The Republic Vrs High court Fast Track 2 And Another (J5/7/2009) [2009] GHASC 15 (11 February 2009);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA
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CORAM: ATUGUBA, JSC (PRESIDING)
DATE-BAH, JSC
ANSAH, JSC
ADINYIRA (MRS), JSC
OWUSU, JSC
CIVIL MOTION
J5/7/2009
11TH FEBRUARY 2009
THE REPUBLIC
VERSUS
HIGH COURT, FAST TRACK 2, - RESPONDENT
EX PARTE: GHANA LOTTO OPERATORS - APPLICANT
ASSOCIATION.
NATIONAL LOTTERY AUTHORITY - INTERESTED PARTY
____________________________________________________
RULING
ATUGUBA, J.S.C:
I agree with the Ruling of my able brother Dr. Date-Bah J.S.C. However I find it necessary to express my views on certain aspects of t his case.
The first is the ambit of the power of transfer of cases given to the Chief Justice under S.104(1) – (3) of the Courts Act, 1993 (Act 459), as amended.
It provides thus:
“104 (1) Subject to the provisions of the Constitution, the Chief Justice may by order under his hand transfer a case at any stage of the Proceedings from any Judge or Magistrate to any other Judge or Magistrate and from one court to another court of competent jurisdiction at any time or stage of the proceedings and either with or without an application from any of the parties to the proceedings.
(2) The order may be general or special and shall state the nature and extent of the transfer and in any case of urgency the power of transfer may be exercised by means of a telegraphic, telephonic or electronic communication from the Chief Justice.
(3) A transfer of a case made by telegraph, telephone or electronic communication and not confirmed immediately by order signed and sealed in a manner specified by the Chief Justice or any other person authorized in that behalf by him shall be of no effect.”
These provisions are not new: They are a carry over from the inception of our legal system. They came up for consideration in Osei v. The Republic (1968) GLR 704 C.A. The issue arose and was dealt with by Apaloo J.A. (as he then was) delivering the judgment of the court at 711 as follows:
“The last submission which was made on behalf of the first appellant is supposed to be a plea to the jurisdiction of the court below as constituted. It is said that as the case originally came before the court constituted by Edusei J. he was lawfully “seised” of it and he could therefore not be divested of jurisdiction without a formal order of transfer made by the Chief Justice in accordance with paragraph 38 of the Courts Decree, 1966 (N.L.C.D. 84). As no such order was made Amissah J.A., who eventually heard the case, had no jurisdiction.
This argument, whatever its attraction, is not new. It was made in almost identical language in Akainyah v. The Republic [1968] G.L.R. 548, C.A., a case in which Mr. Adade was junior counsel, and was rejected in a judgment delivered by this court on 1 July 1968. Learned counsel for the first appellant did not profess ignorance of this decision. His point is, that the Akainyah decision claimed its authority from a ruling of the full bench in Asare v. The Republic [1968] G.L.R. 37. Mr. Adade says, the Asare ruling did not decide the point and the decision in the Akainyah case on this point was therefore given per incuriam. Accordingly, Mr. Adade submits in effect, that the point at issue is re integra and invited us to decide it afresh
We think, on reflection, that the point in question was not wholly decided in the Asare ruling and some observations made by the court on N.L.C.D. 84, para. 38, may well be obiter in view of the ratio of the ruling. But this court expressed its independent view in the Akainyah case and used the Asare ruling as merely fortifying it. It may be the Asare ruling is not as solid a fortress as the court thought, but that seems a different thing from saying that the decision given in the Akainyah case was per incuriam.
In any event, what Mr. Adade invited us to accept, was that as the case appeared on the list of Edusei J. he was either “seised” of it or it was pending before him and that unless recourse is had by the Chief Justice to his power under paragraph 38 of the Courts Decree, 1966, the case cannot lawfully be “pending” before any other judge of that court. And in the submission of Mr. Adade, the judge will be lawfully “seised” of a case or it will be pending before him, if it ever appeared on his list for whatever purpose. It is perhaps a tribute to legal ingenuity that a provision of an enactment which confers absolute discretion on the Chief Justice to transfer a case from one judge to another, is sought to be interpreted to derogate from the authority of judges whom paragraph 29 of the courts Decree, 1966, invests with “equal power and jurisdiction.”
But in so far as the contention of Mr. Adade is a temptation to us to lay down when and in what circumstances the power of transfer conferred on the Chief Justice by paragraph 38 of the Courts Decree may be properly exercised, we resist that temptation. It would be unwise to hamstring the exercise of a blanket administrative power by a needless judicial interpretation. All we need do, is to state what “seised” of or “pending” of a case before a judge can mean in the context of the practice of our courts. In our opinion, a case can only be said to be properly “pending” before a judge or “seised” of by him if he actually commenced the hearing thereof. We decline to define the word “pending” or “seised” in vacuo. It can be of no assistance to anyone if we did.
In this case, in so far as the record of proceedings can be said to be any guide, this case appeared on the list of Edusei J. on six occasions. He did no more than adjourn it on each such occasion. It then came on the list of Azu Crabbe J.A. on two occasions. It suffered the same fate. In our view, this case was at no time “pending” before either of these judges nor was it ever lawfully “seised” of by them. What seems incontrovertible, is that this case was pending in the High Court. There was therefore no need for the Chief Justice to go to the trouble of making a formal order of transfer in exercise of his power under paragraph 38 of the Courts Decree, 1966. We hold therefore that Mr. Adade’s contention fails and this disposes of the appeal of the first appellant. ”
Sections 38 and 39 of N.L.C.D. 84 which wee involved in that case provided as follows:
“The chief Justice may by order under his hand at any time or stage and either with or without application from any of the parties, transfer any cause or matter from a judge of a Court referred to in this Decree to any other Judge of such Court and from a Court referred to in this Decree to any other competent Court. The order may be general or special, and shall state the nature and extent of such transfer, and in any case of urgency the power of transfer may be exercised by means of a telegraphic or telephonic communication from the Chief Justice.
Nothing in this Part shall validate the transfer of a cause made by telegraphic or telephonic communication and not confirmed forthwith by order signed and sealed in a manner specified by the chief Justice or any other person authorized in that behalf by him.”
It is a trite rule of construction of statutes that when the same or similar words of a statute which have received construction by a superior court are retained in a subsequent statute in pari materia, they are presumed to carry the same meaning to which they were earlier given. If this rule were to be applied in this case a different result would have had to be reached. However the said rule is not of inflexible application.
Besides, this court is not bound by the 1968 decisions of Osei v. The Republic and others, though they are of persuasive authority, see In re Agyepong (Decd); Donkor v Agyepong (1973) I GLR 326, C.A. But even if this court were bound by those decisions it could depart from them if necessary under article 129(3) of the constitution.
With the greatest respect I find the reasoning in Osei v. The Republic to the effect that in Ghana a judge is said to be seised of a case or that it is pending before him only when the judge has actually commenced hearing it difficult to accept, at any rate in relation to the power of transfer of cases by the Chief Justice. I should have thought that a judge is seised of a case when he has power to take any step in relation to the case and that such power begins from the moment the case is listed before him. Therefore in Durston v. O’Keefe (1974) I WLR 775 Forbe J. even held that once the registrar made an order referring a cause to an official referee he became seised of it. See also Taylor J.S.C. in Darke IX v. Darke IV (1984-86) IGLR 481 S.C. at 498. No such words as “commenced” or “part-heard” are used in s.104(1)-(3) of Act 459 and should not be read into that section, see Republic v. Fast Track High Court Accra, Ex parte Daniel (2003-2004) ISC GLR 364.
I should think that this view of the matter is inherent in the words “…transfer a case at any stage of the Proceedings [and]….at any time or stage of the proceedings …” To restrict these words to the stage where a judge has actually commenced the hearing of a case would render these words partly inoperative.
Since, however it appears that no objection was taken to the proceedings heard by Armissah J.A. in the Osei case, supra, they could have been saved by the principle in Price v. Humpries (1958) 2 Q.B. 353 applied in Ababio v. Tutu (1962) IGLR 489 at 492 S.C. and Rupblic v. Ada Traditional Council Ex partie Nene Okunno II (1971) IGLR 412. In the latter case at p.416 Abban, J commenting on Price v. Humpries aforesaid, stated: “The court made it clear that where what is in issue is simply the question whether proceedings are properly authorized, then it is a matter of procedure. So that if the defence was to challenge that and take objection, the objection should be taken before the case for the prosecution is closed….”. (e.s)
It is also known that these days a lot of malpractices with regard to listing cases before judges occur in our courts. For all the foregoing reasons I would sill endorse the principles with regard to the transfer of cases by the Chief Justice as stated in the case copiously referred to by my brother Dr. Date-Bah J.S.C.
As regards exceptional circumstances that may be outside the strict application of section 104, the question of urgency has been confessed and provided for by S.104(2) of the Courts Act, 1993.
Nonetheless in construing a statute whether it concerns jurisdiction or otherwise it is always necessary to bear in mind what Archer J.A said in Shardey v. Adamptey and Shardey v. Martey (1972) 2 GLR 380 C.A. At 386 he quotes the words of Sir W. Scott in The Reward (1818) 2 Dod. 265 at 269-270 that “the court is not bound to a strictness at once harsh and pedantic in the application of statutes.” (e.s)
One also has to bear in mind the implications of s.104 conferring the power of transfer on the Chief Justice by the designation of that office. Article 297(h) of the constitution provides: “In this constitution and in any other law,
X X X X X X
(h) words directing or empowering a public officer to do any act or thing, or otherwise applying to him by the designation of his office, include his successors in office and all his deputies and all other assistants;”
This adopts the position under administrative law. See Attorney-General of Gambia v. N’jie (1961) 2 A11ER 504 P.C. and my views in Agbevor v. Attorney-General (2000) SC GLR 403.
However in this case there is no satisfactory evidence of authorization of transfer of the case by the office of the Chief Justice and the facts do not also disclose any exceptional circumstances so as to obviate the application of s.104 (1) – (3) of Act 459.
For all the foregoing reasons I would also grant this application.
W. A. ATUGUBA,
( JUSTICE OF THE SUPREME COURT)
DATE-BAH JSC:
The facts in this case are undisputed and relatively simple. The Interested Party in this case applied to the High Court to dismiss an action that had been brought by the applicant and other plaintiffs in this case. Its reason for bringing that application was that because of the opinion expressed by the Supreme Court on 23rd July 2008 on certain constitutional issues referred to it by the High Court in this case, no cause of action survived that the applicant could legitimately pursue. Although the reference had been made by His Lordship Justice Abada, the Interested Party’s application was placed before His Lordship Justice Edward Amoako Asante, by an order of transfer made by the Chief Justice. Justice Asante ruled on 20th August 2008 upholding the Interested Party’s application and characterising the applicant’s suit in the court below as ”unmeritorious and an abuse of the judicial process to unlawfully challenge a legally sanctioned act.” Aggrieved by this outcome, the applicant filed an appeal and filed an application for an interim injunction on 21st August 2008, which was fixed for hearing on 3rd September 2008. On 3rd September 2008 the case was called before Asante J, who adjourned it to 22nd October 2008 for hearing. However, on the 22nd October, when the applicant and the other plaintiffs in the suit appeared in the High Court, Fast Track 1, Justice Asante was not available and so his clerk adjourned the case to 6th November 2008. On the same day, however, the case was also called in the High Court, Fast Track 2, presided over by Justice Ofori-Atta. He heard submissions by counsel for the Interested Party, in the absence of the applicant and its counsel, and fixed 4th November 2008 for his ruling.
On 4th November, the applicant and its counsel appeared before Ofori-Atta J and raised an objection to his delivering a ruling in the case on the ground that the case had not been transferred to him by the Chief Justice. Justice Ofori-Atta nevertheless proceeded to give his ruling, dismissing the application for interim injunction. The applicant contends that this ruling and the hearing of the application on 22nd October should be quashed by this Court as having been made without jurisdiction by Ofori-Atta J, since there was no order of the Chief Justice transferring the case from Justice Asante to Justice Ofori-Atta.
What this Court has to determine is whether certiorari lies to quash the proceedings of 22nd October and the ruling delivered by Ofori-Atta J on 4th November. From the facts narrated above, it would appear that certiorari should lie, unless a matter restraining the exercise of this Court’s jurisdiction can be established. This is because the clear meaning of section 104 (1) to (3) of the Courts Act, 1993 (Act 459), as amended by the Courts (Amendment) Act, 2002 (Act 620) section 7 and its schedule is that the Chief Justice may by an order under his or her hand transfer a case at any stage of proceedings before any Judge or Magistrate. The clear implication of this is that nobody else, including Registrars, is authorised to transfer a case between judges once proceedings have commenced before them. The applicant has relied on case law that reinforces this necessary and obvious implication. The cases he cites are: Soro v Frans [2005-2006] SCGLR 1003; Republic v High Court, Kumasi; Ex parte Mobil Oil (Ghana) Ltd. (Hagan Interested Party) [2005-2006] SCGLR 312 and Republic v High Court Judge (Fast Track Division), Accra; Ex parte Quaye and Another (Yovonoo and Others – Interested Parties) [2005-2006] SCGLR 660. I am persuaded by section 104 of the Courts Act and the cases cited above that a Registrar, without an order from the Chief Justice, has no authority to move a case, including interlocutory applications, from one High Court judge to another. If the Registrar does that, the receiving High Court judge acquires no jurisdiction and therefore proceedings before him or her would be null and void. In support of this proposition, I would like to cite the following passage from Wood JSC’s judgment in Soro v Frans (supra) at p. 1008, where she says:
“The power to transfer and thereby take away the jurisdiction of any judge to hear and determine any cause or matter pending before him or her, be it part-heard or a fresh matter, is in stricto sensu reserved exclusively in the Chief Justice under section 104 of the Courts Act, 1993 (Act 459). A supervising High Court Judge and the Chairman of the Regional Tribunal are also empowered to order the transfer of cases, but their powers are understandably subordinate to that of the Chief Justice.”
The Interested Party seeks to avert this logical conclusion by asserting, through an affidavit deposed to by its counsel, that the action of the Registrar in placing the case before Ofori-Atta J was as a result of directives received from the Chief Justice’s Secretariat. By a letter dated 9th January 2009, which is annexed to the affidavit of Mr Beyuo, counsel for the Interested Party, Mr. Rexford Gyimah, the Registrar, states that:
“I was not specifically instructed to transfer the suit, the substantive suit was sat on by His Lordship Justice E. Amoako Asante sitting at court one (1) of the Fast Track Division of the High Court and gave judgement.
A motion for Stay of Execution pending Appeal was filed when the said Judge was on leave.
I therefore referred the docket to the Chief Justice Secretariat for directives. Directives from the Chief Justice Secretariat indicated that the case be assigned to His Lordship Ofori Atta, J sitting at Fast Track Two (2) who subsequently gave his ruling on the motion.”
It seems clear from this evidence that the directives from the Chief Justice’s Secretariat fell short of an order of transfer from the Chief Justice, within the intendment of section 104(1) of the Courts Act. Indeed, the facts presented to the Chief Justice’s Secretariat that elicited the response referred to above were inaccurate, since the affidavit sworn to by the applicant’s representative, which was unchallenged, and indeed confirmed, on this point by the Interested Party, indicates that the interim injunction application was placed before Justice Asante before he proceeded on leave. The Registrar seems to have conveyed to the Chief Justice’s Secretariat the impression that the applicant had filed a motion for stay of execution whilst Justice Asante was on leave. It would have been legitimate on that assumption for the fresh application to have been placed before a different judge. But those were not the true facts.
Is there then any factor that should restrain this court from exercising its discretion to quash the proceedings of 22nd October and the ruling of 4th November? As is well-known, certiorari is a discretionary remedy and will thus not be automatically applied by this court, except probably in cases of want of jurisdiction. Acquah JSC, as he then was, articulated this principle well in Republic v High Court, Accra; Ex parte Attorney-General (Delta Foods Ltd. – Interested Party) [1999-2000] 1GLR 255, where he says (at p. 273):
“From the above observations what would be the benefit of granting the prayer of the Solicitor-General? No useful purpose at all! It would be a futile grant that would neither vitiate the liability of the State as same was conceded to by the Solicitor-General and pronounced in the judgment of Akoto-Bamfo J, nor advance the course of justice in any way. It would rather lead to unnecessary multiplicity of suits.
It is indeed important to appreciate that the prayer for the grant of certiorari must be considered from a very broad perspective. -For. being a discretionary remedy it must be, demonstrated that there is real justification· and benefit for its' grant.1 Accordingly, where the results of granting the order achieves no real or just result, the discretion is not exercised. Thus in Halsbury's Laws of England (3rd ed,) Vol 11, p 141, para 266 it is stated: "Where grounds are made out upon which the Court might grant the order, it will not do so where DO benefit could arise from granting it." See R v Newborough (1869) LR 4 QB 585 at 589; R v Bristol and Exeter Rail Co (1838) 11 Ad & El 202,n; R v Lancaster & Preston Rail (1845) 6 QB 759; R v Unwin (1839) 7 Dowl 578; Peak Joint Planning Board v Secretary State for Environment (1980) 39 P & CR 361; and Republic v Agboka IV; Ex parte Deh III [1984-86] 1 GLR 581, CA.
Indeed, in Miller v Weymouth and Melcombe Regis Corporatian (1974) 27 P&CR 468 at 480-481, the court refused to quash a void decision because the applicant was in no way prejudiced by the said decision. Now by virtue of his involvement as solicitor for the minister, and further participation even in the out-of-court settlement, the Attorney-General was in no way prejudiced by the mere use of the minister as the defendant. Neither did the decision of Nana Gyamera-Tawiah J.
In the circumstances, the interest of justice dictates that the proper course to take is to amend the title by substituting the Attorney-General for the minister as the defendant in suit No C495/98 so as to save the proceedings and the judgment delivered therein. Especially as such an amendment will not cause any surprise, prejudice and injustice to the Attorney-General who was the solicitor for the minister right from the inception of the suit to its conclusion. For as Bowen LJ said in Cropper v Smith (1884) 26 Ch D 700 at 710, CA: “... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct if it can be done without injustice to the other party."
Of course, if the error is fundamental or goes to the jurisdiction of the court in that it exposes the court's lack of jurisdiction in the matter, then the court is incompetent to correct the error. For a court has no power to grant itself jurisdiction or authority where the statute creating it did not vest it with that power. For instance, if the Supreme Court determines a civil appeal from the circuit court, such an error cannot be corrected to save the judgment of the Supreme Court since by statute the appeal ought to have been determined by the Court of Appeal. Or again if a court gives judgment against a defendant who was never given notice of, nor served with, the writ of summons, the error arising from lack of service or notice of the writ,cannot be corrected to save that judgment. In the circumstances of this case, the error arising from the use of the minister as the nominal defendant instead of the Attorney-General as demonstrated above. is neither fundamental nor goes to the jurisdiction of the High Court.”
The facts of the current case are materially different from those in which Acquah JSC made these remarks. The most significant difference is that on the facts of the present case we are dealing with a want of jurisdiction by the High Court. There is, moreover, a public policy as well as a statutory reason that justifies the want of jurisdiction. In the interest of the efficient administration of justice, discipline has to be applied to the actions of the Registrars of the High Courts, through enforcing the regime established by the Courts Act 1993.
In issue is whether there is any sufficient counterbalancing factor to prevent the quashing of the proceedings and ruling complained of. A factor that arises for consideration in this connection relates to the weakness of the substance of the applicant’s appeal and the fact that the interim injunction it seeks is intended to defy the will of Parliament, which will has been declared to be constitutional by the Supreme Court. This factor is evident from the papers filed before us. Nevertheless, this Court should be careful not to do anything that will prejudge the applicant’s appeal. Although certiorari is a discretionary remedy, it is clear, even from the dictum of Acquah JSC quoted above, that this Court cannot deny it in such a clear case of lack of jurisdiction. Although, on the affidavit evidence placed before us, there is ground for suspicion that the applicant may be abusing the judicial process to delay the implementation of the new statutory regime for gaming, this is not a sufficient basis on which to deny certiorari where it is manifest that a learned High Court judge has exercised a jurisdiction that he did not have. Also, the existence of alternative remedies is one of the factors that the courts have said they will take into account to deny resort to certiorari. On the facts here, I do not see any alternative remedy.
The Interested Party has argued that the facts before us present a situation where the “exceptional cases” exception articulated by my learned brother Atuguba JSC in Republic v High Court (Fast Track Division) Accra, ex parte Quaye and Another (Yovonoo and other – Interested Parties) [2005-2006] SCGLR 660 at p. 664 is triggered. This is what my learned brother said:
“The need to observe administrative and procedural mechanisms in the interests of the smooth administration of justice has been upheld: see Republic v High Court, Cape Coast\; Ex parte Marwan Kort [1998-99] SCGLR 833 and recently stressed by Wood JSC in Republic v High Court, Kumasi; Ex parte Mobil Oil (Ghana) Ltd. (Hagan Interested Party) [2005-2006] SCGLR 312 at p334 – 335:
“In the administration of justice in our jurisdiction, and I believe that to a large extent the same holds true for other jurisdictions, no one particular judge has exclusive monopoly or ownership rights over any given case. Thus, at the pre-trial stage in particular, a case may, for any sufficient cause be taken away from a judge before whom it was pending. For example, the judge might be asked to proceed on transfer, in which case he loses the privilege of having anything further to do with the case(s) pending before him or her. Again, the Chief Justice’s power of transfer of cases under section 104 of the Courts Act, 1993 (Act 459), from one judge to another, a prerogative meant for the smooth and efficient administration of justice, cannot also be overlooked or treated lightly.”
We think the above dictum of Wood JSC in Ex parte Mobil Oil (Ghana) Ltd (supra) is a realistic view to take of the course of administration of justice in our judicial system and that, always saving exceptional cases, this should be adhered to.”
The Interested Party’s argument in support of an exceptional case was in the following terms (in its Statement of Case):
“18. It is submitted on behalf of the Interested Party that given the circumstances of this case, the placing of the application before Ofori-Atta J in the absence of Asante J was in accord with the administration of justice.
- There was the need to have an expeditious determination of the plaintiffs’ motion for injunction. This was to guide the Interested Party in carrying out its statutory functions under Act 722. Whilst the application for injunction was pending, if the Interested Party had attempted to enforce the provisions of Act 722, the self-same plaintiffs would have cited the Interested Party for contempt.
- Since the matter was referred to Ofori-Atta J for the sole purpose of determining only the application for injunction pending appeal, pending the return of Asante J from leave, it is submitted it was not necessary for Her Lordship the Chief Justice to comply with the provisions of section 104 of the Courts Act.
- Even if we be wrong in our argument above it is our submission that that no useful purpose will be served in granting the instant application therefore this court ought to refuse it.”
I must say that I am not persuaded by this argument. What the Registrar should have sought when he referred this matter to the Chief Justice’s Secretariat should have been an order of transfer. Not having got such an order, he had no authority to move the case from one judge to another. The delay in the State’s mobilisation of revenue under Act 722, which has been urged on us by counsel for the Interested Party, cannot be a relevant consideration in determining a matter of jurisdiction affecting the High Court. Accordingly, I think that the proceedings and ruling before Justice Ofori-Atta should be brought to this court to be quashed and the same are hereby quashed. The application for interim injunction is hereby remitted to Justice Asante for urgent consideration. The Registrar of this Court should ensure an expeditious dispatch of this case back to the High Court for the application to be re-heard.
It would be inappropriate for this Court itself to decide on the interim injunction application, as requested by the Interested Party. This is because what was argued before this Court was the certiorari application and not the interim injunction application. Although this Court has the powers of the High Court in dealing with consequential matters arising from exercising its supervisory jurisdiction, I think that the interest of justice would be better served, on the facts of this case, for the case to be remitted to the High Court for the interim injunction application to be properly argued before the High Court.
DR. S. K. DATE-BAH
( JUSTICE OF THE SUPREME COURT)
I agree
J. ANSAH
( JUSTICE OF THE SUPREME COURT)
I agree
S. O. A. ADINYIRA (MRS)
( JUSTICE OF THE SUPREME COURT)
I agree
R.C. OWUSU (MS)
( JUSTICE OF THE SUPREME COURT)
COUNSEL
KIZITO BEYUO FOR THE INTERESTED PARTY.
AURELIUS AWUKU WITH ANDREW OBENG FOR THE APPLICANT.
