The republic vrs. The automated fast track high court accra And Others (J5/25/2008) [2008] GHASC 14 (29 October 2008);

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA-GHANA.

CORAM:- DATE-BAH J.S.C. (PRESIDING)

ANSAH, J.S.C.

OWUSU (MS), J.S.C.

DOTSE, J.S.C.

ANIN YEBOAH, J.S.C.

CIVIL MOTION

NO. J5/25/2008

29TH OCTOBER, 2008

THE REPUBLIC

VRS.

THE AUTOMATED FAST TRACK

HIGH COURT ACCRA

EX-PARTE: MACLEOD & SNOWRAD LTD. & ANOR

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R U L I N G

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R.C. OWUSU, J.S.C:- In an application to invoke the supervisory Jurisdiction of this Court under Article 132 of the 1992 constitution, the Applicant is praying for an order of certiorari directed to the Fast Track High Court 3, presided over by His Lordship P.K. Gyeasayor J, (as he then was) to move into this court for the purpose of quashing same the ruling of that court dated 10th March 2008 and the entire proceedings before the said court. The Applicant seeks a further order to prohibit the Respondent from further hearing suit No. AL 109/06 intituled ANNA VICTORIA MENSAH VRS. THE REGISTRAR, THE CHIEF BAILIFF and others pending before the said court.

Article 132 of the Constitution states as follows:-

The Supreme Court shall have supervisory Jurisdiction over all courts and over any adjudicating authority and may, in the exercise of that supervisory Jurisdiction issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory power”.

At the hearing of the application, counsel for the interested party, raised a preliminary objection to the competency of the application before the court.

Counsel argued that assuming Gyeasayor J. (as he then was) had erroneously assumed jurisdiction, the application is time barred. It is his contention that the application having been brought under rules 61 and 62 of the Supreme Court Rules, C.I. 16 as amended by C.I. 24, same was brought outside the statutory Period of 90 days as required under rule 62 which reads as follows:-

“An application to invoke the supervisory Jurisdiction of the court shallbe filed within ninety days of the date when the grounds for the application first arose unless the time is extended by the court” (emphasis supplied).

Counsel therefore asked, “when did the ground for the application first arise?

To this question counsel’s answer is that Gyaesayor J. (as he then was) assumed Jurisdiction on 26/10/06 when he heard and granted the Ex-Parte. application for Judgment in default of appearance against the 1st defendant for the reliefs endorsed on the writ of summons and therefore, the ground for the application first arose on that day.

Anna Victoria Mensah, the Interested party in this application had issued a writ against the Registrar, High Court, Accra and the Chief Bailiff, Accra for:-

“(i) A declaration that by virtue of a Lease agreement entered between the plaintiff and the State Housing Corporation on the 4th of October, 2005 she is Lease Hold owner of all that property known as plot No. 5C Osu East X’borg Housing Estates.”

(ii) A declaration that by virtue of the plaintiff’s ownership of the above-mentioned property, the purported attachment of the said property, its fixtures and fittings is irregular, unlawful, void and of no effect” among other reliefs.

Calculating 90 days from 26/10/2006 the application filed on 9/6/2008 was woefully out of time, counsel submitted. He sought to distinguish the instant application from that in the case of THE REPUBLIC VRS. HIGH COURT, KUMASI; EX-PARTE; MOBIL OIL (GHANA) LTD (HAGAN INTERESTED PARTY) [2005-6] SCGLR 312.

In reply, counsel for the Applicants told the court the preliminary objection has no basis at all. He submitted that the time for determination of when the grounds for the application first arose should be referable to the circumstances of the case. He therefore referred the court to paragraph 17 of the Applicants’ reply to the interested party’s statement of case. In this paragraph, counsel submitted that the grounds for the application first arose when Gyeasayor J. (as he then was) refused to set aside his void orders and proceedings and decided to proceed with the case despite the Applicants protests.

In support of his submission, counsel relied on the Mobil House case already referred to contending that the grounds for the application first arose on 10th March, 2008 when Gyeasayor J.(as he then was) refused to decline Jurisdiction

The issue for the court to resolve is when the grounds for the application first arose.

In the Mobil case, Wood J.S.C. ( as she then was) had this to say that:-.

“On the facts, it is the trial Judge’s decision of 22nd April, 2005, to proceed with the hearing, despite the applicant’s protests that provoked this instant application. Time therefore began to run from that date on which the cause of action arose”.

The facts in the Mobil case are not principally the same as in the instant case. In that case, the Applicant sought an order of the Supreme Court to prohibit the trial Judge from hearing the substantive matter pending before him in suit No. E2/36/04 after making interlocutory orders of injunction against the defendant in the court below and the Applicant therein. The ground upon which the application was based was stated as follows:-

“there is the real likelihood of bias and a breach of the rules of natural justice on the part of justice Winfred Kpentey in view of the fact that in two rulings of an application for injunction and a stay of execution, he held that the applicant had breached the rules of natural justice in terminating the appointment of Stephen Hagan which said holding constitute the only issue for trial in this case. By, so holding, without taking evidence and without regard to the Judgment of the Court of Appeal in Texano Africa Ltd. V. Bedu [1978] G.L.R 307 which is binding on him, the learned High Court judge had prejudged and predetermined the only issue for determination in the case and is incapable of sitting as an impartial arbiter”

In the instant case, the ground for the application is want of Jurisdiction.The question therefore is when did the court assume Jurisdiction in the matter ? The answer from the record is 26th October, 2006 when the application for Judgment in default of appearance was granted. This application was at the instance of the plaintiff in suit No. AL/09/2006, the interested party in this application.

It was after the entry of judgment in default that Mary Mcleod and Snowrad Ltd. were joined to the suit as co-Defendants on an application at their instance.

As Co-Defendants, they applied to the court and got the Judgment set aside. This was before, according to an affidavit sworn to by their counsel, it came to their notice that “the transfer of the case from Justice Baffoe-Bonnie to justice Gyeasayor was ill motivated and Clandestinely done in a manner that violates the Rules of court” he contended.

On 11th January, 2008, counsel conducted a search in the Registry wanting to know :

1. “When the case first went to court ?

2. “Which judge was the case put before ?’

3. “What was the decision of the court on the day the case went before

it ?”

4. “Whether or not the chief Justice directed the transfer of the case to another Judge ?”

5. “If so ,when ?”

6. “And to which Judge was the case transferred ?”

Answers to these questions were received on 21/1/08 by counsel and they revealed that the case was first put before Baffoe-Bonnie J. (as he then was), and that there has not been transfer of it to any judge. Therefore if Gyeasayor J. (as he then was) had wrongly assumed Jurisdiction, as he contends, then that fact came to his knowledge on 21/1/08 when he received the outcome of the search but not on 26th October, 2006 when his Clients were not even parties to the suit. It is therefore irrational to reckon the 90 days from that date.

Having received the result of the search however, counsel did not file an application to invoke the supervisory Jurisdiction of the court immediately but rather chose to go back to the fast Track High Court with an application to set aside the proceedings before it. This I find to be most unreasonable if counsel was mindful of the fact that time was of the essence.

On 10th day of March, 2008, the court below refused the application and thereafter on 9th June, 2008, the present application was filed, hence counsel’s contention that the 90 days within which the application should have been brought must be reckoned from that date.

If time will not run from 26/10/06 against them, then so far as they are

concerned, the grounds for the application should reasonably be reckoned

from 21/1/08 when they got to know that Gyaesayor J. had wrongly assumed Jurisdiction, if indeed his assumption of jurisdiction was wrongful.

Under section 22 of the Limitation Decree (Act) 1972 (N.R..C.D. 54)

“(1) Where, in an action for which a period of Limitation is fixed by this act.

(a) the action is based on the fraud of the defendant or the agent of the defendant or of a person through whom the defendant or the agent claims, or

the action is for relief from the consequences of a mistake,

the period of limitation shall not begin to run until the plaintiff has discovered the fraud or mistake, or could with reasonable diligence have discovered it.

Our reference to this section of the Decree is by way of an instructive analogy to buttress our reasoning that the 90 days under rule 62 did not start to run until the applicant discovered that the grounds for the application had arisen .

In the instant application, 90 days from 21/1/08 will end on 20th April, 2008.

The application filed on 9th June, 2008 without an order of the court for

extension of time is woefully out of time. The preliminary objection is well grounded and is therefore upheld. The application is struck out as incompetent.

R.C. OWUSU