The Republic Vrs High court fast track, Accra And Others ( J5/22/2009) [2009] GHASC 14 (22 July 2009);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA
_______________________
CORAM: ATUGUBA, JSC (PRESIDING)
DATE-BAH (DR.), JSC
ANSAH, JSC
ANIN YEBOAH, JSC
BAFFOE-BONNIE, JSC
CIVIL MOTION
NO. J5/22/2009
22ND JULY 2009
THE REPUBLIC
VERSUS
HIGH COURT, FAST TRACK 1, ACCRA ... RESPONDENT
EX-PARTE: NATIONAL LOTTERY AUTHORITY ... APPLICANT
- GHANA LOTTERY OPERATORS
ASSOCIATION
- OBIRI ASARE & SONS LTD.
- RAMBEL ENT. LTD.
- AGROP ASSOCIATION LTD. ... INTERESTED PARTIES
- DAN MULTI-PURPOSE TRADING ENT. LTD.
- STAR LOTTO LTD.
- FROM-HOME ENTERPRISES
_____________________________________________________________
R U L I N G
ATUGUBA, JSC:
The Facts:
On 13/8/2007 the interested parties, who are private lotto operators, issued a writ in the High Court against the applicant challenging the constitutionality of the National Lotto Act, 2006 (Act 722) on the grounds that it violates their fundamental economic rights under the 1992 Constitution and claiming consequential reliefs. The issues as to constitutionality of the Act were referred by the trial judge to this court for determination. This court on 23/7/2008 upheld the constitutionality of the said Act, see Ghana Lotto Operators Association & Others v National Lottery Authority (2007-2008) SCGLR 1088. Pursuant to this decision the applicant successfully applied to the trial court to dismiss the interested parties’ said action.
Aggrieved, the interested parties appealed to the Court of Appeal and pending the determination of the same, were granted an interim injunction by the trial court, restraining the applicant from interfering with their “work or property rights”.
Accordingly the applicant moves this court “for an order of certiorari directed to the Fast Track High Court 1, Accra presided over by His Lordship Asante J to move into this Court for the purpose of quashing the order of the court dated the 1st day of April 2009 granting the interested Parties’ application for interlocutory injunction pending appeal…
AND ……. THAT the ground for the application is as follows-
- error of law apparent on the face of the record.”
Particulars of the Application
The applicant’s grounds for this application as verified by its supporting affidavit and appearing in paragraphs 12, 13 and 18 of its statement of case are as follows:
“12. My Lords, upon the coming into force of Act 722, private lotto was outlawed subject only to the transitional arrangements provided in section 58(1) to (3). By those provisions any person who prior to the commencement of Act 722 was licensed to operate lotto, may within ninety days of the commencement of the Act apply to the Director-General to be licensed as a Lotto-Marketing Company of the Ghana National Lottery Authority. In default the licence of such person shall be deemed to have been revoked after ninety days. And such person whose licence is revoked but continues to conduct lotto of any kind commits an offence under the Act.
13. This court may take judicial notice of the fact that Act 722 received gazette notification on 29 December 2006. By section 11 of Acts of Parliament Act, 1960 of (CA 7), except so far as may be otherwise provided in an Act, the Act comes into operation at the commencement of the day on which it is published in the Gazette. Therefore Act 722 came into force on 29 December 2006. Ninety days from 29 December 2006 was 30 March 2007. Therefore as of 30 March 2007 the licence of the plaintiffs (who have all refused to apply to the applicant to be licensed as Lotto Marketing Companies) to operate private lotto was deemed to have been revoked and any operation by them of private lotto was illegal. Thus the status quo ante at the commencement of this action was that Act 722 prohibited the Interested Parties from operating private lotto.
X X X X X X X X X
18. And therein lies the error of law complained of. That a judge knowing very well that the law has made the carrying on of a particular business illegal authorizes a person to carry on with prohibited business pending the determination of their appeal is not in keeping with the judge’s duty to uphold the law. The Respondent did not have the jurisdiction and power to authorise anybody to breach the law and any such decision will not only be a nullity but also unreasonable”.
The interested parties have not shown that they have applied for a licence within the statutory period to operate as Lotto Marketing Companies under Act 722. Clearly then the effect of the interim injunction protecting their “work or property rights” is to grant them, so to speak, a temporary judicial licence to operate in the lotto business.
The Courts and Legislation.
It is communis opinio among lawyers that the courts are servants of the legislature. Consequently any act of a court that is contrary to a statute, is, unless otherwise expressly or impliedly provided, a nullity, see Regina v Sarpong (1960) GLR 15 C.A., Mosi v Bagyina(1963) 1 GLR 337 S.C, Republic v District Magistrate Accra, ex parte Adio (1972) 2GLR 125 C.A.,Okomfo Afuah v Sarbah (1974) 1 GLR 147, Adjei v The Republic (1977) 1 GLR 156, Agbeko v The Republic (1977) 1 GLR 408.
Consequently the courts have been bound to hold that the courts’ own law, the common law, must give way to statute. Thus in Addai v Donkor (1972) 1 GLR 209 C.A. at 228 Azu Crabbe JSC said:
‘In R v Morris (1876) 10 Cox C.C. 480, Byles J said at p. 485 “[I]t is a sound rule to construe a statute in conformity with the common law rather than against it, except where or so far as the statute is plainly intended to alter the course of the common law.’
Judicial Discretion.
In this case the trial judge considered the application for interim injunction only in accordance with the typical common law principles for determining an application for interim injunction. Thus he said:
“I think that there are triable issues between the parties and the doors of justice must not be closed. Having made this finding, I think that it is only fair to maintain the status quo ante pending the determination of the appeal by the Court of Appeal because more hardship will be occasioned if they are made to stop work pending the appeal. In the final analysis I hold that there are triable issues raised to be tested in the Court of Appeal between the parties herein and I therefore proceed to restrain the defendant/respondent from interfering with the work or property rights of the applicants pending the final determination of the appeal”(emphasis supplied).
However, the Courts have, consistently, insisted that it is their duty to observe and enforce the statutes of the land. As long ago as 1890, in Attorney-General v Emmerson (1890) 24 QBD 56 C.A. at 58 Lord Esher M.R. dealing with O.LVIII, r.6 of the English Procedure Rules in respect of which it was strenuously contended that there was a firmly established judicial practice as to how the discretion therein conferred should be exercised, said:
‘The Courts have no power to alter the effect of the rule; no authority to establish any practice in conflict with the rule, and no power to say that it shall be binding upon the Courts. I decline to take any other view than that the Court has discretion in each case.’
Concurring, Lindley LJ at p. 59 said:
‘I am of the same opinion. I must protest against the notion that any Court has a right to lay down a rule which shall limit the discretion given by Order LVIII., r.16. The Court must decide upon the particular facts of each case. It is not competent for any Court or judge to lay down a rule which shall limit the exercise of that discretion. I am aware that it has been done- one can see that it saves a judge trouble, if he can satisfy himself that such a practice exists- but it has not been rightly done.’
See also Akufo-Addo v Quarshie-Idun (1968) GLR 667 C.A.(Full Bench).
In Republic v High Court, Kumasi, ex parte Khoury (1991) 2 GLR 393 SC at 399 Francois J.S.C. said “This court has a duty to enforce the Statutes of this land”. Similarly at 403, Edward Wiredu J.S.C. said: “I think any attempt on the part of any court to entertain any application of the type under consideration (i.e., after a party has lost twice) where the losing party did not seem to respect time limits imposed by the law, would be defeating the intended purpose of the legislature. Courts are enjoined to insist on time being observed strictly…”
Similarly, In Industrie Chimiche Italia Centrale and another v Alexander Tsaviliris & Sons Maritime Co and Others The Choko Star (1996) 1 All ER 114 QBD at 128 Manche J said:
‘The problem about invoking any inherent jurisdiction in the present situation, is that, if the existing rules of court are not wide enough to cater for it, then there is a statutory prohibition in s.35(3) of the Limitation Act 1980 upon the court allowing the proposed new claim. I do not presently see how any inherent jurisdiction which would otherwise exist could survive or be exercised in the face of that prohibition.’ (Emphasis supplied).
It is not surprising therefore that it has been held by this court that when a body is entrusted with statutory discretion the courts should be careful not to clog its exercise with injunctions. See Attorney-General v Commission on Human Rights and Administrative Justice [1999-2000] 1 GLR 358 S.C. This however does not mean that an interim injunction cannot lie against the improper use of statutory discretion see Amoah and Others v West African Examinations Council and Another(1971) 1GLR 63.
In this case however, Act 722 has imposed a statutory ban on private lotto operators unless they comply with its provisions.
As recently as last week in The Republic (Respondent) vs. High Court, Koforidua Ex parte: Dr Kofi Asare(Applicant) and 1. Baba Jamal Mohammed Ahmed, 2. Mr Samuel Abrokwa 3.Mr Basil Ahiable, 1ST Interested Parties, and The Electoral Commission, No 8, 8th Avenue Ridge, Accra 2nd Interested Party, Civil Motion J5/22/2009, dated 22nd July 2009, the whole thrust of my judgment was that it is not open even to a court to exercise its jurisdiction in such a manner and in such circumstances as would contravene the constitutional order of the country as laid down by the provisions of the1992 Constitution of Ghana.
Conclusion
In this case the question of the constitutionality of Act 722 has been settled by this court, and even if it were not, a statute is presumed to be valid until it is otherwise decided. Therefore the proper exercise of the discretion in this case would have been to refuse the injunction, otherwise the interested parties would thereby be assisted by the court to commit an illegality. Thus in Canadian Pacific Railway v Gaud and Others (1949) 2 K.B. 239 C.A., before granting an interlocutory mandatory injunction in that case, the Court went to great lengths to ensure, in the words of Cohen L.J. at 248 that:
‘without deciding anything as to what may happen on further evidence, there is no evidence on which we could hold that by granting the injunction we should be assisting the plaintiffs in committing an illegal act.’
Even as regards the parties’ private rights he said:
‘The fact that the order would involve expelling Canadians from a Canadian ship is a factor for the judge to consider when exercising his discretion; but he must also consider whether, if the evidence shows that the men are trespassers, they should be allowed to continue their trespass to the prejudice not only of the landowners, but also of the Port of London Authority and those seeking to be supplied with the food which the ship was bringing to this country.’
Continuing, he said at 249 thus:
‘Mr Collard’s third point is that the defendants are not trespassers, on the ground that their articles have never been validly terminated. I desire to deal wit this point as shortly as possible; I do not want to say anything to prejudice the position of the parties if the action comes to trial. It is perhaps enough to say that on the evidence as it stands, it seems to me to show that the defendants had committed a clear breach of the articles. Assuming that we decided that the plaintiffs were also in breach, in negotiating with the rival union, that does not justify the defendants in continuing to refuse their services and thus commit further breaches of the articles. Two wrongs cannot make a right…’
All this upholds the principle in Asare v Brobbey (1971) 2GLR 33 C.A. in which at 338 Archer J.A. (as he then was) delivering the judgment of the Court of Appeal said: “In Phillips v Copping (1935)1 KB 15 at p. 21 C.A., Scrutton L.J. said “it is the duty of the Court when asked to give a judgment which is contrary to a statute to take the point although the litigants may not take it.”’
Were the trial judge to direct himself in the foregoing terms he would not have grated the injunction. That grant was ultra vires the court, in that it was in excess of the court’s jurisdiction and consequently also an error on the face of the record.
I would therefore grant this application.
W. A ATUGUBA
(JUSTICE OF THE SUPRME COURT)
DR. DATE-BAH, JSC:
This application for certiorari is yet another stage in an acrimonious saga that has unfolded between the National Lottery Authority, the applicant herein, and the Ghana Lotto Operators Association and some of its constituent members, the interested parties. A new regulatory regime, embodied in the National Lotto Act, 2006 (Act 722), has been enacted by Parliament, which the interested parties find unacceptable. This has led to a spirited legal contest between the interested parties and the applicant which has resulted in aspects of their dispute appearing before this court no less than three times.
The present application flows from the grant of an interlocutory injunction by His Lordship Justice Asante in the Fast Track High Court I, Accra. The facts leading to the grant of that injunction have been stated by my brother Atuguba JSC with his usual accuracy and will, therefore, not be repeated here.
I agree that the order made on the 1st day of April 2009 by his Lordship Justice Asante granting the Interested Parties an interlocutory injunction pending an appeal should be brought to this court and be quashed. The learned judge acted in obvious excess of his jurisdiction. No judge has authority to grant immunity to a party from the consequences of breaching an Act of Parliament. But this was the effect of the order granted by the learned judge. The judicial oath enjoins judges to uphold the law, rather than condoning breaches of Acts of Parliament by their orders. The end of the judicial oath set out in the Second Schedule of the 1992 Constitution is as follows:
“I will at all times uphold, preserve, protect and defend the Constitution and laws of the Republic of Ghana.”
This oath is surely inconsistent with any judicial order that permits the infringement of an Act of Parliament.
Furthermore, an interlocutory injunction is an equitable remedy and it is unimaginable that a court of equity would allow its effect to permit a party to perform an illegal act and to shield the party from the consequences of the breach of a statute. Even a contract to perform an illegal act will be declared void by the courts. I do not see how the same courts can find their way clear to permit, by injunction, the performance of acts prohibited by an Act of Parliament which has been declared by this court to be constitutional.
In the old English case of Great Western Railway Company v Oxford, Worcester and Wolverhampton Company (1853) 43 ER 133; 3 De G.M & G 341, Lord Justice Turner expressed the view, in a case in which an injunction was being sought, that:
“The jurisdiction to interfere is purely equitable, and it must be governed by equitable principles. One of the first of those principles is that parties coming into equity must do equity; and this principle more than reaches to cases of this description. If parties cannot come into equity without submitting to do equity, a fortiori, they cannot come for the summary interference of the court when their conduct before coming has been such as to prevent equity being done.”
In my view, the interested parties in this case have not done equity before seeking equity, contrary to the equitable maxim that he who seeks equity must do equity. Knowing full well that that there is a valid Act of Parliament in place that requires any lotto operator to have a licence before it can operate a lotto business, they have sought an injunction that will enable them to defy that Act of Parliament with impunity until the determination of their appeal. That is not coming to equity with clean hands! That is another of the maxims of equity which is applicable in this context. The interested parties’ “unclean” behaviour in defying an Act of Parliament, which has been held by this court to be constitutional, should disentitle them to the equitable remedy of injunction which the court below has granted them. But, this is a ground which is probably more suited to serving as the basis for an appeal, rather than to the invocation of certiorari.
The main ground in support of certiorari, as indicated above, is that the court below exceeded its jurisdiction when it made an order whose effect is to allow the infringement of an Act of Parliament. Accordingly, I agree that certiorari lies on the facts of this case.
DR. DATE-BAH
(JUSTICE OF THE SUPRME COURT)
J. ANSAH
(JUSTICE OF THE SUPRME COURT)
ANIN YEBOAH
(JUSTICE OF THE SUPRME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPRME COURT)
COUNSEL:
KIZITO BEYUO FOR THE APPLICANT
AURELIUS AWUKU FOR THE INTERESTED PARTIES
