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RULING
EDWARD WIREDU, C.J.:
My opinion in this review
application is expressed in the
ruling to be read by my brother
Acquah, J.S.C. on our joint
behalf.
ACQUAH, J.S.C.:
On 28th February 2002, this
Court by a 5:4 decision entered
judgment for the plaintiff for
1. A declaration that there is
no Fast Track Court with
jurisdiction to try Criminal
cases established under the
Constitution of the Republic of
Ghana, and there is therefore no
constitutional foundation for
the plaintiff to be prosecuted
before such Court.
2. A declaration that the oral
demand by agents of the
Defendant to plaintiff to appear
before a Fast Track Court, when
no such Court for trial is
provided for in the Constitution
of the Republic of Ghana, is an
infringement on Article 125 and
126 of the Constitution
establishing the Judiciary.
3. An injunction against the
Defendant and their agents
restraining them from seeking to
proceed with a trial of the
Plaintiff before the purported
Fast Track Court.
4. A declaration that the
summons signed by a Justice of
Appeal served on the Plaintiff
commanding him “in the
President’s name to appear in
person before this Court" is in
contravention of Articles 1(i)
and 125 (i) of the Constitution.
5. A declaration that there is
no Fast Track High Court
established under the 1992
Constitution of the Republic of
Ghana and therefore a summons to
appear before such a Court is
null and void.
The reasons for the decision
were reserved for the 20th March
2002.
However, before the delivery of
the reasons, the Attorney
General on 1st March 2002 filed
an application for a review of
the majority decision. In an
accompanying statement of case,
he contented that:
“In view of the exceptional
circumstances which have
resulted in miscarriage of
justice by the ruling, this
matter must be looked at again
by review”.
He proceeded to expound the
particulars of the exceptional
circumstances in the following
words:
“1. It is the case of the
applicant that the decision of
the Court is a retrograde step
that strikes at the heart of the
Administration of Justice in
this country and considering the
far reaching effect this will
have on the Administration of
Justice in the Land, having
regard to numerous cases that
have been disposed of at the
Fast Track High Court, and since
there is only a very narrow
majority decision, there is
absolute need to have a second
hard look at this matter again.
2. It is the case of the
applicant that since the Supreme
Court itself in the case of the
Republic v. Selormey saw it fit
in the ruling to remit the case
back to the court below which is
the Fast Track High Court for
trial to continue in the said
Fast Track Court, the same Court
cannot now rule that this Court
is unknown to the Constitution
to warrant granting the
Plaintiff/respondent the reliefs
he sought.
3. The ruling in the Republic v.
Selormey by the Supreme Court
and the ruling in the present
case by the same court are
surely contradictory and
inconsistent with each other.
4. The Supreme Court, the
highest court of the land has a
duty to ensure certainty in the
law and in the present
uncertainty and apparent
confusion that the decisions in
these two cases show, an
exceptional circumstance has
arisen which has occasioned a
miscarriage of justice and
therefore the justice of the
situation demands that this
matter be looked at again so
that the speedy computer-based
record transcription system
which is geared to efficient
case management and speedy
disposal of cases will become a
permanent feature of our
Administration of justice.”
In his statement of case,
opposing the application for
review, the Plaintiff/Respondent
denied the existence of any
miscarriage of justice or
exceptional circumstances,
warranting the application for a
review. He also denied that the
decision impedes the proper
administration of justice. On
Salormey’s case, the respondent
contended that the
constitutionality of the Fast
track Court was not in issue
when the matter came before the
Supreme Court, and that if the
Supreme Court, had “attempted on
its own motion to declare the
Fast Track High Court
unconstitutional when no case
had been stated to it to that
effect, there could have been an
appearance of the Supreme Court
having a special interest.”
The respondent further contended
that the fact that the decision
of the Court in his favour was
by a narrow majority is not a
basis for a review, neither does
the fact that the decision would
affect numerous cases disposed
off by the Fast Track High
Court. He argued that if those
numerous cases are to be
re-opened “that can only be on
the basis of the
unconstitutionality associated
with those cases”. Consequently
he prayed for the dismissal of
the review application.
Now on the 20th March, 2002
reasons for the decision were
delivered and on the receipt of
copies of these reasons, the
applicant filed a supplementary
statement of case in which he
argued that the majority’s
declaration that divisions of
the High Court could only be
created by an Act of Parliament
or a constitutional or statutory
instrument, and that since the
Fast Track High Court was not
created by any of the said
means, it was not a division of
the High Court and consequently
was unconstitutional, was
untenable and flew in the face
of express provisions in the
Constitution. The applicant
submitted that on a true and
fair reading of Article 139(3)
of the Constitution, and having
regard to the system of
separation of powers
underpinning our Constitution as
well as the constitutional and
political history of this
country, the holding that
Parliament and not the Chief
Justice, was the proper
authority to establish division
of the High Court was
fundamentally flawed.
On the majority’s declaration
that the Criminal summons was a
nullity, the applicant contended
that the said decision was
delivered per incuriam in so far
as the majority failed to advert
their attention to the unanimous
decisions of this Court in
Republic vrs. High Court, Accra,
ex parte Attorney-General
(1998-99) SC GLR 595 (Delta Food
Case). The plaintiff/respondent
on 5/6/2002 also filled further
written arguments in support of
his opposition to the review. In
his arguments, he vehemently
denied that the applicant had
made out a case for review.
Relying copiously on dicta from
the majority opinion he sought
to refute each of the points
made by the applicant.
Scope of the Supreme Court’s
Review Jurisdiction
The authority of the Supreme
Court to review its own
decisions is now firmly
entrenched in article 133(i) of
the 1992 Constitution which
authorises the exercise of this
jurisdiction “on such grounds
and conditions as may be
prescribed by Rules of Court”.
Rule 54 of the Supreme Court
Rules 1996, made pursuant to
this authority spells out the
grounds for review as:
“(a) exceptional circumstances
which have resulted in a
miscarriage of Justice, and
(b) discovery of new and
important matter or evidence
which after the exercise of due
diligence was not within the
applicants’ knowledge or could
not be produced by him at the
time when the decision was
given”.
Before the coming into force of
the 1992 Constitution, the
review jurisdiction was derived
from the inherent jurisdiction
of the court as expounded in
cases like Fosuhene vrs. Pomaa
(1987-88) 2 GLR 105 SC which
held that the Supreme Court had
jurisdiction to correct its own
errors by way of review and that
application for review must be
“founded on compelling reasons
and exceptional circumstances
dictated by the interest of
Justice”. On the very day that
the decision in Fosuhene vrs.
Pomaa was delivered, which was
26th November 1987, the Supreme
Court in Nasali vrs. Addy
(1987-88) 2 GLR 286 re-echoed
its review authority by pointing
out that the review jurisdiction
was exercisable in exceptional
circumstances where the demands
of Justice made the exercise
extremely necessary to avoid
irreparable damage to an
applicant. The Court further
explained that the complaint of
miscarriage of justice was not
enough, and that it was only in
exceptional circumstances that
the interest re publicae ut sit
finis litium principle would
yield to the greater interest of
justice. Later, a Practice
Direction dated 4th August 1988,
issued by the Chief Justice, and
reported in (1987-88) 2 GLR 274
stated in paragraph 2 thereof
that:
“The only ground for review is
that the circumstances are
exceptional and that in the
interest of justice there should
be a review.”
Then followed a series of
unsuccessful applications for
review, notable among them
being: Mechanical Lloyd Assembly
Plant vrs. Nartey (1987-88) 2
GLR 598; Bisi vrs. Kwayie
(1987-88) 2 GLR 295; Ababio vrs.
Mensah (1989-90) 1 GLR 573; In
re Kwao (decd) Nartey vrs. Armah
(1989-90) 2 GLR 546; Ribeiro
vrs. Ribeiro (No.2) (1989-90) 2
GLR 130; Nartey-Tokoli vrs.
Volta Aluminium Co. Ltd
(1989-90) 2 GLR 513; Darbah vrs.
Ampah (1989-90) 2 GLR 103; and
Agyekum vrs. Asakum Engineering
Co. Ltd (1992) 2 GLR 635. One of
the very few successful review
applications was Royal Dutch
Airlines(KLM) vrs. Farmex Ltd
(1989-90) 2 GLR 682.
In Mechanical Lloyd’s case, for
example, it was held that the
review jurisdiction of the
Supreme Court was to be
exercised at the discretion of
the court in exceptional
circumstances where a
fundamental and basic error
might have been inadvertently
committed by the Court resulting
in a grave miscarriage of
justice. Adade JSC, relying on
Yanney vr. African Veneer
Mahogany Exporters Ltd (1960)
GLR 89, Swaniker vrs. Adotei Twi
(1966) GLR 151 and a dictum of
Sowah C.J. in Penkro vs.
Kumnipah II (1987-88) 1 GLR 558,
explained at pages 603-604 as
follows:
“But the mere fact that a
judgment can be criticized is no
ground for asking that it should
be reviewed. The review
jurisdiction is a special
jurisdiction, to be exercised in
exceptional circumstances. It
is not an appellate
jurisdiction. It is a kind of
jurisdiction held in reserve, to
be prayed in aid in the
exceptional situation where a
fundamental and basic error must
have occasioned a gross
miscarriage of justice.”
The Court further held that
there were no definitions as to
what constituted “exceptional
circumstances” or sufficient
grounds and that it was for the
court to determine the matter on
the facts and circumstances of
each case and as dictated by the
ends of justice.
In Bisi vrs. Kwayie (supra) the
Court in rejecting an
application to review its
earlier judgment, held that the
exceptional circumstances relied
upon must be of such a nature as
to convince the Court that the
previous judgment should be
reversed in the interest of
justice-leading to the creation
of miscarriage of justice.
The above principles ran through
the Supreme Court’s adjudication
of all applications for review.
Thus in Nartey-Tokoli vrs. Volta
Aluminium Co. Ltd (supra) the
Court held that the applicant
failed to prove the existence of
special circumstances because,
“there has not been any
fundamental and basic error
which (the) court has
inadvertently committed”.
And in Agyekum vrs. Asakum
Engineering (supra) it was held
that the applicant failed to
prove the existence of
exceptional circumstances and
the likelihood of miscarriage of
justice.
It is interesting to note that
the second ground for review as
stated in Rule 54(b) of CI 16,
that is, discovery of new fact
or evidence after the delivery
of the judgment, was indeed
considered by Taylor, J.S.C in
his opinion in Mechanical
Lloyd’s case as one of the
factors justifying the existence
of special circumstances to
support an application for
review. After examining the
authorities on review, Taylor,
J.S.C concluded at page 638 that
some of the factors indicative
of exceptional circumstances
were:
i. an error of law must be of
exceptional character and must
have resulted in a miscarriage
of justice;
ii. matters discovered after
delivery of judgment must be
relevant and exceptional and
capable of tending to show
that if they had been timeously
discovered they would have the
effect of altering the decision
complained;
iii. the judgment or order
must be void under the principle
enunciated in Mosi vrs. Bagyina;
iv. the decision was given per
incuriam, i.e. for failing to
consider relevant statute or
case law or fundamental
principle of practice and
procedure which would have
resulted in a different
decision; and
v. where the Supreme Court
exercised its power under
Article 116(3) of the 1979
Constitution (now article 129(3)
of the 1992 Constitution), it
would be entitled to depart from
its previous decision when it
appears right so to do.
In the instant case, the
applicant relies on Rule 54(a),
that is, exceptional
circumstances. Now do the
principles enunciated in the
pre-1992 Constitution case law
on exceptional circumstances
apply in construing Rule 54(a)?
This matter came up for
determination in Pianim vrs.
Ekwam (1996-97) SC GLR 431 the
ruling of which was delivered on
10th July 1996 before the making
of CI 16. In Pianim’s case,
after the Supreme Court by a
majority of 3:2 had declared the
applicant not qualified to
contest the 1996 Presidential
Elections, he sought a review of
that decision. In support of his
application, his counsel, Mr.
Joe Reindorf of blessed memory,
contended that:
(i) The criteria set out in the
review cases decided by the
Supreme Court before the coming
into force of the 1992
Constitution should not be used
as a yardstick in determining
his application because those
cases had been decided under the
inherent jurisdiction of the
Court;
(ii) since at the time of
hearing his application, the
Rules of Court Committee had
then not made rules as directed
under Article 133(i) each panel
of the Supreme Court, on hearing
any review application, should
formulate its own conditions and
circumstances for entertaining
the applications; and
(iii) the criteria, set out in
the decided cases - regarding
review of application from the
Courts appellate jurisdiction -
should not be applied to an
application for a review of a
judgment of the Court in the
exercise of its original
jurisdiction (in constitutional
law cases such as his) because
the aggrieved party in such a
case had had only one chance.
The Court by a majority of 5:2
rejected each of these
submissions and dismissed his
review, holding that to accede
to such a submission would mean
that all those decided cases
could not be cited as precedents
contrary to Article 11(1), (2)
and (4) of the 1992 Constitution
and further create uncertainty
and confusion in the law.
Indeed earlier on, on 6th
February 1996, the Supreme Court
had by a unanimous decision in
Quartey and Ors. vrs. Central
Services Co. Ltd and Ors
(1996-97) SC GLR 398 held that
the review jurisdiction would be
exercised:
“only in exceptional
circumstances. This implies
that such an applicant should
satisfy the court that there has
been some fundamental or basic
error which the court
inadvertently committed in the
course of its judgment; and
which fundamental error has
thereby resulted in a gross
miscarriage of justice.”
And in In re Effiduase Stool
Affairs (No.3); Republic vrs.
Numapaw and Ors. (2000) SC GLR
59 at 60 Edward Wiredu JSC, (as
he then was) reading the 6:1
majority opinion of the Court,
quoted Rule 54 of CI 16 and
continued:
“In effect these two specified
grounds are no different from
those previously prescribed when
the power of review was not
conferred on the Court by
statute but was rather premised
on inherent jurisdiction of the
Court”.
His Lordship then referred to
rule 54 (a) of CI 16 and went
on:
“….to succeed, the applicant
must demonstrate to us the
existence of exceptional factors
which show that the decision of
the majority has manifestly
resulted in a miscarriage of
justice. What constitutes
exceptional circumstances cannot
be comprehensively defined. In
previous decisions, it has been
described as 'some fundamental
or basic error, which the court
inadvertently committed in the
course of considering its
judgment’… In addition to such
exceptional circumstances, rule
54 of CI 16 dictates that the
applicant must also demonstrate
that the result of the
exceptional circumstances has
been a miscarriage of justice.
The revised 4th edition of
Blacks Law Dictionary defines
‘miscarriage of justice’ to
mean, ‘prejudice to the
substantial rights of a part’.
We find this definition very
useful. In sum, therefore, …it
was incumbent on the applicant
to show that his substantial
rights in the matter that came
before this court have by the
majority been prejudiced by some
fundamental or basic error
made.”
Again the Supreme Court
re-emphasised the above view in
Koglex Ltd (No.2) vrs. Field
(2000) SC GLR 175.
It is also well settled that a
review is not the same as an
appeal, and that where a party
in a review application merely
seeks to reiterate the arguments
made during the hearing at the
ordinary bench, the effect is to
reopen the appeal under the
guise of a review – a factor not
constituting exceptional
circumstances. As Adade, J.S.C
put it at page 604 of the
Mechanical Lloyd’s case:
“The review jurisdiction is not
intended as a try-on by a party
after losing an appeal; nor is
it an automatic next step from
an appeal; neither is it meant
to be resorted to as emotional
reaction to an unfavourable
judgment.”
The same point had earlier been
made in Nasali vrs. Addy (supra)
and Ribeiro vrs Ribeiro (supra).
Again in Darba vrs Ampeh(supra)
the Court unanimously dismissed
the application for a review as
a mere invitation to the Court
to receive fresh submission on
points already canvassed at the
earlier hearing so as to arrive
at a different conclusion. The
Court thus held that re-arguing
matters already adjudicated upon
did not constitute a patent
error, the existence of which
would justify a grant of review
to correct such mistakes. As
Francois, J.S.C put it in
Afranie II vrs. Quarcoo (1992)
2 GLR 561 at 564-5:
“A review is only legitimate
where exceptional circumstances
exist which unredressed would
perpetuate a miscarriage of
justice; but a review is not
another avenue for an appeal
…the repetition of previous
arguments and the revisit to
past scenarios cannot properly
lay a foundation for review. In
my view where the same grounds
are canvassed again, the
exercise ceases to be a review.
It is the appeal process which
is being invoked and substituted
for the review exercise, twice
too often. This must be
decried”.
And in Nyamekye (No.2) vrs.
Opoku (2000) SC GLR 567 at 570
Edward Wiredu, J.S.C, (as he
then was) put it this way :
“….the review jurisdiction of
the Court, being special will
not, and must not, be exercised
merely because counsel for the
applicant refines his appellate
statement of case or thinks up
more ingenious arguments, which
he believes, might have favoured
the applicant had they been so
presented in the appeal hearing.
An opportunity for a second bite
at the cherry is not the purpose
for which the Court was given
the power to review”.
But as Francois JSC cautioned in
Ribeiro vrs. Ribeiro (2)(supra)
at page 143:
“…..our attempts to halt the
abuse of the review jurisdiction
of this court by frowning upon
attempts to turn the exercise
into another avenue for appeal,
must be matched by an equally
genuine willingness for
introspection, and where a
fundamental error has occurred,
to be prepared to admit and
correct it, otherwise the
exercise of review would only
amount to confirmation of a
previous stand and the mere
endorsement of a majority view.”
AIKINS JSC made the same point
in Afranie II vrs Quarcoo (1992)
2 GLR 561 at 609 thus:
“…it is essential that this
Court accommodates a
re-examination of the judge’s
previous thinking … with a view
to correcting a fundamental
mistake that has occurred. If
this is not done, the exercise
of the review power would end in
futility and would only serve to
rubber stamp or confirm a
previous stance of the Court
which may result in a
miscarriage of justice.”
However in the final analysis it
is important to appreciate that
the review jurisdiction being a
discretionary one, the decision
to grant or not to grant
ultimately depends, as rightly
held in Mechanical Lloyd’s case,
on the facts and circumstances
of each case and as dictated by
the ends of justice. Fundamental
Error complained of:
Now according to the applicant
the fundamental error committed
by the majority, was their
declaration that divisions of
the High Court could only be
created by an Act of Parliament
or a constitutional or statutory
instrument, and consequently,
since the Fast Track High Court
was not established by any of
these means, it was not a
division of the High Court and
therefore unconstitutional. For
as the majority further held,
the Chief Justice had no
authority administratively to
establish a division of the High
Court.
On this declaration, our noble
and respected sister
Bamford-Addo, J.S.C in her
concluding paragraph, expressed
herself as follows:
“The Fast Track Court is not
created under Article 139(3) of
the Constitution, it is supposed
to be a division of the Ordinary
High Court by the Defendant but
no law provide for its creation,
and it was created not by
legislation but by the
guidelines which has no legal
effect and therefore the said
court has no constitutional
foundation in law or
constitutional legal backing for
its existence”. (emphasis
supplied).
Earlier on the learned judge had
stated:
“The Chief Justice therefore has
no power to create any Court
different from the existing ones
without Parliamentary backing.”
(emphasis supplied).
Kpegah, J.S.C expressed himself
in the following words:
“The burden of my submission so
far is to show that a Statute or
some legal instrument or an
enactment is required in the
creation, not only of a Court,
but the creation of a Division
as well”.(emphasis supplied).
His Lordship then ventures into
what he called legislative
history and continued”
“The burden of my argument in
examining our legislative
history has been to show that at
no time had a Judicial Division
(which is territorial) or a
Divisional Court (which subject
matter oriented) been created
without a legislative support.
Also when a power has been
given to an authority to either
establish a Judicial Division or
a Divisional Court, the power
has never been exercised
administratively but always with
a statutory support. This is
consistent with the basic
concept in law that a Court is a
creature of Statute”. (emphasis
supplied).
Adzoe, J.S.C, after examining
some authorities also expressed
his views as follows:
“The authorities I have referred
to above leave me in no doubt
that a division of the High
Court must be created by an
enactment just as the Court
itself was created the process
cannot be dissimilar.”
The other members of the
majority expressed similar
views. Now Article 126(1) spells
out what constitutes the
Judiciary. It provides that the
Judiciary consists of two main
courts: The Superior Courts
and the Lower Courts. Sub clause
(a) of this article deals with
the Superior Courts and provides
that the Superior Courts
comprise: —
(i) The Supreme Court,
(ii) The Court of Appeal,
(iii) The High Court and
Regional Tribunals.
In respect of the lower Courts,
Article 126(1) (b) provides:
“such lower courts or tribunals
as Parliament may by law
establish”.
It is therefore clear from the
unambiguous language of article
126(1) that the Constitution
itself establishes four Superior
Courts, namely, the Supreme
Court, Court of Appeal, High
Court and the Regional
Tribunals. It is in respect of
lower courts that Parliament is
given authority to enact a law
establishing such courts.
Article 126(1) does NOT empower
Parliament to establish a High
Court, and no provision in the
1992 Constitution authorises the
establishment of a High Court by
an act of Parliament, or
constitutional or statutory
instrument as held by the
majority.
The existing divisions of the
High Court in regional and some
district capitals are not
itemized nor named in article
126(1) nor any provision of the
Constitution because the
Constitution considers these
divisions and future ones to be
established under article 139(3)
as part of the High Court
established in article
126(1)(a)(iii). Consequently,
the claim of the respondent that
because the Fast Track High
Court is not provided in
articles 125 and 126, its
establishment is in
contravention of the 1992
Constitution, is not only absurd
and unfounded but factually
unacceptable. For none of the
existing divisions in the Court
of Appeal and the High Court is
mentioned in the said
Constitution to warrant the
demand that the Fast Track High
Court must also be mentioned in
the Constitution for it to be
valid.
Now a comparison of the 1969 and
1979 Constitutions with the 1992
Constitution clearly shows that
Article 136(4) and 139(3) give
the Chief Justice the discretion
in establishing divisions of the
Court of Appeal and High Court
respectively, without recourse
to any Act of Parliament nor a
constitutional or statutory
instrument.
Article 109(4) of the 1969
Constitution provided that the
Chief Justice may establish such
divisions of the Court of
Appeal, as he may consider
necessary,
“(a) Consisting of such number
of Justices respectively as may
be assigned thereto by the Chief
Justice.
(b) Sitting at such places in
Ghana as the Chief Justice may
by constitutional instrument,
determine and
(c) Presided over by the most
senior of the Justice of the
Court of Appeal Constituting the
Court.” (emphasis supplied).
Article 121(4) of the 1979
Constitution reproduced verbatim
the above article 109(4) of the
1969 Constitution. In the 1992
Constitution, article 136(4)
dealing with the establishment
of divisions in the Court of
Appeal, reads:
“136(4) the Chief Justice may
create such divisions of the
Court of Appeal as he consider
necessary to sit in such places
as he may determine.”
Thus the requirement of
constitutional instrument for
the establishment of divisions
in the Court of Appeal as
provided in the 1969 and 1979
Constitutions, was discarded in
the 1992 Constitution.
In respect of establishing
divisions in the High Court, the
1969 Constitution provided in
Article 112(3) as follows:
“112(3) There shall be in the
said High Court such divisions
consisting of such number of
Justices respectively as may be
assigned thereto by the Chief
Justice, and sitting in such
places in Ghana as the Chief
Justice may determine”.
The 1979 Constitution repeated
the above provision in its
article 124(3). While the 1992
Constitution makes the same
point in Article 139 (3) thus:
“There shall be in the High
Court such divisions consisting
of such number of Justices
respectively as the Chief
Justice may determine.”
Thus right from the 1969
Constitution through to the
present 1992 Constitution, the
establishment of divisions in
the High Court has been at the
complete discretion of the
particular Chief Justice.
During Chief Justice Archer’s
time, he chose to establish
divisions of the High Courts in
Denu, Hohoe, Mampong, Akim Oda,
Nkawkwa, Obuasi, Tarkwa, and
other district capitals by
heralding it with a durbar of
Chiefs and people in the area.
The late Justice Archer
established these divisions in
the High Court without recourse
to any Act of Parliament,
constitutional or statutory
instrument. He established these
divisions in the High Court by
virtue of the authority vested
in him under Article 139(3).
It is indeed instructive to
point out that whereas Article
126(1) establishes the Courts
making up the Judiciary, the
marginal notes on Article 139(3)
clearly show that, that article
deals with the composition of
the High Court already
established in Article
126(1)(iii). For the marginal
notes on article 139(3) read:
“Composition of the High Court”.
Thus after the establishment of
the High Court in article
126(1)(a)(iii), article 139(3)
explains how the High Court is
to be composed, by mandating the
Chief Justice to compose the
High Court into such divisions
as he may deem necessary. How
the chief Justice arrives at the
number of divisions he wants the
High Court to be composed of, is
entirely at his own discretion.
Article 139(3) does not state
that the Chief Justice in
composing divisions of the High
Court needs to do so by an Act
of Parliament nor by any legal
instrument.
Thus the fundamental declaration
of the majority that a division
of the High Court cannot be
established except by an Act of
Parliament or constitutional or
statutory instrument is not only
palpably erroneous but also
unconstitutional. As such a
declaration is not warranted by
any provision of the
Constitution.
Parliament has no authority
under any provision of the 1992
Constitution to establish or
create a division of the High
Court. The authority of
Parliament is restricted to the
establishment of lower courts by
law.
The majority’s insistence on
putting words into article
139(3) when such words are not
in the article, with a view to
impose restrictions on the
exercise of the Chief Justice’s
discretion is not a permissible
exercise of the judicial
function. As Justice Felix
Frankfurter explained in his
discourse on the scope of the
judicial function, published in
the book: JUDGES ON JUDGING,
edited by David M. O’Brien 1997
at page 226, the judge’s
function in construing a statute
“is to ascertain the meaning of
words used by the legislature.
To go beyond it is to usurp a
power which our democracy has
lodged in the elected
legislature. The great Judges
have constantly admonished their
brethren of the need for
discipline in observing the
limitations. A judge must not
rewrite a statute, neither to
enlarge nor contract it.
Whatever temptations the
statesmanship of policy making
might wisely suggest,
construction must eschew
interpolation and evisceration.
He must not read in by way of
creation. He must not read out
except to avoid patent nonsense
of internal
contradiction…Legislative words
presumably have meaning and so
we must try to find it.”
Indeed, a careful examination of
the majority’s reasoning leading
to their conclusion that an Act
of Parliament or a
constitutional or statutory
instrument was required for the
establishment of a division of
the High Court, reveals, with
the greatest respect, a
fundamental error in their
reasoning. Their failure to
appreciate that article 139(3)
being a provision of the
Constitution is by itself, law,
and unless otherwise stated in
that article, needs no further
legal authority to give it the
full force of law.
The 1992 constitution, according
to article 1(2) is the Supreme
Law of Ghana and any other law
found to be inconsistent with
any provision of this
Constitution shall, to the
extent of the inconsistency, be
void.
The emphasis is on “any
provision” of the Constitution.
Article 139(3) being a provision
of the Constitution, is part of
the Supreme Law in respect of
which all other laws
inconsistent with it must give
way.
If such a supreme Law, that is,
article 139(3) mandates the
Chief Justice to establish
divisions of the High Court, and
in giving that mandate, does not
require same to be exercised by
any particular means, it would
be legally untenable and
unjustifiable to require an Act
of Parliament or a
constitutional or statutory
instrument for the exercise of
such mandate.
Thus for example, when Adjabeng
JSC in his opinion said:
“In my view, therefore, if the
Fast Track Court was created as
a Division of the High Court to
try Criminal cases, as the
Honourable Attorney-General
claimed, it should have been
backed by law.”(emphasis
supplied) and Adzoe, J.S.C also
asked:
“Has the Court been established
in accordance with law as a
division of the High Court? My
answer is no.”
The obvious implication of such
statements is that Article
139(3) is not law, and therefore
any action taken under that
article needs the backing of a
law for it to be valid. Is it
not obviously fallacious to
reason that Article 139(3) is
not law? Article 139(3), being a
provision of the Constitution,
is itself law, and indeed part
of the supreme law of the land,
in respect of which by article
1(2), any law inconsistent with
this article 139(3), stands
nullified. What law in this
country is superior to a
provision of the Constitution?
If the repealed colonial laws of
this country and the archaic
English Law and practice,
required Acts of Parliament or
constitutional or statutory
instruments for the
establishment of divisions in
the High Court, the 1992
Constitution of modern Ghana
does not say so in its article
139(3). Indeed Mr. Tsatsu
Tsikata himself in his statement
of case did not rely on these
archaic English Laws and
practice. He founded his case on
the 1992 Constitution, and it is
on this Constitution that a
proper and legal decision ought
to be based.
We are therefore satisfied that
the majority committed a
fundamental error in holding
that a division of the High
Court could not be established
by the Chief Justice without an
Act of Parliament or a
constitutional or statutory
instrument. For article 139(3)
mandates the Chief Justice to
establish, without recourse to
any authority, such divisions in
the High Court as he may deem
necessary.
We are further satisfied that
this fundamental error lead the
majority to erroneously hold
that the Fast Track High Court
is not a division of the High
Court.
Guidelines on the docket & case
management:
The applicant also complains
that the majority committed a
further fundamental error in
holding that the Fast Track High
Court was created by the
Guidelines exhibited in the
proceedings as AMI and not under
Article 139(3). And on this
point, Bamford-Addo, J.S.C
expressed herself thus:
“A Court created without
statutory backing is illegal yet
in the case the Fast Track Court
it was created by Guidelines
which has no legal effect.”
To begin with, nowhere did
either of the parties including
the defendant in their pleadings
aver that the Fast Track High
Court was created by the
Guidelines. In paragraph 2, 3, 4
and 5 of the Attorney-General’s
statement of case, he averred:
“2. In answer to paragraph 2 of
the statement of case of the
plaintiff, it is the case of the
defendant that the Constitution
of the Republic of Ghana in
making provision for the
administration of Justice makes
mandatory provision in Article
139(3) for the creation or
establishment of such divisions
of the High Court consisting of
such number of Justices as the
Chief Justice may determine.
3. In further answer to
paragraph 2 of the plaintiff’s
statement of case the defendant
avers that the Fast Track Court
is a division of the High Court
established pursuant to Article
139(3) of the Constitution and
by virtue of the fact that this
division of the High Court is
equipped with sophisticated
technological devices geared to
making speedy disposal of cases
possible, the name Fast Track
emerged and hence the Fast
Track.
4. In further answer to
paragraph 2, of the statement of
the plaintiff’s case, the
defendant avers that the
Constitution was not crafted to
contain names of the division of
the High Court which may be
established under Article 139(3)
of the Constitution and
therefore, it is not surprising
that the plaintiff did not see
any. It is not meant to be
there.
5. Paragraph, 3 of the statement
of the plaintiff’s case is
denied. On the contrary, the
Fast Track Court is a division
of the High Court as anticipated
under Article 139(3) of the
Constitution and section 14(3)
of the Courts Act 1993 (Act
459). The Chief Justice in
conformity with the power vested
in him by Article 139(3) of the
Constitution, section 14(3) of
the Courts’ Act and section
69(1) of the Courts Act (Act
459) caused to be established
the Fast Track Division of the
High Court – a division which
applies modern case management
practices and seeks to introduce
new judicial administrative
mechanisms that facilitate
faster processing and trial of
cases (see Fast Track Docket and
Case Management Guidelines for
Fast Track Court attached marked
AM1)”.
Thus nowhere did the defendant,
allege or plead that the
Guidelines created the Fast
Track High Court. Not even the
plaintiff who instituted the
action. The averments of the
defendant quoted above are to
the effect that the Fast Track
Court was established under
Article 139(3).
Indeed an objective examination
of the Guidelines will leave no
one in doubt that the Guidelines
cannot by any imagination be
said to be capable of creating a
Court.
For example in Chapter 2 of the
Guidelines, dealing with
“Counsel, Parties and Witness
Courtroom Activities”, we have
“(b) Recording of
Proceedings: Transcripts of
all proceedings will be
available in the Court between
24 hours and 72 hours of the
conclusion of the day’s sitting.
Copies will be made available to
counsel or parties at a cost
decided by the Court Manager.
(c) Obtain Official receipts:
Official receipt would be issued
for any payment made in the
courtroom. In effect, instead of
counsel and parties making
payment at the counter, payment
for proceedings, transcripts and
exhibits, for example would be
made to the Court Manager.
(d) Correction transcription
would be corrected in open Court
before the trial resumes.
Counsel is advised to come to
court at least half an hour
earlier than the trial or
hearing time to be able to read
through the transcripts and
point out corrections at the
start of the trial. If the
witness or party whose evidence
has been transcribed is
literate, it is advisable for
him to read the transcript”.
In Chapter 4 dealing with
operational modalities, we have
“(a) As a first duty in the
court, the clerk/usher or other
official acting as the machine
operators will test all the
microphones, the recorder and
the recording system. He needs
no assistant. All that he is
required to do is to speak into
each microphone, play back and
listen to the quality of the
recording. If there is a break
the wires and joints should be
crosschecked and the faults
rectified. Any equipment or
component not easily repairable
should be quickly replaced. That
is the rationale for the extra
machines on stand by.”
Do provisions like the above
create a Court? Are they not
meant to guide the operators of
the technology involved, how
they should run the systems?
Indeed the Forms in the
Guidelines are all headed “In
the Superior Court of
Judicature, High Court of
Justice, Accra”.
The judges who sit at that Court
are either substantive High
Court Judges or Appeal Court
Judges directed to sit as
additional High Court Judges by
the Chief Justice. The Court
uses the Civil Procedure Rules
of High Court and the Rules of
Evidence. Appeals from that
Court, like any other High
Court, lies to the Court of
Appeal with a further right of
Appeal to the Supreme Court. And
the Fast Track High Court, like
any other division of the High
Court is also subject to the
supervisory jurisdiction of the
Supreme Court.
Thus in the Republic vrs. Victor
Selormey, FTCR 3/2001, Victor
Selormey, being dissatisfied
with a ruling of the Fast Track
High Court, appealed to the
Court of appeal, and thereafter
went to the Supreme Court where
his appeal was dismissed. (See
CRA. 5/2001 Supreme Court dated
21st November 2001). Again in
FR/MISC/2001 The Republic vrs.
Mallam Ali Yusuf Issa wherein
Mallam Issa was convicted and
sentenced on 20th July 2001 by
the Fast Track High Court, he
appealed to the Court of Appeal
which dismissed his appeal.
Dissatisfied with the decision
of the Court of appeal, he has
lodged an appeal to the Supreme
Court which appeal is yet to be
heard.
The Guidelines never and could
not have exempted the Fast Track
High Court of any of the above
essential characteristics of a
High Court.
The goal of the Fast Track High
Courts is to ensure a more
efficient judicial application
of the existing rules and
regulations of the High Court.
And the rationale behind the
Guidelines is to facilitate the
attainment of that goal by
providing judges, staff, parties
and witnesses in the Fast Track
High Court, with a useable
framework within which to
exercise the discretion vested
in them under the High Court
Rules. If portions of the
Guidelines are found to be at
variance with the Rules of the
High Court, such inconsistence
is with the said Rules of the
High Court, and not with the
Constitution. After all the
purpose of establishing a
division is to go through a
period of experimentation to
find how the whole automation
process of the service should be
implemented. And one expects
corrections here and there at
this experimental stage.
Now what makes the operation of
the fast track court different?
— It uses computers. What makes
the Guidelines different? — It
uses computers. What makes the
fees different? — It uses
computers. What makes its
processes faster? — If uses
computers. Thus the operational
difference between the fast
track and other divisions of the
High Court is the use or non-use
of automation. It is therefore
disingenuous for the majority
while declaring the Fast Track
High Court unconstitutional to
alleged that they are not
against the use of computers in
Courts.
Exceptional Circumstances:
The applicant further contends
that the exceptional
circumstances justifying a
review of the majority decision
are first, the fact that the
judges of the Supreme Court
actively participated in the
discussion and processes towards
the establishment of the Fast
Track High Court; secondly the
Supreme Court's decision in
Selormey’s case, and thirdly
that Mr. Tsikata’s case did not
raise a constitutional issue
justifying the assumption of
jurisdiction by this Court.
Of course we are justified in
taking judicial notice of the
fact that all the judges
including the Supreme Court
Judges in Accra together with
the administrative class of the
Service held meetings to discuss
the establishment of the Fast
Track High Court. As the
applicant correctly pointed, the
Justices of the Supreme Court
were on 13th February 2001 at a
meeting convened for that
purpose briefed on the process
towards the establishment of the
automated court system which
came to be known as the Fast
Track High Court. Copies of the
Guidelines were given to each of
the Supreme Court judges for his
or her comments and only one
member, Sophia Akuffo, J.S.C,
presented a two page comment.
None of the remaining brethren
made any comment.
As if such an opportunity was
not enough, two of the members
of this court appeared as
witnesses before the FTHC and
gave evidence for the accused,
Victor Selormey. And when an
interlocutory appeal from the
FTHC through the Courts of
Appeal came before the Supreme
Court, seven of the remaining
justices sat on it, unanimously
dismissed the appeal and ordered
the trial to continue at the
FTHC.
The respondent alleges that the
order of the Supreme Court was
simply to the Court, and that
the issue of jurisdiction was
never raised when Selormey’s
case came on for hearing. In
paragraph 7 of his statement of
Case filed on 14-3-2002, the
respondent pleaded:
“7. The claim of the applicant
that the Supreme Court in the
case of Republic vrs. Selormey
remitting the case to the Court
below is untenable because the
issue of the constitutionality
of the Fast Track Court was not
the issue brought before the
Supreme Court in that
interlocutory appeal. The
Supreme Court determined the
matter presented to it and
thereafter remitted the matter
to the ‘Court’ from which the
appeal had been brought. If the
Supreme Court had attempted on
its own motion to declare the
Fast Track High Court
unconstitutional when no case
had been stated to that effect,
there could have been appearance
of the Supreme Court having a
special interest.”
Now the record of proceedings in
Selormey’s case before the
Supreme Court were in three
volumes. The first page of the
first two volumes clearly stated
that the trial was “ In the High
Court (Fast Track) Accra”.
Further the fact that Selormey’s
trial was going on at the Fast
Track High Court was a fact well
known all over the country for
any normal person to feign
ignorance of it. Thus when the
Supreme Court in its unanimous
decision, dismissed the appeal
and ordered the case to continue
at the trial Court, no other
Court could have been meant
other than the Fast Track High
Court.
The claim that the issue of
jurisdiction was not raised and
therefore could not have been
discussed is an unjustified
indictment on the competence of
the seven law lords who sat on
the case in the Supreme Court,
and such a claim should
therefore not be countenanced.
For jurisdiction is so
fundamental that its absence in
a court, renders that court’s
proceedings nothing but a
nullity. It is therefore trite
knowledge that the first duty of
every judge in any proceedings
is to satisfy himself that he
has jurisdiction in the matter
before him. For the issue of
jurisdiction can be raised at
any time, even after judgment.
Thus whether the parties raise
the issue of jurisdiction or
not, the court is duty bound to
consider it. And where the
issue is not raised, the court
is to raise it suo motu and call
upon the parties to address that
issue. Instances are bound where
this court and indeed other
courts have suo motu raised
issues, which go to the root of
the matter. Thus in Frimpong
vrs. Nyarku (1998-99) SC GLR 734
a chieftaincy appeal, this court
suo motu raised the issue of its
jurisdiction to entertain the
appeal having regard to two
alleged notices of appeal filed
at the Court of Appeal and the
National House of Chiefs, on the
same day. This Court took
evidence from the registrar of
the National House of Chiefs and
thereafter struck out the
appeal. There are indeed
currently pending, some cases
which this court has suo motu
raised fundamental issues for
determination. Thus in the
Selormey case, if even the
parties failed to raise the
issue of jurisdiction of the
FTHC to try Selormey, the
Supreme Court was duty bound to
consider the jurisdiction and
competence of the Fast Track
High Court to try Selormey.
Consequently once the Supreme
Court did not question the
jurisdiction of the Fast Track
High Court to try Victor
Selormey, when the latter’s
interlocutory appeal came before
that Court, it meant that the
Supreme Court was fully
satisfied that the Fast Track
High Court was a properly
constituted division of the High
Court, possessed of all the
jurisdiction of a High Court as
spelt out in article 140 of the
1992 Constitution. In short, a
Court of competent jurisdiction.
Article 140(1) reads:
“The High Court shall, subject
to the provisions of this
Constitution, have jurisdiction
in all matters and in
particular, in civil and
criminal matters and such
original, appellate and other
jurisdiction as may be conferred
on it by this Constitution or
any other law.”(emphasis
supplied)
Thus the Supreme Court’s
decision in Selormey’s case
together with the Court’s order
directing the Fast Track High
Court to continue with the
hearing of that case
authoritatively establish:
1. that the Fast Track High
Court is a properly constituted
division of the High Court,
2. And that as a High court, it
has jurisdiction to try both
civil and criminal cases,
including that of Selormey’s.
It does not therefore lie in the
mouth of the majority and the
respondent to engage in any
artificial post facto
rationalization of why the
jurisdiction of the Fast Tack
High court was conceded in
Selormey’s case but rejected in
their opinion in the judgment
under review. Especially as none
of those who sat on Selormey's
case referred to this case in
their opinion in Tsikata’s case,
with a view to explaining their
new stand.
A judge who concedes the
constitutionality of a court in
one case and turns round in
another case to deny the
constitutionality of that court,
must certainly have his latter
opinion reviewed. Hence the
justification for this review.
Criminal Summons:
The applicant also complains
about the majority’s holding
that the criminal summons served
on the respondent was
unconstitutional. Now it is true
that the criminal summons was
inadvertently issued in the name
of the President, but what harm
or threatened harm did that
error cause the plaintiff? Did
he as a result of that error go
to the castle to answer the call
of the President, or when he
came to the court, did he find
the President of the nation
presiding. The plaintiff came to
court because he knew it was the
court that summoned him, and
that whoever issued the criminal
summons, obviously made a
mistake. The plaintiff suffered
absolutely no harm by the error
neither has he demonstrated any.
That error was one obviously
amendable without prejudice to
the rights of the
plaintiff/respondent. And the
majority’s declaration on this
error was nothing but an
exercise in futility.
Was it a Constitutional Issue?
In Aduamoa II & Others vrs.Adu
Twum II (2000) SC GLR 165 a
seven-member panel of this court
unanimously held that the
original jurisdiction vested in
this court under articles 2(1)
and 130(1) of the 1992
Constitution is a special
jurisdiction meant to be invoked
in suits raising genuine or real
issues of interpretation of the
Constitution; or enforcement of
a provision of the Constitution;
or a question whether an
enactment was made ultra vires
powers conferred on Parliament
or any other authority or person
by law or under the
Constitution. The articles
referred to in this suits are
126(1) and 139(3), the meanings
of which are not in doubt.
Neither is it being alleged that
either of these articles or the
establishment of the Fast Track
High Court is in contravention
of any provision of the
constitution. It is therefore
clear that no issue of
interpretation arises from the
respondent’s action justifying
the invocation of our original
jurisdiction.
In conclusion we are satisfied
that the applicant has
demonstrated satisfactorily that
the majority committed such
fundamental errors in their
reasoning as to justify a review
of their decision.
They failed to appreciate that
the Constitution did not empower
Parliament nor provide by a
Constitutional or statutory
instrument, the setting up of
divisions in the High Court. And
that Article 139(3) which
authorized the Chief Justice to
establish divisions of the High
Court, has sufficient force of
law, to justify every division
of the High Court established by
the Chief Justice. If the
discretion given to the Chief
Justice in article 139(3) is too
wide, it is within the right of
every individual to criticize
it, but until that article is
amended, that authority stands
and represents the true legal
position.
This fundamental error led the
majority to declare the
automated High Court
unconstitutional — a declaration
which is repugnant to the
fundamental precepts of the due
process of law as enshrined in
article 19 of the 1992
Constitution, which article
seeks, inter alia, to guarantee
a speedy trial, particularly in
criminal proceedings. The
rationale is that accused
persons who cannot make bail do
not languish interminably in
jail; waiting for never ending
trials for crimes they may or
may not have committed. And
those who are able to make bail
do not have their cases dangling
without resolution for eternity.
The Fast Track process seeks to
introduce a qualitative standard
into the terminally slow, sub
standard legal system that
violates the due process of law.
Is it not ironic that in this
age of globalization and
technological advancement where
even the most undeveloped
nations are making efforts to
acquire the benefits of
technological advancement, the
highest court in Ghana would
thwart efforts at
technologically modernizing the
old inefficient court processes,
by declaring same
unconstitutional, not on the
basis of a provision of the 1992
Constitution, but on the basis
of repealed colonial English
legislation and practice. This
Court’s mandate under article
2(1) and 130(1) of the 1992
Constitution is to interpret and
enforce the provisions of the
1992 constitution and NOT the
provisions of any repealed
colonial English law and
practice.
If indeed it is unconstitutional
to be tried before an efficient
court, it is doubly
unconstitutional to be tried in
an inefficient court because it
violates the fundamental right
of due process.
We are therefore satisfied that
the applicant has made out a
worthy case for a review, and
accordingly grant his
application for the review of
the majority decision.
ATUGUBA, J.S.C.:
Obviously, the first issue to be
decided in this Review
application is whether the
applicant has raised any matters
that would fall within the
purview of the Review
jurisdiction of this Court.
Article 133(1) of the 1992
Constitution provides:
“133(1) The Supreme Court may
review any decision made or
given by it on such grounds, and
subject to such conditions as
may be prescribed by rules of
Court”.
Rule 54 of the Rules of this
Court, CI 16 states, as far as
relevant to the facts of this
application, as follows:
“54. The Court may review any
decision made or given by it on
any of the following grounds:—
(a) exceptional circumstances
which have resulted in
miscarriage of justice”.
(Emphasis supplied).
The purview of this provision
has been the subject of several
decisions of this Court. In
EKWAM V. PIANIM (NO. 3)
(1996-97) SCGLR 431 this Court,
per Abban C.J., stated at page
438 as follows:—
“… This Court in several decided
cases, has made it clear that:
‘The Review jurisdiction is not
intended as a try—on by a party
losing an appeal, neither is
meant to be resorted to as an
emotional re-action to an
unfavourable judgment’. See the
Supreme Court judgment in
Mechanical Lloyd Assembly Plant
Ltd. v. Nartey … now reported as
[1987-88] 2 GLR 598, S.C. …”
In the recent case of Quartey v.
Central Services Co. Ltd. Civil
Motion No. 10/95 dated 6th
February, 1996 reported in
(1996-97) SCGLR 398, ante, the
Supreme Court … took the
opportunity to re-state the
legal position at 399 as
follows:—
“A review of a judgment is a
special jurisdiction and not an
appellate jurisdiction conferred
on the Court, and the Court
would exercise that special
jurisdiction in favour of an
applicant only in exceptional
circumstances. This implies that
such an applicant should satisfy
the court that there had been
some fundamental or basic error
which the court inadvertently
committed in the course of
considering its judgment and
which fundamental error has
resulted in a gross miscarriage
of justice. These principles
have been stated over and over
again by this Court.
Consequently a losing party is
not entitled to use the review
process to re-argue … or use the
process to prevail upon the
court to have another or a
second look at his case.”
(Emphasis supplied).
In the application of this
principle this court has
accepted, as stated per Taylor,
J.S.C. in Mechanical Lloyd
Assembly Plant Ltd. v. Nartey
[1987-88] GLR 598 S.C. at 638,
inter alia, that
“… A third circumstance comes
within the class of cases which
can legitimately be said to be
decisions given per incuriam for
failure to consider a statute or
case law or fundamental
principle of procedure and
practice relevant to the
decision and which would have
resulted in a different
decision”.
(Emphasis supplied). See IN RE
KROBO STOOL (No. 2), NYAMEKYE
(No. 2) v. OPOKU 2000 SCGLR 567
at 571-572.
The applicant contends in his
Supplemental Statement of case
dated 19/4/2002 at paragraph 4
of page 7 thereof as follows:
“With respect to the Court’s
decision on the criminal
summons, Applicant submits that
the decision was given per
incuriam because the Court
overlooked or disregarded its
own binding precedent
established in Republic v. High
Court, Accra, ex parte
Attorney-General (1998-99) SCGLR
595 (“Delta Food Case”), which
precedent compels a result
different from that rendered by
the Court on the matter of the
mistake in the criminal
summons”. (Emphasis supplied).
This ground obviously falls
within the ground for review,
just stated.
This Court has also held that an
error relating to the
jurisdiction of a Court is a
ground for review. Thus, in
EDUSEI (No. 2) v.
ATTORNEY-GENERAL (1998-99) SCGLR
753 at 771 Kpegah, J.S.C.
graphically stated as follows:
“The main ground urged in
support of the instant
application for a review is that
this Court erred in declining
jurisdiction in the matter. As
has earlier been pointed out,
although it can be said there is
some uncertainty about what this
Court will consider to be an
exceptional circumstance
warranting a review of an
earlier decision, I think it can
be said that jurisdiction is
fundamental in any legal or
judicial proceedings; therefore
when it is wrongfully assumed or
declined, it would constitute an
exceptional circumstance for a
party to successfully make a
case for a review. In such a
case, there is no need to go
further and establish that there
has been a miscarriage of
justice since it can be presumed
from the very act of wrongful
assumption or declining of
jurisdiction itself”. (Emphasis
supplied).
This principle was followed by
this Court in REPUBLIC V. HIGH
COURT, KUMASI. EX PARTE
ABUBAKARI (No. 3) (2000) SCGLR
45. In my view, if the question
of the jurisdiction of a Court
is so fundamental that it can
found a review, then it must
follow that the question of the
existence of a Court or part of
a Court is so fundamental that
it can also found a review. For
how can the question of a
Court’s jurisdiction be more
fundamental than the Court
itself or part of itself? It
also stands to reason, mutatis
mutandis, that the applicant’s
contention that this Court
wrongly decided that Parliament
has a role to play in the
creation of a division of the
High Court, means that this
Court has, as it were,
wrongfully conferred a
legislative jurisdiction in the
matter for Parliament and this
must also by parity of
reasoning, be such a fundamental
error sounding in injustice as
can also found a review.
In any event the principles for
review have been more liberally
restated by this court in
AFRANIE II V. QUARCOO (1992) 2
GLR 561 and KOGLEX LTD. (No. 2)
v. FIELD 2000 SCGLR 175 and
until this court by departure
discounts some of them, they
would cover the present
application. Since for reasons
already stated ut supra, this
application for review has
qualified for the finals I would
not delve into them.
I would therefore hold that this
application for review is
maintainable and I would
therefore decide it on the
merits.
As far as the validity of the
summons issued to the
plaintiff/respondent to appear
before the Fast Track Court is
concerned I would uphold the
contention of the Honourable
Attorney-General that, with the
greatest respect, the original
decision of this Court
invalidating the same is per
incuriam of this Court’s
decision in REPUBLIC V. HIGH
COURT, ACCRA, EX PARTE
ATTORNEY-GENERAL (1998-99) SCGLR
595, (“DELTA FOOD CASE”). A
decision is a precedent as to
its ratio decidendi. This is
trite law. The Delta Food case,
in substance decides, as stated
in holding (1) of the headnote
that a defect in the institution
of proceedings involving a
constitutional provision, “…
should not, depending upon the
circumstances in each case, be
fatal, if … amendment could
easily be effected” to rectify
the defect. This principle ought
to have been applied in the
original decision of this Court
and would have led to a
different decision on that
issue. It is manifestly in the
interest of justice that the
institution of the proceedings,
to which that summons relates,
should not suffer perdition
though a curable defect. The
applicant therefore succeeds on
that issue.
And now to the battle of
Waterloo.
The cardinal question on the
issue of the constitutionality
of the Fast Track Court is
whether it is a strange Court,
administratively and therefore
invalidly established by the
fiat of the Chief Justice.
Article 139(3) of the 1992
Constitution has been recalled
into action. It still states as
follows:—
“(3) There shall be in the High
Court such divisions consisting
of such number of Justices,
respectively as the Chief
Justice may determine” (Emphasis
supplied.)
To my mind this provision is a
familiar one.
We have, for long, lived with
judicial divisions in this
country, as catalogued by
Ampiah, J.S.C. (with respect to
the Court of Appeal), and by
Edward Wiredu, C.J. and Acquah,
J.S.C. in their joint original
judgment.
If, nonetheless, the idea of a
judicial division is ambiguous,
as was thought in our original
decision, the ambiguity ought to
be resolved by resort first to
what I would call the primary
rules of construction of a
written Constitution as opposed
to the ordinary rules of
construction of statutes which I
would call the secondary or
supplemental rules of
construction; and legal theory.
Thus, in the celebrated case of
TUFFOUR V. ATTORNEY-GENERAL
(1980) GLR 637 C.A. (sitting as
the Supreme Court), Sowah,
J.S.C. (as he then was)
delivering the unanimous
judgment of the Court, stated at
page 647 as follows:—
“A written Constitution such as
ours is not an ordinary Act of
Parliament. It embodies the will
of a people. It also mirrors
their history. Account,
therefore, needs to be taken of
it as a landmark in a people’s
search for progress. It contains
within it their aspirations and
their hopes for a better and
fuller life. The Constitution
has its letter of the law. It is
the fountainhead for the
authority which each of the
three arms of government
possesses and exercises. It is
a source of strength. It is a
source of power. The executive,
the legislature and the
judiciary are created by the
Constitution. Their sustenance
is derived from the
constitution. Its methods of
alteration are specified. In our
peculiar circumstances, these
methods require the involvement
of the whole body politic of
Ghana. Its language, therefore,
must be considered as if it were
a living organism capable of
growth and development. Indeed,
it is a living organism capable
of growth and development, as
the body politic of Ghana itself
is capable of growth and
development. A broad and liberal
spirit is required for its
interpretation. It does not
admit of a narrow
interpretation. A doctrinaire
approach to interpretation would
not do. We must take account of
its principles and bring that
consideration to bear, in
bringing it into conformity with
the needs of the time.
And so we must take cognisance
of the age old fundamental
principle of constitutional
construction which gives effect
to the intent of the framers of
this organic Law. Every word has
an effect. Every part must be
given effect. …
And so a construction should be
avoided which leads to
absurdity. And when a particular
interpretation leads to two,
shall we say “inconsistent”
results, the spirit of the
Constitution would demand that
the more reasonable of the two
should be adhered to. We must
have recourse to the
Constitution as a whole”.
(Emphasis supplied).
Because of the unique character
of a written Constitution, the
English legal system (from which
our legal system is largely
derived), bows its legal
concepts and principles to the
spirit and letter of the
particular written Constitution
involved. Indeed the English
legal system fully endorses the
fundamental principles for the
interpretation of a written
Constitution as enunciated, in
extenso, in the Tuffour case
supra. See LIYANAGE V. REGINAM
(1966) 1 All ER 650 P.C. at
658. In HINDS V. THE QUEEN
(1976) 2 WLR 366 P.C. at 372,
Lord Diplock, delivering the
majority judgment of the Privy
Council stated with regard to
written Constitutions:
“They differ fundamentally in
their nature from ordinary
legislation passed by the
parliament of a sovereign state.
They embody what is in substance
an agreement reached between
representatives of the various
shades of political opinion in
the state as to the structure of
the organs of government through
which the plenitude of the
sovereign power is to be
exercised in future.
To seek to apply to
constitutional instruments the
canons of construction
applicable to ordinary
legislation in the fields of
substantive criminal or civil
law would, in their Lordships’
view, be misleading …”
(Emphasis supplied)
Applying these principles, the
obvious sources for the
construction of a provision of
our Constitution, which is
regarded as ambiguous, are, in a
descending order:
(a) the language of the
Constitution taken as a whole,
(b) the construction which has
been given by the Courts to
provisions of the Constitution,
(c) the Report of the Committee
of Expects (Constitution) on
Proposals for a draft
Constitution of Ghana,
(d) the previous Constitutions
of Ghana particularly from 1969
onwards,
(e) other similar foreign
Constitutions,
(f) the common law and other
statutes in pari materia and
(g) other legitimate sources.
A resort to these sources as
aids to the construction of
article 139(3) of the 1992
Constitution leaves me in no
doubt that, it is the intention
of the 1992 Constitution to
create judicial divisions, which
are also Courts, but which can
be established single-handedly
and administratively by the
Chief Justice of Ghana. At page
1 of their Report the Committee
of Experts stated as follows:—
“We were appointed under PNDCL
252 and mandated to ‘draw up and
submit to the Council proposals
for a draft Constitution of
Ghana’.
Section 4 of the Law provided as
follows:
“(1) For the purposes of Section
3 the Committee shall in its
deliberations take into account
the following:
x x x x
(b) the abrogated Constitutions
of Ghana of 1957, 1960, 1969 and
1979 and any other
Constitutions;
(c) any other matter which in
the opinion of the Committee is
reasonably related to the
foregoing.”
Then at pages 2-3 the following
appears:
APPROACH TO OUR WORK
2. As required by Law 252, the
Committee took into account the
following documents:
1. The Constitutions of 1957,
1960, 1969, and 1979
2. The above-mentioned NCD
Report
3. The Constitutions of other
countries
4. Several memoranda submitted
to us from the public.
A reference to the above
documents would have been
meaningless without an
evaluation of the constitutional
practice and experience of Ghana
and other countries. In Ghana,
particular attention was paid to
the constitutional practice and
experience under the 1st, 2nd
and 3rd Republics…
3. The Committee operated on
the cardinal principle that we
should not re-invent the wheel.
Accordingly wherever we found
previous constitutional
arrangements appropriate, we
built on them. In this
connection, with appropriate
modifications, we relied
substantially on some of the
provisions of the 1969 and 1979
Constitutions of Ghana to the
extent that they are relevant to
the general constitutional
structure proposed in this
Report…” (Emphasis supplied).
It will be seen from pages
125–128 and 270–274 of the
Report that the Committee of
Experts viewed the judicial
divisions of the High Court, as
Courts also. The framers of the
Constitution however left the
whole question of what actual
divisions should be in the High
Court, whether tax, land or
whatever, to the Chief Justice,
instead of specifying some of
them, as the Committee of
Experts did.
As far as the express provisions
of the 1969 Constitution as to
judicial divisions are
concerned, they are as follows:
Article 109(4) provided as
follows:
“(4) The Chief Justice may
create such Divisions of the
Court of Appeal as he may
consider necessary
(a) consisting of such number
of Justices respectively as may
be assigned thereto by the Chief
Justice
(b) sitting at such places in
Ghana as the Chief Justice may
by constitutional instrument,
determine; and
(c) presided over by the most
senior of the Justices of the
Court of Appeal constituting the
Court.”
Is there any doubt from clause
(c) of this Article that the
1969 Constitution regarded a
Judicial Division of the Court
of Appeal as a Court by itself,
albeit, a part of the Court of
Appeal? Similarly Article
112(3) of that Constitution also
provided that
“(3) There shall be in the said
High Court such Divisions
consisting of such number of
Justices respectively as may be
assigned thereto by the Chief
Justice; and sitting in such
places in Ghana as the Chief
Justice may determine.”
Obviously since the High Court
is almost invariably constituted
by only one justice thereof
there was no need to talk about
who should preside over whom.
For its part, the 1979
Constitution similarly provided
as follows:
“121(4) The Chief Justice may
create such Divisions of the
Court of Appeal as he may
consider necessary,
(a) consisting of such number of
Justices respectively as may be
assigned thereto by the Chief
Justice;
(b) sitting at such places in
Ghana as the Chief Justice may,
by constitutional instrument,
determine; and
(c) presided over by the most
senior of the Justices of the
Court of Appeal constituting the
Court.”
It provided in Article 124(3) as
follows:
“124(3) There shall be in the
High Court of Justice such
Divisions consisting of such
number of Justices respectively
as may be assigned thereto by
the Chief Justice; and sitting
in such places in Ghana as the
Chief Justice may determine.”
Currently, the 1992 Constitution
provides in Article 136(4) as
follows:
“136(4) The Chief Justice may
create such divisions of the
Court of Appeal as he may
consider necessary to sit in
such places as he may
determine.” (Emphasis supplied).
Its counterpart Article 139(3)
provides:
“139(3) There shall be in the
High Court such divisions
consisting of such number of
Justices respectively as the
Chief Justice may determine.”
Comparing these provisions with
their counterparts in the 1969
and 1979 Constitutions of Ghana
one would notice a shedding of
bodily weight in their
formulation. The provision, for
example, about the most senior
justice of the Court of Appeal
constituting the division,
presiding over it, has been
omitted from the 1992
Constitution. It is clear that
in practice, this does not make
any difference.
In TAKYI VRS. GHASSOUB (1987 –
88) 2 GLR 452 S.C. this Court,
per Adade, J.S.C. said at page
458 as follows:
“When a doubt arises in the
construction of part of a
section of a statute, it is
necessary to read the section as
a whole or in appropriate cases,
the statute itself, for
assistance. Here assistance in
construing execution of
proceedings under the judgment…
may be sought from sub-rules 2
and 3 of L.I. 1002, both of
which speak of staying
‘proceedings for execution of
the judgment or decision’. It
would seem to me clearly that ‘a
stay of proceedings for
execution of the judgment …’
(sub-rule 3) has the same
meaning as a ‘stay of execution
of proceedings under the
judgment… (sub-rule 1) and in
both the proceedings
contemplated are proceedings
after the judgment., not before
judgment.”
This approach is similar of
course to that advocated in the
Tuffour case, supra.
Similarly, in construing Article
139(3), one can resort to
Article 136(4) for guidance as
to its meaning. Does the use of
the word “create” in Article
136(4) in respect of the
judicial divisions in the Court
of Appeal leave any room for
doubt that under that provision
the Chief Justice is empowered
to establish a division of the
Court of Appeal all by his own
fiat? If Parliament has been
excluded from the creation of
judicial divisions for the Court
of Appeal, what suggests that it
has been included in the process
of establishing judicial
divisions in the High Court? I
readily accept the
Attorney-General’s submission
that the only role given by
Parliament, short of a due
amendment, in the establishment
of Courts, is limited by Article
126(1)(b) to “such lower courts
or tribunals as Parliament may
by law establish”. Reading
Article 139(3) together with
Article 136(4) and considering
the provisions of the 1969 and
1979 Constitutions, which are
more compelling statutes in pari
materia with the 1992
Constitution; and bearing in
mind that the Committee of
Experts for the 1992
Constitution at p. 3 of their
report stated quite clearly that
it “with appropriate
modifications,… relied
substantially on some of the
provisions of the 1969 and 1979
Constitutions of Ghana” and also
aforesaid, that it took into
account “the constitutional
practices and experiences of
Ghana”. I have no doubt what the
import of Article 139(3) is. The
constitutional practice with
regard to the formation of
judicial divisions in Ghana has
been given by Ampiah, J.S.C.,
Edward Wiredu, C.J. and Acquah,
J.S.C., aforesaid. That practice
completely excluded any
legislative involvement in the
creation of these divisions. It
has been solely the fiat of the
Chief Justice. Article 5(1) of
the Constitution further
fortifies this view. It provides
as follows:
“5(1) Subject to the provisions
of this article, the President
may, by constitutional
instrument
(a) create a new region.”
(Emphasis supplied).
When, so clearly, the
Constitution in conferring a
creative power on the President
expressly tacks the requirement
of acting “by constitutional
instrument” to it but patently
omits such a requirement when
conferring a similar power on
the Chief Justice under Article
136(4) of the Constitution with
regard to the creation of
judicial divisions in the Court
of Appeal, there can be no doubt
that the Constitution, regarding
the creation of judicial
divisions as part of the
administrative functions of the
Chief Justice under Article
125(4); entrusts the whole of
that matter to the Chief
Justice. It is therefore clear
that the omission of any
legislative process in the
creation of judicial divisions
under Articles 136(4) and 139(3)
is deliberate. Such deliberate
statutory omissions are well
known, see NAIR V. TEIK (1969) 2
All ER 34 P.C. and KOTEY V.
KOLETEY (2000) SCGLR 417. This
aspect was covered in extenso by
Edward Wiredu, C.J. and Acquah,
J.S.C. in their joint original
judgment.
As regards the constitutive
elements of a judicial division,
the same can be gleaned from the
provisions of Article 139(3).
These elements are that, there
shall be the body of the
division, obviously with a name
as given by the Chief Justice
and consisting of such number of
justices as the Chief Justice
may determine. I however agree
with those of my brethren who
think that a judicial division
must have a specified
jurisdiction or area of
operation. This is implicit in
the wording of Article 139(3).
Since every part of a statute is
intended to have effect, the
word “division” in Article
139(3) cannot be intended to
have a colourless effect. A
statute, inclusive of a written
Constitution, can speak either
expressly or by necessary
implication. Thus Article 129(4)
of the 1992 Constitution
provides:
“(4) For the purposes of hearing
and determining a matter within
its jurisdiction and the
amendment, execution or the
enforcement of a judgment or
order made on any matter, and
for the purposes of any other
authority, expressly or by
necessary implication given to
the Supreme Court by this
Constitution or any other law,
the Supreme Court shall have all
the powers, authority and
jurisdiction vested in any Court
established by this Constitution
or any other law.” (Emphasis
supplied.) See also Article
298.
To my mind, therefore, the word
division in Article 139(3)
necessarily implies a division
handling some jurisdiction. Thus
the Civil Division of the Court
of Appeal necessarily means,
that part of the Court of
Appeal, to handle civil appeals
and other civil matters which
are vested in the Court of
Appeal as a whole. Since the
whole question of forming the
judicial divisions is entrusted
to the Chief Justice, then under
Article 297(c) of the
Constitution, he has all the
necessary powers to do whatever
is necessary to carry out his
task; including of course,
specifying what causes and
matters a judicial division is
to handle. I would therefore
agree that, though headed
“Guidelines”, those parts of
Exhibit AM1 specifying cases
which are handled in the Fast
Track Division, were intended to
specify the jurisdiction of the
Fast Track Court. I do not see
how such matters, which are not
choice of Law rules, can be said
to be only for the guidance of
that court, as I thought in my
original judgment. But, if that
is so, then it is clear that the
Fast Track Division has not been
created solely on the basis of
automation facilities. It does
mean that it has been created
out of a matrix of certain
specified subject matter areas
and automation facilities. If,
however, it were created solely
on automation facilities it
could not have been
objectionable on that ground.
If, as is generally accepted, a
judicial division can be created
solely on the basis of
territory, why can’t automation
be a basis also?
If the Chief Justice were to
introduce automation into the
High Court, generally, under
section 69 of the Courts Act,
1993 (Act 459); that would have
to be used by all sessions of
the High Court; but as we all
know, since the automation
facilities, though belonging to
the High Court, are inadequate,
the problem can only be solved
via a judicial division of the
High Court; for judicial
divisions often deal with
special matters.
The fact that he does so
administratively is no defect.
I, for my part, do not see why
such administrative action which
has the authority of the
Constitution itself should be so
unacceptable. After all, if the
Chief Justice were empowered to
do so by Order, or
Constitutional Instrument, or
the like, such instruments would
only be valid because they are
done under the authority of a
constitutional provision. It is
difficult to see why a purely
administrative measure taken
under the authority of the same
Constitution should be,
anathema.
After all, it is a cardinal
principle that Parliamentum
omnia potest. Certainly
therefore, Constitutio also
omnia potest.
I however do not agree that the
list of cases to be handled at
the Fast Track Court involves
purely civil cases. That list
includes the prerogative writs.
In AHENKORA V. OFEI (1957) 3
WALR 145, C.A. and REPUBLIC V.
COMMITTEE OF INQUIRY (R.T.
BRISCOE GHANA LTD.) (1977) 2 GLR
223, (even though the position
in England is not quite the
same), it was held that
proceedings for the prerogative
writs (or orders, now) are
neither civil nor criminal but a
tertim quid, lying between them,
but not of them. Therefore when
at the end of that list it is
stated that “This list will be
expanded in the course of time
to include other cases,” that
list cannot be construed,
ejusdem generis, as embracing
only civil matters. The plain
words of that statement do not
permit, in any case of any
ambiguity. As I said in my
original judgment, page 19 of
the Guidelines has procedures
for trial of criminal cases
including trial on indictments.
I don’t understand why that page
should seem to be invisible;
because it is as clear as any
other page of the Guidelines.
Of course, when criminal cases
are tried there, the maxim omnia
praesumuntur rite et solemniter
esse acta, will apply, to the
effect that the Chief Justice
has duly expanded the list. No
particular form is in any case
provided for such expansion to
take place. Even statues,
including the Constitution, do
make provision for expansion of
a Court’s jurisdiction, see for
example Article 140(1) of the
Constitution relating to the
jurisdiction of the High Court.
As to the other parts of the
Guidelines dealing with time
limits and so on, they are mere
guidelines designed to assist
that Division, in its
discretion, to abridge the time
limits provided by the High
Court Civil Procedure Rules 1954
(L.N. 140A), through the
effective use of the mechanical
method of recording proceedings
in that Division. See Ord. 64 of
L.N. 140A which clearly permits
the abridgement of time limits
in the Court’s discretion.
I have not noticed any
significant departure from the
normal rules of the High Court
as contained in those
guidelines, save in one respect.
I have no doubt that the Chief
Justice cannot establish a
judicial division that is
substantially different from the
Court of Appeal or the High
Court. A division, within the
context of Articles 126(1),
136(4) and 139(3) of the 1992
Constitution, was contemplated
to share of the nature of an
existing Court; and not that a
different Court altogether be
created, under the guise of a
division.
I do not however think that any
thing significant in the
provisions relating to a
judicial division, turns on
whether a big or small “d” is
therein used. I have considered
that matter closely.
In HINDS V. THE QUEEN (1976) 2
WLR 366 it was contended that
the Chief Justice of Jamaica, in
establishing three new divisions
of a Court called the Gun Court,
had thereby created a new Court,
inconsistent with the Supreme
Court established by the
Constitution; without the
necessary constitutional
amendment. At page 374 Lord
Diplock, delivering the majority
judgment said:
“Where under a Constitution on
the Westminster model a law is
made by the Parliament which
purports to confer jurisdiction
upon a Court described by a new
name, the question whether the
law conflicts with the
provisions of the Constitution
dealing with the exercise of the
judicial power does not depend
upon the label (in the instant
case “The Gun Court”) which the
Parliament attaches to the
judges when exercising the
jurisdiction conferred upon them
by the law whose
constitutionality is impugned.
It is the substance of the law
that must be regarded, not the
form. What is the nature of the
jurisdiction to be exercised by
the judges who are to compose
the Court to which the new label
is attached? Does the method of
their appointment and the
security of their tenure conform
to the requirements of the
Constitution applicable to
judges who, at the time the
Constitution came into force,
exercised jurisdiction of that
nature?
Attorney-General for Australia
v. The Queen (1957) A. C..”
(Emphasis supplied).
Applying this principle, I
cannot see what different
substantive jurisdiction has
been conferred on the Fast Track
Court.
I agree in any event with the
Attorney-General that any
procedural excesses alleged
against the Fast Track Court
cannot affect its existence as a
Court. They are distinct and
severable matters from, the
existence and substantive
jurisdiction, of the Court.
That part, however, of the
Guidelines, which states that a
writ will not automatically be
placed in the list of the Fast
Track Court without the leave of
the Chief Justice, is
disturbing, if it means that the
special jurisdiction of the Fast
Track Court cannot be invoked
without the leave of the Chief
Justice. I view a judicial
division merely as a Court
within a Court, just as in
criminal trials there can be a
trial within a trial, popularly
called at the Bar, as a mini
trial. It is part of the whole
trial of the case concerned,
yet, it has its specific and
special existence; and though it
does not survive if the whole
trial is declared a nullity, it
nonetheless, so long as the
validity of the whole trial
holds good, has its distinctive
role or place, which if not
observed, can have dire
consequences. Similarly if the
High Court or Court of Appeal is
abolished, the Divisions,
thereof necessarily perish
also. But having been created,
as a distinct parcel of the
whole, it cannot be treated as
if it had no distinctive
character.
Accordingly, its jurisdiction
can be invoked as of right, and
when so invoked, cannot depend
on the leave of the Chief
Justice. However, when a writ is
issued there, it does not
automatically enter the list for
trial until entered there by the
Registrar; which is purely an
administrative matter. This
latter sense is unobjectionable.
The former meaning of it was the
one intended and would be a
fetter on the exercise of a
division’s jurisdiction; and I
would strike that down as being
violative of Article 140(1) of
the Constitution. See KWAKYE V.
ATTORNEY-GENERAL (1981) GLR 9 at
13 and SAM V. ATTORNEY-GENERAL
(2000) SCGLR 305.
As to the number of the justices
that constitute that Division
Exhibit AM1 does not specify the
same. But there is nothing to
show that Exhibit AM1 contains
or was meant to contain the
exhaustive information about the
establishment of the Fast Track
Division. We all, however, know
that many judges have operated
in that division; there is
nothing to show that such are
not the number assigned thereto
by the Chief Justice. In any
case an allegation of any
contravention in that direction
will be met by the maxim omnia
praesumuntur rite et solemniter
esse acta, as I explained in my
original judgment.
It is quite clear that, in
defiance of that
well-established presumption,
the plaintiff/respondent calls
for proof of certain allegations
he makes, as if the onus
probandi rather lies on the
Chief Justice and not on
himself; to rebut the same, as
laid down in sections 18 to 21
of the Evidence Decree, 1975
(NRCD 323). I addressed this
issue at length in my original
judgment.
For all the foregoing reasons, I
would allow this review
application, set aside the
original judgment of this Court
dated the 28th day of February,
2002 and in its place, dismiss
the plaintiff’s claim; subject
only to the amendment I ordered
in respect of the criminal
summons and what I said about
the invocation of the
jurisdiction of the Fast Track
Court.
SOPHIA A. B. AKUFFO, J.S.C.:
Having considered the
application herein, together
with the documents filed by both
parties hereto, there is no
doubt in my mind that the
Applicant has demonstrably shown
that there are exceptional
circumstances which have
resulted in a miscarriage of
justice that justify a review of
the decision delivered on
February 28, 2002 in Writ No.
2/2002. I have previously had
the opportunity to read the
reasoned opinion of my Brother
Mr. Justice Acquah, J.S.C. and
fully attach myself thereto and
have nothing useful to add
except the following:—
In my view the most significant
and thus exceptional
circumstance guiding my stance
herein is the interpretation
placed on Article 126, the
logical result of which is to
place into the hands of
Parliament a power the
Constitution did not grant, i.e.
the power to establish Superior
Courts. It is patently clear
from the provisions of the
Constitution that Parliament’s
power to establish Courts is
limited to Lower Courts and
Tribunals. If it is the belief
of anyone that, in this regard,
Parliament’s power ought to
extend to the establishment of
Superior Courts, such belief
cannot be actualised by way of a
decision of this Court. This
decision, if allowed to stand,
will do gross damage to the word
and spirit of the Constitution
and pose a lethal threat to the
independence of the Judiciary, a
core principle of our collective
concept of Constitutional
Democracy as enshrined in the
Constitution.
LAMPTEY, J.S.C.:
This is an application by the
defendant invoking the review
jurisdiction of this court. The
facts have been sufficiently
stated by my brother Acquah,
J.S.C., I need not repeat same
here.
The first issue of law raised in
this matter may be stated
briefly thus:
When can the power of this Court
to review its decision be
invoked by a party? The grounds
upon which the Supreme Court may
review any decision made or
given by it are stated at rule
54 of CI 16 thus:
“54(i) exceptional circumstances
which have resulted in a
miscarriage of justice; and
(ii) discovery of new important
matter or evidence which, after
the exercise of due diligence,
was not within the applicant’s
knowledge or could not be
produced by him at the time when
the decision was given”.
The power in this Court to
review its decision derives from
Article 133(1) of the
Constitution namely —
“133(1) The Supreme Court may
review any decision made or
given by it on such grounds and
subject to such conditions as
may be prescribed by rules of
Court.”
This Court in the case of
Mechanical Lloyd Assembly Plant
v. Nartey (1987-88) 2 GLR 598
provided the learned justices an
opportunity to state their
respective opinions on the
import of the review
jurisdiction granted it pursuant
to Article 133(1) I reproduce
some of the opinions hereunder:
As per Adade, J.S.C at p.606
“Let me also comment on another
matter, which was thrown across
at the trial, more by proxy than
directly. It was noised in
certain quarters that the review
in this case should be handled
by a panel other than the one
which heard and decided the
appeal, if the applicant’s are
to have a fair and impartial
hearing. In other words, those
who heard the appeal have
already made up their minds, and
it will not be easy to persuade
to change their minds.
The contention is as puerile as
it is disingenuous. It must be
remembered that the proceedings
are a review, they are not a
hearing of the appeal de novo on
a reference back and every
lawyer knows that by the
practice of the courts, a review
must as far as practicable, be
heard by the same judge or
judges who gave the decision
sought to be reviewed”
Adade was quick to admit that he
relied on the High Court rule on
review that is Ord.39 r.2 of LN
140A.
A careful reading of the opinion
of Francois, J.S.C and Amua
Sekyi, J.S.C. would throw some
light on the matters that
provoked the opinion of Adade,
J.S.C. in this matter.
Francois, J.S.C. at p.639 stated
as follows:
“The cases that have come on
review since then (Fosuhene v.
Pomaa (1987-88) 2 GLR 105 SC)
have been dispatched on an ‘ad
hoc’ fashion which does no
credit to our institution.
Certainty, that is the hallmark
of our discipline is completely
non – existent …………The history
of the final appellate court of
this land demonstrates that the
legislators have never
countenanced a situation where
a panel composed of the same
members who heard the matter at
first instance would review
it……..
In recent times, the full bench
has reflected the enhanced
jurisdiction of the Court of
Appeal with the addition of two
members to its usual normal
three, in review matters.
Various Chief Justices have
introduced their own refinements
in the quest for untrammelled
objectivity.” – See on this Nye
v. Nye (1967) GLR 76 I.A.
Francois, J.S.C. expressed
himself further on the vexed
issue of the composition of the
panel to hear and determine a
review thus:
“The panel that hears an appeal
in the final Court of Appeal is
not automatically the panel that
disposes of a review
application……………………………..
Secondly, a panel which should
exercise the jurisdiction to
review, must be appointed by the
Chief Justice in his
administrative functions. Both
statutory intelligence and logic
would seem to propound the folly
of asking an adjudicating panel
comprising persons with
entrenched views to pronounce,
confirm and reiterate their
division.”
Francois, J.S.C. was exasperated
and disgusted by the seeming and
apparent breach by the Court of
r.13(1) of CI 13 — Supreme Court
Rules 1970 and stated same as
follows:
“……….in my considered opinion a
majority view is not a majority
judgment. Indeed, until the
process of a full consideration
of an application by the full
membership of a panel has been
undertaken, what passes as a
judgment cannot be so
elevated”
On this issue Taylor, J.S.C. at
p.634 expressed himself as
follows:
“Counsel in scathing and
trenchant language endeavoured
to demonstrate that the majority
judgment of this court is
perverse and he virtually
recommended the minority
judgment for our acceptance ……….
An application for review is, I
believe, an invitation to the
court to exercise its
discretionary power of
reversing its judgment in the
interest of justice.
x x x
Our judgments are matters of
public interest and I concede
that when our judgments are
demonstrably wrong, counsel and
indeed all members of the public
have a right to comment on them
……”
The approach of Wuaku, J.S.C. as
to the test to be applied and
relied upon in review
application in my humble opinion
is recommendable. At pp. 642 –
643 the learned Justice
expressed himself thus:
“What I think I have to ask
myself (in a case on review) is
which judgment should become the
judgment of the court? This
brings in the question whether
the majority in their judgment
had adverted their minds also to
the points raised in the
minority judgments before
arriving at the majority
decision.
x x x
I hold the view that there is
nothing which ought to be
considered which was not
……….therefore the majority and
the minority have separately
considered all the points raised
in the appeal before a decision
was arrived at resulting in the
majority decision.”
Amua Sekyi, J.S.C. was critical
of the court. At p.647 he
expressed his frustration in
language following —
“In my view there are two
grounds on which the defendants
were entitled to leave to apply
for a review of the judgment.
These are first, that the court
diverted its attention from the
real matters in controversy
between the parties to
peripheral and irrelevant issues
of professional misconduct, and
secondly that the court treated
as pleadings, and commented
upon, documents which were
either foreign to the suit, or
were not, in fact, pleadings at
all.”
On the crucial issue on the
composition of the review bench,
Amua-Sekyi, J.S.C. at p.649
delivered himself thus:
“If justice is to be seen to
have been done this review ought
to be taken by a differently
constituted court. The moral of
the mote and the beam teaches us
that example is better than
precept”. See on this Article
133(2).
I have reproduced what in my
opinion are honest and frank
interpretation and views of
eminent judges faced with the
exercise of review jurisdiction.
I find that the expression
“exceptional circumstances” are
circumstances peculiar to the
case in respect of which a
review application is made.
This then leads me to ascertain
and determine whether or not
there are exceptional
circumstances to found and
support the present application
for a review of this Court’s
judgment of 28th February 2002.
I do not intend to repeat the
case put forward by the parties.
These have been adequately dealt
with in the judgment of my
brothers.
I have intentionally reproduced
the views and opinion of eminent
justices of the Supreme Court in
order to support my conviction
that the case law on what, when
and how the jurisdiction of this
court in the matter of review is
not free from doubt. I have not
succeeded in finding the
interpretation put on the
expression “exceptional
circumstances” from the case
law. I venture to state that
“exceptional circumstances” mean
that an applicant invoking the
review jurisdiction must satisfy
the court that in all the
circumstances of his case there
had been a failure of justice or
that there had been a
miscarriage of justice. It
seems to me that this burden can
properly be discharged by the
applicant, if he establishes in
his statement of case that the
judgment is perverse and cannot
be supported because it is
against the weight of evidence.
I do not subscribe to the view
that a review must not be
treated as if it was an appeal
for the reasons I have given
above. Additionally, the
Constitution specifically
provided that the bench or panel
to hear and determine a case on
review must be enhanced by a
minimum of two justices. In my
opinion the two or more “new”
justices to be empanelled cannot
lawfully exercise their duty
without examining and
considering the whole of the
previous proceedings which is
under review; and (2) the
enhanced bench or panel as a
whole must deal with all the
arguments and submissions of
counsel for parties even if this
duty of counsel was discharged
by repeating the earlier
arguments and submissions.
More importantly. I am persuaded
by the philosophy that allowed a
party aggrieved and dissatisfied
with a judgment of a court the
constitutional right to appeal
to a court with enhanced
jurisdiction and enhanced number
of justices. In the light of
the views I have expressed, I
cast my vote with justices who
hold the view that review
jurisdiction in substance and
intent is not different from an
appellate jurisdiction properly
so called.
I now deal with the review
application on the merits. The
first document is a printed
document, Exhibit “TT4”, which
was designed and intended to be
used in Magistrates’ Court
throughout Ghana before the 1992
Constitution came into force for
purposes of criminal trials. The
heading as printed reads —
“IN THE MAGISTRATE’S COURT
……………”
The blank space provided on the
printed form was to be filled
and completed with the “name of
the city or town” where the
court must sit; e.g. “In the
Magistrates Court, NSAWAM”. The
space was never designed nor
intended to be completed with
the name of another court. In
the instant case the space
provided on Exhibit “TT4” was
filled in and completed in
long-hand with the words “FAST
TRACK HIGH COURT.” In these
circumstances, Exhibit TT4 reads
—
“IN THE MAGISTRATE’S COURT FAST
TRACK HIGH COURT.” The obvious
question that must be answered
would be and is, which of the
two courts is the court before
which the plaintiff was to be
arraigned on the criminal
charge? I note that the
plaintiff did not complain about
the expression” Magistrate’s
Court.” I have drawn attention
to the above facts in view of
the finding of fact that the
majority judgment rejected the
explanation from the defendant
that what appeared on the face
of the Exhibit TT4 was a
mistake. The majority failed to
advert to the printed words “In
the Magistrates Court” and did
not give reasons for the
omission.
In my view if it became
necessary and expedient to use
the obsolete printed form “TT4”
due care and attention must be
taken and exercised by the
official using same to make all
necessary corrections in the
text before signing it. Again
the printed form on the face of
it must be signed by a
“Magistrate”,. In the instant
case, the printed form was
signed by a Justice of Appeal.
It is plain and clear from
reading Exhibit “TT4” that the
Justice of Appeal failed to make
the necessary and desirable
corrections on Exhibit “TT4”.
It is the case of the plaintiff
that the words used in Exhibit
“TT4”, in particular, the use of
the words “Fast Track High
Court” and “President” in that
context when properly
interpreted resulted in a breach
of the 1992 Constitution. I
unreservedly reject the
interpretation I am requested to
put on Exhibit TT4. The printed
form was made obsolete by the
1992 Constitution because
“Magistrate’s Courts” were
abolished by article 126(1)(b)
of the Constitution. The Justice
of Appeal did not exercise due
care and attention when he
signed the document because he
failed to notice that the
summons he signed contained the
serious mistakes not permissible
by law, that is, the criminal
law.
Again the Justice of Appeal
failed to notice that in the
summons the “plaintiff was
commanded in the name of the
“President” to present himself
before the courts indicated in
the Summons, Exhibit TT4. This
command should properly have
been made at the instance of the
Republic of Ghana. The majority
judgment rejected the
explanation of the defendant,
namely, that the command in the
name of the President rather
than in the name of the Republic
was a mistake. I note that the
defendant failed to indicate
which official committed the
mistake apparent on the face of
“TT4”. I have laid the mistake
squarely at the door of the
Justice of Appeal who signed it
and gave it legitimacy and
lawful authority. The next
question to ask is how is such
an error or breach addressed?
I reject the interpretation put
on this issue by the majority
judgment. In my view the
Justice of Appeal should have
made the necessary corrections
when he was handed the completed
printed form to sign. It was his
duty to satisfy himself that the
completed form complied with all
the requirements of the criminal
law. In my view, the issue of
law or the legal problem created
by the Justice of Appeal did not
and has not raised the issue of
interpretation or breach of any
provision of the Constitution.
My view is that the plaintiff,
if he believed that a freedom
guaranteed to him by the
Constitution was breached by the
act or omission of the Justice
of Appeal, that is to say, by
signing the document Exhibit
“TT4”, with all the mistakes the
plaintiff justifiably complained
of, then his constitutional
right was to seek redress in the
High Court. In my opinion,
Exhibit “TT4” does not assist
plaintiff in the sense that the
evidence contained in it does
not prove and establish the case
he put forward, namely breach of
the Constitution.
I note that in the majority
judgment the date plaintiff
issue his writ in this court is
stated as 11th March 2002. This
judgment is duly and regularly
signed by the Justice of the
Supreme Court. With great
respect to the Justice of the
Supreme Court, the correct and
incontrovertible date on which
the plaintiff filed his writ in
this case was 11th February
2002. I do ask myself the
question what effect does this
error or mistake have on that
judgment? More importantly, how
can this mistake be corrected?
Again does this mistake give an
aggrieved party a cause of
action in law? I pause here.
Another document put in evidence
by the plaintiff was marked
Exhibit “TT5”. The reason for
putting in evidence Exhibit TT5
was stated at paragraph 12 of
the supplementary affidavit of
the plaintiff. That reads:
“12. On the docket in respect of
my case there is written on the
cover “In the Fast Track Court,
Accra” with the words
“Commercial and Industrial”
printed underneath. I attach a
certified true copy marked
TT5”.
I am amazed that “a docket
cover” is being put forward as
evidence in the circumstances of
this case. What is a “docket
cover”? Which official of the
Judicial Service certified a
copy of a “docket cover” for the
use and purposes of this case? A
“docket cover” in my honest
opinion is not a “judicial
form”. I cannot understand the
need to apply for a “docket
cover” which does not on the
face of it (1) charge the
plaintiff with a criminal
offence and (2) not signed by a
judge or Tribunal Chairman. The
majority judgment made the
following observation on Exhibit
TT5:
“Even though this (Exhibit TT5)
was a charge sheet there is no
charge indicated on it.” (My
emphasis)
This conclusion cannot be
supported in law because the
plaintiff’s case is that Exhibit
TT5 is a “docket cover.” The
majority gravely erred in law
when it ruled and held that
Exhibit “TT5” was a charge
sheet. I must also point out
that a “docket cover” is not and
can never form part of the
record of proceedings of any
court in the land. In the
instant case, it is my opinion
that Exhibit “TT5” does not
assist the plaintiff in proving
his claim.
There is yet another issue of
law raised on the face of
Exhibit TT5 which calls for
examination and consideration.
In the instant case, the
plaintiff has in plain language
indicated and stated that he is
facing a criminal charge
properly and lawfully laid
against him. It follows, in my
respectful opinion, that it is
the criminal jurisdiction of the
trial court that is exercisable
in this case. The plaintiff put
in evidence Exhibit “TT5” which
apart from what I have stated
earlier is a document (docket
cover), designed and intended to
be used in a competent court in
civil cases as opposed to
criminal cases. This is amply
and unequivocally demonstrated
and proved by the printed
expressions on “this docket
cover” as follows —
(i) “plaintiff;”
(ii) “defendants,”
(iii) “costs”
(iv) “judgment for”
(v) “Industrial and Commercial”.
I need not burden this judgment
with the notorious fact and
trite learning that the above
expressions are terminology and
language peculiar to and
associated with trials in the
civil divisions of the courts of
the land. I have provided this
further reason to support my
total rejection of Exhibit “TT5”
of no evidential value.
I now consider and examine the
gravamen of the case of the
plaintiff as was stated at head
(5) of the reliefs sought as
follows —
“(5) A declaration that there is
no “Fast Track High Court
“established under the 1992
Constitution of the Republic of
Ghana and therefore a summons to
appear before such a “court” is
null and void.”
The gravamen of the plaintiffs
case under this head is simply
that Article 125 and in
particular Article 126 of the
Constitution 1992 did not create
a “Fast Track High Court.” In
reply, the defendant contended
that the “Fast Track High Court”
is a division of the High Court
created pursuant to Article
139(3) of the 1992 Constitution.
In further amplification of the
case of the plaintiff I must
reproduce paragraphs 26 and 27
of his amended affidavit as
follows —
“26. I am further advised and
verily believe that a “Fast
Track” division of the High
Court is meaningless within the
framework of the 1992
Constitution.
27. To the best of my belief
and information, no “Fast Track”
division of the High Court has
been established in accordance
with the provisions of the
Constitution………..”
In the light of the above
matters the plaintiff submitted
at paragraph 12 of his amended
statement of case that —
“12. Bringing criminal
proceedings before the purported
“Fast Track Court” variously
referred to as “Fast Track High
Court” is in contravention of
Article 127(1) ……….” (My
emphasis).
And at paragraph 14 that —
“14. Continuation of criminal
proceedings initiated
unconstitutionally and before a
forum not recognised under the
Constitution to determine the
guilt or innocence of the
plaintiff is a flagrant
contravention of Article 1(1)
and 125(1) of the Constitution
1992.”
In reply and by way of answer to
the case of the plaintiff, the
defendant in its statement of
case submitted that pursuant to
Article 139(3) of the
Constitution the Chief Justice
established the “Fast Track High
Court” as a division of the High
Court.
I must consider the issue
whether or not the “Fast Track
High Court” is within the
intendment and spirit of the
1992 Constitution a “division”
of the High Court properly
established pursuant to Article
126(1)(a)(iii). To embark on
this exercise, I agree with the
submission of the plaintiff that
“all the provisions of the
Constitution” must in so far as
the same are relevant be
examined and considered. To do
this, I would consider how the
Constitution 1992 came into
being.
In my view, I must examine the
Report of the Committee of
Experts (Constitution) on
Proposals for a Draft
Constitution of Ghana which was
presented to the PNDC on July 31
1991. The relevant proposals
relating to and touching upon
the use of the words “Division”
and “division” in the Report is
no doubt useful and helpful. The
language used in the Report at
paragraph 275 was as follows:
“275……… the Committee is
proposing that there should be
established two specialised
courts as Divisions of the High
Court to deal with tax and land
issues respectively. It is
appreciated that the High Court
currently has original and
appellate jurisdiction in these
subjects; but in view of the
specialist nature of tax issues
and the necessity to continue
the tax awareness that the
Government has created ……….. the
Committee recommends that there
be created a Division of the
High Court to be known as The
Tax Court which should deal
exclusively with tax cases and
should duly be constituted by a
High Court Judge and accountant
appointed by the Judicial
Council”
The intent of the Experts was to
create under Article
126(1)(a)(iii) two specialised
courts namely (1) Tax High Court
and (2) Land High Court in the
body of the 1992 Constitution.
This proposal was recommended at
Appendix 11 at paragraphs 40 and
41 in the following text:
“40. There shall be a Division
of the High Court to be known as
the Land Court which shall have
jurisdiction to hear and
determine land cases only.
41. There shall be a Division
of the High Court to be known as
the Tax Court which shall have
jurisdiction to hear and
determine tax cases and to which
appeals relating to tax cases
from the lower tax court shall
lie.”
The above proposed
constitutional provisions were
roundly rejected by the
Consultative Assembly. The
proposal at paragraph 39 at page
271 of the Report was accepted
and made part of the provisions
of the 1992 at Article 139(3).
The language of the
recommendation at paragraph 39
is as follows:
“39. There shall be in the High
Court such Divisions consisting
of such number of Justices
respectively as may be assigned
for the purpose by the Chief
Justice and sitting in such
places in Ghana as the Chief
Justice may determine”
The above proposed law was fully
and completely accepted and
adopted to form part and parcel
of the 1992 at Article 139(1)(c)
and (3) as follows:
“139(1) The High Court shall
consist of —
(c) such other Justices of the
Superior Court of Judicature as
the Chief Justice may, by
writing signed by him, request
to sit as High Court Justices
for any period;
(3) There shall be in the High
Court such divisions consisting
of such number of justices
respectively as the Chief
Justice may determine.”
It will be seen from the matters
to which I have drawn attention
that to fully and correctly
appreciate and understand the
issue raised in this action the
whole of Article 139, in
particular, 139(i)(c) and 139(3)
must be read together. It is an
error in law to read and
consider Article 139(3) in
isolation and without
considering and examining all
relevant provisions of the
Constitution on the issue, in
particular, Article 139(1)(c).
I have sought to show and
establish that the Constitution
rejected the concept of creating
Specialised High Courts in the
body of the Constitution. This
policy ensured that the
Constitution need not be amended
if and when the need arose for
the creation of a specialised
court e.g. Tax High Court or
Land High Court. The alternative
solution to this problem which
was accepted and adopted by the
Consultative Assembly was the
power reserved exclusively to
the Chief Justice to establish
divisions of the High Court if
and when the need arose. The
interpretation I have placed on
the combined effect of Article
139(1)(c) and (3) is fully
supported by the provision at
Article 142(1) and (2)(c)
dealing with the establishment
and creation of Regional
Tribunals. These are —
“142(1) There shall be
established in each region of
Ghana such Regional Tribunals as
the Chief Justice may determine
(2) A Regional Tribunal shall
consist of —
(a) such members who may or
may not be lawyers as shall be
designated by the Chief Justice
to sit as panel members of a
Regional Tribunal and for such
period as shall be specified in
writing by the Chief Justice.”
When it is pointed out that a
Regional Tribunal is a Superior
Court of Judicature pursuant to
Article 126(i)(a)(iii) of the
Constitution (see above) there
cannot be any doubt that the
power and authority granted to
the Chief Justice by and under
Article 142(1) and (2)(c) is in
every respect the same power and
authority that is to be
exercised by him pursuant to
Article 139(1)(c) and (3). It
is unwarranted and erroneous to
read into these specific
provisions a legal requirement
that to exercise the powers and
authority granted by these
specific provisions of the
Constitution the Chief Justice
must consult Parliament or must
resort to the use of a
constitutional or legislative
instrument. More importantly,
the majority and minority
judgments failed and omitted to
consider and examine relevant
and pertinent provisions of
Article 139, for instance,
139(i)(c). The failure and
omission led to a wholly
unwarranted and unjustifiable
interpretation of the entire
provisions of Article 139. The
fact that the defendant sought
to rely solely and exclusively
on Article 139(3) did not excuse
nor inhibit the justices both
the majority and the minority to
consider the constitutional
issue raised solely and only in
terms of Article 139(3). On a
true and proper interpretation
of Articles 139 and 142 the
power and authority granted to
the Chief Justice in the matters
spelt out are not fettered and
or circumscribed in any manner
whatsoever.
I am fortified in the opinion I
have expressed when I consider
and examine the power and
authority granted to Parliament
by Article 126(1)(b) of the
Constitution, which provided as
follows:
“126(1) The Judiciary shall
consist of —
(b) such lower courts or
tribunals as Parliament may by
law establish."
(My emphasis).
It is instructive and helpful to
examine and determine how
Parliament exercised this
authority and power vested in
it. Pursuant to the above
constitutional provision, that
is, Article 126(1)(b),
Parliament passed into law (Date
of Assent, 6th July 1993) the
Courts Act, 1993, (Act 459). The
relevant and specific provisions
at Part II, LOWER COURTS AND
TRIBUNALS dealt with Circuit
Court and Circuit Tribunals as
well as with Community
Tribunals.
To establish Community Tribunals
s.46 of Act 459 provides:
“46(1) There shall be in each
District of Ghana such Community
Tribunals as The Chief Justice
shall by Legislative Instrument
determine.” (my emphasis).
The mode and method is in this
matter plainly and clearly spelt
out. The Chief Justice is
enjoined as a matter of law to
establish or bring into being a
Community Tribunal by the use
and means of a legislative
instrument.
At s.43(1) of Act 459 appears
the following provision:
“43(1) There shall be
established in each region of
Ghana such Circuit Tribunals as
the Chief Justice may by
legislative instrument specify.”
(My emphasis).
Here again, the Chief Justice is
empowered and lawfully
authorised to establish Circuit
Tribunals by means of
legislative instruments.
It is plain and clear that the
power granted by the
Constitution to Parliament to
establish lower and inferior
courts was delegated to the
Chief Justice to be exercised by
him subject to the conditions
spelt out in the relevant
sections e.g. legislative
instrument.
Act 459 provides other examples
which show and illustrate how
the power and authority granted
the Chief Justice by Parliament
must be lawfully exercised by
him, s.40(3) of Act 459 states —
“s.40(3) There shall be assigned
for each Circuit Court
established under this Act a
Judge who shall be appointed
subject to the approval of the
President, by the Chief Justice
acting on the advice of the
Judicial Council”. (My
emphasis).
Then again s.46(4) of Act 459
provides that:
“s.46(4) A Chairman of a
Community Tribunal shall be
appointed subject to the
approval of the President, by
the Chief Justice on the advice
of the Judicial Council” (My
emphasis).
I have referred to the existing
law as opposed to previous and
repealed laws on the vexed issue
of the establishment of courts
and tribunals, because I am of
the view that these laws are
more helpful and instructive in
ascertaining the intention of
the law-makers. I have sought to
show and demonstrate that the
power granted to Parliament
pursuant to Article 126(ii)(b)
was delegated by Parliament to
the Chief Justice under and
subject to express conditions
stated in Act 459.
This leads me to examine and
consider the language used in
Article 126(i)(a)(iii) of the
Constitution in particular, on
Regional Tribunals. That article
states —
“126(1) The Judiciary shall
consist of —
(a) The Superior Courts of
Judicature comprising —
(iii) The High Court and
Regional Tribunals.”
In more specific language,
Article 142(1) of the
Constitution provides that:
“142(1) There shall be
established in each region of
Ghana such Regional Tribunals as
the Chief Justice may determine”
(My emphasis)
It is patently clear from the
language used in Article 142(ii)
that the Chief Justice is
clothed with lawful authority
and power, to the exclusion of
all other powers or authorities,
to establish and bring into
being Regional Tribunals. This
power and authority shall be
exercised administratively if
and when a new Region is created
by law. I do not read into the
plain language of Article 142(1)
any legal requirement that the
Chief Justice must and ought to
obtain the lawful authority of
the President or Parliament or
the Judicial Council. In the
situations where the Chief
Justice must consult established
bodies or authorities the
empowering legislation spelt out
in express words the conditions
to be satisfied. In any case,
the Constitution did not vest
power in Parliament nor the
President in the establishment
of Superior Courts of
Judicature. The opinion that the
Chief Justice must and ought to
seek the approval, consent or
fiat of Parliament to establish
a division of the High Court
created by Article
126(1)(a)(iii) of the
Constitution is with great
respect erroneous and therefore
unsupportable in law.
In my opinion, the power and
authority granted to the Chief
Justice in the matter of the
establishment of “divisions” of
the High Court pursuant to
Article 139(i)(c) and (3) as
well as Regional Tribunals
pursuant to Article 142(1) and
(2)(c) are not fettered. The
majority judgment omitted to
consider and examine relevant
constitutional provisions to
which I have made reference and
consequently erred in law in the
conclusions it reached. In my
view the fact that the defendant
based its case substantially and
exclusively on Article 139(3)
did not absolve this Court in
its failure or neglect to refer
to and examine other relevant
provisions of the Constitution.
I am satisfied that the
interpretation placed only on
Article 139(3) without due and
necessary consideration of the
other provisions of the
Constitution to which I have
made reference cannot be
supported in law.
An issue raised by the defendant
and considered by the court was
the weight of evidence contained
in Exhibit “AM1”. At paragraph 5
of the defendants statement of
case appears the following:
“5……….. the Fast Track Court is
a division of the High Court as
anticipated under Article 139(3)
of the Constitution and s.14(3)
of the Courts Act 1993, (Act
459). The Chief Justice in
conformity with the power vested
in him by Article 139(3) of the
Constitution and s.14(3) of Act
459 and s.69(1) of Act 459
caused to be established the
Fast Track Division, of the High
Court — a division which applies
modern case management practices
and seeks to introduce new
judicial administrative
mechanisms that facilitate
faster processing and trial of
cases (see Fast Track Docket and
Case Management Guidelines for
Fast Track Court attached and
mark ”AM1”)
The majority judgment considered
and examined the contents of
Exhibit “AM1” and concluded that
in so far as the “rules and
regulations” contained in it
differ from those rules of the
High Court promulgated by the
Rules of Court Committee, AM1
breached the Constitution.
I must observe that the approach
adopted by both the majority and
minority in considering Exhibit
AM1 is with respect erroneous in
the peculiar circumstances of
the case presented by the
parties. The first observation
I must make is that the document
contains essentially and in
substance “rules and
regulations” designed and
intended as “guidelines” for the
trial of civil cases as opposed
to the trial of criminal cases.
In the present action, the
plaintiff as I have already
pointed out, is facing a
criminal trial. It seems to me,
a serious error in law to put
forward a document containing
rules of civil procedure which
would not be used in a criminal
court that would try the
criminal charge against the
plaintiff, especially and in
particular since the plaintiff
did not in his statement of case
indicate and point to the “rules
or regulations” in Exhibit AM1
that would be breached and
therefore would be inconsistent
with the provisions of the 1992
Constitution. It is trite
learning that this court cannot
make a case for the plaintiff
which is not the case put
forward by the plaintiff. In
this case, the defendant put in
evidence for what it is worth.
Exhibit AM1. This document was
not put in evidence by the
plaintiff.
I find it difficult to
appreciate and understand the
plaintiff when in his statement
of case touching upon Exhibit
AM1 stated as follows:
“Officials of the “Court” have
enforced its (Exhibit AM1)
dictates even in contravention
of legislation as in the example
of a criminal appeal record not
being provided free of charge to
the appellant.” (My emphasis)
This statement is not supported
by the affidavit filed by the
plaintiff.
The plaintiff no doubt is not
aware of legislation on this
issue contained in s.70(2) of
Act 459. This provides thus:
“70(2) If a person affected by a
judgment or a court order
desires to have a copy of the
judgment, order, deposition or
other part of the record, he
shall on application for the
copy be furnished with it if he
pays its cost except where the
court for some special reason
thinks fit to furnish it free of
charge” (My emphasis)
It does not lie in the mouth of
the plaintiff to submit that a
court has no lawful authority to
levy fees in respect of
application for certified true
copies of court records. I
reject this submission as
misconceived.
The majority justices took an
unwarranted and erroneous view
of the contents of Exhibit AM1
bearing in mind the all
important and incontrovertible
evidence that plaintiff was to
be arraigned on a criminal
charge in a “division” of the
High Court. Thus the court in
question was to exercise
criminal jurisdiction. The
majority judgment at p.16
expressed the view as follows:
“Another peculiar feature
distinguishing the Fast Track
Court from the ordinary High
Court is the method of
initiating a civil case”.
As I have pointed out the case
against the plaintiff is without
a shadow of doubt a criminal
case. It is not a civil case.
The conclusion in the majority
judgment that.
“………. this practice of the Fast
Track Court is different from
the rules of procedure of the
High Court and it is unknown in
civil cases heard in civil cases
heard at the Ordinary High
Court.” (My emphasis). Is with
respect, misconceived. The
plaintiff had not made this
case, namely, that his trial
before a “Fast Track Court”
would be prosecuted according to
and governed by Guidelines used
in trying civil cases. Indeed
at page 25, the majority
judgment made the following
statement:
“Indeed the Guidelines issued on
the Fast Track system indicates
in no uncertain terms that
Division of the High Court
contemplated is to deal with
civil cases only……..” (My
emphasis).
Then again at p.62 of the
majority judgment it is stated
thus:
“Counsel also referred to the
“Guidelines for Fast Track
Court” exhibited by the
defendant and marked as “AM1”
and submitted that these
guidelines dealt only with civil
cases.” (My emphasis). I have
drawn attention to these matters
because the burden of proof lay
on the plaintiff and not on the
defendant. In Odametey v. Clocuh
(1989-90) 1 GLR 14 the holding
at (1) reads in part thus:
“(1) If a plaintiff in a civil
suit failed to discharge the
onus on him and thus completely
failed to make a case for the
claim for which he sought relief
then he could not rely on the
weakness in the defendant’s case
to ask for relief ………..”.
In the instant case, Exhibit AM1
was put in evidence by the
defendant. If it is pointed out
that the plaintiff faced a
criminal trial, it becomes
crystal clear, that Exhibit AM1
designed and intended for trying
civil cases is evidentially
worthless and as a matter of law
unhelpful to the plaintiff’
case.
The issue I now consider was
raised in the statement of
defendant’s case at paragraph 5
as follows:
“5…….. the Chief Justice in
conformity with the power vested
in him under Article 139(3) of
the Constitution, s.14(3) and
s.69(1) of the Courts Act (Act
959) caused to be established
the Fast Track Division of the
High Court as a division which
applies modern case management
practices and seeks to introduce
new judicial administrative
mechanisms that facilitate
faster processing and trial of
cases.”
I have elsewhere in this
judgment dealt at length with
Article 139 and s.14(3) of Act
459. It is necessary and
desirable to examine and
consider s.69(1) of Act 459.
This reads thus:
“69(1) In any proceedings before
a court the court may cause oral
evidence to be recorded by
short-hand, tape recorder or by
such other means as the Chief
Justice may determine”.
The language of this section is
plain and does not admit of any
argument. The Chief Justice may
lawfully order that modern
technology be used in any trial
in any court. The defendant,
apart from annexing Exhibit AM1
to further buttress paragraph 5,
failed and omitted to inform the
court the purpose for furnishing
and providing it with AM1 on its
statement of case. The issue
raised by the plaintiff as to
whether or not the Fast Track
Court is an unconstitutional
court is not met and answered by
simply annexing AM1 to the
statement of case. Does AM1
without further and better
particulars make a court
constitutional? Be that as it
may, I have held that AM1 in so
far as it contains “rules”
properly so called and
“administrative directions”
designed and intended for trials
in civil court cannot and did
not assist the case put before
this court by the parties.
In conclusion and for all the
reasons I have stated I grant
the application of the
plaintiff. I set aside the
judgment of 28th February 2002.
I accordingly dismiss the action
of the plaintiff. I enter
judgment for the defendant. I
vacate the orders made on 28th
February 2002.
AFREH, J.S.C.:
I have had the privilege of
reading the joint ruling of the
President (C.J.) and Acquah,
J.S.C. read by my brother
Justice Acquah and I agree that
the applicant has made out a
worthy case for review.
Accordingly we should set aside
the majority decision; and in
its place dismiss the
plaintiff’s action and remit to
the Fast Track High Court, the
case of Republic Vrs. Tsatsu
Tsikata, for trial.
I however, want to express my
views on some issues raised in
arguments of parties and some of
the judgments in the Court’s
judgment of 28th February, 2002
(Reasons were delivered on
30/3/02).
Since the grounds of the
plaintiff’s action, the grounds
of the application for review
and the facts of the case have
been stated in rulings which
have already been read, I do not
intend to repeat them in my
ruling.
I want to comment on three
matters:—
(i) Was the Fast Track High
Court an unlawful Court set up
by the Chief Justice without any
constitutional or statutory
backing?
(ii) Does the Chief Justice
require Parliamentary or
Legislative backing for the
establishment of divisions of
the High Court?
(iii) Does any “act” or
“omission” of any person which
is inconsistent with or is in
contravention of a provision of
the Constitution entitle a
person to bring an action in the
Supreme Court for a declaration
to that effect?
Regarding the grounds of an
application for review I agree
with the
views expressed by Acquah,
J.S.C. and I therefore deem it
unnecessary to express any
further opinion on them.
It is my view the decision of
the majority of this Court on
these matters were fundamentally
wrong. In many respects it was
per incuriam, or based on wrong
premise. It creates dangerous
precedents which must not be
allowed to remain in our law.
It has been necessary in this
ruling to refer to and discuss
or comment on judgments of my
brothers in some detail. I must
confess I did not enjoy doing
that. But I felt I had to
because most of the matters
under consideration did not
arise from the Amended Writ and
Statement of Case of the
Plaintiff but were raised for
the first time in the judgments
of their Lordships. For example
nowhere in his Statement of Case
did he refer to colonial or
British legislation and cases to
try to show that under Article
139(3) Divisions of the High
Court should be created by
Statute or Statutory Instrument.
In fact the main contention of
the Plaintiff was that the Fast
Track High Court was an
unconstitutional court. Most of
his arguments were intended to
prove this point and he
mentioned divisions of the High
Court only in passing. Rather it
was their Lordships who devoted
much time, space and learning to
the question of the modalities
of establishing divisions of the
High Court. It was their
Lordships who first relied on
Exhibit AM1 the Guidelines to
the Fast Track High Court to
show that the Fast Track High
Court was a new and
unconstitutional Court. Since I
disagree with the views and
conclusions of their Lordships
on these matters I hope it will
not be taken as a personal
attack if I adversely comment on
the views of any of the their
Lordships.
THE LEGALITY OF THE FAST TRACK
HIGH COURT
It is the contention of the
plaintiff that the 1992
Constitution in making provision
for the administration of
justice does not establish any
court known as the “Fast Track
Court”, and that it is not one
of the Courts established by or
under Article 126(1) of the
Constitution. The plaintiff also
contends that the Fast Track
Court” as is currently operating
cannot be said to be the
creation of a Division of the
High Court under 139(3) of the
Constitution.
The majority of this Court on
28/2/02 accepted these
contentions and declared the
Fast Track High Court
unconstitutional; that is, a
Court without any constitutional
or statutory basis or existence.
The say their conclusion that
the Fast Track Court does not
exist in law was not due to the
nomenclature of the Court or its
use of mechanical or electronic
means of recording its
proceedings.
It must be emphasised that the
Chief Justice has never said or
proclaimed anywhere — in any
case, there was no evidence
before the Court that the Chief
Justice has said or proclaimed —
that he was establishing or had
established a new Court called
the Fast Track High Court.
The Plaintiff’s contention that
the Fast Track High Court was a
separate Court was based on the
fact that a cause list headed
“Fast Track High Court was
published separately from the
cause lists of the High Court by
a “Court Manager”, and at the
entrance of what were formerly
known simply as High Court there
were now distinct notices
stating “Fast Track Court”. He
averred that the re-denomination
of these High Courts was in
contravention of the
Constitution of the Republic of
Ghana.
These were the only facts the
plaintiff could point to in
support of his contention that
Fast Track High Court was a new
separate Court.
In my opinion the plaintiff
woefully failed to prove that
the Fast Track Court was a new
Court unlawfully set up by the
Chief Justice and his contention
to that effect should have been
rejected. The publication of a
cause list headed Fast Track
High Court separately from the
cause lists of other High Courts
by a Court Manager and notices
at the entrances of what were
formerly known simply as High
Court stating “Fast Track Court”
are not sufficient to create a
new Court. The cause list of
each High Court is published
separately so there is nothing
unique or new about publishing
the cause list of the Fast Track
High Court separately. And at
the entrance of every High Court
there is a notice stating the
number of description of the
court, for example, “High Court
No.1” or “No. 10”, Accra. So
there is nothing strange about a
notice stating “Fast Track
Court” at the entrance to the
Court. Such headings or notices
are descriptive only and do not
mean that the Court is new or
different from the High Court.
It is difficult to understand
why or how such denomination or
re-denomination is a
contravention of the
Constitution.
One meaning of the word “Court”
is a place where justice is
administered; or a room or
building in which a tribunal
having power to adjudicate in
civil, criminal or military
matters sits. A cause list
headed “Fast Track High Court”
or a notice stating “Fast Track
High Court” at the entrance of a
Courtroom normally should mean
nothing more than that the High
Court in respect of which the
cause list is published or which
sits in a particular room, uses
Fast Track” processes that is
mechanical or electronic
recording of its proceedings.
I think we can take judicial
notice of the fact that since it
was set up in the early part of
2001 the Fast Track High Court
has tried several cases; that
the Judges who heard these cases
were Justices of Appeal, duly
appointed to sit as Additional
High Court Judges (like the
Judge who presided over
plaintiff’s case), or
substantive High Court Judges;
and that Counsel fully robed,
like the presiding judges for
the High Court, appeared for
parties. The plaintiff was not
able to adduce evidence to show
that in the trial of these cases
Judges and Counsel applied any
rules of law, practice and
procedure, and evidence other
than those applied by the High
Court in the exercise of its
civil and criminal
jurisdiction. He also failed to
adduce any evidence to show that
Fast Track Court exercised
jurisdiction different from that
of the High Court established by
Article 126(1) of the 1992
Constitution. Some parties who
were aggrieved by decisions of
the Fast Track Court have
appealed to the Court of
Appeal. In one case an appeal
reached this Court which fully
heard it and took a decision on
it.
This was the case of THE
REPUBLIC VRS. SELORMEY. In that
case the accused appealed to the
Court of Appeal against a
decision of the trial judge that
a particular witness was not
qualified to testify as a
defence witness. The Court of
Appeal dismissed the appeal and
the accused appealed further to
the Supreme Court. It also
dismissed the appeal and
remitted the case to the Fast
Track High Court. The Supreme
Court apparently found nothing
wrong with the existence,
operations or jurisdiction or
the Fast Track High Court.
Another interesting aspect of
this case is that during the
trial in the Fast Track High
Court, two Justices of the
Supreme Court and a Justice of
Appeal gave evidence for the
defence. None of them raised any
objection to the
constitutionality of the Court.
The plaintiff says the reference
to the Selormey case is
irrelevant because no issue as
to the constitutionality of the
Court was raised before the
Supreme Court in that case; and
no evidence was led as to its
features or operations. But it
is very relevant. The trial of
this and other cases by Superior
Court Judges according to the
rules of procedure and practice
and evidence of the High Court
as well as the ordinary laws
applicable by and in the High
Court raised the presumption
that what was done in the Fast
Track Court was done rightly and
regularly (omnia praesumuntur
rite et solemnite esse acta); or
that all the things done in or
by the Fast Track High Court was
legitimately done until the
contrary was proved (omnia
praesumuntur legitime fact a
donec probetur in contrarium):
See s.37 of the Evidence Decree,
1975 (NRCD 323). In other words
it must be presumed that the
Fast Track High Court was the
High Court which tried cases
expeditiously or fast by using
mechanical or electronic means
of recording its proceedings.
The burden of rebutting this
presumption lay on the
plaintiff. It is he who alleged
that the Judges, Counsel,
parties, witnesses, Court
officials, etc. who participated
in the operations of the Court,
believing that they were
participating in the operations
of the High Court, were
indulging in exercises in
futility; and that everything
they did was null and void. He
could not rebut the presumption
by merely pointing to separate
cause lists and notices at the
entrance to the Court headed or
stating “Fast Track High
Court”. His contention raised
questions of fact and law. What
he was contending in effect was
that the Court which wore the
garb of the High Court but used
electronic means of recording
its proceedings had certain
essential features which made it
different from the High Court
established by the Constitution.
As assertion that one Court is
different from another Court
means that all or some of their
essential characteristics or
features are different. The most
important of these essential
characteristics are jurisdiction
and composition. Differences in
procedure may sometimes indicate
different Courts. To rebut the
presumption that the Fast Track
Court was a High Court, the
plaintiff needed to show that
its jurisdiction, composition or
rules of procedure were
different from those of the High
Court established by the
Constitution. This he failed to
do. The only things he could
refer to were the headings on
cause lists and notices at the
entrance to the Court. But these
are not and cannot be essential
features of a Court.
With respect the majority of the
Court also failed to point to
any essential characteristics of
the Fast Track Court which made
it different from the High
Court. In support of their
decision, they relied heavily on
a document entitled GUIDELINES
TO THE FAST TRACK COURT. This
document was attached to the
Statement of Defendant’s case as
Exhibit AM1. He attached it to
his case to show that the Fast
Track Court was a Division of
the Court “which applies modern
case management practices and
seeks to introduce new judicial
administrative mechanisms that
facilitate processing and trial
of cases”. It was not exhibited
as a document by which the Fast
Track High Court was established
or which contained the rules of
procedure applied by the Fast
Track High Court. But that is
how the majority treated the
document.
It was not by this document that
the Chief Justice established or
purported to have established
the Fast Track High Court. He
was not even the author. The
guidelines were developed by Mr.
Justice S. A. Brobbey, J.A., and
Mr. Kwesi Ainuson, an
Administrator employed by the
Judicial Service. The only input
made by the Chief Justice was
the foreword. In it he explained
that it was against the
background of the problem of
delay in the administration of
justice that he had “caused to
be established the Fast Track
Division of the High Court — a
division which applies modern
case management practices and
seeks to introduce new judicial
mechanisms that facilitate
faster procession and trial of
cases”. He ended his foreword by
expressing “my hope that these
guidelines will assist Court
users and facilitate the smooth
implementation of this [Fast
Track] project”.
If the document had been issued
as a constitutive instrument or
rules of procedure the language
of the Chief Justice would
surely have been different.
The Guidelines are divided into
five chapters. Chapter 1 lists
seven categories of cases which
are handled in the Fast Track
Division of the Court. But a
sentence that follows says this
list will be expanded in due
course of time to include other
cases. The list is followed by
detailed guidelines on (a)
processing fast track cases; (b)
fixing of dates and preparation
of cause list; (c) custody of
documents; (d) service of
documents — special bailiffs;
(e) Court Manager (Court Clerk)
and his duties; (f) daily record
of cases held and summary of
orders; (h) execution; (i)
application for proceedings and
orders; (j) time schedules.
Chapter 2 is directed to
Counsel, parties and witnesses
and Courtroom activities and
deals with recording of
proceedings; and an advice that
parties must obtain receipts for
moneys that they pay; correction
of transcripts. It also advises
Counsel, parties and witnesses
to use “well guarded and
calculatedly selective” language
mainly because every word,
noise, exclamation, laughter or
vocal reaction in the course of
proceedings will be recorded and
transcribed by the Court
Reporter. Chapter 3 deals with
periods for filing of pleadings,
the trials, delivering of
judgments and total disposal of
case. The time table for actions
on pleadings leading to the
trial and judgment follow the
schedules specified in the High
Court Civil Procedure Rules,
L.N. 140A. That these guidelines
are not meant for Judges is
clear from a sentence that
“Detailed guidelines have been
prepared separately for trial
Judges”. Chapter 4 is devoted to
operational modalities and is
addressed to Clerks, Ushers and
other Officials acting as the
machine operators. Chapter 5
deals with the functions of
Court Reporters and Court
recordings. Then follow forms
designed to facilitate the
smooth operations of the
equipment.
It is clear that the Guidelines
try to set standards that would
ensure the most cost-effective
use of the equipment of the Fast
Track High Court.
Nowhere in the Guidelines is
there any indication that the
document or any part of it is
intended to be a legally binding
constitutive instrument or rules
of court. Even where it is
stated for example, “JUDGMENT:
Within 7 days from conclusion of
addresses after trial”, the
statement is followed by the
words “(administrative
directions)” — an indication
that the Judge is not legally
bound by the statement.
I find it difficult to
understand why or how a document
intended to instruct and set
standards for Court Clerks,
Ushers, Machine Operators and to
advise participants in Court
activities to be guarded in
their use of language was
transmuted into a constitutive
document and rules of Court and
then declared illegal or
unconstitutional because they
were not made by the Rules of
Court Committee under Article
157 of the Constitution. Rules
of Court are made for the
regulation of practice and
procedure of a Court. The
Guidelines are not intended to
regulate practice and procedure
of the Fast Track High Court.
There is nothing in it that can
be said to be intended to amend,
repeal or replace any rule in
the High Court Civil Procedure
rules or the Criminal Procedure
Code. There is no evidence it
was applied in Court
proceedings.
Some of the statements in the
Guidelines which are considered
by the majority as being
contrary or unknown to the Civil
Procedure Rules are in fact in
conformity with the law. For
instance, it is said that the
statement in the guidelines that
a writ filed at the Fast Track
High Court registry will not
automatically be placed on the
Fast Track list until approved
by His Lordship the Chief
Justice is a novel procedure
unknown to L.N. 140A. With
respect, this is not correct.
Section 108 of the Courts Act,
1993 (Act 459) provides that the
Chief Justice shall in case of
doubt select a Court or Tribunal
where any cause or matter should
be heard and determined; and
when he has selected the Court
or Tribunal that case shall be
heard and determined by that
Court. So far as I am aware the
Chief Justice has always had
power to assign Judges to try
particular cases, transfer cases
where necessary, determine where
a particular case should be
tried, and even empanel Judges
to hear cases in the Court of
Appeal and the Supreme Court. So
there is nothing novel about a
statement that the Chief Justice
has power to determine which
case should be tried by the Fast
Track Court.
The guidelines that judgments
should be delivered within seven
days after addresses does not
amend the rule that judgment
must be given within six weeks
after addresses; and is not
contrary to it. The reason for
it, as appears clear in
Guidelines, is that because in
the Fast Track High Court the
Judge is supplied with the
transcripts within 72 hours
after the day’s proceedings, it
is thought that if he has been
making notes he should be able
to write and deliver a judgment
within 7 days after addresses.
In England whose (old) rules we
have adopted in L.N. 140A most
judgments are delivered
immediately after addresses. I
believe the average English
lawyer or judge will be
horrified to hear that in Ghana
a Judge has six weeks within
which to write a judgment. In
England this can only happen if
the Court or Judge reserves
judgment, and even then six
weeks may be regarded as too
long. One reason why it often
takes so long to deliver
judgments is the manner High
Court Judges record proceeding:
laboriously, by longhand, and if
the case has been going on for
months or years — as usually is
the case — in several record
books from which the Judge has
to gather evidence and
submissions to write a
judgment. With transcripts in
his hands within 72 hours there
is no reason why a Judge should
not be able to write a judgment
within a period much shorter
that six weeks — unless the case
is too complicated or long for
that to be done.
Statements in the Guidelines
that adjournments would be
discouraged, that time limits
would strictly be adhered to and
similar statements have been
pounced upon as evidence that
the Fast Track High Court
applies rules of procedure
different from those or L.N.
140A. None of these statements
violates the letter and spirit
of the rules in L.N. 140A.
Judges have often been advised
not to grant adjournments unless
there are good grounds to do so.
So how can a similar statement
in the Guidelines be regarded as
been contrary to L.N. 140A? This
Court has often insisted that
time limits must be obeyed. An
example is the Republic Vrs. The
Judicial Committee of the
Central Region House of Chiefs,
Exparte Supi Mark Aaba & Ors.
S.C., C.A. No. 1/99 dated 25th
July, 2001 cited in the
judgments of the majority, this
Court held that the failure of a
High Court Judge to deliver
judgment within the six weeks
limit set by L.I. 1107 rendered
any judgment given thereafter
null and void unless the Chief
Justice allowed the judgment to
be given after the six weeks.
One reason for this tough
decision is that time limits
must be obeyed. So how can it be
wrong to say in the Guidelines
that time limits will be
strictly enforced?
As I have said the Guidelines
are not rules of law or
procedure. They were not
intended to be such and it is,
to say the least, unfair to
attribute such a quality to them
in order to justify judgments
which are fundamentally flawed.
Guidelines are principles put
forward to set standards or
determine a course of action.
The Guidelines under
consideration are not different.
And that is how they should have
been regarded and no more,
especially as there was no
evidence from the plaintiff or
elsewhere they were applied in
any case or affected the outcome
of any case.
It seems the Guidelines, Exhibit
AM1, was a godsend. Without it
there would have been nothing to
support the conclusion of the
majority that the Fast Track
High Court was a new Court set
up without constitutional or
statutory backing. But since it
is clear that that document was
neither the constitutive
instrument nor the rules of
procedure of the Fast Track High
Court, their conclusion that
that Court is unconstitutional
and unlawful remain unsupported.
The majority made a fundamental
error when they relied on the
Guidelines, Exhibit AM1, to
condemn the Fast Track High
Court.
It appears that in preparing
judgment in this case the
absence of evidence as to the
operations of the Fast Track
High Court created some
problems. That might have led to
the conclusions that the
Guidelines were rules of
procedure or that Court of
Appeal Judges appointed to sit
in the Fast Track High Court
might not have been duly
appointed to sit as Additional
High Court Judges, I humbly
suggest that in similar cases in
future the Court must insist on
evidence to support statements
of fact.
In any case as I have said the
burden of establishing that the
Fast Track High Court lay on the
plaintiff. And in the absence of
evidence to support his
contention his claim should have
been dismissed.
INTERPRETATION OF ARTICLE 139(3)
OF THE CONSTITUTION
The majority concluded that the
Fast Track High Court was not a
Division of the High Court
because (1) The Chief Justice
had no power to establish
divisions of the High Court
without legislative backing in
the form of an Act of Parliament
or a Statutory Instrument; and
(2) a Division set up under
Article 139(3) of the
Constitution of 1992 must be
either territorial or based on a
subject matter such as
commercial, criminal or family.
In arriving at the conclusion
some of the Lordships resorted
to an approach to interpretation
of statutes that violated the
most basic principles of
statutory interpretation: They
read into the article words that
were not there or could not
necessarily be implied by words
which were already in it; or
they called in aid to
interpretation matters that,
they should not have relied
upon.
Cross on Statutory
Interpretation 2nd Edition
(1987) at p.47 summed up the
basic rules of common law
statutory interpretation as
follows:—
(1) The Judge must give effect
to the ordinary or, where
appropriate, the technical
meaning of words in general
context of the Statutes; he must
also determine the extent of the
general words with reference to
that context.
(2) If the Judge considers that
the application of the words in
their ordinary sense would
produce an absurd result which
cannot reasonably be supposed to
have been the intention of the
legislature, he may apply them
in any secondary meaning which
they are capable or bearing.
(3) The Judge may read in words
which he considers to be
necessarily implied by words
which are already in the statute
and he has limited power to add
to, alter or ignore statutory
words in order to prevent a
provision from being
unintelligible or absurd or
totally unreasonable, unworkable
or totally irreconcilable with
the rest of the statute.
(4) In applying the rules the
Judge may resort to aids to
construction and presumptions
mentioned in Chapters 5 – 7 of
the book.
Maxwell on the Interpretation of
Statutes (12th Ed, by P. St. J.
Langan) in introductory remarks
at p.1 says.
“Granted that a document which
is presented to it as a Statute
is an authentic expression of
the legislative will, the
function of a Court is to
interpret that document
‘according to the intent of them
that made it. From that function
the Court may not resile;
however ambiguous and difficult
of application the words of an
Act of Parliament may be, the
Court is bound to endeavour to
place some meaning upon them. In
so doing it gives effect, as the
Judges have repeatedly declared,
to the intention of Parliament,
but it may only elicit that
intention from the actual words
of the Statute…. If language is
clear and explicit, the Court
must give effect to it, for in
that case the words of the
Statute speak of the
Legislature.’ And in so doing it
must bear in mind that its
function is Jus dicere; not jus
dare: the words of a statute
must not be overruled by the
Judges, but reform of the laws
must be left in the hands of
Parliament.”
At pages 28 – 29 of the book the
same authoritative book on
interpretation of statutes
states:—
“The first and most elementary
rule of construction is that it
is to be assured that the words
and phrases of technical
legislation are used in their
technical meaning if they have
acquired one, and otherwise in
their ordinary meaning, and the
second is that phrases and
sentences are to be construed
according to the rules of
grammar…….
If there is nothing to modify,
alter or qualify the language
which the statute contains, it
must be construed in the
ordinary and natural meaning of
the words and sentences….The
rule of construction is to
‘intend the Legislature to have
meant what they have actually
expressed’. The object of all
interpretation is to discover
the intention of Parliament,
‘but the intention of Parliament
must be deduced from the
language used’, for it is well
accepted that the beliefs and
assumptions of those who frame
Acts of Parliament cannot make
the law.
Where the language is plain and
admits of but one meaning, the
task of interpretation can
hardly be said to arise.”
And Bennion in Section 195 of
the Code in his book Statutory
Interpretation 2nd Ed. at p.405
states:—
“It is a rule of law (in this
Code called the plain meaning
rule) that where, in relation to
the facts of the instant case —
(a) the enactment under inquiry
is grammatically capable of one
meaning only, and
(b) on an informed
interpretation of that enactment
the interpretative criteria
raises no real doubt as to
whether that grammatical meaning
is the one intended by the
legislation, the legal meaning
of the enactment corresponds to
that grammatical meaning, and is
to be applied accordingly.”
In interpreting enactments and
Constitutions our Courts have
followed these rules.
It is my respectful opinion that
in their judgments their
Lordships in the majority
completely ignored these basic
rules.
In the case before us the words
of the provision under
consideration, Article 139(3) of
the Constitution, 1992 are
plain; any person with even an
elementary knowledge of the
English language would have no
difficulty understanding them.
Their application cannot lead to
any absurd result. The provision
is not unintelligible or absurd
or totally unreasonable,
unworkable or irreconcilable
with the rest of the
Constitution. It simply
provides:
“There shall be in the High
Court such divisions consisting
of such number of Justices
respectively as the Chief
Justice may determine.”
These plain words evoked much
research and learning,
especially on the meaning of the
word “division” and the view
that the Chief Justice without
the backing of a Statute or
Statutory Instrument could not
create divisions of the High
Court. Their Lordships in the
majority group quoted provisions
in the Supreme Court Ordinance,
1876 and the Courts Ordinance,
Cap. 4 of the Law of the Gold
Coast, 1951, colonial enactments
long repealed and dead, and
English Law to support their
conclusions.
I do not think it is necessary
to discuss their views in
detail. It is sufficient to say
that references to the colonial
statutes, discussions of what
judicial divisions in England
are or mean and citation of
cases decided on these colonial
and English statutes were
unnecessary and wrong. Since the
words of Article 139(3) are
plain the task of interpretation
their Lordships embarked upon
was self-imposed. There was no
basis for invoking the secondary
rules of construction — such as
the rule in Heydon’s Case or the
mischief rule; or to call in aid
of its interpretation, the legal
history of High Court divisions
in the Gold Coast and England.
I must say that if it was
necessary to refer to the legal
history of the provision as an
aid to its interpretation then
the more relevant enactments
were the direct ancestors of the
1992 Constitution, that is, the
Constitutions of 1969 and 1979.
These Constitutions were, of
course, made after Ghana’s
independence. One of their basic
concepts, like the Constitution
1992, was separation of powers,
including the independence of
the Judiciary. In 1876 Gold
Coast only consisted roughly of
what we now call the Greater
Accra, Central, Eastern and
Western Regions. The Gold Coast
had just been declared a crown
colony only two years before, in
1874. But what is more important
is that the Queen-in-Council
(Queen Victoria was on the
British Throne) was supreme.
Separation of powers, as
enshrined in our present
Constitution, was not fully
recognised. In fact the Chief
Justice (only a year before he
was called the Judicial
Assessor), like all colonial
appointees, was a member or part
of the Colonial Government. This
situation had not changed much
in 1935: in fact Ashanti (that
is the present day Ashanti and
Brong-Ahafo Regions) and the
Northern Territories (now
divided into Northern, Upper
East and Upper West Regions)
were still, to a large extent,
ruled separately from what was
called the Gold Coast Colony.
The King-in-Council was still
supreme. He was still supreme in
1951, when Cap. 4 was passed.
(It was in that year that
Africans for the first time had
a majority in the Cabinet).
After independence that colonial
regime was consigned to history.
To cite the laws of that
government to support a judgment
on a provision in a Constitution
promulgated in 1992 without
referring to post-independence
enactments was a totally wrong
way of using history to help
interpret an enactment or the
Constitution.
The Constitutions 1969 and 1979
had provisions like Art. 139 (3)
of the present Constitution.
Article 112(3) of the
Constitution 1969 provided:—
“There shall be in the High
Court such Divisions consisting
of such number of Justices
respectively as may be assigned
thereto by the Chief Justice;
and sitting in such places in
Ghana as the Chief Justice may
determine.”
Article 124(3) of the
Constitution, 1979 reproduced
this provision almost verbatim.
Article 139(3) also almost
verbatim reproduces Article
112(3) of the Constitution, 1979
and Article 124(3) of the
Constitution but significantly
omits the requirement in the
predecessor provisions that the
Chief Justice should determine
the venues of the divisions.
In my opinion the framers of the
democratic Constitutions of
1969, 1979 and 1992, conscious
of the need to protect the
independence of the Judiciary,
did not think it proper to give
power to Parliament to impose
divisions on the Judiciary; and
this Court has to implement that
policy.
It is interesting to note that
apart from his power to
determine the divisions of the
High Court, the Chief Justice is
given power to create divisions
of the Court of Appeal [Article
136(4)]; he is required to
establish in each Region such
Circuit Courts as he may
determine and specify their
areas of jurisdiction (s.40 of
the Courts Act, 1993) (Act 459)
as amended s.5 of the Courts
(Amendment) Art 2002 (Act 620);
and also has power to establish
District Courts and to specify
the areas of jurisdiction of
District Court (s.45 (3) of Act
459 as amended by s.5 of Act
620). If the majority are right
that under Article 298 of the
Constitution 1992 the Chief
Justice has to go to Parliament
for the creation of divisions of
the High Court, then he would
need Parliamentary fiat for the
creation of Divisions of the
Court of Appeal, the
establishment of Circuit Courts
and District Court and their
areas of jurisdiction for
Article 298, if it were
applicable to the exercise of
the Chief Justices powers, would
be wide enough to cover the
exercise of all these powers.
If the majority are right, where
are the independence of the
Judiciary and the powers of the
Chief Justice in these matters?
If one studies the history of
the powers of the Chief Justice
to create divisions and lower
Courts one can see that over the
years limitations on the powers
of the Chief Justice have
progressively been relaxed or
abolished. Thus while in the
colonial era he had to get the
approval of the Governor before
he could establish divisions, in
the Constitutions of 1969, 1979
and 1992 he does not need the
approval of the executive — or
the legislature — to do so.
In the Courts Act, 1993 (Act
459) s.40 (1) the Chief Justice
was required to establish
Circuit Courts, Circuit
Tribunals and Community
Tribunals by legislative
instrument. (See Sections 40(1),
43(1) and 46(1) of Act 459). But
in the Courts (Amendment) Act,
2002 (Act 620) the Chief Justice
is not required to establish the
(new) Circuit Courts and
District Courts by legislative
instrument. See Sections 40(1)
and 45(1) of Act 459 as amended
by s.5 of Act 620. The words in
the new provisions in Act 620
are very much like the words in
Art. 139(3) of the
Constitution. It is clear from
the new provisions of Act 620
and the wording of Articles
136(4) (on the creation of
divisions of the Court of
Appeal), Article 139(3) and
Article 142(1) of the
Constitution, 1992 (the creation
of Regional Tribunals) that it
is and has been, the policy of
the framers of the Constitution
and Parliament to limit as
little as possible the powers of
the Chief Justice to create
divisions of the Court of Appeal
and the High Court or establish
lower Courts— or to put no limit
at all on those powers.
If the words of Article 139(3)
of the Constitution are given
their ordinary and natural
meaning, as they should, the
divisions of the High Court
cannot be limited to territorial
and subject-matter divisions;
and the Chief Justice is not
required to seek Parliamentary
approval for the exercise of his
powers under that provision. The
majority erred when they come to
a contrary conclusion.
Apart from a list of Exhibit AM1
which mentioned cases handled by
the Fast Track High Court, — and
as I have said this document has
no legal binding force — the
plaintiff failed to show and
there was no evidence anywhere
that the Fast Track High Court
had only civil jurisdiction.
THE SUMMONS
The Court also granted the
plaintiff’s claim for
“A declaration that the summons
signed by a Justice of Appeal
served on the plaintiff
commanding him ‘in the
President’s name to appear in
person before this Court ….’ is
a contravention of Articles 1(1)
and 125(1) of the Constitution.”
There is no doubt that the
summons was irregular. But did
that entitle the plaintiff to
come to this Court for a
declaration that it contravened
provisions of the Constitution?
The majority thought it did.
Typical of the reasons for
granting the relief is the
following statement by my
brother Kpegah, J.S.C., at p. 34
– 35 of the judgment:—
“If the provisions of Article
2(1)(b) are properly analysed,
it will be discovered that the
Constitution is not only the
fundamental law of the land but
also a Code of conduct as well.
This is, because ‘any act or
omission of any person’ which is
‘inconsistent with, or is in
contravention of a provision of
the Constitution’ entitles a
citizen to sue in this Court for
a declaration to that effect.
All that a plaintiff must
establish before us is that
there had been ‘an act’ or
‘omission’ by somebody and that
such ‘act’ or ‘omission’ is in
contravention or inconsistent
with a provision of the
Constitution. I think the
issuing of a criminal summons
and its service on the plaintiff
to compel his attendance in
Court is a sufficient ‘act’
within the meaning of Article
2(1)(b).”
With all respect this view
cannot be reconciled with
long-established rules of
practice governing the
invocation of the original
jurisdiction of this Court. The
practice can be traced back to
cases like Gbedemah Vrs. Awoonor
Williams (1969) 2 G and G 438;
Tait Vrs. Ghana Airways
Corporation (1970) 2 G and G 527
and The Republic Vrs. Maikankan
[1971] 2 GLR 473, S.C. — all
decided during the 2nd Republic.
On 15th June, 1981 in the 3rd
Republic this Court issued a
Practice Direction on the
Practice and Procedure of the
Supreme Court. Paragraphs 6 and
7 are pertinent to the matter
under consideration:—
“6. It is also to be noted that
where a cause or matter can be
determined by a Superior Court,
other than the Supreme Court,
the jurisdiction of the lower
Court shall first be invoked.
The Supreme Court may dismiss
any cause or matter, with
punitive costs to be paid
personally by Counsel or by the
party responsible for bringing
such cause or matter to the
Supreme Court in the first
instance.
7. The Supreme Court would not
entertain any cause or matter
dressed up as a constitutional
issue which in essence or
substance is cognisable by a
lower superior Court. Punitive
costs will be awarded which, in
such cases, shall be paid
personally by Counsel or by the
party responsible for bringing
the cause or matter to the
Supreme Court.” [1981] GLR 1 at
pp. 2 – 3.
Three months before this
Practice Direction, the Supreme
Court per Apaloo, C.J. had given
a ruling on similar lines: See
Nana Yiadom I Vrs. Nana
Amaniampong & Ors. [1981] GLR 3.
Since the inception of the 4th
Republic this Court has often
applied the cases cited above
and the Practice Direction dated
15th June, 1981. In Edusei Vrs.
Attorney-General (No. 1) [1996 –
97] SC GLR 1, this Court, by a
majority of 3 – 2, refused to
hear the application of the
plaintiff that certain
provisions of the Passports and
Travel Certificates Decree, 1967
(NLCD 155) were inconsistent
with and in contravention of the
Constitution; and that as a
citizen of Ghana by birth he had
a constitutional right to enter
and leave Ghana. The reason for
dismissing the action was that
the High Court had exclusive
jurisdiction in the enforcement
of fundamental human rights and
freedoms of the individual. My
brothers Ampiah and Kpegah,
JJ.S.C. (who along with
Adjabeng, J.S.C. formed the
majority in that case) held that
assuming the Supreme Court had
concurrent jurisdiction with the
High Court in enforcing
fundamental human rights and
freedoms of the individual, the
Court was precluded from
assuming jurisdiction in the
matter as a Court of first
instance because of the 1981
Practice Direction, para. 6,
that where a cause or matter
could be determined by a
Superior Court other than the
Supreme Court, the jurisdiction
of the lower Court should first
be invoked. See [1996–97] SC GLR
at p.3.
My Brothers Kpegah and Adjabeng,
JJ.S.C. also held that the
Court, had no jurisdiction to
hear the plaintiff’s claim
because it was really, i.e. in
truth and substance, an action
for the enforcement of his
fundamental human rights which
had been framed to appear as a
constitutional matter: [1996–97]
SC GLR at p. 4.
I think these principles, so
excellently enunciated by my
brothers who formed part of the
majority in the instant case,
should have been applied in this
case.
In the more recent case of
Adumoah II Vrs. Twum II [2000]
SC GLR 165 this Court made up of
seven justices, unanimously
striking out the plaintiff’s
action, held per Acquah, J.S.C.,
that the original jurisdiction
vested in the Supreme Court
under Articles 2(1) and 130(1)
of the 1992 Constitution is a
special jurisdiction meant to be
invoked in suits raising genuine
or real issues of interpretation
of the Constitution; or
enforcement of a provision of
the Constitution; or a question
whether an enactment was made
ultra vires powers conferred on
Parliament or any other
authority or person by law or
under the Constitution.
This special jurisdiction is not
meant to usurp or to be resorted
to in place of any of the
jurisdictions of a lower Court.
In other words, where the
jurisdiction of the Supreme
court has been invoked in an
action which properly falls
within a particular cause of
action at a lower Court, the
Supreme Court shall refuse to
assume jurisdiction in that
action notwithstanding the fact
that it has been presented as an
interpretation or enforcement
suit or both.
If these principles, applied by
this Court over a period or more
than 30 years, had been applied
in this case, the plaintiff’s
claim for a declaration on this
matter should have been
dismissed in limine. Nobody can
dispute that the summons was
irregular. But it was amendable
— and could have been amended or
withdrawn and replaced with a
correct one within a few hours.
The prosecution could, after
they had withdrawn it, have
brought the plaintiff before the
Court upon a charge contained in
a charge sheet. In any case it
was amendable. And the Defendant
said the error was in fact
corrected.
The matter complained of could
have been dealt with by the
Court before which the plaintiff
was invited to appear, a
Superior Court. The Criminal
Procedure Code (Act 30) makes
ample provisions for dealing
with such an error. Section
60(2) of the Act provides:—
“The validity of any proceedings
instituted or purporting to be
instituted in pursuance of
subsection 1 [of Section 60]
shall not be affected by any
defect in the complaint or
charge sheet or by the fact that
a summons or warranty [of
arrest] was issued without any
complaint, or in a case of a
warrant [of arrest] without a
complaint on oath.”
Section 83(1) also provides:—
“Any irregularity or defect in
the substance or form of a
summons or warrant, and any
variance between a summons or
warrant and the written
complaint, or between a summons
or warrant and the evidence
adduced at any inquiry or trial
on the part of the prosecution
against an accused whose
attendance has been procured by
the summons or warrant, shall
not affect the validity of any
proceedings at or subsequent to
the hearing of the case, but if
any variance appears to the
Court to be such that the
accused has been thereby
deceived or misled, the Court
may, at the request of the
accused, adjourn the hearing of
the case to some future date and
in the meantime remand the
accused or admit him to bail in
the manner hereinafter
mentioned.”
The judgments of the majority
disregarded these provisions or
failed to consider their effect
or import. It is difficult to
reconcile these provisions with
the judgment of the majority.
Are they now unconstitutional?
But whatever may be the effect
of the judgment on these
provisions, it is clear that the
plaintiff’s claim should not
have been countenanced because
under them the matter complained
of could easily have been dealt
with by the trial Court.
In my opinion the irregular
summons did not raise any issue
of interpretation or enforcement
of the Constitution. In what way
was Article 125(1) affected? —
the proclamation that Justice
emanates from the people and
shall be administered in the
name of the Republic by the
Judiciary which shall be
independent and subject to the
Constitution — how was this
provision affected by the
service of a defective summons?
If a defective summons can
trigger an action under Article
2(1) of the Constitution then a
large number of acts daily dealt
with the Courts of this country
can also do so: An unlawful
arrest or detention is in
contravention of Article 14 of
the Constitution; homicide of
Article 13, assault and battery
possibly of Article 16; and
trespass on land Article 18 (See
Adumoah II Vrs Twum (Supra) page
167). Most of the provisions of
Article 19 are also covered by
provisions of the Criminal
Procedure Code. Does it mean
instead of an accused person
pleading say autrefois acquit or
convict, or asking for adequate
time and facilities for his
defence at his trial, he can
rush to this Court for a
declaration that his fundamental
rights have been infringed? Does
it mean that a suspect or an
accused person who claims he was
kept in custody for more than 48
hours can come here for a
declaration and injunction to
stop his trial? The list can be
endless.
In all such cases the Court is
likely to strike out the
plaintiff’s claim, because
although the acts complained of
may technically be violations of
provisions of the Constitution,
they are matters that can be
dealt with by lower Superior
Courts.
In my view the judgment of the
Court on this matter is contrary
to the established practice of
this Court and provisions of Act
30 and it should not be allowed
to stand. It is per incuriam.
I have come to the conclusion
that the application for review
should be granted because I
think the judgment of the
majority is fundamentally
flawed: It treated the
Guidelines to the Fast Track
High Court as a constitutive
instrument and rules of Court
when it patently was not and had
not been shown to be or
purported to be such and then
used it to condemn the Fast
Track High Court. In
interpreting Article 139(3) of
the Constitution the majority,
by flouting the most basic rules
of interpretation, were able to
read into the provision words
that were not there and could
not necessarily be implied from
words that were already there.
And in coming to the decision
that the plaintiff was entitled
to sue in this Court for a
declaration on the summons
served on him the majority
disregarded the established
practice of this Court in such
matters. It was clearly per
incuriam. In all these cases the
judgment of the majority creates
dangerous precedents which
should not be allowed to stand.
As a result of the fundamentally
flawed judgment, scores of
decided or pending cases would
be declared null and void and
have to be tried de novo. Apart
from the financial costs that
would be involved in the new
trials, the credibility and
reputation of the Judiciary in
this country would suffer
incalculable harm because of a
perception that the highest
Court in the land cannot even be
consistent in its decisions.
I would grant the application.
JOYCE BAMFORD-ADDO, J.S.C.:
This is an application for
Review of the decision of this
Court dated 28th February 2002
in the above mentioned case.
This application comes under
Article 133(1) of the
Constitution and Rule 54 of the
Supreme Court Rules 1996 (CI
16). The said rule lays down two
grounds upon which the Supreme
Court may review any decision
given by it, namely:
a. exceptional circumstances
which have resulted in
miscarriage of justice, and
b. discovery of new and
important matter or evidence
which, after the exercise of due
diligence was not within the
applicant’s knowledge or could
not be produced by him at the
time when the decision was made.
Applicant relied on ground (a)
upon which he based his
arguments on the various points
raised. I have carefully
considered the Applicants case
and arguments vis-à-vis the
views which I expressed in my
judgment dated 20th March 2002.
I am of the opinion that no
“exceptional circumstances which
have resulted in miscarriage of
justice” has been established to
justify a change in the views I
expressed in my earlier judgment
in this case. In consequence I
am unable to grant this
application for a review.
AMPIAH, J.S.C.:
On 28th February 2002, this
Court sat and delivered its
judgment in the WRIT NO. 2/2002
ENTITLED TSATSU TSIKATA VS. THE
ATTORNEY-GENERAL. The
application now before us is by
the defendant in that case, for
a REVIEW of that Judgment. The
application is brought under
Rule 54 of the Supreme Court
Rules, 1996 (CI 16).
The main ground for the
application is contained in
paragraph 6 of the affidavit. It
states —
“6. That I am advised and verily
believe the same to be true that
due to the exceptional
circumstances of this case, the
decision of the Court has
resulted in a miscarriage of
justice and therefore there is
an urgent and imminent need to
look at this matter again in
view of the narrow margin of 5
to 4 decision rendered by the
Court”.
An impression has been created
that because the decision of the
Court was ‘narrow’, there is the
need to have the decision
reviewed. The legal position
however is that a majority
decision is the judgment of the
Court. An attempt to have that
judgment reviewed by criticism
of that judgment as against the
minority decision is not the
purpose or intention of a review
application. Such an attitude
would amount to trying to
enforce the minority view of the
Court and, where it is the
practice to increase the number
of judges for the purpose of the
review, it would appear that the
losing party’s main objective is
to have the decision of the
majority albeit the judgment of
the Court, set aside and the
minority view substituted.
In Bisi v. Kwayie (1987-88) 2
GLR 295, at p 291 Taylor JSC,
had this to say,
“In our system of adjudication
the majority view of a plural
bench of a court represents the
binding judgment of the Court,
even if it can subsequently be
demonstrated to be vulnerable to
attack”.
And, in In re Krobo Stool (No.2)
Nyamekye (No.2) vs Opoku (2000)
SCGLR 567 at p 569, Edward
Wiredu JSC (as he then was)
reiterated the words of Taylor,
JSC in the Bisi v. Kwayie case
(supra) saying,
“When rule 54 of the Supreme
Court Rules, 1996 (CI 16) was
enacted, it was the hope of all
that having spelt out, in
statutory terms, the only
grounds upon which the review
jurisdiction of this Court may
be exercised, litigants would be
duly guided thereby and the
previous attempts to use the
review jurisdiction as an avenue
for a re-hearing of lost appeals
would cease, or at least be
significantly reduced.
Unfortunately, this does not
appear to be the effect. To make
matters worse, it also appears
that counsel for losing parties
are under the misapprehension
that the reviewability of a
matter is determined by
numerical factors and any
decision of the Court, which is
not unanimous, must be subject
to review”.
This observation would apply
equally to cases or matters
heard otherwise than on appeal.
Bamford-Addo JSC in the Republic
v. High Court ex-parte Khoury
(1992-93) Part 4 GLR 156 at 1577
also said,
“I feel strongly that the power
of review must only be invoked
when exceptional circumstances
exist to correct an obvious
error or injustice and not
invoked any time a party loses a
case. Unless this Court applies
strictly these principles
enumerated in its various
decisions on the matter, there
would be no end to litigation in
this country”.
We should be guided by these
judicial pronouncements from our
eminent judges on the issues now
before us.
We should ask ourselves, WHICH
ARE THE EXCEPTIONAL
CIRCUMSTANCES THAT HAVE RESULTED
IN A MISCARRIAGE OF JUSTICE IN
THIS CASE? There are two issues
involved here, namely,
i. Exceptional circumstances
ii. Resulting in the miscarriage
of justice.
The two situations must
co-exist; there could be
exceptional circumstances, which
may not result in a miscarriage
of justice. What amounts to
‘exceptional circumstance’? No
definition of it has been
provided in the Rule itself
(i.e. r.54 of CI 16) nor is
there a definition in the Rules
of Court (CI 16), but there have
been judicial pronouncements in
the cases that have come up for
review both before and after
Rule 54 came into force. See
Fosuhene v. Pomaa (1987-88) 2
GLR 105 and Mechanical Lloyd
Assembly Plant v Nartey
(1987-88) 2 GLR 598. And, in In
Re Effiduase Stool Affairs
(No.3) (2000) SCGLR 59 it was
held,
“What constitutes exceptional
cases cannot be comprehensively
defined”
In Ababio v. Mensah (1989-90) 1
GLR 573, Taylor, JSC elaborated
further on the ‘exceptional
circumstances’ prong of the
Court’s review jurisdiction as
follows —
“(a) all cases of void orders
come under the Mosi v. Begyina
principle and applications
affected by such orders are
entitled ex debits justitiae to
have the orders set aside. Lapse
of time does not affect the
right and indeed the court
itself is entitled suo motu to
set aside such orders when it
has the opportunity to do so;
(b) all decisions of the Supreme
Court given per incuriam by
inadvertently over looking a
statute or binding decided case
which would have indicated a
contrary decision …are
candidates for the exercise of
the review power if they have
occasioned a miscarriage of
justice; and,
(c) any other Supreme Court
decision, having exceptional
circumstances which demonstrably
indicated that the decision is
not legally right and has
actually occasioned a
miscarriage of justice, is also
liable to be reviewed on the
Fosuhene principle”.
In Ekwam v. Pianim (No.3)
(1996-97) SC GLR 431, an attempt
by Joe Reindorf, then
Attorney-General of Ghana to
differentiate between review of
constitutional decisions and
common law cases did not find
favour with the Court.
In the applicant’s supplemental
statement of case filed on
19/4/2002, he stated—
“Apart from erroneous
interpretations of the
Constitution giving rise to
exceptional circumstance, …
there are other aspect of this
matter which established that
indeed exceptional circumstances
exist in this case which has
resulted in a gross miscarriage
of justice, and thereby warrant
the invocation and exercise of
this Court’s review power to
give relief” — see page 26.
The alleged erroneous
interpretation of the provisions
of the Constitution referred to
in the above paragraph were
stated to be —
i. The holding that the FAST
TRACK HIGH COURT is not a
division of the HIGH COURT.
ii. The Chief Justice cannot
administratively establish
divisions of the High Court
under article 139(3) of the
Constitution.
On these, the applicant
submitted that,
“ … On a true and fair reading
of Article 139 (3) of the
Constitution, and having regard
to the system of separation — of
— power underpinning our
Constitution as well as the
constitutional and political
history of this country, the
majority’s holding that
Parliament and not the Chief
Justice, is the proper authority
to establish divisions of the
High court is fundamentally
flawed and flies in the face of
express provisions of the
Constitution”.
He submitted further that
“this error is basic and
fundamental that it has given
rise to exceptional
circumstances warranting review
and reversal by this Court”.
The other aspects of the matter
which according to the applicant
raised ‘exceptional
circumstances’ consisted in,
1. That the Court should take
judicial notice of the fact that
virtually the entire complement
of justice of the Superior Court
of Judicature were fully
involved in the preparations for
the establishment of the FAST
TRACK COURT and that at the
formal inauguration of the
system on 30th March 2001
virtually all the Judges of the
Supreme Court attended the
function.
2. That the Supreme Court, in
dismissing the appeal in the
Selormey v. The Republic,
S.C./C.A. No. 5/2001 case on
21st November, 2001, the Court
saw it fit to remit the matter
back to the Fast Track Court for
the trial and proceedings to
continue. If the Fast Track High
Court was not a court of
competent jurisdiction, this
Court, the Court of Appeal and
the presiding High Court Judge
could each have raised suo motu
the matter of an absence of
jurisdiction: Counsel contended
that “in failing to do so and,
instead, remitting the case back
to the Fast track High court for
trial, the Court effectively
lent its sanction to, and so
encouraged further use of the
Fast Track High Court” That,
“counsel contended," undermined,
not advanced, by confusion of
this magnitude from the highest
court of the land. The public
interest is ill-served by such a
development. And this created
its own set of exceptional
circumstances warranting a
review.
3. On the face of the pleadings,
there is no constitutional issue
at stake in these proceedings
warranting the invocation of the
Court’s original jurisdiction
under Article 2.
It is rather unfortunate that
some extraneous matters have
been raised as grounds to
establish exceptional
circumstances. If according to
the applicant, the establishment
of the FAST TRACK DIVISION is
within the administrative
prerogative of the Chief
Justice, then like the
empanelling of Judges to sit on
a case, no one could dictate to
him what to do. He may with
respect, seek advice or
suggestions from the Superior
Justices and for that matter
outsiders but he is under no
obligation, to accept whatever
advice or suggestions are given
to him. The presence or
otherwise of Justices of the
Superior Courts albeit, the
Supreme Court, does not derogate
from his right to determine a
Division of the Court. Also, it
is not the duty of the court to
search for grounds for objecting
to the jurisdiction of the Court
if no such issue has been raised
by the contesting parties. Where
the issue is apparent on the
face of the Court, for example,
a court other than a Judicial
Committee, taking up a
chieftaincy case, the Court suo
motu may raise the issue. In the
Selormey case, the issue of the
jurisdiction of the Court was
not before the Court and none
had been raised; it was not
apparent on the face of the
record as it appeared, the
parties had agreed to the
Court’s jurisdiction; the only
matter before the Court was one
of an appeal. Do these conducts
complained of create estoppel on
the Courts? This in my view is a
misstatement of the legal
position. But perhaps at this
stage, I may say that there is
confusion in the mind of the
applicant as to what is
described as the Fast Track
Division of the High Court. He
himself is not certain whether
it is the ‘system’ used at that
Court which gives it its name or
whether it is a Division of the
High Court, under Article 139
(3) of the Constitution. In his
submissions he refers to the
Fast Track Division of the High
Court and sometimes to the Fast
Track High Court as a division
of the High Court created under
Article 139(3) of the
Constitution. I shall come to
this issue later on in my
opinion, but suffice it to say
that, what we all were
witnessing at the time of the
operation of the Fast Track
Court, was that it was the
ordinary High Court using the
computer systems for expeditious
disposal of cases. A situation
we all prayed for. Our presence
at the inauguration of the Fast
Track Court or our encouragement
of the use of the system cannot
in my view create an exceptional
circumstance.
Article 2 (1) of the
Constitution states;
“2 (1) A person who alleges that
—
(a) x x x x
(b) An act or omission of any
person is inconsistent with, or
is in contravention of a
provision of this Constitution,
may bring an action to the
Supreme Court for a declaration
to that effect”.
And, Article 3 (4) of the
Constitution provides —
“3(4) All citizens of Ghana
shall have the right and duty at
all times to defend this
Constitution….”
The respondent by his Writ, the
decision in which has resulted
in this review application,
claimed certain declarations,
namely.
“1. A Declaration that there is
no FAST TRACK COURT with
jurisdiction to try criminal
cases established under the
Constitution of the Republic of
Ghana. And there is therefore no
constitutional foundation for
the plaintiff to be prosecuted
before such Court.
2. A Declaration that the oral
demand by agents of the
defendant to the plaintiff to
appear before a FAST TRACK COURT
when no such Court for trial is
provided for in the Constitution
of the Republic of Ghana, is an
infringement of articles 125 and
126 of the Constitution
establishing the Judiciary.
3. An injunction against the
defendant and their agents
restraining them from seeking to
proceed with a trial of the pay
before the purported ‘FAST TRACK
COURT’.
4. A Declaration that the
Summons signed by the Justice of
Appeal served on the plaintiff
commanding him in the
President’s name to appear in
person before this Court is in
contravention of Articles 1(1)
and 125 of the Constitution, and
5. A Declaration that there is
no ‘FAST TRACK HIGH COURT’
established under the 1992
Constitution of the Republic of
Ghana and therefore a summons to
appear such a ‘Court’ is null
and void”.
The issues set down for
determination in this Writ were
—
“(i) Whether or not there is a
Court known as the FAST TRACK
COURT which is a Division of the
HIGH COURT.
(ii) Whether or not the FAST
TRACK COURT, if exists, is a
Court of competent jurisdiction
to try both civil and criminal
cases.
(iii) Whether or not the Summons
served on the plaintiff
commanding him in the
President’s name to appear
before FAST TRACK COURT offended
against provision of the
Constitution”.
At least the Applicant would
agree that there is an issue of
Interpretation raised on the
pleadings. Also, the service of
the criminal summons on the
respondent was faulty even if,
it could be remedied. That was
an act, offending against a
provision of the Constitution.
Article 139(3) provides for the
setting up of ‘Divisions’ of the
High Court. The respondent
contended that it had not been
set up in accordance with the
provision of the Constitution.
This may be a mere allegation
but in the words of Article
2(1), any person has a right to
bring that matter up for
determination. Any act or
omission which is not in
conformity with a constitutional
provision is unconstitutional.
And, if the FAST TRACK COURT
allegedly had not been set up in
accordance with the
constitutional provision, then
it was unconstitutional. The
unconstitutionality of the FAST
TRACK HIGH COURT as determined
by the Chief Justice under
Article 139(3) of the
Constitution, does not lie in
the use of computers etc. in
that Court, but in its
establishment purportedly under
article 139(3) of the
Constitution.
Article 139(3) of the
Constitution states—
“(3) There shall be in the High
Court such divisions consisting
of Justice, respectively as the
chief Justice may determine”.
What constitutes a ‘Division’
under this provision of the
Constitution, is unclear. The
applicant condemned the majority
for “improperly relying on
outdated English statutes and
ancient practice” and stated “…
there is no compelling reason
why we might be prohibited from
sincerely tailoring “divisions”
of the High Court to suit our
particular circumstances and
preference” and submitted,
“The only thing article 139(3)
tells us about what a “Division”
of the High Court must look like
is that it shall consist of
“such member of Justices
respectively as the Chief
Justice may determine”. Nowhere
in article 139 (3) or in any
other part of the Constitution
is it said that a ‘division’ of
the High Court must be
established necessarily along
subject matter or territorial
lines.
That may very well have been the
bases upon which divisions of
the High Court were established
in colonial times. But past
practice or custom, however
ancient, cannot be taken for a
constitutional requirement. Nor
does past practice or custom
foreclose innovation in response
to changed circumstances or
current trends. The framers of
our Constitution were wise not
to have restricted the bases for
establishing “divisions” of the
High Court to subject-matter and
territory, because they could
not have foreseen what needs
might arise in the future that
would necessitate the adoption
of innovative approaches to
enhance the administration of
justice in this country”.
By this statement, it could be
said that the applicant
appreciates the difficulty the
Court, and for that matter all
of us have in determining the
meaning of “divisions” and
reference to past statute for
assistance in that direction
should not be condemned but must
be appreciated. The duty to
interpret the provisions of the
Constitution is placed on the
shoulders of the Supreme Court
and, a decision by that Court
should be accepted until a
better one is found. The
innovative approaches suggested
by the applicant is only one way
of finding the definition from
outside; it is only an
assistance!
The Constitution establishes
Superior Court of Judicature
comprising —
(i) The Supreme Court;
(ii) The Court of Appeal; and
(iii) The High Court and
Regional Tribunals
(Vide Article 126(2) of the
Constitution).
There is thus, one Supreme
Court, one court of appeal and
one High court. With regard to
the Regional Tribunals which are
also Superior Courts, the
Constitution provides that,
“there shall be established in
each region of Ghana such
Regional Tribunals as the Chief
Justice may determine — vide
Article 142 (1) of the
Constitution. The High ‘Courts’
in the region are only branches
of the one and only HIGH COURT
established under the
Constitution. And, provided they
use the same Rules and
procedures of the High Court,
they would remain a High Court”.
The “division” envisaged under
Article 139(3) of the
Constitution must necessarily be
different in structure from the
ordinary branches of the one
High Court.
The applicant submitted,
“The Chief Justice may acting
pursuant to his discretionary
power under article 139 (3),
establish a division of the High
Court and designate certain
categories of cases to be
assigned to the division. But
such specialisation or division
of labour within the High Court,
done for reasons of
administration efficiency and
convenience, does not, and
cannot constitute a lawful
limitation of the general and
original jurisdiction which
article 140 (1) of the
Constitution, and Act 459, the
Courts Act have conferred on the
High Court…” (Emphasis
supplied).
I agree with the applicant save
that to establish a proper
‘division’ of the High Court
under Article 139(3) of the
Constitution, other provisions
of the Constitution must be
complied with to make it legal.
I do not share the view that
such ‘divisions’ must have to be
determined by a Parliamentary
sanction. The law vests the
right or authority to determine
the ‘divisions’ solely in the
Chief Justice. It is an
administrative discretion. This
was my view in the opinion I
expressed in the judgment of
this Court.
The applicant asserted,
“The Fast Track Division is not
a new or separate Court; it is a
division of a pre-existing Court
— the High Court. The Rules of
Court Committee has already made
rules and regulations to govern
proceedings in the High Court,
which rules and regulations bind
all divisions of the High Court,
including the Fast Track
Division. The Rules of Court
Committee does not, and is not
required to make rules and
regulations for each new
division of the High Court. It
is required to make rules and
regulations for the High Court
as a unit. And these same rules
and regulations apply to all
divisions of the High Court”.
If the Fast Track Division of
the High Court has the same
jurisdiction and is to apply the
same rules and regulations, then
why is it a ‘division’ of the
High Court under Article 139(3)?
That is why I said earlier that
the applicant is with due
deference, confused as to the
nature of the ‘division’ being
created. If it is the name FAST
TRACK which creates the
division, then it is not a
division properly so called
under Article 139(3). The words
‘FAST TRACK’ could be applied to
any Court whether a Community
Tribunal, a Magistrate Court,
Circuit Tribunal or Circuit
Court or the Regional Tribunal
where the courts have been
automated or computerized to
expedite the trial of cases. The
applicant often referred to
“Fast Track” as a system. This
is what it should be. And if the
only description given to this
division of the High Court is a
Fast Track Court, then it is not
a ‘division’ under Article
139(3); just call it, the “Fast
Track Division” or the “Fast
Track Division of the High
Court” which this Court really
is and not one under article
139(3) of the Constitution.
To constitute a Division under
Article 139(3) of the
Constitution, it is required
that “such number of justices”
are assigned to it. It cannot be
a court where all the justices
of the Superior Court could be
assigned to sit in it
indefinitely. Apart from the
Supreme Court which shall
consist of the Chief Justice and
not less than nine other
Justices of the Supreme Court”,
the Court of Appeal shall
consist of,
(a) the Chief Justice;
(b) subject to clauses (2) and
(3) of this article, not less
than ten Justices of the Court
of Appeal; and
(c) such other Justices of the
Superior Court of Judicature as
the Chief Justice may , for the
determination of a particular
cause or matter by writing
signed by him request to sit in
the Court of appeal for any
specified period (emphasis mine)
(Vide Article 136(1) of the
Constitution).
And, the High Court shall
consist of —
(a) the Chief Justice;
(b) not less than twenty
Justices of the High Court; and
(c) such other Justice of the
Superior Court of Judicature as
the Chief Justice may, by
writing signed by him request to
sit as High Court Justices for
any period”. (emphasis
supplied).
Thus, while all Superior
Justices of Judicature, could
sit in the Court of Appeal and
the High Court, a Justice of
another court, may sit in the
Court of Appeal or the High
Court only for the determination
of a particular cause or matter
for a specified period by a
request in writing signed by the
Chief Justice. It follows that a
Supreme Court Judge, a Court of
Appeal Judge or a High Court
Judge cannot sit in the Court of
Appeal or the High Court unless
he has so been requested by the
Chief Justice in writing signed
by him. There is no evidence
that those Court of Appeal
judges sitting in the purported
‘division’ of the High Court
have so been requested. And, if
it was the intention that all
justices of the Superior Courts
should sit in the so-called
‘division’ created or determined
by the Chief Justice under
Article 139(3) of the
Constitution, then there would
have been no need to require
that ‘such number of justices’
should sit. This provision
requires that a specified number
of justices should sit in such a
‘division’ even if for a period.
According to the applicant
Exhibit AMI (the Guidelines)
“does not profess to contain the
Rules and Regulations governing
proceedings in the Fast Tack
Division. The only binding rules
and Regulations for the Fast
Track Division, as for any
division of the High Court, are
the rules and regulations of the
High Court Exhibit AMI contains
supplementary “guidelines” — not
binding rules and regulations …
the contents are guidelines”
that judges of the Fast track
Division are advised or
encouraged (but are under no
legal compulsion) to use in
making discretionary decisions
in the course of trial” Well,
the Rules of Court Committee is
enjoined by law, namely Article
157(1) to, by constitutional
instrument, make rules and
regulations for regulating the
practice and procedure of all
courts in Ghana”. If these
“guidelines” cannot be described
as regulating the practice and
procedure in the so-called
‘division’ of the High Court
then I do not know what they
are. We should try to avoid
semantics in our interpretation
of the law. If the judges are
supposed not to be bound by
these then, what are their
purpose! Attempt should not be
made to create uncertainties in
our administration of justice.
Besides, it is required as part
of the functions of their office
that the Rules of Court
Committee make rules or
regulations for regulating
matters relating to the costs of
the proceedings in court and
prescribing fees and allowances
to be paid in respect of any
matter relating to the
proceedings of any court”. What
fees are being charged at this
‘division’ of the High Court?
Is it the fees fixed under the
Rules of Court or fees
arbitrarily exacted? See,
Section 80 (2) of the Courts
Act, 1993 (Act 459).
It is for the applicant to
satisfy this Court that all that
needs to be done to set up a
‘division’ under Article 139(3)
of the Constitution has been
done before attacking the
judgment of the Court. Failure
to comply with any provision of
the Constitution makes that act
or omission unconstitutional.
The word ‘FAST TRACK’ is not
used in the Constitution.
Indeed, section 69(1) of the
Courts’ Act, 1993 (Act 459)
provides —
“69(1) In any proceedings before
a Court, the Court may cause
oral evidence to be recorded by
shorthand, tape recorder of by
any such other means as the
Chief Justice may determine”
(emphasis supplied).
The attempt to automate the
Courts by the use of computers
and other gadgets is a laudable
one and it is hoped that the
system would spread to all the
Courts to achieve our objective
i.e. to expedite the disposal of
cases in our courts, but the
name ‘FAST TRACK’ by itself
cannot establish a High Court
division envisaged under Article
139(3) of the Constitution. It
is not meant by our judgment to
abolish the ‘FAST TRACK
DIVISION’ of the High Court. The
High Court as it exists now,
without any attempt to create it
as a ‘division’ under Article
139(3), has jurisdiction,
subject to the Constitution, to
try all cases. The use of
recording machines, typewriters,
shorthand, computers etc is
sanctioned by law. Without
purporting to create a
‘division’ of the High Court
under Article 139 (3), all
cases, both civil and criminal
could be sent to any of the
branches for trial. There could
be no valid objection to that.
But if a ‘division’ is to be
created in the High Court
pursuant to the provisions of
Article 139(3) of the
Constitution, then, to reiterate
my opinion in the original case,
the provisions of the
Constitution must be adhered to.
As stated before, if the
respondent has committed any
triable offence, he could be put
before the High Court using the
installed computers, etc and
tried lawfully. Thus, the ‘FAST
TRACK ‘DIVISION’ of the high
Court can conveniently be
operated without attempting to
describe it as a Division under
Article 139(3).
The next issue contemplated
under the provisions of Rule 54
of the Rules of this Court (CI
16) is; what injustice has
resulted from these alleged
exceptional circumstances, if
indeed there are exceptional
circumstances? I have already
set down the reliefs which the
plaintiff sought in his action.
The issues have also been set
down. On the issue as to whether
or not, the Criminal Summons
served on the plaintiff
commanding him in the
President’s name to appear
before the Court, offended
against the provisions of the
Constitution, it was my opinion
that under the Constitution,
particularly Article 125(1) the
Summons was invalid as the
President in his name could not
have summonsed any person to
appear before a Court. The
defendant conceded that it was a
mistake and that that mistake
could be corrected and that
indeed it was corrected by
substituting a fresh summons.
Since the Criminal Summons
(Exhibit TT4) was a wrong
process and violated Article 125
of the Constitution, it was
unconstitutional, and the law
enjoins all citizens of this
country to defend the
constitution and enforce its
provisions. It has been argued,
referring to the Delta Foods
Case, that the process could
have been amended. It is true
that at any stage of the
proceedings there could be an
amendment, even up to the
appellate Court. That may be so
but unfortunately the
‘authority’ referred to arose
out of civil proceedings. In a
criminal case, the charge sheet
could be amended by the
withdrawal of the charge, but
not where the accused has
already taken objection to the
summons which brought him to
court. The accused was
duty-bound to respond to the
summons even though it was
defective; failure to attend
court would have resulted in his
being arrested on Bench Warrant.
The respondent could not be
faulted therefore for timeously
taking steps to assert his right
notwithstanding the subsequent
withdrawal of the criminal
summons.
The substituted summons was also
defective in that it was a civil
summons to the respondent to
appear in a Court which dealt
with ‘Industrial and Commercial
Cases’. He questioned his being
sent to a Court of civil
jurisdiction when his offence
was a criminal one. He contended
that while the court before
which he had been brought was a
civil one, he could not be put
before it. Here again was the
confusion created by not
properly identifying the
‘division’ of the High Court
before which he was appearing.
If it had been an ordinary High
Court where computers are being
used, he could not have validly
objected to the jurisdiction of
the Court as a ‘Fast Track
Division’ of the High Court. The
error in serving him with a
Civil Form arose from the nature
of the division intended to be
created under Article 139 (3).
The respondent was therefore
entitled to seek a declaration
to that effect. What injustice
has resulted from these two
situations? The applicant was
able to put the respondent
before the High Court on the
same charge except that even
though the systems used in the
‘FAST TRACK’ were all there,
they were not used. I see no
injustice resulting from this
situation even if it is claimed
that the situation created an
‘exceptional circumstance’.
By this application, the
applicant requests that the
judgment of this Court, dated
28-2-2002 be reviewed and the
respondent be put before the
Fast Track Court and tried. We
are told however that
immediately after our judgment,
the respondent was put before
the High Court on the same
charges. I cannot therefore see
how we can order the respondent
to be put again before another
Court to be tried even if there
were exceptional circumstances
which have resulted in a
miscarriage of justice. Until
the provisions of article 139(3)
have been strictly complied
with, I see no hindrance in
operating the Fast Track
Division of the High Court. We
have not abolished the FAST
TRACK DIVISION of the High
Court. What we only declared
unconstitutional was the
purported establishment of a
division of the High Court under
article 139(3) of the
Constitution by the name FAST
TRACK. The High Court as it
exists has all the jurisdiction
given it by the Constitution and
can try both criminal and civil
cases, using if desirable, the
computers etc. etc., installed
in that Court; it would not
matter by what name it is
called.
Apart from the observation made
regarding the proper setting up
of a ‘division’ of the High
Court under Article 139(3), I do
not think ‘exceptional
circumstances resulting in a
miscarriage of justice have been
established to warrant my
reviewing my opinion.
KPEGAH, J.S.C.:
I open this opinion with what I
consider as a pertinent
observation by Adade, J.S.C. in
the case of MECHANICAL LLOYD
ASSEMBLY PLANT v. NARTEY
(1987-88) 2 GLR 598.
At page 603 this is what the
learned judge said:
“Let me say at once that, for
all I know, virtually every
judgment on earth … can be
criticised. A Privy Council
judgment put in the hands of any
lawyer …… can be criticised in
the same way as a High Court
judgment can be. A person who
has lost a case will almost
instinctively feel that the
judgment must be wrong. And why
not? If he had won, the
decision would be right; so if
he lost, how could the Court be
right”.
Justice Adade did not end there,
but gave a caution and a useful
advice to prospective applicants
who intend asking for a review
of this Court’s decision in the
following words:.
“[T]he mere fact that a judgment
can be criticised is no ground
for asking that it should be
reviewed. The review
jurisdiction is a special
jurisdiction to be exercised in
exceptional circumstances. It is
not an appellate jurisdiction.
It is a kind of jurisdiction
held in reserve, to be prayed in
aid in the exceptional
situations where a fundamental
and basic error may have
inadvertently been committed by
the court, which error must have
occasioned a gross miscarriage
of justice.
The review jurisdiction is not
intended as a try-on by a party
after losing …………….; nor is it
an automatic next-step ……… ………
neither is it meant to be
resorted to as an emotional
reaction to an unfavourable
judgment”.
My Lords, for a better
appreciation of the views I am
about to express in this ruling,
I would like to recollect,
briefly, the antecedents of the
case culminating in this
application for a review.
On the 11th day of March, 2002
the Plaintiff/Respondent (herein
after referred to in this ruling
simply as the Respondent) issued
a writ against the
Attorney-General as the
Defendant who is the applicant
in these proceedings. The
respondent sought the following
reliefs from the Court:
“1. A declaration that there is
no “FAST TRACK COURT” with
jurisdiction to try Constitution
of the Republic of Ghana, and
there is therefore no
constitutional foundation for
the Plaintiff to be prosecuted
before such Court.
2. A declaration that the oral
demand by agents of the
Defendant to Plaintiff to appear
before a “Fast Track Court” when
no such court for trial is
provided for in the Constitution
of Republic of Ghana, is an
infringement of Articles 125 and
126 of the Constitution
establishing the Judiciary.
3. An injunction against the
Defendants and their agents
restraining them from seeking to
proceed with a trial of the
Plaintiff before the purported
“Fast Track Court”.
Later the respondent sought and
was granted leave to amend his
writ and statement of case by
the addition of two more reliefs
thus:
“4. A declaration that the
summons signed by a Justice of
Appeal served on the Plaintiff
commanding him “in the
President’s name to appear in
person before this Court …” is
in contravention of Article 1(1)
and 125(1) of the Constitution.
5. A declaration that there is
no “Fast Track High Court”
established under the 1992
Constitution of the Republic of
Ghana and therefore a summons to
appear before such a ‘Court’ is
null and void”.
On the 28th day of February,
2002, this Court by a majority
of 5:4 gave the respondent
judgment and granted all the
reliefs he claimed. The Court
reserved its reasons which it
gave on 20th March 2002.
Meanwhile, a day after our
decision, that is the 1st of
March, 2002, the applicant filed
a motion for the review of our
decision. The applicant says
that the judgment is wrong, and
it should be reviewed and
reversed in his favour.
The ground on which the learned
Attorney-General is seeking a
review of our solemn decision as
embodied in his statement of
case is “exceptional
circumstances which have
resulted in miscarriage of
justice”.
The exceptional circumstances
“warranting a review” as
enumerated in paragraph 4 of the
Statement of the applicant’s
case filed pursuant to our Rules
are stated as follows:
“1. It is the case of the
applicant that the decision of
the Court is a retrograde step
that strikes at the heart of the
Administration of Justice in
this country and considering the
far reaching effect this will
have on the Administration of
Justice in the Land, having
regard to the numerous cases
that have been disposed of at
the Fast Track High Court, and
since there is only a very
narrow majority decision, there
is absolute need to have a
second hard look at this matter
again.
2. It is the case of the
applicant that since the Supreme
Court itself in the case of The
Republic Vrs. Selormey saw it
fit in the ruling to remit the
case back to the Court below
which is the fast Track High
Court for trial to continue in
the said Fast Track Court, the
same Court cannot now rule that
this Court is unknown to the
Constitution to warrant granting
the Plaintiff/Respondent the
reliefs he sought.
3. The ruling in the Republic
VRS Selormey by the Supreme
Court and the ruling in the
present case by the same Court
are surely contradictory and
inconsistent with each other.
4. The Supreme Court, the
highest Court of the land has a
duty to ensure certainty in the
law and in the present
uncertainty and apparent
confusion that the decisions in
these two cases show, an
exceptional circumstance has
arisen which has occasioned a
miscarriage of Justice and
therefore the justice of the
situation demands that this
matter be looked at again so
that the speedy computer-based
record transcription system
which is geared to efficient
case management and speedy
disposal of cases will become a
permanent feature of our
Administration of Justice.”
On 19th April, 2002, a detailed
supplementary statement of case
was filed on behalf of the
applicant. In this statement
detailed arguments were advanced
in support of the grounds quoted
above. After perusing the four
grounds quoted above, which were
cited as sufficient grounds for
the exercise of our review
jurisdiction, and also after
reading the detailed arguments
in support of same as embodied
in the applicant’s supplementary
statement of case, I have no
doubt in my mind and have come
to a definite decision that this
application is without any merit
and should be dismissed. I find
the grounds on which the review
is being sought, in the words of
Adade, JSC, “at best … mere
pin-pricks, the moanings and
groanings of a defeated party
who chooses to persist in
regarding himself as sinned
against, rather than sinning”.
See MECHANICAL LLOYD ASSEMBLY
PLANT V. NARTEY (supra) page
610.
Initially, I did not want to
write anything beyond this: “I
have considered the application
and in my view it is without
merit and it is hereby dismissed
accordingly”. But what has
persuaded me to write a reasoned
ruling is the fact that
posterity may be harsh and
unforgiving since such a
taciturn approach will not only
be baffling and thus
incomprehensible, but also will,
more importantly, be a negation
of my constitutional
responsibility should this
application turn out to be, or
result in, a departure from
established principles which
have regulated the exercise of
our review jurisdiction so far.
The principle that there must be
an end to litigation is not only
a powerful concept in the
administration of justice, but
also one of the strong pillars
on which it rests. It is this
well known common law principle
of public policy that the review
jurisdiction has always to
contend or come into conflict
with when a party, appearing
before us, calls upon us to
review our previous decision.
This time-honoured, almost
sacrosanct principle will yield
to only a higher value or
demand; namely, the needs of, or
for the attainment of justice
when an applicant clearly
establishes an exceptional
circumstance which had led to a
gross miscarriage of justice to
him. And in the recent case of
IN RE ADUM STOOL (No.2) [2000]
SCGLR 449, Wiredu, J.S.C. (now
C.J.) reiterated the same
principle when he said that a
review panel or Court must
always bear in mind the common
law principle that there must be
an end to a litigation at some
point. This is what the learned
judge said at page 455 of the
report:
“In an adversarial system of
conflict resolution, one party
will always be the winner and
the other party the loser. It
may even be natural, sometimes,
for a losing party to feel that
he should have won his case.
However, it is crucial for the
maintenance of the law of the
state that there be an end to
litigation at some point and it
is not for the mere placation of
an irked losing party that the
review jurisdiction was
conferred on this Court”.
It does appear, does it not,
that the common law principle
expressed in the Latin maxim
INTEREST REI PUBLICAE UT SIT
FINIS LITUIM, is so important in
the administration of justice
and is often considered as being
protected by sacred or
quasi-sacred rules that a strong
case of exceptional circumstance
resulting in a gross miscarriage
of justice has to be made by an
applicant in a review
application before this
principle can yield to the said
application and a review will
succeed. And such a proceeding
is neither intended to be an
occasion for a marshalling of
fresh arguments often couched in
flowery language; nor is it
intended as an opportunity for
merely attacking the reasoning
of the judges of the court in
the hope of securing a review of
the decision. For it is not
unfamiliar for a lawyer or an
appellate Court to say: “the
reasoning is wrong but the
conclusion (that is the
decision) is right”. Nor is it
unfamiliar for judges to differ
in their reasoning but arrive at
the same conclusion; again, that
is the decision.
It is certainly not in the
public interest that a case
should be heard AD INFINITUM or
without the litigation ceasing.
In this respect may I also
recall the dictum of Taylor,
J.S.C. one of our own eminent
jurists in the case of NASALI V.
ADDY (1987-88) 2 G.L.R. 286 at
288:
“[T]he jurisdiction is
exercisable in exceptional
circumstances where the demands
of justice make the exercise
extremely necessary to avoid
irremediable harm to an
applicant. In this connection
all persons who have lost a case
are likely to complain of
miscarriage of justice, but in
my view in the absence of
exceptional circumstance such
complaints are a poor foundation
for the exercise of the review
power for it is only in
exceptional circumstances that
the INTEREST REI PUBLICAE UT SIT
FINIS LITUM principle yields to
the greater interest of
justice.”(Emphasis mine).
In the NASALI case (supra) the
grounds for the application for
review were (a) “Error apparent
on the face of the record; and
(b) a grave miscarriage of
justice”. The decision was a
split decision of the Supreme
Court and the applicant
contended that the majority
ignored relevant authorities
thus occasioning gross
miscarriage of justice to him.
The application was dismissed as
the contention was found to be
wrong and the applicant could
not achieve that standard of
proof required to dislodge the
principle that an end to
litigation is in the public’s
interest.
In these proceedings the
arguments indulged in by the
learned Attorney-General, in my
honest view, are only calculated
to re-open the case for a fresh
hearing. Not only new
considerations which can be
shown to be patently erroneous,
which I intend to demonstrate in
the course of this ruling, but
also new unproven facts were
urged on us in a valiant effort
to secure a reversal of our
decision so that the opinion of
the majority becomes the
minority opinion. A kind of from
“Defeat into Victory”. However,
the law books are replete with
authorities with strict
admonitions against such an
approach. At this point, the
cautionary words of the Earl of
Selborne are worth mentioning;
“Courts should not be ready to
permit unsuccessful parties to
attempt to overturn judgments by
raising new considerations”.
See BOSWELL VRS. COOKS (1894) 86
LT.365.
My Lords, there is no dearth of
authority as to the standard of
proof an applicant must achieve
before he can induce this court
to review its solemn decision.
The applicant must not only
establish that there is an
exceptional circumstance for
which reason a second look has
to be taken at the judgment, but
also that the said special
circumstance had occasioned a
miscarriage of justice to him.
Despite there being several
cases on the point, there has
not been any successful
definition of what “an
exceptional circumstance” or
“special circumstance” is. But
all the authorities, as pointed
out, are unanimous that a review
proceeding is not intended as a
second bite at the cherry or
rehashing of old arguments, or
an occasion when more ingenious
arguments can be marshalled
against the reasoning leading to
the decision.
In the case of THE REPUBLIC VRS.
HIGH CORUT, ACCRA and COURT OF
APPEAL, ACCRA; Ex-PARTE TOGBE
GOBO DARKE XII and ANOTHER, S.C.
(1992) 2 G.L.R. 440 at 468, I
said:
“[T]he review jurisdiction is a
special power to be called in
aid in exceptional
circumstances, and where
justice, for which this court
exists, will be sacrificed if
the decision is not reviewed.
The procedure is certainly not
intended to call upon a court to
consider and answer criticisms
of its judgment, and if found to
have some merit or be plausible,
to grant a reversal of the
judgment under the guise of the
exercise of a review
jurisdiction. It has therefore
been my practice to decline an
application for a review if
nothing fundamentally new, and
which is capable of prompting a
well-informed and reasonable
judicial mind into reacting in
defence of justice in the
matter, has been brought to my
attention.”
And, in the case of SWANIKER V.
ADOTEI II (1960) GLR 151, S.C.
part of the first holding, lays
down the principle as follows:
“A review was unintended to take
the place of an appeal, and was
not to be dealt with as if it
were an appeal; therefore the
mere fact that there was a good
ground upon which the judgment
would be set aside on appeal was
not of itself a ground for
granting review”.
Also in the case of REPUBLIC V.
HIGH COURT; Ex-PARTE KHOURY
reported in Part 4 of (1992-93)
GBR. 1577 at 1565, my learned
and respected sister
Bamford-Addo, J.S.C. reiterated
the principle in these words:
“I feel strongly that the power
of review must only be involved
when exceptional circumstances
do exist to correct an obvious
error or injustice, and not
invoked at any time a party
loses a case. Unless this Court
applies strictly these
principles enunciated in its
various decisions on the matter,
there, would be no end to
litigation in this country”.
What then is the real purpose of
the review jurisdiction bestowed
upon this court in article
133(1) of the Constitution? I
ask this question not because
this area of the law has
remained unexplored, but rather
because of the frequency of its
wrongful invocation. As a
result of the persistence of
this practice my brother Adade,
J.S.C. was constrained to put
down his lamentations in these
words:
“It has not been enough to say,
and keep on repeating, that a
review is not an appeal. That
has been said before, but its
effect has not been
appreciated”.
See MECHANICAL LLOYD ASSEMBLY
PLANT VRS. NARTEY (supra).
However, despite the frequency
and frivolity of most of such
applications, this Court has
never been daunted, or ever
shyed away from its
determination not to allow the
principles which govern the
exercise of its review
jurisdiction to be whittled down
and reduced to one of re-hearing
of an appeal or a case de novo.
It was one such false step in a
recent application for a review
which prompted my respected
brother Wiredu, J.S.C., the
present Chief Justice, to
observe:
“[I]n the performance of this
function, it would be highly
improper for the Court to review
the evidence in the case that
had been lodged before the
ordinary bench, as though to
test whether or not the decision
is in tune with the evidence. To
do so, would amount to the
review Court treating the
application before it as if it
were an appeal and, thus
usurping a jurisdiction it does
not have.”
In the instant case before us,
we stand the grave risk not only
of breaching the above
injunction, but also do stand a
greater risk of turning the
instant proceedings into a
hearing DE NOVO. This is because
the arguments have been so
coquettishly presented that an
unwary court may be seduced into
granting a rehearing in the
guise of a review. For, in my
view, the instant application
seeks to secure a re-hearing of
the original suit in the hope of
turning a majority decision into
the minority.
It is important, therefore, that
we examine the instant
application for review against,
what Francois, J.S.C. called,
“the prohibitive back-drop of
the INTEREST REI PUBLICAE UT
FINIS LITUIM” rule.
In order to circumvent the
decided cases and the principles
therein contained in them, the
learned Attorney-General
encouraged us to depart from our
decision in the case of PIANIM
(No.3) v. EKWAM & ANOR (1996-97)
SCGLR 431 where the issue was
considered. That is, whether the
same principles are applicable
in reviewing judgments of the
Supreme Court in the exercise of
its appellate and original
jurisdictions.
They held:
“The applicant’s contention that
the criteria set out in decided
cases, with regard to review
applications, should be applied
to judgments resulting from the
exercise of the Court’s
appellate jurisdiction not from
the exercise of its original
jurisdiction, would be rejected.
An application for review could
not, under any circumstances, be
equated to an appeal whether the
review sought in respect of a
judgment given after exercising
an appellate or one given after
exercising an original
jurisdiction”.
I find no reason to depart from
this decision of the Court. The
decision in the PIANIM case is
further enhanced by the
provisions of rule 54 of CI 16,
which makes the grounds for
review a statutory requirement
and it is an encapsulation of
the principles embodied in the
case law.
My humble recommendation is that
we should continue to keep our
doors firmly shut against any
application for review, like the
instant one, which seeks to
violate the well-established
principles which regulate the
exercise of our review
jurisdiction. We are not, within
the confines of these
principles, permitted to reopen,
for hearing de novo,
“effectively concluded matters
on the compulsion or inspiration
of second thoughts or the
belated discovery of errors ….
[T]his undermines certainty”.
Per Francois, J.S.C. in FOSUHENE
VRS. POMAA (supra).
I have a terrible fear, and this
is not one of fancy, that if we
grant the present review it will
eventually lead to an erosion of
all the well-considered
principles which now regulate
the exercise of our review
jurisdiction. This will not only
create uncertainty in the minds
of litigants and their legal
advisers, but also to an erosion
in value of the principle that
there must be an end to
litigation.
In my view, there is absolutely
nothing in this application to
induce us exercise our
discretionary power of review in
the applicant’s favour.
At this point, I would like to
remind myself of Mr. Justice
Cardozo’s admonishment to judges
of the common law tradition
never to be knight-errants in
the exercise of their
discretionary powers, of which
the review jurisdiction is one.
This is what the Judge said:
“The judge, even when he is
free, is still not wholly free.
He is not to innovate at
pleasure. He is not a
knight-errant, roaming at will
in pursuit of his own ideals of
beauty or goodness. He is to
draw his inspiration from
consecrated principles. He is
not to yield to spasmodic
sentiments, to vague and
unregulated benevolence. He is
to exercise a discretion
informed by tradition,
methodized by analogy,
disciplined by system, and
subordinated to '‘the primordial
necessity of order in social
life’,”
See THE NATURE OF THE JUDICIAL
PROCESS (YALE) 1921, p.98-141 at
page 141.
My Lords, although I have
already quoted the grounds for
the instant application, I will
for ease of reference, coupled
with the need to focus on, and
expose the frivolity of the
grounds, quote them again:
“1. It is the case of the
applicant that the decision of
the Court is a retrograde step
that strikes at the heart of the
Administration of Justice in
this country and considering the
far reaching effect this will
have on the Administration of
Justice in the Land, having
regard to the numerous cases
that have been disposed of at
the Fast Track High Court, and
since there is only a very
narrow majority decision, there
is absolute need to have a
second hard look at this matter
again.
2. It is the case of the
applicant that since the Supreme
Court itself in the case of the
Republic Vrs. Selormey saw it
fit in the ruling to remit the
case back to the court below
which is the Fast Track High
Court for trial to continue in
the said Fast Track Court, the
same Court cannot now rule that
this Court is unknown to the
Constitution to warrant granting
the Plaintiff/Respondent the
reliefs he sought.
3. The ruling in the Republic
vrs. Selormey by the Supreme
Court and the ruling in the
present case by the same Court
are surely contradictory and
inconsistent with each other.
4. The Supreme Court, the
highest court of the land has a
duty to ensure certainty in the
law and in the present
uncertainty and apparent
confusion that the decisions in
these two cases show, an
exceptional circumstance has
arisen which has occasioned a
miscarriage of Justice and
therefore the justice of the
situation demands that this
matter be looked at again so
that the speedy computer-based
record transcription system
which is geared to efficient
case management and speedy
disposal of cases will became a
permanent feature of our
administration of Justice.”
It will be convenient to
consider grounds 2, to 3 and 4
together since they are about
the same issue: the decision of
this Court in the case of
SELORMEY V. THE REPUBLIC,
CRIMINAL APPEAL NO.5/2001
(Unreported) and dated 21st
November 2001. The thrust of the
argument, embodied in these
grounds, is that this Court
having heard and dismissed an
interlocutory appeal in the
SELORMEY case, which appeal
originated from a ruling on a
submission of no case to answer
in the so-called “FAST TRACK
HIGH COURT” and having ordered
the trial of the appellant to
continue in the said court after
dismissing the appeal, the
Supreme Court had impliedly
admitted the constitutionality
of the “FAST TRACK HIGH COURT”
and was, possibly, estopped from
any position to the contrary.
Also, that because two members
of this Court have appeared
before the “FAST TRACK HIGH
COURT” as witnesses, this has
further given legitimacy to the
said Court. The written
submission in support of the
above view-point will be quoted
in full:
“Secondly, it is significant
that in Selormey v. The
Republic, S.C./C.A. No.5/2001,
21st November 2001, unreported,
the Court, Coram Wiredu C.J.,
Bamford-Addo, Ampiah, Adjabeng,
Atuguba, Akuffo, Lamptey,
JJ.S.C, in affirming the verdict
of the Court of Appeal in
dismissing an interlocutory
appeal from the Fast Track High
Court by the accused person in a
criminal trial concerning that
Court’s overruling of a no case
submission, saw fit to remit the
matter back to the Fast Track
High Court for the trial and
proceedings to continue. If the
Fast Track High Court was not a
court of competent jurisdiction,
this Court, the Court of Appeal,
and the presiding High Court
Judge could each have raised suo
motu the matter of an absence of
jurisdiction. In failing to do
so, and, instead, remitting the
case back to the Fast Track High
Court for trial, the Court
effectively lent its sanction
to, and so encouraged further
use of, the Fast Track High
Court, a process that was given
even greater momentum by the
appearance of two members of
this august Court as defence
witnesses in the Selormey trial.
(Emphasis supplied).
This Court is being told that
because your Lordships dealt
with the SELORMEY CASE, by way
of an interlocutory appeal,
which your Lordships dismissed
and properly ordered the trial
in the lower court to continue,
you are precluded from ever
determining the status of that
Court when a citizen formally
invokes the original
jurisdiction of this court
alleging that the establishment
of the said court infringes
certain provisions of our
Constitution and seeks a
declaration to that effect.
The basis for the above argument
is that your Lordships failed to
raise the issue of the
Constitutionality of the “Fast
Track Court”. SUO MOTU thereby
giving your judicial blessing to
it “and so encouraged the
further use” of the “Fast Track
High Court”. Admittedly, the
issue of the status or the
constitutionality was not raised
in the appeal; neither did the
SELORMEY CASE come to this Court
by way of reference under
article 130(2) of the
Constitution. The issue was
therefore wholly irrelevant to
the determination of the said
case.
This was not an issue to be
raised by this Court SUO MOTU.
If the issue were raised SUO
MOTU, it would have amounted to
invoking our original and
enforcement jurisdiction
ourselves. I believe neither the
language in Article 2(1)(b),
which deals with the enforcement
of the Constitution, nor that of
Article 130(1)(b), which relates
to our original jurisdiction,
permit such a course of action
on our part.
I have nothing to say about this
startling proposition but that
it may win points in any
debating forum apart from a
court of law. I say so for it is
a proposition familiar to all
lawyers that a Court adjudicates
upon issues submitted to it by
the parties before it for
determination.
In the case of AKUFO-ADDO V.
CATHELENE (1992) 1 GLR 377 where
the plaintiff twice sought to
amend her claim and include a
claim for a House at Kaneshie
but no implementary steps were
taken to formally effect the
proposed amendment, the trial
Court, in spite of the failure,
decreed title to the Plaintiff.
When the matter came on appeal
to us this Court held:
“(1) by the provisions of Order
28, rr 7-10 of the High Court
(Civil Procedure) Rules, 1954
(LN 140A) where a party sought
and obtained leave to amend his
pleadings but failed to do so,
the order lapsed and the process
became ipso facto void. On the
evidence, on the two occasions
the plaintiff sought and
obtained leave to amend, she
never took any implementary
steps as required by the rules
to effect the amendment.
Accordingly, there was no such
amendment pursuant to the leave.
There was therefore a
misapprehension of the position
by the trial judge when he
assumed that there had been an
effective amendment of the writ
of summons and statement of
claim to include a claim for the
Kaneshie house. Since that claim
was never before the Court or
was not submitted to it by the
parties for adjudication, the
trial judge had no jurisdiction
to pronounce on same.
Accordingly, in so far as the
judgment of the High Court
sought to decree title in the
plaintiff in respect of the
Kaneshie house on the basis of a
void and non-existent amendment,
that decree was a nullity.
A matter can be raised by the
Court suo motu when it is
apparent from the record.
The next point I would like to
deal with is that concerning the
appearance of two members of
this court before the “Fast
Track High Court” as defence
witnesses in the SELORMEY CASE
which, according to the learned
Attorney-General, induced the
public to accept the Court as
Constitutional and patronize it.
Is it a sort of estoppel by
conduct the applicant is
referring to? Or the learned
Attorney-General is thinking
about the well-known dictum of
Lord Denning in MOORGATE
MERCANTILE CO. LTD. VRS.
TWITCHING (1975) 3 ALL. E.R. 314
at 323 where he said:
“When a man, by his words and
conduct, has led another to
believe in a particular state of
affairs, he will not be allowed
to go back on it when it would
be unjust or inequitable for him
to do so”.
It must be said that the two
Judges who appeared before the
Court as witnesses did so under
a subpoena. As judicial
officers, they are people
expected by the citizens of this
country not to show disrespect
to a Court process. I do not
think it will be in the interest
of the proper administration of
justice in this country, if we
grant a witness, be he the best
legal brain available, or not,
the privilege of questioning the
status of the Courts. Witnesses
do not challenge the
jurisdiction of Courts on behalf
of parties. These two members of
this Court could not have
challenged the status of the
“Fast Track High Court” when
they appeared before it. It
would have been improper
conduct. They, like the whole
Ghanaian public, were entitled
to the benefits of the Common
Law principle: OMNIA
PRAESUMUNTUR RITE ET SOLEMNITER
ESSE ACTA — meaning, “All things
are presumed to be correctly and
solemnly done”. That is to say,
they are presumed to be done
correctly until the contrary is
proved.
It seems to me that all the
argument about the relevance and
effect of the SELORMEY case on
the fortunes of this matter, as
I have said earlier, is
absolutely nil. A solemn
judgment of the highest court of
the land cannot be set aside on
such flimsy, I use this word
hesitatingly, grounds.
It is left with ground (1) as
quoted above for consideration
whether it falls within the
principles for us to review the
decision on this ground. It is
in respect of this ground that
most of the arguments raised in
the brief of arguments is
devoted to.
One of the points embodied in
this ground is that “since there
is only a very narrow majority
decision, there is absolute need
to have a second hard look at
this matter again.”
Indeed, so far I have been
taking a “hard look” at the
present review application. The
call upon us to review our
decision because it is a split
decision is clearly a
non-starter in view of the case
law on the point.
Faced with a similar argument in
the case of IN RE KROBO STOOL
(No 2); NYAMEKYE (No 2) v OPOKU,
Wiredu, J.S.C. (now C.J.)
disposed of the argument thus:
“When rule 54 of the Supreme
Court Rules, 1996 (CI 16), was
enacted, it was the hope of all
that having spelt out, in
statutory terms, the only
grounds upon which the review
jurisdiction of this court may
be exercised, litigants would be
duly guided thereby and the
previous attempts to use the
review jurisdiction as an avenue
for a re-hearing of lost appeals
would cease or, at least, be
significantly reduced.
Unfortunately, this does not
appear to be the effect. To make
matters worse, it also appears
that counsel for losing parties
are under the misapprehension
that the reviewability of a
matter is determined by
numerical factors and any
decision of the court, which is
not unanimous, must be subject
to review.” (Emphasis supplied)
The learned Chief Justice
continued:
“I would, however, reiterate, by
way of a reminder, the words of
Taylor, J.S.C in Bisi v Kwayie
[1987-88] 2 GLR 295 at 297, SC
that:
‘In our system of adjudication
the majority view of a plural
bench of a court represents the
binding judgment of the court,
even it can subsequently be
demonstrated to be vulnerable to
attacks.’
‘However, by virtue of rule 54
of CI 16, what is in issue, in
an application for review, is
not a matter of headcount;
otherwise, why not count all the
way from the trial
court/tribunal, up to the
Supreme Court, to ascertain what
should be the right decision.”
The rest of the brief of
argument is devoted to trying to
point out what the applicant
referred to as misapplication of
rules of interpretation. The
majority was faulted for holding
that a “division” of the High
Court can be created only either
in respect of subject-area or
territorially. The majority was
accused of applying a colonial
meaning to the word “division”
as used in our post independent
Constitution; and that the
phrase “division of the High
Court” could mean anything in
Ghana depending what meaning the
Chief Justice decides to assign
to it and do at any particular
time.
This is how the argument was
actually presented in the brief:
“We may, indeed, have borrowed
the idea of ‘divisions’ of the
High Court from the English. But
merely because an idea may have
been sourced from another
jurisdiction does not mean that
we are duty bound, in our use or
implementation of the idea, to
limit ourselves to how that idea
has been applied historically in
that first jurisdiction. The
idea of a ‘Parliament’, too, is
an idea we owe to our former
colonial rulers. And in England,
Parliament can cut short the
life of a government by means of
a ‘no confidence vote.’ But in
our imitation of the institution
of Parliament, we chose to
dispense with that core
attribute of the English
Parliament. There is no
compelling reason why we might
be prohibited from similarly
tailoring ‘divisions’ of the
High Court to suit our
particular circumstances and
preference.”
The learned Attorney-General
continued in these words:
“The only thing article 139(3)
tells us about what a “division”
of the High Court must look like
is that it shall consist of
“such number of Justices
respectively as the Chief
Justice may determine.” Nowhere
in article 139(3) or in any
other part of the Constitution
is it said that a “division” of
the High Court must be
established necessarily along
subject matter or territorial
lines. That may very well have
been the bases upon which
divisions of the High Court were
established in colonial times.
But past practice or custom,
however ancient, cannot be taken
for a constitutional
requirement. Nor does past
practice or custom foreclose
innovation in response to
changed circumstances or current
trends. The framers of our
Constitution were wise not to
have restricted the bases for
establishing “divisions” of the
High Court to subject-matter and
territory, because they could
not have foreseen what needs
might arise in the future that
would necessitate the adoption
of innovative approaches to
enhance the administration of
justice in this country.”
This is how the learned
Attorney-General continued his
argument for a review with a
rather mind-boggling example:
“Suppose, for example, that in
order to dispose of the backlog
of cases in the High Court, the
Chief Justice decided to
establish an Evening Division of
the High Court to sit between
the hours of 4:00 pm and 8:00pm.
On what fair reading of article
139(3) might such a division,
defined on the basis of its
hours of operation rather than
subject matter or territory, be
held to be “not a division”
under the Constitution?
Similarly, the Chief Justice
does not violate any provision
or principle of the Constitution
by establishing in the High
Court a division that is set
apart, for the time being, by
the expedited case management
methods and technologies it
employs.”
My Lords, all the above
submissions tickle me. I have
always assumed that the phrase “
a division of the High Court” is
a term of art and has a
particular meaning in our legal
lexicon. I had never known that
the phrase could mean anything
under article 139(3) depending
on the wishes of his Lordship
the Chief Justice; to the extend
that the Chief Justice can
decide “to establish an Evening
Division of the High Court”. My
Lords, I do not know whether the
example was given as a comic
relief.
To finally seal his
demonstration of how erroneous
the views of the majority were
as to the meaning of the word
“division” as used in article
139(3) of the Constitution, the
learned Attorney-General
concluded thus:
“The wording of article 139(3),
and in particular the phrase
‘such divisions’ as the Chief
Justice ‘may determine’, is
susceptible to only one
reasonable meaning, to wit, that
it is for the Chief Justice to
determine, among other things,
the purpose or basis for the
‘divisions’ of the High Court
established by him. In so far as
the Constitution does not
delineate the basis upon which a
‘division’ may be established,
the Majority’s attempt to place
subject-matter or territorial
limitations on the word is, once
again, without Constitutional
warrant and therefore must be
set aside”.
I have to quote extensively from
the applicant’s written
submissions to this Court, not
only to demonstrate the
unsustainability of this
application, but also as a way
of demonstrating that the
applicant is approaching his
case as if he is on appeal or
engaged in a hearing DE NOVO.
In short, the instant
application is based on what has
been referred to as
“inspirations of second thoughts
or belated discovery of errors”.
The other argument worth
considering in respect of
“EXHIBIT AM1” which was tendered
by the applicant. The majority
is faulted in the value it
places as this “EXHIBIT AM1”. It
is contended that this exhibit
“does not profess to contain
Rules and Regulations governing
proceedings in the FAST TRACK
DIVISION”. And that the “only
binding rules and regulations
for the Fast Track Division, as
for any division of the High
Court, are the rules and
regulations of the High Court”.
My Lords, we have all seen and
read this exhibit. It does
contain rules which are intended
to regulate proceedings in that
Court. Not only that, these
rules were being enforced and
they are different from the High
Court Rules.
But the Majority view has been
attacked in this application in
these words:
“The Majority contends that the
Rules of Court Committee did not
make rules and regulations for
the Fast Track High Court, and,
therefore, the Fast Track High
Court is unconstitutional. This
contention is untenable on a
number of grounds.”
The learned Attorney-General
then pointed:
“First, let us assume, for the
sake of argument, that the rules
and regulations of the Fast
Track Division are inconsistent
with the rules and regulations
applicable to the High Court, as
promulgated by the Rules of
Court Committee. Even in that
event, it is only the applicable
Rules of the High Court that
will have been violated, NOT the
Constitution.”
I beg to differ. In that event,
that is the scenario painted,
the Constitution itself would
have been grossly violated. This
is because the rules and
regulations contained in EXHIBIT
AM1 are intended to replace the
relevant rules in the High Court
Rules (LN 140A) in so far as
proceedings in the FAST TRACK
DIVISION are concerned. And
since these rules and
regulations are not made by the
Rules of Court Committee in
compliance with article 157(2)
of the Constitutions, the said
provision of the Constitution
has been violated. This will
mean that the proceedings or
operations of the Fast Track
Court violated the
Constitution. No sophistry can
mislead us.
As to the issue of the criminal
summons, there are two legs to
the argument. The first is that
it was a decision given per
incuriam because this Court did
not advert its mind to the case
of REPUBLIC VRS. HIGH COURT,
Accra; Ex-PARTE ATTORNEY-GENERAL
(1998-99) SCGLR 395 (DELTA FOODS
CASE).
The second point in that the
error on the criminal summons
was traceable to the Judiciary
itself since it was a Judge who
signed it. The argument was
concluded thus:
“It can be seen that much of the
high-sounding declarations by
the Majority as to the
independence of the Judiciary
amount in practical terms to
every little, as the source of
the mistake was neither an agent
of the Executive or Legislature,
but a member of the Judiciary
itself. It is obvious that the
error was exactly that — an
error of no great moment — which
has elicited so much artificial
learning and portentous
utterances from a Court
determined to find facet”.
To start with, I do not think
this decision can be said to
have been given PER INCURIAM
since a relevant statutory
provision was considered and
applied in terms of article
11(6) of the Constitution. In
any case I do not think the
Delta case can be invoked here.
As to the so-called error being
traceable to the Judiciary
itself, I thought the leaned
Attorney-General had conceded
this point earlier in the main
case.
At this stage, I think I will
crave the indulgence of your
Lordships to make a comment
which I thought I would reserve
till the end of my opinion. The
learned Attorney-General in his
brief described the majority
decision as “retrogate” and “a
reactionary step”. He now refers
to their reasoning as “so much
artificial learning and
portentous utterances from a
Court determined to find fault”.
I am glad he did not say
“judges” but “a Court”. For it
is the majority decision which
is the decision of the Court.
I only want to recall a
sentiment I expressed on behalf
of my Colleagues in the case of
AKUFO-ADDO v CATHELENE (supra)
while giving the lead judgment
in that case.
This is what I said:
“But before I am done, I would
like to comment on a matter
which I think deserves the
attention of this Court. I have
no doubt I will be expressing
the sentiments of my brothers.
It must be said that no Court
worth its dignity will fear
criticism or resent it. As was
pointed out by Lord Salmon in R
v Commissioner of Police of the
Metropolis; Ex parte Blackburn
(No 2) [1968] 2 WLR 1204 at
1207, C.A.: ‘The authority and
reputation of our Courts are not
so frail 'that their judgments
need to be shielded from
criticism …’ Counsel appearing
in an appeal owes a duty to his
client to do all he possibly can
to convince the appellate Court
that the lower Court’s decision
is wrong. He must do this within
acceptable limits. It is
perfectly within his rights to
say the decision is mistaken or
erroneous, and offer reasonable
argument or expostulation
against it. This I think must be
done with as much courtesy as
possible and the personality of
the individual judges kept out.
Arguments ad hominem are not, in
my view, part of the legitimate
duties of counsel who is on
appeal. For it must be
remembered that from the nature
of our office a judge cannot
reply to criticisms of his
conduct of a case.”
My Lords, I would now like to
focus attention on the lessons
we can derive from the valiant
attempt of Taylor, J.S.C. in the
case of MECHANICAL LLOYD
ASSEMBLY PLANT VRS. NARTEY
(supra). In this case the
learned judge made an effort to
suggest some of the criteria he
thought, in the appropriate
case, could be indicative of
exceptional circumstances, which
may necessitate a review
provided it resulted in a gross
miscarriage of justice. These
are:
“(i) Matters discovered after
judgment; these must be
relevant, exceptional and
capable of tending to show that
if they had been discovered
earlier, their effect would have
influenced the decision;
(ii) Cases falling within the
principle enunciated in MOSI V.
BAGYINA (1963) 1 GLR 337 — that
is, where a judgment is void
either because it is not
warranted by any law is rule of
procedure.
(iii) The class of judgment
which can legitimately be said
to have been given per incuriam
because of failure to consider a
statute or case law or
fundamental principle of
procedure and practice relevant
to the decision and which would
have resulted in a different
decision.”
If one considers (ii) and (iii)
above, one realises that one
does not need to so much attack
the reasoning of the Court, like
in appellate proceedings. On
applicant needs only to
demonstrate that the decision is
void because it is not
authorised by any law or rule of
procedure. This would hardly
involve any fastidious attempt
at faulting the Court’s
reasoning. This will also be the
case when an issue is raised
that the case had been decided
PER INCURIAM.
An applicant has to simply
demonstrate how relevant the law
or the decided case is to the
matter and the it would have
influenced it. A factor which
can influence a Court to review
its decision, quickly and easily
appeals to the judicial
conscience and immediately
accepted by a well informed and
reasonable judicial mind.
My Lords, I do not know how this
application for review will end;
but I still wish to recommend,
even if belatedly, part of the
holding in the case of IN RE
ADOOM STOOL (No 2) (supra).
This is what the holding says in
part:
“[I]n exercising its review
jurisdiction, it is not the
function of the Supreme Court to
second-guess the decision of the
ordinary bench or to substitute
its decision for that of the
ordinary bench, as though the
matter before it is yet another
appeal, intended to afford
losing litigants yet another
opportunity to re-state or
re-argue their appeal with new
arguments or putting a new
variation on an old theme.”
In my humble view, nothing
fundamentally new, which will
entail a gross miscarriage of
justice for the applicant has
been brought to my notice to
persuade me to grant this
review. The application is
nothing but a determined effort
to secure a hearing de novo
under the guise of a review.
Considering all that I have
said, I will dismiss the
application and it is herby
dismissed accordingly.
ADJABENG, J.S.C.
After carefully studying this
application for review, I have
come to the conclusion that the
application has failed to
satisfy the requirements or
conditions necessary for the
review of a decision under our
Rules. In my candid view the
applicant has not shown that
there are exceptional
circumstances in this matter
which have resulted in a
miscarriage of justice and thus
warrant a review of our
decision.
Our decision simply is that the
so-called Fast Track High Court
is not a division of the High
Court established under article
139(3) of our Constitution as
claimed by the applicant. In the
first place, there was no
evidence that a division of the
High Court was indeed
established. The effort made by
the applicant to show that the
said division was indeed
established by putting in
evidence exhibit “AM1”, in my
view, worsened his case. This is
because the said exhibit “AM1”,
which contains guidelines used
by the said Fast Track Court,
which guidelines were neither
signed, dated nor made by the
Rules of Court Committee,
clearly showed that the said
guidelines were rules which were
different from the High Court
Rules enacted by law. And these
different rules were being used
or applied in the said Fast
Track High Court.
From these guidelines, we read
also that before a litigant
could have his case sent to the
said Fast Track High Court, His
Lordship the Chief Justice must
grant permission for same. And
the question that comes into
one’s mind is: where in the
world would one get permission
before gaining access to a
Court?
It is our view also, in our
judgment, that a division of the
High Court could not be
established under article 139(3)
without satisfying the said
article. That is, without
setting out clearly, for
example, in a legal instrument,
the justices constituting the
division. The contention that
His Lordship the Chief Justice
could under the said article
administratively and or orally
establish a division of the High
Court is, to us, untenable
especially in this case where
the said Fast Track Court was
using rules or guidelines
different from the High Court
Rules enacted by law. We think
that such a practice would
undermine the rule of law often
trumpeted these days.
In this application for review,
the applicant contends that we
have committed multiple errors
of interpretation. I cannot see
what errors we have committed.
We have interpreted Article
139(3) of the Constitution on
which the applicant, as the
defendant, based his defence.
The truth of the matter, in my
view, is that he does not agree
with our interpretation. Indeed,
we do not expect him to agree
with us. There are always two
sides in such a matter. In this
case we have the majority view
and the minority view. Where is
the error of interpretation in
the majority view? I think the
applicant’s aim is that the
minority view should prevail as
that is his case. To achieve
that the applicant tries to
re-argue his case, as if it is
on appeal. The review
jurisdiction, as he is aware,
does not allow that.
In the case of Pianim (No.3) v.
Ekwam and Anor. [1996-97] SC
GLR, 431 at page 435 this Court
in a review application in a
Constitutional matter, said (per
the late Chief Justice Abban) as
follows:—
“All these matters were, of
course, fully discussed and
fairly considered in the
majority judgment. What we see
in this application is that the
applicant is endeavouring to
prove to us that there was
nothing wrong whatsoever with
the minority judgment in his
favour; and that almost
everything in the majority
judgment was wrong and must
therefore be overturned. With
due respect to learned counsel
for the applicant, we do not
share that view.”
The Court also stated at page
438 of the same report as
follows:
“In the recent case of Quartey
v. Central Services Co Ltd.,
Civil Motion No. 10/95 dated 6
February 1996 reported in
[1996-97] SC GLR 398 ante, the
Supreme Court (constituted by
Abban, C.J., Amua-Sekyi,
Bamford-Addo, Kpegah, Adjabeng,
Amuah and Acquah JJ.S.C) took
the opportunity to restate the
legal position at 399 as
follows:—
‘A review of a judgment is a
special jurisdiction and not an
appellate jurisdiction conferred
on the Court, and the Court
would exercise that special
jurisdiction in favour of the
applicant only in exceptional
circumstances. This implies that
such an applicant should satisfy
the Court that there has been
some fundamental or basic error
which the court inadvertently
committed in the course of
considering its judgment; and
which fundamental error has
resulted in a gross miscarriage
of justice. These principles
have been stated over and over
again by this court.
Consequently a losing party is
not entitled to use the review
process to re-argue his appeal
which had been dismissed or to
use the process to prevail upon
the court to have another or a
second look at his case’ ”.
I must say that I have found in
this application that what has
been advised against in the
above authorities is exactly
what the applicant has sought to
do here. Even though the
applicant has said a lot in his
supplemental statement of case,
in many instances, his arguments
are either a repetition or a
rehash of his earlier arguments.
For example, even though we
rejected the applicant’s
contention that the Fast Track
Court or High Court is a
division of the High Court,
because the evidence does not
support that contention and,
also, because the said Court was
using rules or guidelines not
made by the Rules of Court
Committee which is the
Constitutional body competent to
make such rules, the applicant
still insists in this
application that the Fast Track
High Court is a division of the
High Court. I quote the
following from the applicant’s
supplemental statement of case:—
“In any event, the argument
about the Rules of Court
Committee not having promulgated
any rules and regulations for
the Fast Track Division is
misplaced. The Fast Track
Division is not a new or
separate Court; it is a division
of a pre-existing court—the High
Court. The Rules of Court
Committee has already made rules
and regulations to govern
proceedings in the High Court,
which rules and regulations bind
all divisions of the High Court,
including the Fast Track
Division. The rules of Court
Committee does not and is not
required to make rules and
regulations for each new
division of the High Court. It
is required to make, and it in
fact has made, rules and
regulations for the High Court
as a unit, and these same rules
and regulations apply to all
divisions of the High Court.
The Majority argues, in the
alternative, that the ‘rules and
regulations’ of the Fast Track
Division differ from the rules
and regulations of the High
Court as promulgated by the
Rules of Court Committee. The
Majority cites certain portions
of Exhibit AM1 for support. Once
again, the Majority’s reliance
on Exhibit AM1 is inapposite.
Exhibit AM1 does not profess to
contain the Rules or Regulations
governing proceedings in the
Fast Track Division. The only
binding rules and regulations
for the Fast Track Division, as
for any division of the High
Court, are the rules and
regulations of the High Court.
Exhibit AM1 contains
supplementary ‘Guidelines’— not
binding rules and regulations.
These Guidelines are supposed to
inform and guide judicial
management of the docket of the
Fast Track Division so as to
expedite case flow and disposal.
Exhibit AM1 makes it clear that
its contents are ‘guidelines’
that judges of the Fast Track
Division are advised or
encouraged (but are under no
legal compulsion) to use in
making discretionary decisions
in the course of trial.”
It is interesting to note that
the applicant is saying in his
supplemental statement of case
quoted above that the contents
of Exhibit AM1 “are ‘guidelines’
that judges of the Fast Track
Division are advised or
encouraged.… to use in making
discretionary decisions in the
course of trial.” Now, how can a
Court or the High Court use
guidelines or rules not enacted
by the Rules of Court Committee
authorised by article 157(2) of
the Constitution to make rules
for the courts in Ghana? In my
view, any body or institution
which uses or applies rules or
guidelines not made or enacted
by the Rules of Court Committee
cannot call itself a Court.
The applicant argues, however,
that:
“At any rate, if the Majority
believes that certain specific
‘rules and regulations’ of the
Fast Track Division are
different from specific Rules of
the High Court, such discrepancy
can only represent a violation
of the applicable rules and
regulations of the High Court,
not a violation of the
Constitution. Moreover, any such
procedural violation is
severable and thus need not
taint the Fast Track Division
itself with
unconstitutionality”.
In reply, the respondent states
in his written arguments as
follows:—
“Once the Plaintiff produced
evidence that he was being put
before a body whose
self-description, documentation
and processes had not been set
out in the Constitution or
indeed in any law or formal
instrument, the burden of
adducing evidence on the issue
fell on the defendant. Exhibit
AM1 obviously does not meet that
burden. The defendant cannot, by
asserting a conclusion in legal
argument, make up for the lack
of evidence.
Exhibit AM1 shows several
instances in which the ‘Fast
Track Court’ is expected to
operate with rules which are
inconsistent with those in the
High Court (Civil Procedure)
Rules apparently as a way of
achieving expedition in court
proceedings. The majority of the
Supreme Court cite several
instances of such inconsistency.
It is, with respect,
disingenuous to insist that
those rules are meant to be no
more than non-binding
guidelines. Notwithstanding the
title of Exhibit AM1, its
language in the instances cited
is peremptory and purports to
create binding obligations.
Officials of the ‘Court’ have
enforced its dictates even in
contravention of legislation as
in the example of a criminal
appeal record not being provided
free of charge to the appellant.
To say that the inconsistencies
do not give rise to a breach of
the Constitutional provisions
regarding how rules of court are
made (Article 157) is to make
the administrative action of the
Chief Justice a brazen way of
undermining the Constitution.
Article 157(2) so categorically
provides: ‘The Rules of Court
Committee shall by
constitutional instrument make
rules and regulations for
regulating the practice and
procedure of all courts in
Ghana.’ An attempt to create a
division with such distinctive
features cannot be valid without
an amendment, by constitutional
instrument, of the High Court
(Civil Procedure) Rules. The
different features of the ‘Fast
Track Court’ cannot be taken in
isolation. Taken individually,
each might be thought by some to
be insignificant, but taken
together they incontrovertibly
constitute the ‘Fast Track
Court’ into a forum very
different from the High Court,
operating its own rules without
the requisite amendments of the
Rules of Court.”
The above reply of the
plaintiff/respondent clearly and
satisfactorily answers, in my
view, the issues raised in the
defendant/applicant’s statement
of case earlier quoted in this
opinion. I agree with the
plaintiff/respondent that an
attempt to create a division of
the High Court with such
distinctive features as
exhibited by the said “Fast
Track Court” cannot be valid
without an amendment by a
constitutional instrument, of
the High Court (Civil Procedure)
Rules. One would have thought
that soon after the decision was
given in this matter over three
months ago, the Rules of Court
Committee would have been
summoned to consider how best to
amend the High Court Rules to
accommodate the new or different
rules that were being applied by
the said “Fast Track Court” in
order to remedy the situation.
But those concerned did not
think of such an approach. The
question that ought to be
answered is whether even in case
this application succeeds and
our decision is reviewed it
would be proper to continue
using the inconsistent rules in
the said Fast Track Court
without an amendment of the High
Court Rules?
In my view, however, the
applicant has not made a case
for the review of our decision.
The application ought,
therefore, to be and is hereby
dismissed.
ADZOE, J.S.C.
My Lords, I have listened to my
brother Acquah, J.S.C. and those
who align themselves with him,
particularly, Justice Lamptey,
J.S.C and my view is that the
stand they have taken today is
very peculiar, and not in accord
with the exercise of the Courts
review jurisdiction, because
what they have done is to
purport to rehear the case as if
it were before us for a trial de
novo; Justice Lamptey, has even
ventured further afield to
exercise the appellate
jurisdiction of this Court.
This is regrettable. But I think
that it is a deliberate design
to reverse the majority
decision, no matter what. It is
my hope that this practice will
be laid to rest very soon, and
not permitted to infect future
decisions of the Court.
My Lords, on 28th February, 2002
when this Court announced its
decision in this case and
reserved the reasons for a later
date, the Learned
Attorney-General did not hide
his feelings. He was extremely
furious with the majority. He
immediately went on Television
and bared his heart in outbursts
of anger. He swore that he would
have the majority decision
overturned. He was in earnest,
and the following day, 1st
March, 2002, the
Solicitor-General filed this
application at the instance of
the Attorney-General praying for
a “Review of the decision” of
the court.
In the accompanying statement of
case the Solicitor-General
described the majority decision
as ”a retrograde step that
strikes at the heart of the
Administration of justice in
this country”, and contended
that since it is “only a very
narrow majority decision, there
is absolute need to have a
second hard look at this matter
again”. The Solicitor-General
also argued in the statement of
case that the majority decision
has created “uncertainty and
apparent confusion” in the law,
and “therefore the justice of
the situation demands that this
matter be looked at again so
that the speedy computer-based
record transcription system
which is geared to efficient
case management and speedy
disposal of cases will become a
permanent feature of our
administration of Justice”. The
application was brought pursuant
to rule 54 of the Supreme Court
Rules, 1996 (CI 16), which I
will soon refer to.
What is described as “A
supplemental statement of the
Applicant’s case” was
subsequently filed by the
Attorney-General himself on 19th
April, 2002. In that statement
fresh arguments were advanced to
supplement what the
Solicitor-General had already
said in his statement of case
but in brief, the summary of it
all is what the applicant
himself has stated in the
“supplementary” statement of
case. I quote him:
“The main ground upon which
Applicant invokes the review
jurisdiction of the Court is
that the decision rendered by
the court in this case is
fundamentally wrong in that
multiple errors of
interpretation were committed by
the Court in holding that the
‘Fast Track’ High Court is
unconstitutional. Applicant
submits that these errors, which
are basic and fundamental, have
resulted in a grave miscarriage
of justice, warranting review
and reversal of the Court’s
decision”.
As I have already said the
applicant claims that he has
brought the application under
rule 54(a) of the Supreme Court
Rules and the statement I have
just quoted from his submissions
is calculated to bring the case
under rule 54. The applicant
knows that the only situation in
which this court will exercise
its discretionary jurisdiction
to review its decision is that
provided by rule 54.
And having declared that he is
coming under rule 54(a), he has
to point out the “multiple
errors”, fix them into the
matrix of “exceptional
circumstances” and establish
that they have “resulted in a
miscarriage of justice”. Instead
of doing so, the applicant has
opted to attack the reasoning in
the respective majority opinions
and pour invectives on the
justices who gave the majority
judgment. I know, however, that
this Court does not review the
reasoning of the Court but the
decision of the Court. The
provision in rule 54(a) is that
“the Court may review any
decision made or given by it on
the ground that there are
exceptional circumstances which
have resulted in miscarriage of
justice”.
As the applicant himself has
realised, no definition of
“exceptional circumstances” is
provided in the rule, but there
have been judicial
pronouncements which have
attempted to explain the term.
The authorities are agreed that
what constitutes exceptional
circumstances cannot be
comprehensively defined, meaning
that it must be determined on
the facts and circumstances of
each case. Nevertheless, the
courts have consistently
described it as involving “some
fundamental or basic error,
which the court inadvertently
committed in the course of
considering its judgment” (vide,
Mechanical Lloyd Assembly Plant
Ltd. v. Nartey [1987 – 88] 2 GLR
598; Quartey v. Central Services
Co. Ltd., [1996 – 97] SC GLR
398.
In the Quartey case, for
example, the applicant was the
plaintiff in a land suit at the
High Court. The High Court
dismissed the claim; he appealed
to the Court of Appeal and again
to the Supreme Court. Thereafter
he applied to the Supreme Court
for review, arguing that the
Supreme Court erroneously
applied the principle that an
appellate court will not
countenance an appeal on the
facts when there have been
concurrent findings by the trial
Court and the lower appellate
court. He contended that the
application of the principle was
unjustified or unjust in the
circumstances of his appeal.
This Court dismissed the
application, holding that the
case did not fall within the
exceptional circumstances
required by rule 54(a) of the
Rules.
The application before us now is
not dissimilar. It falls on all
fours with the Quartey case and
it is my opinion that the
applicant has not established
any exceptional circumstances.
But if even we should assume
that the “exceptional
circumstances” have been
established, what are the errors
complained of? He says that the
decision of the majority to the
effect that only parliament can
create the Superior Courts of
Judicature is a fundamental,
manifest error of
interpretation. Secondly, that
the majority decision is
contrary to its own binding
precedent with regard to the
criminal summons, and must be
taken as having been given per
incuriam. Thirdly, he argues
that the majority decision that
Art. 139(3) does not give the
Chief Justice authority to
establish a division of the High
Court using his administrative
powers, is erroneous; that the
majority decision means that the
Supreme Court is subverting the
Constitution by distorting the
doctrine of separation of
powers. He also alluded to
certain other minor factors
which he claimed amounted to
errors in the judgments of the
majority. I do not think that it
is necessary to answer the
substance of those issues on the
errors. All relevant issues
raised at the trial were
adequately discussed and
considered in the various
judgments of the majority as
well as in the judgments of the
minority. Why is the applicant
assuming appellate jurisdiction
over the majority? His
accusations are rather
preposterous, to say the least.
The panel was divided. The
majority took a stand and the
minority also took a stand. The
minority decision favoured the
applicant and so he has nothing
to complain about it; he has not
even taken time to see if the
reasons the minority gave in
support of their decision are
legally sound. The majority
decision does not favour the
applicant and so he must put
them on the carpet and ridicule
them. He wants to prove to the
whole world that everything said
by the minority correctly
represents the law and is
impeccable, and that everything
in the majority judgment is bad
law and must be reversed. But
our Learned Attorney-General
must know that the majority
believe that their decision is
just and right and much more
suited to promote the
administration of justice than
the minority decision which
seeks to turn the Chief Justice
into a law-maker. Each Chief
Justice will have power to
create a superior court of
Judicature, vest it with
jurisdiction, determine rules of
procedure, and if he chooses,
abolish that Court at will. In
my opinion the majority decision
is not erroneous in any way and
cannot be assailed.
Besides, the judicial
interpretation placed on the
rule 54(a) suggests that
whatever “error” is alleged to
be in the decision complained
of, must have been committed
“inadvertently”. This implies,
I think, that the erroneous
decision must have been made
when no due consideration was
given to the issues before the
Court. The law must be taken as
fairly settled that if this
Court has considered an issue
and reached a decision on the
merits, it must not be invited
to review that decision because
the aggrieved party thinks that
he can advance fresh or further
arguments to convince the court
to come to his side. A review
is not an appeal. — See Afranie
II v. Quarcoo [1992] 2 GLR 361;
Fosuhene v. Pomaa [1987 – 88] 2
GLR 105; In Re Effiduase Stool
Affairs (No. 3); Rep. V. Numapau
& Ors; Ex-parte Ameyaw II [2000]
SCGLR 59. In Re Krobo Stool (No.
2); Nyamekye v. Opoku [2000]
SCGLR 567.
Any error in our decision cannot
be fairly described as
“inadvertent” and can therefore
not fall with the category of
“exceptional circumstances”.
An application for review under
rule 54(a) will not succeed
unless the applicant
demonstrates that he has
suffered a miscarriage of
justice. The injustice must be
real and not fanciful. As
Taylor, J.S.C. observed in
Nasali v. Addy [1987-88] 2 GLR
286, at page 288,
“all persons who have lost a
case are likely to complain of a
miscarriage of justice, but … in
the absence of exceptional
circumstances, such a complaint
is a poor foundation for the
exercise of the review power for
it is only in exceptional
circumstances that the interest
ei publicae ut sit finis litium
principle yields to the greater
interest of justice.”
In Mechanical Lloyd Assembly
Plant Ltd. v. Nartey [1987-88] 2
GLR 598, this court pointed out
that the review jurisdiction is
not meant to be resorted to as
an emotional re-action to an
unfavourable judgment.
And in Quartey v. Central
Services Co. Ltd. [1996-97] 398,
this court again stated the
legal position arising from the
requirement “exceptional
circumstances” and said that it
“implies that [such] an
applicant should satisfy the
Court that there has been some
fundamental or basic error which
the court inadvertently
committed in the course of
considering its judgment; and
which fundamental error has
resulted in a grave miscarriage
of justice”.
See also Agyekum v. Asakum
Engineering and Construction
Ltd. (1992) 2 GLR 635 where this
Court again held that:
“The acid test remained always
the existence of exceptional
circumstances and the likelihood
of a miscarriage of justice that
should provoke the conscience to
look at the matter again”.
And lastly in Effiduase Stool
Affairs (No. 3) case cited
above, this court once more held
that “whatever factors the
applicant relies on must be such
that the exercise of our power
of review becomes extremely
necessary to avert irreparable
harm to him”
In the Effiduase Stool Affairs
case itself the applicant had
brought an application for
attachment of the respondents
for contempt of Court. The court
dismissed the application and
the applicant now brought an
application for review of the
decision dismissing the
application for contempt. His
ground for the review
application was that the
decision had occasioned a grave
miscarriage of justice and,
therefore, in the interest of
justice the ruling should be
reviewed; he argued, inter alia,
as is done in the instant
application before us, that the
ruling was given per incuriam
for failure to consider the case
law and statute law relevant to
the application for contempt.
The application for review was
dismissed.
Delivering the ruling of the
majority of the court, Edward
Wiredu, J.S.C. expressed the
following opinion, at pages
62-63 of the report:
“In addition to such exceptional
circumstances, rule 54 of CI 16
dictates that the applicant must
also demonstrate that the result
of the exceptional circumstances
has been a miscarriage of
justice. The revised 4th Edition
of Black’s Law Dictionary
defines “miscarriage of justice”
to mean, prejudice to the
substantial rights of a party”.
We find this definition very
useful. In sum, therefore, in
this application, it was
incumbent on the applicant to
show that his substantial rights
in the matter that came before
this court have been prejudiced
by some fundamental or basic
error made by the majority”.
Then as to whether or not the
applicant suffered any
miscarriage of justice, the
court, again per Edward Wiredu,
J.S.C. said at page 68 of the
report as follows:
“The obvious question is: what
substantial rights of the
applicant have been prejudiced
by the majority decision? … In
contempt proceedings of the
genre that came before us, the
main interest at stake is the
dignity of the Courts and the
integrity of the administration
of justice; and, therefore, such
proceedings are of public
interest.
Once this Court had made the
determination that the conduct
of the respondents did not
constitute contempt, the
interests of the public and the
administration of justice had
been adequately served, and the
role of the applicant as a
faithful public servant, for the
purposes of the protection of
the judicial process, ceased.
For the applicant to proceed
further to apply for review is
to personalise the objectives of
the contempt of court process”.
The applicant before us is the
Attorney-General of this
country. He is deeply involved
in the administration of justice
and must ensure fairness and
impartiality. I do not think
that the majority decision has
caused him any miscarriage of
justice and, as the court
observed in the Effiduase Stool
Affairs case, he must not
personalise this matter after
having discharged his duties. It
is obvious that he was aggrieved
by the majority decision, but
this is not an appeal, but a
review which requires him to
show that he has suffered some
miscarriage of justice. He has
not discharged that burden and
cannot succeed in this
application.
The learned Attorney-General is
also clearly out of court when
he argues that the very narrow
margin of the majority decision
raises exceptional circumstances
warranting a second hard look at
this matter. We do not review
our decision because it is the
decision of a very narrow
majority. There are two
relevant decisions on the point.
In the first case Bisi v. Kwakye
[1987-88] 2 GLR 295. 297 Taylor,
J.S.C. said:
“In our system of adjudication
the majority view of a plural
bench of a court represents the
binding judgment of the Court,
even if it can subsequently be
demonstrated to be vulnerable to
attacks”.
In the second case, In Re Krobo
Stool (No. 2 Nyamekye (No. 2) v.
Opoku [2000] SCGLR 567, the
application was for a review of
the split decision of the
Supreme Court by 3-2; the
appellant contended in his
statement of case that the split
meant “therefore that there may
very well be good reasons for
reviewing the majority decision
of the Supreme Court”. This
court unanimously dismissed the
application. On the panel were
Your Lordships Edward Wiredu,
Bamford Addo, Ampiah, Kpegah,
Adjabeng, Atuguba and Sophia
Akuffo. Reading the judgment of
the Court, Edward Wiredu, J.S.C.
said at page 569:
“When rule 54 of the Supreme
Court Rules, 1996 (CI 16), was
enacted, it was the hope of all
that having spelt out, in
statutory terms, the only
grounds upon which the review
jurisdiction of this Court may
be exercised, litigants would be
duly guided thereby and the
previous attempts to use the
review jurisdiction as an avenue
for a re-hearing of lost appeals
would cease or, at least, be
significantly reduced.
Unfortunately, this does not
appear to be the effect. To make
matters worse, it also appears
that counsel for losing parties
are under the misapprehension
that the review ability of a
matter is determined by
numerical factors and any
decision of the Court, which is
not unanimous, must be subjected
to review”.
The learned justice concluded at
page 570 that “by virtue of rule
54 of CI 16, what is in issue,
in an application for review, is
not a matter of headcount”.
In Pianim (No. 3) v. Ekwam &
Anor [1996-97] SCGLR 431, the
applicant, in his application
for review, criticised and
attacked the majority judgment
on several grounds. He argued,
for instance, that the majority
erred in its interpretation of
the Constitution. The Court
dismissed the application by 3-2
majority and Abban, C.J. reading
the majority opinion said,
referring to the submissions:
“All these matters were, of
course, fully discussed and
fairly considered in the
majority judgment. What we see
in this application is that the
applicant is endeavouring to
prove to us that there was
nothing wrong whatsoever with
the majority judgment in his
favour; and that almost
everything in the majority
judgment was wrong and must
therefore be overturned.
With due respect to learned
counsel for the applicant, we do
not share that view”.
It is very clear that the
applicant in the instant appeal
is behaving just like the
applicant in the Pianim case and
his application must fail.
What may not be easily obvious
to Ghanaians is the real reason
behind this bizarre application.
It seems to me that the
fundamental, but submerged and
unarticulated reason for the
call for a review and reversal
of the majority decision is that
the decision is seen as an
embarrassment to the Government.
This is obvious from the fear
and anxiety expressed in the
applicant’s statement of case.
He put it thus:
“As at February 2002, 193 civil
suits, ranging over a wide
variety of matters, have been
filed at the Registry of the
Fast Track High Court since its
inception, of which 78 have
concluded in decisions and
judgments. All these decisions
and judgments regularly obtained
are now under threat as a result
of the court’s decision. Two
criminal proceedings, also
regularly conducted in
accordance with applicable law,
have been concluded, whose
verdicts, involving the
conviction and imprisonment of
high-ranking public officials or
various acts of financial
malfeasance damaging to the
public purse, are also under
threat”.
But, my Lords, the fact that our
fellow citizens have been tried
by the Fast Track court,
convicted and imprisoned is not
a ground for review of the
majority decision because the
evidence is now clear that the
court has not been properly
established according to law,
and therefore must not be
allowed to continue its illegal
operations which threaten the
lives and liberties of every
Ghanaian. It is sad that the
issue had not been raised
earlier until Tsatsu Tsikata’s
case. Once the truth has
emerged, this court must not be
expected to rubber-stamp what is
a clear illegality; this court,
in the execution of its
constitutional mandate must
deliver Ghanaians from this
structure called the Fast Track
High Court which the
Attorney-General and our
colleagues in the minority have
the conscience to present to
Ghanaians as a machinery for the
due administration of justice. I
would have wished that those of
us who are entrusted with the
duty to ensure that the rule of
law becomes a permanent feature
of Ghanaian politics, do not
allow our actions and decisions
to be directed by any extraneous
considerations of advantage or
disadvantage that might assist
or beset any political party in
power. Everything must be done
in the best interests of the
whole nation.
In that regard, and with due
apologies to the learned
Attorney-General, I must say
that he has not been very
truthful to the court in arguing
this application for review. For
how can he, for example, urge on
this court that the only feature
distinguishing the Fast Track
High Court from the normal High
Court we know is the mechanized
recording procedure used in the
Fast Track Court; or that the
“Guidelines” in Exhibit AM1 are
“mere supplementary Guidelines,
— not binding rules and
regulations” and that the judges
of the Fast Track High Court
“are under no legal compulsion
to use them”; or that, and this
is the most resentful of all,
“on the face of his pleadings,
there is no constitutional issue
at stake in these proceedings
warranting the invocation of the
court’s original jurisdiction
under Article 2”. If no issue of
interpretation arose on the
plaintiff’s claim but the
Learned Attorney-General himself
anchors his defence on Article
139(3) which the court and the
parties rightly accepted as the
root of the litigation and the
learned Attorney-General himself
again agrees with Kpegah, J.S.C.
that “the issue at stake here is
the meaning of Article 139(3),
then what is the logic and
reason in telling this Court
that the “Court erred in
accepting jurisdiction in this
case”?
In my view the learned
Attorney-General’s submissions
are all wrong. He has no case to
support the review application
and I will dismiss it, and so
dismiss it with a confidence
inspired by the words of Edward
Wiredu, J.S.C., in the case of
In Re Krobo Stool (No. 2),
Nyamekye (No. 2) v. Opoku [2000]
SCGLR 567, at 570, that:
“… The review jurisdiction of
the Court, being special, will
not, and must not, be exercised
merely because counsel for the
applicant refines his appellate
statement of case, or thinks up
more ingenious arguments, which,
he believes, might have favoured
the applicant had they been so
presented in the appeal hearing.
An opportunity for a second bit
at the cherry is not the purpose
for which the Court was given
the power of review”.
COUNSEL
Prof. E.V.O. Dankwa with him R.
S. Agbenoto for Respondent.
Nana Akufo-Addo,
Attorney-General with him Ms.
Gloria Akuffo, Dep.
Attorney-General, Osafo-Sampong,
Director of Public Prosecution
and E.A. Addo, Solicitor-General
for Applicant. |
