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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.
Fkb*
VIVIAN BANNERMAN v. STATE TRANSPORT CORPORATION
[2/4/2002] CA. NO. 15/2001.
IN
THE SUPERIOR COURT OF JUDICATURE
IN
THE SUPREME COURT
ACCRA - GHANA
_______________________
CORAM: BAMFORD-ADDO, J.S.C (PRESIDING)
ADZOE, J.S.C
AFREH, J.S.C
BADDOO, J.S.C
DR. TWUM, J.S.C
CA. NO.15/2001
2ND APRIL 2002
VIVIAN BANNERMAN :
PLAINTIFF/APPLICANT/APPELLANT
VRS.
STATE TRANSPORT CORPORATION :
DEFENDANT/RESP/RESPONDENT
________________________________________________________________________________
JUDGMENT
BAMFORD-ADDO, J.S.C.:
This is an appeal from the decision of the Court of
Appeal dated 14th December 2002 which dismissed on
Appeal brought to the said Court from a decision of the
Trial High Court dated 28th July 1999.
The Plaintiff appellant herein was an employee of the
State Transport Corporation i.e Defendant/Respondent
herein. On the 30th November 1989, a letter terminating
Appellant's appointment was written to her Titled:
"Termination of Appointment:-Redeployment Exercise."
The letter stated that in view of a restructuring
exercise taking place at the time by the Corporation
Appellant's services was no longer required and
therefore terminated her appointment with full benefits
with effect from 1st December 1989. She was also given
three months' salary in lieu notice, as well as all her
other benefits.
However, on 2nd August 1995 she sued the Respondent
claiming the following:
i)
Damages for Wrongful dismissal
ii) Further or reliefs as the Court will deem fit.
The case was heard at the High Court, Accra and on 28th
July 1999 the said Court dismissed her claim against
Respondent in its entirety, but made no order as to
costs.
Dissatisfied with this decision the Appellant filed an
appeal to the Court of Appeal which unanimously also
dismissed the Appeal resulting in this further Appeal to
this Court against the decision of the Court of Appeal.
The only Ground of Appeal filed is that:
"The Learned Court erred in refusing to enquire into the
validity of the reasons given for the termination of the
plaintiff".
But then the reason was given as Redeployment exercise
and despite this even though the Appellant did not plead
the terms of her employment in her statement of claim,
she averred that the termination of her employment was
unlawful and asked for damages. In an action for damages
for wrongful dismissal the onus lies on the Plaintiff or
employee to prove that the dismissal was wrong, and it
is then for the Defendant to prove that the action was
justifiable and not wrongful. If Plaintiff fails to
discharge the onus of proof which lies on her she cannot
succeed in her claim and the action has to be dismissed
as was done in this case. See the case of Morgan and
Others V. Parkinson Howard Ltd [1961] 1 GLR 68 at 70
holding 1.
(1) "In a claim for wrongful dismissal the plaintiff
must prove the terms of his employment and then prove
that his dismissal is in breach of the said terms or
that it contravenes some statutory provision for the
time being regulating employment."
See also in Sarfo V. A. Lang Ltd.[19781 I GLR 142.
Holding (1) which stated as follows:
"In a claim for wrongful dismissal a plaintiff would
only succeed if he could prove the terms of his
employment and then prove either that the determination
of the employment was in breach of the terms of his
agreement or that the determination was in contravention
of the statutory provision for the time being regulating
the employment. In the instant case the Plaintiff's
failure to prove that the dismissal was in breach of the
terms of their collective agreement or any other terms
of his appointment was fatal to his claim."
Also in African Association, Ltd. and Allen (1910) IKB
396, there was an agreement for employment of a clerk
for two years in Africa at an agreed salary, between the
employers and employee. They were permitted in the
agreement to terminate the engagement at any time at
their absolute discretion at any earlier date than that
specified in the agreement if they desired to do so.
However, it was held that " The power to terminate the
engagement at an earlier date than that specified could
only be exercised after giving reasonable notice".
The position at law is that in any case, the termination
of a contract of employment requires that relevant
notice if stipulated in the contract be given, if not so
specified, then "reasonable notice" is required to be
given to the other side, or payment of salary in lieu of
notice. This obligation for giving notice falls on
either party, and is a pre-requisite to a lawful
termination, and except where to contract is governed by
specific requirement or Convention no reasons need be
given. Therefore either party, employer and employee
alike, in the absence of any express or implied
agreement to the contrary, can terminate a contract of
employment upon giving notice normally 3 months notice
or payment of salary in lieu notice, without giving
reasons for the termination.
Further of Aryee v. State Transport Corporation
(1984-86) GLRD 50 Page 111 C.A.,
It
was held in holding (1) " that a contract of service was
not a contract of servitude ... The employee, was not
the servant in the popular sense, of the employer. He
was merely his employee. The contract was framed in such
a way that either party might bring it to an end and
free himself from the relationship painlessly. In this
case, the appellant could at anytime, give the relevant
three months notice or forfeit an equivalent in salary
and leave the corporation without justifying his action
to the corporation. In the same way the corporation need
not assign any reason for choosing to terminate their
contract with the defendant".
Since there is no need to give reasons, as stated above
the fact that reasons are given or not did not detract
in any way from the validity of a lawful termination.
For this reason there is no necessity for enquiring into
reasons for the termination of Applicants appointment by
the Court. The appellant's ground of appeal is therefore
misconceived and devoid of any merit. The Court of
Appeal dismissed the Appeal after considering this issue
see P.80 of the Record where in the judgment of Mrs.
Wood JA. ( as she then was) dealt correctly and
adequately dealt with this issue. She said:—
"The position of the law as I see it is that it is
dearly implicit in this right to terminate, that the
party terminating the Contract need not assign reasons
for the said termination".
In
any case Appellant's claim for wrongful dismissal failed
and was dismissed by the Court of Appeal, which
supported the trial High Courts' finding that Plaintiff
had not adequately proved her case of unlawful
termination of contract by her employer. All that the
Respondent had to do to terminate Appellant's employment
was to give reasonable notice i.e three months' notice
or salary in lieu of notice, which the Respondent did,
and coupled with the necessity for termination for the
reasons of Redeployment exercise in the Corporation,
Appellants failed to prove successfully that the
termination of her appointment was unlawful and
unjustified.
In
view of the above therefore, it is my opinion that the
Appellants' appeal to this Court is unmeritorious and
should be dismissed.
J.
BAMFORD-ADDO (MRS.)
JUSTICE OF THE SUPREME COURT
D.K AFREH
JUSTICE OF THE SUPREME COURT
BADDOO
JUSTICE OF THE SUPREME COURT
DR. SETH TWUM
JUSTICE OF THE SUPREME COURT
ADZOE, J.S.C.:
The plaintiff was an employee of the defendant
corporation. She had been employed in March 1973 as an
Accountant. She was later transferred to the
administration department as the Managing Director's
personal assistant or secretary, in about 1980. In a
letter dated 30th November, 1989 the defendant informed
the plaintiff that her appointment was being terminated
with effect from Ist December, 1989. The letter was
headed: Termination of Appointment - Redeployment
Exercise. Paragraph 1 thereof read:
"In view of the restructuring exercise currently taking
place in the Organisation, you have been identified as
one whose services will no longer be required".
The Plaintiff was not satisfied. On 4th January, 1990
she wrote to the Managing Director of the defendant
imploring him to "take a second look at the decision to
terminate my appointment". The Managing Director wrote
back on 5th February, 1990 and indicated that the
redeployment exercise had received the "endorsement of
the National Committee" which ostensibly was the
National Redeployment Committee. The plaintiff then
petitioned the PNDC Secretary for Mobilisation and
Social Welfare whose re-action was to refer the
plaintiff's complaints to the Labour Department for
investigations. The Chief Labour Officer called for the
Redeployment Committee's Appraisal Report which guided
Management of the defendant to embark on the
redeployment exercise. The Appraisal Report which was
sent to the Chief Labour Officer showed a list of about
eighty-two employees of the defendant who were to be
affected in the redeployment. Eighty of those employees
appeared to be junior staff members. Only two were
described as senior staff members; they were the
plaintiff and one Mr. J.K. Anokye of Stores. He was to
be redeployed on ground of "poor health", but plaintiff
was said to be "under utilised". In fact the document
also showed that most of the junior staff on the
redeployment list were also being laid off because they
were "under utilised". Some were going because of "poor
performance", "drunkenness", "inefficiency" and "old
age". This list was made available to the plaintiff in
May, 1992.
In
April, 1994, the plaintiff petitioned the Commission on
Human Rights and Administrative Justice. Her case all
along was that her re-deployment on grounds of
under-utilisation was mala fide and orchestrated by the
defendant's Greater Accra Regional Manager to settle
personal scores with her. This petition to the
Commission on Human Rights and Administrative Justice,
like its predecessors, was dismissed because there did
not seem to be any merit in her protestations that she
was merely being victimised. The ultimate result was
that the plaintiff decided to go to court. On 8th
February, 1995 she issued a writ at the High Court in
Accra claiming against the defendant the following
relief, namely:
1.
Damages for wrongful dismissal
2.
Further or other reliefs as [to] the court will deem
fit.
Paragraphs 2 and 3 of her statement of claim said:
2.
On or about 30th November, 1989, the defendant
corporation unjustifiably dispensed with the services of
the plaintiff, the plaintiff having worked with the
Defendants for well over 15 years.
3.
The plaintiff says that at the time when her services
were dispensed with she had been recommended for
promotion to the grade of Principal Administrative
Officer of the Corporation.
The defendant in the statement of Defence admitted
terminating the plaintiff's appointment but said that
the termination was not wrongful or unlawful because it
was done in "accordance with the Collective Agreement"
between the defendant and the workers union of which the
plaintiff was a member. According to the defendant that
collective agreement empowered it to "dismiss" the
plaintiff "summarily without giving reasons".
There is one bizarre aspect of this case. The parties,
upon the pleading, agreed that the central issue for
determination was, as set out in the Summons for
Directions, this:
Whether or not the plaintiff was terminated in
accordance with the collective agreement in force
between the defendant corporation and the General
Transport Petroleum and Chemical Workers Union the TUC,
Ghana".
But the trial took a different turn. The issue set out
in the summons was not dealt with at all. The parties
did not address their mind to the Collective Agreement;
no such agreement was even tendered. The letter
terminating the appointment became the fulcrum of the
litigation, and the redeployment exercise and the
plaintiff's under-utilization were the only issues dealt
with.
The High Court tried the case and dismissed the
plaintiffs claim. The learned trial High Court Judge
concluded his judgment as follows:—
"... I hold that taking the evidence of the plaintiff
and that of the witness for defendant, coupled with the
exhibits tendered by both parties, there was nothing
wrong in the redeployment exercise embarked upon by
defendant and which affected not only plaintiff but
several others in defendant corporation. Accordingly I
hold that plaintiff was not victimised in any way. Her
claim against defendant corporation is dismissed in its
entirety".
The plaintiff appealed to the Court of Appeal and argued
two grounds, that:
1.
The learned judge erred in even considering the decision
delivered by the Commission on Human Rights and
Administrative Justice and basing his judgment on it.
2.
The learned trial judged erred in law in failing to
consider the fairness of the reasons given for
termination of plaintiff/appellant in the redeployment
exercise.
The Court of Appeal (three judges) unanimously dismissed
the appeal mainly on the ground that the plaintiff had
failed to establish that by the terms of her contract of
employment, the defendant was obliged to assign reasons
for terminating the appointment, and, in any case, the
defendant's reason that the termination was the result
of a redeployment exercise was sufficient.
The present ground of appeal against the Court of Appeal
decision is expressed in a language similar to the
ground urged on the Court of Appeal. It is this:
"The learned court erred in refusing to inquire into the
validity of the reasons given for termination of
plaintiff".
May I remark that counsel for the plaintiff in his
written submission has sought to re-formulate his ground
of appeal to read:
"That both the trial judge and the Court of Appeal erred
in law in failing to consider the reasons given for the
termination of plaintiff/appellant's appointment in the
redeployment".
I
am making this observation because I have realised that
many lawyers who appear before this court these days, in
complete disregard for rule 6(6) of the Supreme Court
Rules, 1966, C.I. 16, do not stick to the text of the
ground of appeal filed by them; a day may come when
counsel may not be permitted to argued his appeal
because the ground he intends to argue differs
essentially from the ground filed by him. In the instant
appeal counsel is lucky that the import of his two
versions of ground of appeal is the same.
That said, what does the appellant want? She appears to
be saying that the courts, including this court, must
examine the reason given by the defendant for her
redeployment and say whether or not, on the evidence, it
was a genuine reason for terminating her employment.
The employee's right not to be wrongfully or unfairly
dismissed by his employer is well established at common
law and also by legislation. It is a right that seeks to
ensure what is normally called "job security". At common
law the employer was "master" and the employee was
"servant". The relationship between the two was
described as that of master and servant. In that
relationship, the employer as the "master" had
untrammelled powers to dismiss the employee, the
"servant", at will, and it was difficult for the poor
servant to pursue a claim for wrongful dismissal'.
But in April, 1919, at the Peace Treaty of Verseilles,
the International Labour Office was established. It is
now known as the International Labour Organisation
(I.L.O.). It is a tripartite Organisation comprising
governments, Representatives of employers, and
representatives of workers, and has since its formation,
launched several conventions that prescribe standards
for conditions regulating labour. In principle, every
member state of I.L.O. is bound to respect the ideals in
these conventions. In the result, the I.L.O. Conventions
have changed the character of labour laws in many common
law jurisdictions and discouraged summary dismissal of
employees. Since the 1970's the common law has given way
to statutory provisions and express contractual
agreements in regulating labour. I adverted to this
transition in my judgment in Paul Kofi Aboagye v. Ghana
Commercial Bank (unreported): judgment in Civil Appeal
No. 10/2000 dated 28th November, 2001.
Ghana is a member of the International Labour
Organization. It joined the Organisation in May 1951.
Thus in Narko and Anor. v. Bank of Ghana (1970) 1 GLR
70, at page 77 Hayfron-Benjamin J., as he then was,
observed that:
"In the case of public employment by the State or state
instrumentalities, or statutory corporations, I am of
the view that the I.L.O. Recommendation No. 119
represents the general law".
I.L.O. Recommendation No. 119 (1963) on "Termination of
Employment" was to the effect that the termination of
employment should not take place unless there is a valid
reason connected with the capacity or conduct of the
worker or based on the operational requirements of the
undertaking, establishment or service. Article 4 of ILO
convention No. 158 (1982) concerning termination of
employment at the instant of the employer is very much
identical with Convention No. 119.
Insisting that the Court of Appeal should have inquired
into the validity of the reasons given for terminating
the plaintiff's employment, counsel has argued several
points which must be specifically answered.
First, he says that since the decision to terminate the
plaintiff s employment in the redundancy exercise was a
discretionary action the court must find out whether the
redundancy exercise was carried out in accordance with
law. He referred us to Article 23 of the 1992
Constitution on which he based this argument. Next, he
says that the selection of employees to be affected by
the exercise should not have been left to the opinion of
one person alone, but should have been so made as to
enable it to be "objectively checked". It appears that
this argument is directed against the Greater Accra
Regional Manager of the defendant corporation who was
said to have recommended the employees to be laid off,
including the plaintiff.
It
should be observed that the defendant corporation can
only act through its authorised officers such as the
Greater Accra Regional Manager; and so the Regional
manager's discretion is the discretion of the
corporation. What Article 23 of the 1992 Constitution
mandates is that:
"Administrative bodies and administrative officials
shall act fairly and reasonably and comply with the
requirements imposed on them by law and persons
aggrieved by the exercise of such acts and decisions
shall have the right to seek redress before a court or
other tribunal".
In
the matter of termination of employment, the relevant
law in force is section 22(2) of the Labour Decree, 1967
(NLCD 157) which provides that a contract of employment
may be terminated by agreement between the parties; we
must remember that in this country such agreements are
usually found in the Collective Agreement between the
employee's union and the employer, or in the contract of
employment itself.
On
the issue of discretion, we must always be cautious to
distinguish "judicial discretion" from pure
"administrative discretion", because it would not be
appropriate to apply the same criteria to both classes
of discretions. Some discretions must be exercised in a
judicial manner; some are simply of an executive or
administrative nature. In the case of an executive or
administrative discretion, actions are governed by
general considerations of policy only and it becomes
difficult to measure them by objective standards. As de
Smith puts it in his book on Judicial Review of
Administrative Action, the legal concept of
administrative discretion "implies power to make a
choice between two alternative courses of action", and
to "say that somebody has a discretion presupposes that
there is no uniquely right answer to his problem". (see
de Smith: Judicial Review of Administrative Action (2nd
edition, page 264).
Moreover, if the defendant had the discretion to
terminate the plaintiffs employment in the redeployment
exercise, as conceded by counsel, then the defendant is
the only authority to exercise that power. The defendant
acted through the Regional Manager and so the discretion
must be deemed to have been properly exercised. A mere
allegation by plaintiff that the defendant acted
arbitrarily or mala fide is not enough in the absence of
credible and acceptable evidence to the contrary.
The evidence is clear that the plaintiffs redeployment
was based on the operational requirements of the
defendant corporation. I have already quoted the opening
paragraph of the letter terminating plaintiffs
appointment. I need to quote it again. It reads: "In
view of the restructuring exercise currently taking
place in the organization you have been identified as
one whose services will no longer be required". This is
clearly within the text of I.L.O. recommendation 119,
quoted supra.
The intention behind ILO recommendation 119 is that
where the employer is able to show any of the
recommended reasons as the reason for the termination,
the dismissal may be deemed to be prima facie fair.
Explaining the legal implications of the recommendations
in an article headed "The Fall and Rise of Unfair
Dismissal" the author, B.A. Hepple, observed what they
mean. He said that they mean that:
"The employer must first show that the principal reason
for dismissal was one of four potentially fair reasons
(capability, conduct, redundancy, statutory requirement)
or was some other substantial reason of a kind such as
to justify the dismissal of an employee holding the
position which that employee held". [see Legal
intervention in Industrial Relations: Gains and Losses,
edited by William McCarthy, page 79, at page 84".
There are several English decisions which show that the
employer in such circumstances is only required to show
a set of subjective beliefs held by him which caused him
to dismiss the employee: See -Abernethy v. Mott, Hay and
Anderson (1974) 1 GLR 213, In determining the question
of fairness in the case of "business re-organization",
for example, we must look at the merits of each case and
consider the employer's responsibilities of efficient
management; that is not to say that we must be oblivious
to the employee's interests and his right to protection
against unscrupulous employers.
That brings up the question whether the courts are
obliged to inquire into the validity of the reasons
given for terminating the plaintiff's employment. At
this stage we need to note the difference between the
fairness of a reason and the validity of that same
reason. The word "valid" would suggest that the reason
must be shown to be "cogent", "good" or "sufficient", so
that if the court is to inquire into the validity of the
reason for terminating the employment it must be
understood that the court is being asked to decide
whether the reason given for the termination was good or
sufficient or lawful. On the other hand the word "fair"
would mean "just", "honest" and "unbiased", and an
inquiry into the fairness of the reason given will turn
on a finding whether the reason given was the "true" and
"real" reason for the action taken against the
plaintiff. If the defendant corporation was
re-organizing itself, then it had a valid reason to
terminate some of its employees if management decided to
do so; and if the under-utilisation was given as the
reason for the defendant's action against the plaintiff,
then it could be said to be prima facie fair until the
plaintiff established facts to show that there was some
ulterior motive behind the action against her. It is
only when that is established that the fairness or
genuineness of the reason for the termination can be
displaced.
I
appreciate that the plaintiff suspected that she was
victimised, and that the defendant merely decided to get
rid of her without good cause. From the defendant's own
showing, the plaintiff appeared to be a troublesome
employee. She was originally employed in the Accounts
department but was soon sent to personnel department
"because she did not get on well with her head of
department and colleagues". The defendants also spoke of
the plaintiff's "unruly behaviour" to the Acting
Personnel Manager, and of her "uncompromising attitude".
These observations were made when the parties appeared
before the Commission on Human Rights and Administrative
Justice, and the plaintiff herself expressed fears that
there was "a conspiracy against her" by the Acting
Personnel Manager, the Regional Director and the Deputy
Managing Director. She therefore suspected very early
that the termination of her appointment was a reprisal
against her personally rather than a genuine response by
management to the legitimate needs of the defendant. She
may be right but at the trial she did not lead any
evidence to establish those factors; she ought to have
put across her misgivings before the trial judge and
thrown a searchlight on what she suspected to be the
defendant's real reason for terminating the appointment.
There is nothing in the record to assist us make the
inquiry that the plaintiff is asking us to make; the
record contains nothing about whether or not the
defendant was actuated by malice or ill-feeling towards
the plaintiff. If those matters had been fully
investigated and there is on record facts which could
have enabled the court to judicially examine the issue
raised in this appeal, I would have gone along with the
plaintiff. But I am handicapped. There is nothing to
hold onto to uphold the plaintiff's submissions and say
that the Court of Appeal should have inquired into the
genuineness of the reasons for terminating the
plaintiff's appointment. This court itself is not in a
position to make such an inquiry. The issue was not
raised at the trial and the record is silent on it. In
my opinion, it was not open to the plaintiff to argue
this new point before the Court of Appeal and before us
now. The point involves questions of fact which this
court as well as the Court of Appeal is in a much less
advantageous position to consider and resolve.
In
the manner the case was fought the onus was on the
plaintiff to show that the decision taken by the
defendant to include the plaintiff among those employees
to be affected by the redeployment exercise was wrong.
Otherwise, no court will just substitute its discretion
for the discretion of the defendant.
The plaintiff's attempt to prove the termination
wrongful was in the plaintiffs evidence and her
counsel's arguments. They could be particularized as
follows:
(i) she was not under-utilized. On this issue the
evidence before the Commission on Human Rights and
Administrative Justice which was tendered in evidence as
Exhibit 3 explains that the plaintiff was originally
employed into the Accounts department, but had to be
transferred to Personnel department because she was not
getting on “on well with her head of department and her
colleagues" at the Accounts section. She was replaced at
the Accounts section, and at the Personnel department,
her schedule of work was "below her qualifications" and
has always been efficiently handled by "the clerical
staff who were her juniors". Even though the plaintiff
claimed that she had a lot of work to do, the
defendant's stand was that whatever work she was doing
"was meant for a junior clerical officer and not for a
senior staff like her". Hence the under-utilization
because "her qualification and efficiency were over and
above the duties she was performing at the time she was
redeployed. I think that that was sufficient
justification for the defendant's action.
(ii) the defendant had just recommended her for
promotion when her appointment was terminated. I do not
think that the plaintiff can use this recommendation
against the defendant. The defendant had given
recognition to the plaintiff's ability and
qualifications and thought that she deserved to climb
up. But the defendant did not think that the promotion
was of any advantage in the defendant's scheme of
operations and so they did not need to retain her.
(iii) The defendant terminated the appointment without
giving any reason. This cannot be correct or true. The
letter terminating the appointment speaks for itself.
The plaintiff's services were no longer required in view
of the restructuring exercise. And this was later
explained to show that the plaintiff was
"under-utilized". How then can plaintiff say that no
reason was given for terminating the appointment. What
is more, in the absence of any specific contract of
employment or Collective Agreement requiring reasons for
plaintiffs dismissal, the courts can only look at the
Labour Decrees applicable in this country. Under the
Labour Decree, (NLCD 157) 1967, the plaintiff was only
entitled to one month notice or to a sum equal to the
amount of "remuneration" payable to him during the one
month period. In the instant case the plaintiff was even
given three months remuneration in lieu of notice.
Reasons are not required. [see section 33(5) of NLCD
157]. The position under the Labour Decree, as I see it,
is that even a long-serving employee can have his
appointment terminated without reasons if only the
employer gives him the requisite notice.
Counsel has also urged on us that the plaintiff's
appointment should not have been terminated without
first telling her what was alleged against her and
hearing her defence or explanation. He relied on Ridge
v. Baldwin (1964) AC 40. Ridge v. Baldwin is not an
authority that the employee must be heard in all cases
before his appointment is terminated. I think that the
principles to be deduced from the authorities are that
(1) failure to comply with procedure set down for
dismissal may render the dismissal wrongful, see Narko &
Anor v. Bank of Ghana (1973) GLR 70 or (2) where the
circumstances of the dismissal demand a preliminary
inquiry calling for the observance of the rules of
natural justice before dismissal and the procedure is
not duly observed, the dismissal may be wrongful. See
the recent decision of this court in Civil Appeal No.
10/2000 entitled Paul Kofi Aboagye v. Ghana Commercial
Bank (supra) Blay Morkeh v. Ghana Airways Corp. (1972) 2
GLR 254 where the plaintiff was dismissed without being
given any opportunity to explain his alleged
unsatisfactory record whereas the Collective Agreement
in force required that before dismissing an employee in
such circumstances, he should be given a written query
and allowed to submit a written reply explaining
himself. And it must be noted that even though the
plaintiff in the Blay-Morkeh case was dismissed in what
was termed a "re-organization" the reason given for the
dismissal was his "unsatisfactory record" which the
collective agreement required the employers to allow him
to explain.
The facts of Ridge & Ors. V. Baldwin (supra) are also
quite clear. That decision turned upon the construction
of the provisions of a statute - section 191(4) of the
Municipal Corporation Act, 1882, and other regulations
made under the Act. The Act provided that the Municipal
watch committee may suspend and dismiss any borough
constable whom they think negligent in the discharge of
his duty, or otherwise unfit for the same. The applicant
was a chief constable of a borough police force. He was
arrested and tried for his alleged involvement in some
crimes. During the trial he was suspended, but at the
end of the trial he was acquitted. He then applied to be
re-instated and the watch committee refused. The
committee took the view that he had beer negligent in
the discharge of his duties and so purported to dismiss
him in the purported exercise of the powers conferred on
them by section 191(4) of the Act. No specific charge
was formulated against him, but the letter of dismissal
recited "a general finding of negligence and unfitness".
The Regulations made under the Act were the Police
(Discipline) Regulations which laid down a procedure
providing for notice of a charge being given to the
accused who must have an opportunity of answering it.
The applicant sued for a declaration that the purported
termination of his appointment was illegal, ultra vires
and void.
The House of Lords held that the dismissal was a
nullity. The speeches of the Law Lords made it clear
that the procedure for dismissal – to charge the accused
and hear him — was a condition precedent that went to
the root of the matter, because the regulations were
drafted so that the principles of natural justice should
be complied with, and that they were imperative and
obligatory. The court then noted as follows:
"The watch committee were under a statutory obligation
... to comply with the regulations made under the Act.
They dismissed the appellant after finding that he had
been negligent in the discharge of his duty. That was a
finding of guilt of the offence of neglecting or
omitting diligently to attend to or to carry out his
duty. Yet they had preferred no charge against the
appellant and gave him no notice. They gave him no
opportunity to defend himself or to be heard. Though
their good faith is in no way impugned, they completely
disregarded the regulations and did not begin to comply
with them".
iv. Counsel has also referred us to what he described as
"the general principles governing the conduct of
redundancy exercises" and says that those principles are
also "stipulated in the Collective Agreement between the
plaintiff and the defendant. He says that the said
Collective Agreement came into force on 1st September,
1985. I am not aware of any such general principles in
this country. And the parties did not produce any
binding collective Agreement which is in the record
before us. What was tendered at the trial was a "STATE
TRANSPORT CORPORATION SENIOR STAFF CONDITIONS OF
SERVICE" which was admitted in evidence as Exhibit 'K'.
That document was signed by the defendant and the Senior
Staff Association on 1st September, 1992, and Article 59
thereof provides that "The conditions of service shall
become operative with effect from 1st December, 1989.
Exhibit 'K' cannot, therefore, regulate the plaintiff's
employment with the defendant. The Court of Appeal was
right in holding that exhibit K was not applicable.
On
the whole, it is my opinion that the Court of Appeal was
right in dismissing the plaintiff's appeal. She now
prays that we reverse that decision and enter judgment
in her favour. That is not possible. The appeal must be
dismissed as without merit, and I accordingly dismiss
it.
T.
ADZOE
JUSTICE OF THE SUPREME COURT
COUNSEL
MR. A. K. DABI FOR APPELLANT
MR. STEPHEN AHENKORAH FOR RESPONDENT
gso* |
