|
Agreement -
Breach of contract – setting
aside writ - Noncompliance with
section 92(2)
- Ghana
Ports and Harbours Authority
Act, 1986 (PNDC Law 160) -
Whether or not the order as
made disposes of the rights of
the parties - Whether or not
section 92(2) of PNDC Law 160
which was the basis of the High
Court’s decision was
unconstitutional as same was
inconsistent with the provisions
of the 1992 constitution -
Whether or not the appeal was
filed out of time - Whether the
order is interlocutory or final
HEADNOTES
The
appellants sued the two
defendants at the High Court
claiming an amount of Two
Hundred and Sixty Two Thousand
Nine Hundred and Seventy Seven
US dollars or its equivalent in
cedis being actual cost of
damage and surveyor's fees as a
result of the defendant's
negligence and breach of
contract, interest on the said
sum. The 2nd
defendant respondent entered a
conditional appearance and
applied to have the writ of
summons set aside on the grounds
that failure to comply with
section 92(2) of Ghana Ports and
Harbours Authority Act, 1986 (PNDC
Law 160) rendered the writ
premature and therefore null and
void. This submission was upheld
by the trial High Court Judge
and the writ was dismissed, the
appellant applied ex parte to
the High Court, differently
constituted, for an extension of
time within which to file an
appeal against the decision of
the High Court dismissing his
writ of summons. This
application was granted and with
time extended the appellants
appealed to the Court of Appeal,
The Court of Appeal dismissed
the appeal on the grounds that
the appeal was filed out of time
, it being an interlocutory
appeal, and that the purported
extension of time granted to
file same was done without
jurisdiction and therefore null
and void and It is against this
decision that the appellant has
appealed to this court
HELD
As far as the
trial judge and justices of the
Court of Appeal were concerned
they were confronted with a
straight case of enforcing an
Act whose meaning was clear and
unambiguous. It did not call for
any interpretation and therefore
did not warrant a reference to
the Supreme Court. And as the
Court of Appeal rightly noted,
in the absence of any
pronouncement by the Supreme
Court striking down the said
provision as unconstitutional,
failure to comply with its
mandatory requirements rendered
the writ void. The appeal
therefore fails on all grounds
and same is dismissed.
STATUTES
REFERRED TO IN JUDGMENT
Ghana Ports
and Harbours Authority Act, 1986
(PNDC Law 160)
Supreme Court
rules 1996 C.I 16
Court of
Appeal Rules 1997 C.I.19
Interpretation Act, 2009 (Act
792)
1992
Constitution
State
Proceedings Act in 1998 (ACT
555)
CASES
REFERRED TO IN JUDGMENT
Pomaa v
Fosuhene [1987-88] 1 GLR 244,
Taylor JSC
Nkawie Stool
v Kwadwo (1956) 1 WALR 241, CA
Atta Kwadwo v
Badu [1977] 1 GLR 1 at 4, CA
Tawiah v
Brako [1973] 1 GLR 483 at 486,
CA
Okudjeto v
Irani Brothers [1975] 1 GLR 96
at 104, CA
Karletse-Panin v Nuro [1979] GLR
194 at 210, CA
Republic v
High Court(Fast Track Division);
Ex parte State Housing Co ltd
(No.2) (Koranten- Amoako
Interested Party 2[2009]SCGLR
185
Halle and
Sonns S.A v Bank of Ghana and
Another Civil Motion No
J7/11/2010
David Andreas
Hesse v. Investcom Concortium
Suit No H3/350/2007
(unreported), dated the 4th
of July 2007
Bosompem &
Others v. Tetteh Kwame SC C/A
J4/5/10 (Unreported) dated 7th
July 2010
In re
Amponsah [1960] GLR140
Tsuru v.
Attorney General 2010 SCGLR 904
Republic v.
High Court(Fast Track
Division)Accra; EX Parte
Electoral
Commission.(Mettle-Nunoo &
Others Interested
Parties)[2005-2006] SCGLR514 at
pg 559
Evangelical
Presbyterian Church v. Attorney
General [1993-94] GLR 429
Re public V.
Maikankan [1973]2 GLR;
Auamoah ll
v.Twum [2000]SCGLR165;
Republic v.
Special Tribunal; Ex Parte
Akosah 1980 GLR 582
Nana Yiadom v
Nana Amaniampong [1981] GLR
Agyekum v.
Boadi SCGLR 282
Republic v.
High Court (Fast Track Division)
Accra; Ex parte Commission on
Human Rights and Administrative
Justice. ( Richard Anane,
Interested party)[2007-2008]
SGLR 213 at pg 235.
Republic v.
Asiamah [1971] 2 glr478
Republic v
Special Tribunal Ex parte Akosah
(1980) GLR 592 C.A
Republic v
Judicial Secretary Ex parte
Torto [1979] GLR 444 C.A
Republic v
Special Tribunal Ex parte Forson
(1980) GLR 529.
BOOKS
REFERRED TO IN JUDGMENT
Halsbury”s
Laws of England(4th ed) vol. 26
para.506
DELIVERING
THE LEADING JUDGMENT
BAFFOE-BONNIE, J.S.C.
COUNSEL
MARTIN KPEBU
FOR THE APPELLANTS.
OSAFO BUABENG
WITH HIM VIVIAN TETTEH FOR THE 1ST
RESPONDENT.
MARIETTA
APPIAH- OPPONG FOR THE 2ND
RESPONDENT.
_____________________________________________________________________
BAFFOE-BONNIE, J.S.C.
The
appellants sued the two
defendants at the High Court
claiming:
a.
An
amount of Two Hundred and Sixty
Two Thousand Nine Hundred and
Seventy Seven US dollars or its
equivalent in cedis being actual
cost of damage and surveyor's
fees as a result of the
defendant's negligence and
breach of contract;
b.
Interest
on the sum of Two Hundred
and Sixty Two Thousand Nine
Hundred and Seventy Seven US
dollars or its equivalent in
cedis at the prevailing
commercial rate from August
2008 till date of final payment;
c.
Damages for negligence and
breach of contract by the
defendants;
d.
Costs including legal fees; and
e.
Any other reliefs arising from
the pleadings.
The
2nd defendant
respondent entered a conditional
appearance and applied to have
the writ of summons set aside on
the grounds that failure to
comply with section 92(2) of
Ghana Ports and Harbours
Authority Act, 1986 (PNDC Law
160) rendered the writ premature
and therefore null and void.
This
submission was upheld by the
trial High Court Judge and the
writ was dismissed on 14th
October 2009. On the 9th
of November 2009
the
appellant applied ex parte to
the High Court, differently
constituted, for an extension of
time within which to file an
appeal against the decision of
the High Court dismissing his
writ of summons.
This
application was granted on
12th Nov. 2009 for a
period of 3 working days.
With time
extended the appellants appealed
to the Court Of Appeal on
the grounds that:
a.
the learned trial judge erred in
law by striking out the writ of
summons and statement of claim
and
b.
the learned trial judge erred in
awarding costs
Before the
Court of Appeal the appellant
argued that
the
section 92(2) of PNDC Law 160
which was the basis of the High
Court’s decision was
unconstitutional as same was
inconsistent with the provisions
of the 1992 constitution
The
Court of Appeal dismissed the
appeal on the grounds that;
a.
the appeal was filed out of time
, it being an interlocutory
appeal, and that the purported
extension of time granted to
file same was done without
jurisdiction and therefore null
and void; and
b.
the section 92(2) of PNDC Law
160 is constitutional.
It is against
this decision that the appellant
has appealed to this court
on
the following grounds.
1
the learned Court of Appeal
Judges erred in holding that the
High Court Judge had no
jurisdiction to grant the
appellants extension of time
within which to file notice of
appeal. The particulars of error
being that under rule 9(1)of
C.I.19 there is no provision for
extension of time to appeal in
an interlocutory decision.
Alternatively the ruling of the
trial court was a final
decision,
2.
That the learned justices of the
court of appeal erred in holding
that section 92(2) of the PNDC
Law 160 is constitutional.
For a proper
discussion of the grounds of
appeal I intend to take the
alternative ground first before
l take ground 1
ALTERNATIVE
GROUND.
On the
alternative ground the appellant
submitted that the order made by
the trial High Court Judge was a
final one. He said:
“It is
also respectively submitted with
hindsight as a distinct leg of
submission based on the decision
of this court in Axes Co Ltd
v. Opoku, it appears that,
the Court of Appeal erred in
holding the appeal as an
interlocutory appeal because it
is our humble submission that
the decision of the trial judge
to the effect that the writ of
summons is set aside against the
2nd respondent constitutes a
final decision. That is so
because there was nothing more
for the court to decide between
the appellant and 2nd
respondent. As such the
appellant did not need leave to
appeal”
After quoting
portions of the Axes case
counsel continued and concluded
thus,
“Flowing from
the above it is our submission
that it appears the ruling by
the high court, the subject of
this appeal, finally determined
the matter between the appellant
and the 2nd
respondent. After the said
ruling there was no other
pending case at the trial court
between the said parties. Their
dispute had finally been
determined. To the extent that
the above ruling foreclosed the
right of action against the 2nd
respondent it was a final
decision. Therefore the
appellant’s right to appeal is
not limited to twenty one days
but three months and includes
the grant of extension of time
to appeal therefrom.”
As counsel
rightly pointed out the issue of
when an order is final or
interlocutory was discussed at
length in the Axes Case but it
is obvious from counsel’s
submission that he failed to
appreciate the ratio in that
case.
The issue of
whether
an order is interlocutory or
final has engaged the
attention of practitioners over
all jurisdictions over the
years.
Over the
years the common law has
recognized two alternative
tests. The first test is whether
or not the order as made
disposes of the rights of the
parties; if it does it is final,
if it does not it is
interlocutory.
The second
test places emphasis on the
nature of the application made
to the court. To the proponents
of this approach, an order
remains interlocutory so long as
a different order made in the
same proceedings could have kept
the litigation in being. It does
not matter whether the order
made disposes of the litigation.
These two tests are called the
“order” and “application”
approaches, respectively.
Despite the
fact that our judicial system
has its antecedents in the
common law, it seems the courts
in this country have been
consistent in rejecting the
application approach in favour
of the order approach.
In the case
of
Pomaa v Fosuhene [1987-88] 1 GLR
244, Taylor JSC
contrasted the views of the
English and the accepted view in
the Ghanaian courts in the
following terms;
“The inherent
contradiction in the English
cases calls for a resolution of
the problem in this country; and
although the Supreme Court has
not had an occasion to make any
pronouncement on the matter
nevertheless other courts that
have exercised appellate
jurisdiction in this country
have consistently followed the
test sponsored by Lord
Alverstone; for instance Apaloo
JA (as he then was) followed the
precedent set by the West
African Court of Appeal in
Nkawie
Stool v Kwadwo (1956) 1 WALR
241, CA, and
applied Lord Alverstone’s test
in his judgment in the Court of
Appeal in State Gold Mining
Corporation v Sissala [1971] 1
GLR 359 at 362, CA. See also his
similar approach in the
subsequent Court of Appeal case
of
Atta Kwadwo v Badu [1977] 1 GLR
1 at 4, CA. Jiagge
JA also reading the judgment
of the Court of Appeal in
Tawiah
v Brako [1973] 1 GLR 483 at 486,
CA took the same view
when she gave the ambit of an
interlocutory decision in this
country in the following words:
“An
interlocutory decision does not
assume finally to dispose of the
rights of the parties. It is an
order in procedure to preserve
matters in status quo until the
rights of the parties can be
determined.”
I agree
entirely with that description
which is consistent with Lord
Alverstone’s test, a test which
Anin JA (as he then was)
accepted in his judgment in
Okudjeto v Irani Brothers [1975]
1 GLR 96 at 104, CA in a
decision in which Sowah JA (as
he then was) concurred; and
quite recently in
Karletse-Panin v Nuro [1979] GLR
194 at 210, CA.
Francois JA (as he then was)
reading his judgment in the
Court of Appeal after examining
the relevant cases, stated the
Ghana position succinctly when
he concluded:
“For Ghana
then the test is not to look at
the nature of the application
but at the nature of the order
made. This is one area where the
courts of Britain and Ghana have
already parted ways and the
Ghanaian courts have shown
remarkable consistency.”
I agree
entirely with the views of the
Ghanaian judges and I hold that
they are right. I will
accordingly approve the
Alverstone test so consistently
followed by the lower courts of
this country”.
In the AXES
CASE the Court also referred to
some very recent decisions from
this Supreme Court to buttress
the fact that the Ghanaian
position is now finally settled
in favour of the order approach.
It was noted thus;
“In the
case of
Republic v High Court(Fast Track
Division); Ex parte State
Housing Co
ltd(No.2)(Koranten-Amoako
Interested Party 2[2009]SCGLR
185 at 194,
Georgina Wood CJ noted thus,
“in our view,
a judgment or order which
determines the principal matter
in question is termed “final”,
whilst an interlocutory order
has also been defined in
Halsbury”s Laws of England(4th
ed) vol. 26 para.506 as:
“an order
which does not deal with the
final rights of the parties, but
either (1) is made before
judgment, and gives no final
decision on the matters in
dispute, but is merely on a
matter of procedure; or (2) is
made after judgment, and merely
directs how the declarations of
right already given in the final
judgment are to be worked out,
is termed interlocutory.”
Finally, I
will refer to this courts ruling
in a review application in the
case of
HALLE AND SONNS S.A v BANK OF
GHANA AND ANOTHER Civil Motion
No J7/11/2010 Coram
Akuffo, Brobbey, Dr Date-Bah,
Adinyira, Baffoe-Bonnie Aryeetey
and Akoto-Bamfo, JJSC.
(unreported)dated 15th December,
2010. The Court ruled as
follows:
“There is no
doubt in the mind of the Court
that the Judgment of Kusi- Apou
(as she then was) though summary
was final in nature. It is not
that a judgment if overturned on
appeal would be sent back to the
trial court on the merits that
determines the question of its
finality; rather, in Ghana, the
crystalized position is that the
determining factor is whether or
not the court’s orders, by
nature disposed of the disputed
issues between the
parties.”
From the
facts of the case before us and
the order made the only logical
inference is that the order was
interlocutory. The order was
made purely on matter of
procedure and also that the
courts orders did not dispose of
the disputed issue between the
parties. That the matter may not
resurrect in court again because
of procedural lapses does not
mean that the real issue in
controversy between the parties
has been dealt with to achieve
the status of finality.
It is this
Court’s holding therefore that
the order made by the trial High
Court setting aside the writ of
summons was interlocutory and
that any appeal therefrom was
subject to rule 9(1) of C.I. 19.
GROUND ONE
Rule
9(1) of the
Court of
Appeal Rules 1997 C.I.19
reads,
9. Time
limits for appealing
(1) Subject
to any other enactment for the
time being in force, no appeal
shall be brought after the
expiration of
(a)
twenty-one days in the case of
an appeal against an
interlocutory decision;
Or
(b) three
months in the case of an appeal
against a final decision unless
the court below or the court
extends the time.
In their
ruling which is the subject
matter of the appeal before us,
the Court of Appeal said that
since the order setting aside
the writ of summons was
interlocutory, an appeal from it
ought to have been filed within
21 days. Further the trial judge
did not have jurisdiction to
extend time within which to
appeal. The order extending time
therefore was made without
jurisdiction and therefore null
and void.
In his
submissions before us counsel
has tried in a masterly and
scholarly way to convince the
Court that time to appeal can be
extended not only in final
appeals but also in
interlocutory appeals. He has
taken the court through the
labyrinths of English grammar
with particular reference to the
use of punctuation marks.
Counsel for
the appellant submitted as
follows;
“The issue is
whether or not the exception
“unless the court below or the
court extends the time” in rule
9(1) (b) applies to both “(a)”
and “(b)”, or to “(b)”
exclusively.
The word “or”
in 9(1)(a) above does not stand
in isolation. It is preceded by
a semi colon (:) and the semi
colon needs to be interpreted
too. Section 14 of the
Interpretation Act, 2009 (Act
792) provides as follows:
“Punctuation
forms part of an enactment and
may be used as an aid to its
construction”.
In view of
the above provision it is the
submission of the appellants
that the semi colon which
precedes the “or” is an aid to
the construction of the whole of
rule 9(1). A semi colon has
several uses and it is for this
Court to determine the
particular meaning that the semi
colon is intended to convey in
the context of rule 9(1) of CI
19. Our humble submission is
that in this context the semi
colon signifies a pause in
communication but does not
truncate the message or meaning
being communicated. The words
or sentence which follows a semi
colon add more meaning to what
had already been said before the
punctuation; it provides further
information to the previous
message before the semi colon.
As such it follows that the semi
colon is not a signification of
a total break in communication
or change in meaning, or of
subject in rule 9(1).
Consequently, the legislature
should be deemed to have
intended a constructive link in
meaning between Rule 1 (a) and
(b); that was the reason for the
semi colon before the
conjunction “or”. Contextually,
the said conjunction must not be
construed literally as providing
completely two mutually
exclusive items. Indeed rule
9(4) reinforces our submission
above and we will demonstrate it
shortly below.”
"The
disjunction between “(a) and
“(b)” relate only to the
twenty-one days in the case of
an appeal against an
interlocutory decision in “(a)”,
and the ‘three months in the
case of an appeal against a
final decision.’ So construed,
the interpreter ought to apply
the exception, unless the
court below or the court extends
the time, to both “(a)” and
“(b)”. It is submitted that it
was that link that the
legislature intended to create
between “(a)” and “(b)” by using
a semi colon rather than a full
stop. The use of a semi colon
effectively shuts the door to
all meanings associated with a
full stop. Accordingly, it will
be erroneous to consider only
the “or” and disregard the
punctuation (the semi colon
before the ‘or’).”
I am really
surprised that counsel who seems
so enamored with the meaning and
usage of punctuation marks
misses the obvious in the rule
under construction. The semi
colon at the end of sub rule
1(a) followed by the word ‘or”
clearly brings out the
disjunction between the sub
rules (a) and (b). And this is
made even more pertinent by the
fact that sub rule 1(b) is one
sentence not broken by
punctuation mark except at the
end by a full stop. If the
draftsman wanted the expression
“unless the court below or the
court extends the time” to also
affect sub rule 1(a) he would
have broken the sentence by a
punctuation mark after the word
‘decision’ in sub rule(b) and/or
possibly brought the remainder
of that sentence onto a
different line to read as
follows;
“9. Time
limits for appealing
(1) Subject
to any other enactment for the
time being in force, no appeal
shall be brought after the
expiration of
(a)
twenty-one days in the case of
an appeal against an
interlocutory decision;
Or
(b) three
months in the case of an appeal
against a final decision;
unless
the court below or the court
extends the time. (emphasis
added)
For example
let us look at Article 2 of the
constitution 1992. It reads,
2 (1) A
person who alleges that__
(a) An enactment or
anything contained in or done
under the authority of that or
any other enactment; or
(b) Any act or omission of
any person,
is
inconsistent with, or is in
contravention of a provision of
this Constitution, may bring an
action in the Supreme Court for
a declaration to that effect.
It can
clearly be seen that the part of
the provision staring from ‘is’
and ending ‘effect’ is supposed
to refer to both sub clauses
(1a) and (1b). So they can
actually be read separately as
follows,
a Any
person who alleges that an
enactment or anything contained
in or done under the authority
of that or any other enactment;
is inconsistent with, or is in
contravention of a provision of
this Constitution, may bring an
action in the Supreme Court for
a declaration to that effect
b Any person
who alleges that any act or
omission of any person is
inconsistent……..(emphasis mine).
From the
arrangement of the wording in
the rule and the use of
punctuation marks, it becomes
rather obvious that the Court of
Appeal was right and the
Appellant was wrong in the
interpretation of the Rule.
That an
interlocutory appeal should
stricto sensu be filed within
the twenty-one days prescribed
by the rules has been
acknowledged and given judicial
fiat in many cases. I will refer
to a few.
In the case
of
DAVID ANDREAS HESSE VRS.
INVESTCOM CONCORTIUM SUIT NO
H3/350/2007 (unreported),
dated the 4th of July
2007 the Court of Appeal was
presented with a similar
situation where the Respondents
in that case applied for
extension of time within which
to appeal. Her Ladyship Mariama
Owusu, JA noted as follows:
“I am
strengthened by this court’s
decision in the case of PATRICIA
LITHUR VRS. SAMUEL KUDISAH & 2
OTHERS cited supra, where Her
Lordship OWUSU J.A had occasion
to comment on Rule 9(a) (a) of
CI 19. She said “I now attempt
to answer 2 questions posed
earlier on. I do not think that
the makers of the rules failed
to insert a provision for the 21
days to be calculated from the
date of the grant of leave for
no apparent reason. Rule 9(2)
fixes a definite time within
which the appeal must be filed
and it was their intention not
to exceed the 21 days under any
circumstances. For this reason,
the Court was not given the
power to extend the time so
fixed unlike an appeal against a
final decision where under Rule
9(1) (b), the court below or the
court extend the time”.
The Supreme
Court was presented with a
situation similar to that in the
Andreas Hesse case in the case
of
BOSOMPEM & OTHERS V. TETTEH
KWAME SC C/A J4/5/10
(unreported) dated 7th July 2010,
and this was the response;
“In his
one page statement in response,
Counsel for the respondent
submitted that, the decision to
refuse the application to go
into execution was interlocutory
and since same was given on 7th
April 2009, the rules allows
only 21 days to file an appeal
against same. By waiting till
7th July 2009 (3 months after
the decision) to file an appeal,
the application was incompetent.
Rule 8(1) a
of the
Supreme Court rules C.I 16
as amended reads
1)
Subject to any other enactment
governing appeals, a civil
appeal shall be lodged within
(a)
twenty-one days, in the case of
an appeal against an
interlocutory decision;
(b) three
months, in the case of an appeal
against a final decision unless
the Court below or the court
extends the period within which
an appeal may be lodged.
The
appellant herein has submitted
that by the nature of the
application and the outcome of
same the appeal is sustainable
because the decision is not
interlocutory but rather final.
A
determination as to whether or
not the decision appealed from
is interlocutory or final is at
the heart of this appeal because
as has often been said no right
of appeal exists save such as is
conferred by statute.
In the case
of In
re Amponsah [1960] GLR140
the Court of Appeal held,
“We are
clearly of the opinion that an
appellate court has no inherent
jurisdiction to entertain an
appeal from an order or decision
given by a court below it. In
all causes or matters an appeal
lies only if given by statute.”
AkuffoAddo
JSC (as he then was) in case of
Frimpong v Poku 1963 GLR 1 said,
“a right of
appeal is always conferred by
statute, and when the statute
conferring the right lays down
conditions precedent to the
vesting of that right in a
litigant it is essential that
those conditions must be
strictly performed otherwise the
right does not become vested.
In the
present appeal the rule that
regulates the appellate
jurisdiction of this court is
Rule 8(1) sub rules (a) and (b).
It is 21 days if interlocutory
and three months, if final.
Interestingly whilst the three
months in respect of final
judgment can be extended when
leave is sought and granted, no
such extension is countenanced
by the rule regulating
interlocutory appeals.”
It is the
Court’s holding that a party’s
right to appeal against
interlocutory orders is
extinguished after twenty one
days and no court has
jurisdiction to extend this
time!
This
provision is in keeping with the
current policy decision in
various jurisdictions to reduce
the time limits within which
substantive issues brought
before courts are determined and
also reduce the cost of
litigation to appreciable
levels. Indeed in some
jurisdictions like the UK and
the USA interlocutory appeals
are limited to very important
questions of law and are almost
extinct now.
GROUND 2
Section 92(2)
and (3) of Act 160 reads as
follows;
“A civil suit
shall not be commenced against
the authority until one month at
least after written notice to
commence the action has been
served on the authority by the
intending plaintiff or the agent
of the plaintiff
(3)The notice
shall state the cause of action,
the name and place of abode of
the intending plaintiff and the
relief he claims.”
Following the
preliminary objection raised by
the 1st respondent for their non
compliance with this provision
the trial judge held as follows.
“I have
carefully read all the
authorities cited and the only
logical conclusion I make is
that the enabling law Act 160
governs the operations of the
2nd defendant and the provisions
are quite clear and unambiguous.
The plaintiff ought to have been
more pro active concerning its
rights and obligations. The
plaintiff is caught squarely by
the provisions of section 92 (2)
of Act 160..
Before the
Court of Appeal the appellant,
referred to the comments of
ASARE Korang J (as he then was)
in the case of
EVANGELICAL PRESBYTERIAN CHURCH
V. ATTORNEY GENERAL [1993-94]GLR
429, and submitted
as follows’
"The Supreme
Court reached a similar decision
to the effect that the
precondition of serving a thirty
day notice on the Attorney
General before suing the state,
does not apply, with respect to
the fundamental human rights. As
such , we pray your lordships to
hold in respect of the case at
bar , that the thirty days
notice is unconstitutional. In
deed such a conclusion will not
amount to interpreting the
constitution, since the
constitutional provisions are
clear and your brother’s
decision has not been overruled
as amounting to constitutional
interpretation. Other cases in
which the Supreme Court has
upheld cases in which courts
other than the Supreme Court
have pronounced on the
constitutionality of laws are:
The
Re
public V. Maikankan [1973]2 GLR;
Auamoah ll v.Twum
[2000]SCGLR165;Republic v.
SPECIAL TRIBUNAL; EX PARTE
AKOSAH1980GLR 582’\;NANA YIADOM
V NANA AMANIAMPONG[1981] GLR and
AGYEKUM V. BOADI SCGLR 282.”
The Court of
Appeal accepted the invitation
that ruling on the
subject will not amount to
usurping the jurisdiction
exclusively reserved to the
Supreme Court in matters of
interpretation, and promptly
ruled as follows,
“I note that
after the decision in the E.P.
Church case, the legislature
quickly enacted a new
State
Proceedings Act in 1998 (ACT 555)
which still retains in Section
10 the requirement of serving
thirty days notice on the
Attorney General in Civil
Actions against the Republic of
Ghana. The requirement of
service on the Attorney General
is therefore still on our
statute books’ In the instant
appeal I have not been informed
about, nor have l seen any
legislation striking down
Section 92 of Act 160. In the
circumstances, there is no law
to the effect that Section 92 is
unconstitutional and l hold that
the failure or neglect of the
plaintiffs to serve notice on
the 2nd defendant renders their
writ of summons and statement of
claim incompetent and is hereby
set aside.”
Interestingly
after extending the invitation
in very unequivocal terms and
same accepted by the Court of
Appeal, because the Court's
rendition was not favorable, the
appellant changed gear and
submitted as follows,
”We drew the
Court of Appeal’s attention to
the need to refer this matter to
this court for constitutional
interpretation at page 44 of the
record (par 7). The 1st
respondent also raised the
constitutionality of section
92(2) in their written
submissions at pages 61-65 of
the record and appellants raised
it again on page 66 of the
record of appeal yet the Court
chose to pronounce on the
constitutionality of the said
provision without referring same
to this Honourable Court. This
Honorable Court stated and
admonished judges of courts
lower than the Supreme court, to
refer cases that require
constitutional interpretation to
this court and has given
guidance on how to proceed to do
same:
TSURU V. ATTORNEY GENERAL 2010
SCGLR904.”!
Clearly the
appellant is blowing hot and
cold or approbating and
reprobating. In one breath the
Court of Appeal is competent to
pronounce on the matter because
the words are clear and
unambiguous and require no
interpretation, and when the
pronouncement goes against them
then it is purely
constitutional and same ought to
have been referred.
It is true
that this Court has admonished
all courts on the need for
courts lower than the Supreme
Court to refer matters that
border on interpretation to the
Supreme Court. The following
quote by Ocran JSC in the case
of
REPUBLIC V. HIGH COURT(FAST
TRACK DIVISION)ACCRA; EX PARTE
ELECTORAL
COMMISSION.(METTLE-NUNOO &OTHERS
INTERESTED PARTIES)[2005-2006]
SCGLR514 AT PG 559
,encapsulates the Court’s views
on this matter. He said
“…..in
dealing with constitutional
provisions which have received
little or no prior judicial
interpretation, the trial court
should not presume that there is
no issue of interpretation; it
will be a safer course of action
for the trial court to refer the
matter to the Supreme Court
rather than to assume that there
is no real issue of
interpretation, or that his or
her view of the constitutional
provision is more likely to be
more correct than that of five
or seven Supreme Court Justices
put together.”
This was
cited with approval by WOOD CJ
in the case of
REPUBLIC
V. HIGH COURT (FAST TRACK
DIVISION)ACCRA;EX PARTE
COMMISSION ON HUMAN RIGHTS AND
ADMINISTATIVE JUSTICE. ( RICHARD
ANANE, INTERESTED
PARTY)[2007-2008] SCGLR 213 at
pg 235.
However it
has also been held by this Court
in countless number of cases
that it is not every matter that
has to be referred to the
Supreme Court for interpretation
and that when the words of a
statute are plain and
unambiguous the courts are only
required to give vent to the
meaning as expressed without
having to interpret them. Thus
in the case of
REPUBLIC V. ASIAMAH [1971] 2
GLR478 the Supreme
Court said as follows
“We wish to
stress that it is not every
submission in a trial that an
issue is a question or matter
relating to the interpretation
of any provision of the
Constitution that has to be
referred to this court for
determination under article 106
of the constitution. Where the
language of the article is clear
and unambiguous no question of
interpretation arises to warrant
a reference. The submission may
well relate to no more than a
proper application of the facts
or issues, and this is a matter
which the trial court has
jurisdiction to determine.”
See also the
cases of
REPUBLIC V SPECIAL
TRIBUNAL EX PARTE AKOSAH (1980)
GLR 592 C.A; REPUBLIC V JUDICIAL
SECRETARY EX PARTE TORTO [1979]
GLR 444 CA AND REPUBLIC V
SPECIAL TRIBUNAL EX PARTE FORSON
(1980) GLR 529.
What article
of the constitution was required
to be interpreted in the High
Court that ought to have been
referred to the Supreme Court?
None. Before the High Court the
issue to be decided was whether
a person who initiated an action
against the Ghana ports
authority was properly before
the court if he failed to comply
with section 92(2) of the law.
The trial
Judge’s answer was that failure
to comply with the clear
provisions of the statute
rendered the writ null and void.
The appellant
appealed to the Court of Appeal
on the ground that the learned
trial judge erred in holding
that the failure of the
plaintiffs to serve the 2nd
defendant with prior notice in
accordance with section 92 0f
PNDC Law 160 rendered the
plaintiff’s action null and
void. The Court of Appeal’s
answer was as follows;
“In the
instant appeal, l have not been
informed about nor have l seen
any legislation striking down
Section 92 of Act 160. In the
circumstances, there is no law
to the effect that Section 92 is
unconstitutional and I hold that
the failure or neglect of the
plaintiffs to serve notice on
the second defendant renders
their writ of summons and
statement of claim incompetent…”
The
contentious section of the Act
reads;
“92(2) A
civil suit shall not be
commenced against the Authority
until one month at least after
written notice of the intention
to commence the action has been
served on the Authority by the
intending plaintiff or the agent
of the plaintiff.”
Clearly there
is nothing ambiguous or unclear
about this provision and the
trial judge rightly, in our
view, held that the use of the
word ‘shall’ in the subsection
made it mandatory, and that
failure to comply with same made
the plaintiff improperly before
the court. Before us the
appellant has argued that Court
of Appeal was wrong in ruling on
the constitutionality or
otherwise of section 92(2) and
that same should have been
referred to the Supreme Court to
pronounce on. We think the
appellant is getting it all
wrong. Yes it is true that the
constitution is the supreme law
of the land and any other law
found to be inconsistent with
any provisions of it shall to
the extent of the inconsistency,
be void. (Art.1(2) of the
Constitution 1992. But Article
2(1) reads;
A
person who alleges that__
"An enactment
or anything contained in or done
under the authority of that or
any other enactment; is
inconsistent with, or is in
contravention of a provision of
this Constitution, may bring an
action in the Supreme Court for
a declaration to that effect”.
As far as the
trial judge and justices of the
Court of Appeal were concerned
they were confronted with a
straight case of enforcing an
Act whose meaning was clear and
unambiguous. It did not call for
any interpretation and therefore
did not warrant a reference to
the Supreme Court. And as the
Court of Appeal rightly noted,
in the absence of any
pronouncement by the Supreme
Court striking down the said
provision as unconstitutional,
failure to comply with its
mandatory requirements rendered
the writ void.
The appeal
therefore fails on all grounds
and same is dismissed.
(SGD) P. BAFFOE BONNIE
JUSTICE
OF THE SUPREME
COURT
(SGD) S. A. B. AKUFFO (MS)
JUSTICE OF THE SUPREMECOURT
(SGD) DR. S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT
(SGD) J.
ANSAH
JUSTICE OF THE SUPREME COURT
(SGD) V. AKOTO BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
COUNSEL
MARTIN KPEBU
FOR THE
APPELLANTS.
OSAFO BUABENG
WITH HIM VIVIAN TETTEH FOR THE 1ST
RESPONDENT.
MARIETTA
APPIAH- OPPONG FOR THE 2ND
RESPONDENT. |
