I
have no doubt that a different
conclusion would have been
arrived at which would conform
with my views as expressed in
this Ruling.
Therefore the judgment in the
Ex-parte Supi Aaba case supra
with due respect was given per
incuriam and Applicant’s
reliance on it is unhelpful to
this case.
For the above reasons it is my
view that the application for
certiorari is unmeritous and
should be dismissed.
J. A. BAMFORD-ADDO (MRS)
JUSTICE OF THE SUPREME COURT
KPEGAH, J.S.C.:
I relunctantly agree that the
application be dismissed and
will associate myself with the
sentiments expressed by my
learned brother Adzoe, J.S.C.
F. Y. KPEGAH
JUSTICE OF THE SUPREME COURT
ADJABENG, J.S.C.:
I have read before hand the
opinion of my brother, Afreh,
J.S.C., which he is about to
read. I agree with his
reasoning and conclusion and I
have nothing useful to add. I
agree therefore that the
application ought to be
dismissed.
E.D.K. ADJABENG
JUSTICE OF THE SUPREME COURT
ADZOE, J.S.C.:
I will reluctantly agree to
dismiss the application. In the
Supi Mark case we firmly
believed that the language of
L.I. 1107 was clear, and that it
ought to be construed as being
mandatory and not merely
directory. In that case the
Judicial Committee of the
National House of Chiefs had
announced its decision without
giving reasons therefore; it
reserved its reasons to be given
later. The decision was
announced on 23/9/96. The
reasons were given on 3/12/96,
after several adjournments. So
we said that the reasons given
long after the 6 weeks statutory
period could not be accepted as
part of the decision and that
the decision without reasons was
no judgment since the relevant
rule, rule 11 of C.I. 27
provides that:
“The Judicial Committee shall at
the conclusion of the hearing of
the petition deliver its
judgment, giving its reasons
therefore”.
In our judgment we made it clear
that we did not have any
meaningful assistance from both
counsel. Perhaps if our
attention had been drawn to
Article 157(3) of the
Constitution, our decision might
have been different. I say
“might have been” because in the
instant case I have had anxious
moments over the precise effect
of Article 157(3) on the L.I.
1107. The opening words of that
clause, “without prejudice to
clause 2 of this Article”, in my
opinion, may suggest that the
said clause 3 cannot be said to
be inconsistent with any rules
made under clause 2 by the Rules
of the Committee. I conceive
Article 157(3) to mean that
without any detraction from any
rules made by the Rules of Court
Committee once a judge has begun
hearing a case he should not
withdraw from it until he
becomes functus officio. My mind
goes back to the famous Sallah
case in 1969, when Justice
Siriboe who was a member of the
panel of judges hearing the case
announced his withdrawal from
the case after a decision was
reached but before the court
delivered its judgment. It may
therefore be that Article 157(3)
and L.I. 1107 are dealing with
two different situations, but I
have not been able to convince
my colleagues on this panel, and
I need not articulate my
feelings into a dissent.
It is to this extent that I join
my colleagues to dismiss the
application.
T. K. ADZOE
JUSTICE OF THE SUPREME COURT
AFREH, J.S.C.:
This is an application for an
order of certiorari directed to
the High Court, Accra to quash
its judgment given on 25th
January 2002 in Suit No. C.
398/97 titled Wor. Sea.
Co.(Ghana) Limited versus
Expandable Polystrene Products
Limited.
The only ground for the
application is that,
“The judgment is null and void
because at the time it was given
the six week period prescribed
by the rules for it to be
delivered had elapsed”.
The brief facts of the case as
stated in the affidavit in
support of the application (and
not denied by the respondents)
are that the respondents sued
the applicants for the export
value of Sea Food assessed at
FF.88,318,50 or its cedi
equivalent, interest on the said
amount and damages for breach of
contract. They claimed that they
lost the consignment of sea food
stored in the applicants cold
store as a result of
malfunctioning of the facility.
After three years of protracted
litigation the case finally
closed on 28th January 2000 when
the applicants filed their
address. After various
adjournments for the judgment to
be given it was finally
delivered on 25th January 2002 –
that is two years after the
close of the case.
The applicants based their
submissions on the first three
sub-rules of Order 63 rule 2A of
the High Court (Civil Procedure)
Rules 1954 (L.N.140A) as amended
by the High Court (Civil
Procedure) (Amendment) Rules
1977, L.I. 1107 which provides
as follows:
“2A 1. At the close of a case
before it the Court shall fix a
date, which shall be not later
than six weeks after the close
of that case for the delivery of
judgment therein.
2. It shall be the duty of the
Court to deliver judgment as
soon as possible after the close
of each case before it, and in
any event, not later than six
weeks after the close of any
such case.
3. for the purposes of this rule
a case shall be deemed to be
closed when the evidence has
been given to the Court and the
speeches subsequent thereto have
been concluded”.
Before I proceed further I want
to comment on the way counsel
for the applicants has dealt
with order 63 rule 2A. It has
seven sub-rules. Counsel chose
to quote and base his
submissions on only three of
them. It is an established rule
of interpretation that the
provisions of a statute to be
interpreted must be read as a
whole and must be considered in
both its internal and external
context. If counsel had read and
considered all the provisions of
the rule together in their
proper context his submissions
before this court might have
been more helpful.
Relying on the first three
sub-rules only counsel submitted
that the time within which the
judgment was delivered, two
years after the close of
proceedings, had adverse
implications for the
jurisdiction of the court and
the validity of the judgment
delivered. Under the provisions
of Order 63 rule 2A that he had
quoted, regarded as imposing
mandatory requirements judgment
should have been given by the
end of the second week of March
2000. After that period the
jurisdiction of the court over
the case lapsed and it was
incompetent and had no authority
to deliver the judgment dated
25th January 2002. In support of
his submissions he relied on the
Supreme Court cases of the
Republic v. The Judicial
Committee of the Central
Regional House of Chiefs: Ex
Parte Supi Mark Aaba and Ors.
(Unreported) S.C. Civil Appeal
No.1/99 dated 25th July, 2001;
and Boye-Doe v. Teye and Anor.
[2000] S.C. GLR 225. (Counsel
only listed but did not discuss
them in his statement).
In response, counsel for the
respondents has submitted that
any law that seeks to declare a
Superior Court Judge functus
officio or to strip such a judge
of jurisdiction prior to the
delivery of his judgment is
contrary to and inconsistent
with Article 157(3) of the
constitution 1992 and will be
void to the extend of the
inconsistency. Therefore to
interpret Order 63 rule 2A of
L.N. 140A as amended by L.I.
1107 as stripping a Superior
Court judge of jurisdiction if
the Court is unable to deliver
judgment within six weeks after
the close of proceedings, is to
make the judge functus officio
before the delivery of judgment,
contrary to the provisions of
Article 157(3) of the
constitution 1992 and therefore
unconstitutional. To uphold such
argument as advanced by counsel
for the applicant will be to
perpetuate an
unconstitutionality.
Article 157 of the constitution
1992 provides:
“(1)
……………………….......................................................................................
(2) The Rules of Court Committee
shall, by constitutional
instrument make rules and
regulations for regulating the
practice and procedure of all
court in Ghana.
(3) Without prejudice to clause
(2) of this article, no person
sitting in a superior court for
the determination of any cause
or matter shall, having heard
the arguments of the parties to
that cause or matter and before
judgment is delivered, withdraw
as a member of the court or
tribunal, or as a member of the
panel determining that cause or
matter, nor shall that person
become functus officio in
respect of that cause or matter,
until judgment is delivered”.
In my opinion the interpretation
put on Order 63 rule 2A by the
applicant's counsel is contrary
to, and inconsistent with,
Article 157(3) of the
constitution, 1992, and should
be rejected. In view of this
provision a judge of a Superior
Court who fails to deliver
judgment within six weeks after
the close of the case does not
cease to have jurisdiction over
the case or become incompetent
or functus officio. Therefore a
judgment delivered by him after
the six week period is not null
and void.
In the case of Ex Parte Supi
Mark Aaba (Supra) this Court
decided that a judgment
delivered by a judge of the High
Court (or the Judicial Committee
of a Regional House of Chiefs)
more than six weeks after the
close of the case was null and
void because in the view of the
Court, the requirements of Order
63 rule 2A were mandatory. But
in that case the attention of
the Court was not drawn to
Article 157(3) of the
constitution. I am sure if the
Court’s attention had been drawn
to it its decision would have
been different. The decision in
Ex Parte Supi Mark Aaba was,
with respect, made per incuriam
and therefore does not create a
binding precedent. Now that the
Court’s attention has been drawn
to the relevant constitutional
provision it should accept the
invitation of respondent's
counsel to depart from it.
It, however, must be stressed
that by so doing Order 63 rule
2A (or Rule 33 of the court of
Appeal Rules, 1997 (C.I. 19) is
not being declared
unconstitutional. It is only
when it is interpreted as
imposing mandatory requirements,
which would render any judgment
given more than six weeks after
the close of a case null and
void, that the rule becomes
unconstitutional. If the
requirements are regarded as
directory only it is perfectly
consistent with Article 157(3).
Sub-rules 4 – 7 which
applicant's counsel omitted in
his statement of case contain
the consequential measures that
may be taken if a judge fails to
deliver judgment within six
weeks after the close of a
case.
They provide:
“(4) The times of the vacations
in any year shall not be
reckoned in the computation of
the period of six weeks referred
to in this ruled.
(5) Where for any reason
judgment has not been delivered
within the period of six weeks
referred to in this rule, the
Court shall forthwith inform the
Chief Justice in writing of that
fact and shall state the reasons
for the delay in so delivering
judgment and the date upon which
it is proposed to deliver
judgment.
(6) Where the judgment has not
been delivered within the period
of six weeks referred to in this
rule, any party to the
proceedings may in writing
notify the Chief Justice of that
fact and request that a date be
fixed for the delivery of
judgment.
(7) Upon receiving a
notification from the Court or a
party under paragraph (5) or (6)
the Chief Justice may fix a date
for the delivery of judgment by
the Court and notify the Court
accordingly, and it shall be the
duty of such court to ensure
that judgment is delivered upon
the date so fixed by the Chief
Justice”.
If the whole of Order 63 rule 2A
of L.N.140A (and not just the
first three sub-rules) are read
together with Article 157(3) of
the constitution, 1992 it will
be seen they have the same goal:
a judge who has heard a case to
its conclusion cannot withdraw
from it; he must give judgment;
and must to do as soon as
possible, after the close of the
case. Order 63 rule 2A of L.N.
140A (and Rule 33 of C.I. 19) go
further by prescribing the time
within which the judgment must
be delivered.
Since the rule contains the
consequential measures that may
be taken if a Court fails to
deliver judgment within six
weeks after the close of the
case it must be assumed that
that is all that the legislature
intended should be done if there
is such a failure: the judge
must forthwith inform the Chief
Justice of that fact and state
the reasons for the delay and
the date upon which judgment
will be delivered; or a party
may in writing notify the Chief
Justice of the delay. In either
case the Chief Justice may fix a
date for the delivery of
judgment and it will be the duty
of the judge or the Court to
ensure that judgment is
delivered on that date.
I believe the power of the Chief
Justice to fix a date for the
delivery of a delayed judgment
coupled with the duty of a judge
or Court to inform the Chief
Justice of the delay or the
right of a party to notify the
Chief Justice of it, constitute
enough sanction.
At least it must be assumed that
the legislature thought that was
enough. If that is thought to be
inadequate it is the function of
the legislature and not the
Court to impose stiffer
sanctions.
These requirements are for the
benefit of parties to causes and
matters in the Superior Courts;
that is, to ensure that judges
deliver judgment expeditiously.
Any interpretation of these
provisions which may deprive
them of these benefits could not
have been intended by the
legislature.
I think the application must be
dismissed.
D. K. AFREH |
