ADAMU vs. UNIVERSITY OF CAPE COAST AND ANOTHER [1999-2000] 1 GLR 548

CASES REFERRED TO

(1) Republic v Military Tribunal; Ex parte Ofosu-Amaah [1973] 2 GLR 227.

(2) Republic v Maikankan [1971] 2 GLR 473, SC.

(3) Republic v Tekperbiawe Divisional Council; Ex parte Nene Korle II [1972] 1 GLR 199. (4) Taylor v National Assistance Board [1957] P 101; [1957] 2 WLR 189; [1957] 1 All ER 183; affirmed [1958] AC 532; [1958] 2 WLR II; [1957] 3 All ER 703, HL.

(5) R v Medical Appeal Tribunal; Ex parte Gilmore [1957] 1 QB 574; [1957] 2 WLR 498; sub nom Re Gilmore’s Application [1957] 1 All ER 796, CA.

(6) R v Barnsley Metropolitan Borough Council; Ex parte Hook [1976] 1 WLR 1052; [1976] 3 All ER 452, CA (7) Vanderpuye v Botchway (1957) 2 WALR 16.

(8) Ennimah v Kanga (1957) 2 WALR 38.

NATURE OF PROCEEDINGS

PRELIMINARY OBJECTION by the second defendant, the Commission on Human Rights and Administrative Justice, to an action brought against the commission and the University of Cape Coast by the plaintiff, a retired lecturer from the university, at the High Court, Agona-Swedru on the ground, inter alia, that under section 22(1) of the Commission on Human Rights and Administrative Justice Act, 1993 (Act 456) the decisions, findings and recom [p.552] of [1999-2000] 1 GLR 548 mendations of the commission were subject only to the supervisory jurisdiction of the Supreme Court and therefore the High Court could not exercise supervisory jurisdiction over the commission.

COUNSEL

E VA Adjetey for the plaintiff-respondent.

Barton Odro (with him Kwabena Owusu) for the first defendant.

D K Ofosu-Quartey for the second defendant applicant.

JUDGMENT OF KUSI-APPIAH J.

On October 1998 the plaintiff filed a writ in this court against the defendants herein. By that writ, the plaintiff sought:

“(a) A declaration that the failure or refusal of the defendant university to promote in 1991 [sic](2) the plaintiff from the position of senior lecturer to that of associate professor was unjustified and discriminatory.

(b) An order compelling the defendant university to remedy the situation by promoting the plaintiff from the position of senior lecturer to that of associate professor with effect from 1988 up to the date of the plaintiff’s retirement from the employment of the university.

(c) A declaration that the decision of the Commissioner for Human Rights and Administrative Justice dated 29 September 1995 is without justification and should be set aside.

(d) General damages against the first defendant university.”

Upon being served with the writ, the second defendant, the Commission for Human Rights and Administrative Justice (hereinafter referred to as the commission) entered conditional appearance and then moved the court to set aside the writ on the commission because the commission claims that this court is bereft of jurisdiction. Learned counsel for the commission’s first contention was that the High Court cannot exercise supervisory jurisdiction over the commission in view of the provisions of section 22(1) of the Commission on Human Rights and Administrative Justice Act, 1993 (Act 456). He argued that the decisions, findings or recommendations of the commission is only subject to the supervisory jurisdiction of the Supreme Court and maintained that by section 22(1) of Act 456 which states, inter alia, that: “Subject to the supervisory

[p.553] of [1999-2000] 1 GLR 548 jurisdiction of the Supreme Court, no proceedings shall lie against the Commission . . .” the supervisory jurisdiction of the High Court on the commission is clearly ousted. Learned counsel submitted that the suit against the commission is therefore an abuse of the court’s process as there is no legal basis for instituting the action against the commission. He maintained that the plaintiff should have left the commission alone and taken action against the first defendant university.

By way of reply, learned counsel for the plaintiff-respondent (hereinafter referred to as the plaintiff) contended otherwise. He argued that the ouster clause in the said section 22 of Act 456 should be declared null and void because it is in conflict with articles 24 and 33 of the Constitution, 1992. He submitted that article 33(1) of the Constitution, 1992 requires persons aggrieved in respect of their fundamental human rights and freedoms to come to the High Court to seek redress. Learned counsel maintained that the supervisory jurisdiction of the High Court on the findings or recommendations of the commission is not ousted and that the High Court has jurisdiction to set aside the decision of the commission.

To begin with, I propose to consider the first objection by the learned counsel for the commission before I go to the next limb of the preliminary objection. Here, the preliminary objection raised by the learned counsel for the commission is strongly supported by the said section 22(1) of Act 456 which provides that:

“22. (1) Subject to the supervisory jurisdiction of the Supreme Court, no proceedings shall lie against the Commission or against any person holding an office or appointment under the Commission for anything done, reported or said by him in the course of the exercise or intended exercise of his functions under this Act, unless it is shown that he acted in bad faith.”

(The emphasis is mine.) A glance at section 22(1) of Act 456 would seem to suggest that the said section has ousted the supervisory jurisdiction of the High Court from hearing either at first instance or on appeal, disputes involving the commission and any other person, body or institution.

But under the Constitution, 1992, a very wide supervisory power is conferred on the High Court, for to that court is entrusted the duty

[p.554] of [1999-2000] 1 GLR 548 of ensuring that the citizen’s human rights are protected in the first instance. Article 33 of the Constitution 1992, which is headed “Protection of Rights by the Courts”, says that:

“33. (1) Where a person alleges that a provision of this Constitution on the fundamental human rights and freedoms has been, or is being or is likely to be contravened in relation to him, then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress.”

Article 33(2) of the Constitution 1992, preserves the common law power of the High Court to intervene in its supervisory capacity on any lower court or adjudicating body or tribunal, including the commission, on fundamental human rights and freedoms by means of prerogative writs. The subsection provides that:

“(2) The High Court may under clause (1) of this article, issue such directions or orders or writs including writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions on the fundamental human rights and freedoms to the protection of which the person concerned is entitled.”

And there is provision for appeal to the Court of Appeal and to the Supreme Court. But that is not all. To ensure that the citizen is really protected, the constitution makers have tried to plug all possible avenues to oppression with a residuary clause at the end of article 33(5) of the Constitution, 1992 which says:

“(5) The rights, duties, declarations and guarantees relating to the fundamental human rights specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man.”

In this case, the undisputed facts are that the plaintiff, a retired lecturer at the University of Cape Coast complains of an abuse of his right to a livelihood, ie promotion from the rank of senior lecturer to

[p.555] of [1999-2000] 1 GLR 548 associate professor by the first defendant university during his tenure of office and lodged a complaint to the commission. The commission investigated the said complaint but its recommendation or finding was not in favour of the plaintiff. Aggrieved by and dissatisfied with the commission’s findings, the plaintiff took this action against the said university and the commission. Certainly, the matter before the court is a cause or matter affecting the fundamental human rights of the plaintiff, ie his economic rights. No doubt, the success of the plaintiff’s complaint would not only enhance his status or reputation in the eyes of his fellow contemporaries or academicians and the community in which he lives as a retired associate professor, but would also have put more money in his pocket as far as his retirement benefits and gratuity were concerned.

In any case, there appears to be a real controversy between the parties hereto on the ground. And the crucial question is: who will resolve the controversy? Learned counsel for the commission will appear to answer thus: “The Supreme Court.” However, I am of the opinion that neither the Supreme Court nor the Court of Appeal has original jurisdiction in fundamental human rights matters: see article 33(3) of the Constitution 1992. It must be pointed out that in matters relating to fundamental human rights, the High Court is entrusted the duty of ensuring that the citizens’ human rights are protected in the first instance as provided by article 33 of the Constitution, 1992. I would venture to say that if lower courts or any adjudicating authority were to be at liberty to exceed their jurisdiction without any check by the courts, the rule of law would be at an end.

It seems that the argument of counsel for the commission in this case is exactly the same as put forward by the defence counsel in the case of Republic v Military Tribunal; Ex parte Ofosu Armaah [1973] 2 GLR 227. Abban J (as he then was) faced with a similar issue said at 238 in the above case that Act 372 was enacted under the authority of the suspended Constitution and its provisions could not therefore amend, limit or take away any jurisdiction conferred by the said Constitution on the High Court.”

Armed with the above authority, I hold that Act 456 was enacted under the authority of the Construction, 1992, and its provisions could not therefore amend, limit or take away any jurisdiction conferred by the said Constitution on the High Court. Thus the words

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“subject to the supervisory jurisdiction of the Supreme Court, no proceedings shall lie against the Commission” in the said section 22(1) of Act 456, being clearly inconsistent with the provisions of article 33 of the Constitution 1992, must be regarded as inoperative, and indeed they ought to be regarded as inoperative as from the date on which Act 456 came into effect. I am fortified in this view because article 1(2) of the Constitution 1992, provides that: “(2) This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.”

I must say that even though the power to declare section 22 of Act 456 as a nullity is reserved for the Supreme Court, it was not necessary for this court to refer the issue to the Supreme Court because on the face of the provisions of the section, the limitation by the section were clearly inconsistent with and repugnant to article 33 of Constitution 1992. I may add that it is not every question of interpretation of the Constitution which has to be referred to the Supreme Court. This point came up for consideration in the case of Republic v Maikankan [1971] 2 GLR 473, SC. The Supreme Court there held that where the language of the Constitution was clear and unambiguous the court of first instance can apply its provisions without recourse to the Supreme Court. See also Republic v Military Tribunal; Ex parte Ofosu-Amaah (supra).

The second objection of learned counsel for the commission which is derivative of or almost the same as the first objection is that the commission is an administrative tribunal whose decisions, findings and recommendations are not subject to the prerogative writs of the High Court. Learned counsel argued that under section 18 of Act 456, it is the commission itself that decides either to enforce its decision or recommendation in court and not any of the parties before it.

Act 456, s 22(1) provides: “subject to the supervisory jurisdiction of the Supreme Court, no proceedings shall lie against the Commission . . .” Do those words preclude the High Court from issuing the prerogative writs, ie certiorari to bring up the decision? No doubt, the commission exercises statutory powers. But the fundamental question is: Are the operations of the commission judicial or quasi-judicial? In his book, Judicial Review of Administrative Action (2nd ed, 1968), p 69, de Smith states:

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“An authority acts in a judicial capacity when after investigation and deliberation it makes a decision or performs an act that is binding and conclusive and imposes obligation on or affects the rights of individuals.”

There is no doubt also that Act 456 gives extensive investigatory power to the commission which acts on the complaints of aggrieved parties and makes a decision which is binding and conclusive and imposes obligation on or affects the rights of individuals. With the above authority as my guide, I hold that the commission acts in a judicial capacity.

In the case of Republic v Tekperbiawe Divisional Council; Ex parte Nene Korle II [1972] 1 GLR 199 at 205, Abban J (as he then was) held:

“Whenever a person is empowered by an enactment to exercise judicial or quasi-judicial functions in any matters, his exercise of those functions is within the scope of certiorari and prohibition at common law, and the enactment entrusting him with such functions should not be construed as having outstand the common law supervisory jurisdiction of the High Court, unless the enactment concerned clearly says so.”

By way of an obiter dictum in Taylor v National Assistance Board [1957] P 101 at 111, Lord Denning LJ (as he then was) said:

“The remedy is not excluded by the fact that the determination of the board is by statute made ‘final.’ Parliament only gives the impress of finality to the decisions of the board on condition that they are reached in accordance with law, and the Queen’s courts can issue a declaration to see that this condition is fulfilled.”

Again in the case of R v Medical Appeal Tribunal; Ex parte Gilmore [1957] 1 QB 574 the Act of 1946 provides that “any decision of a claim or question … shall be final.” However, Lord Denning LJ (as he then was) held, inter alia, at 583 that:

“. . . I find it very well settled that the remedy by certiorari is never to be taken away by any statute except ‘by the most clear and explicit words.’ The word ‘final’ is not enough. That only

[p.558] of [1999-2000] 1 GLR 548 means ‘without appeal.’ It does not mean ‘without recourse to certiorari.’ It makes the decision final on the facts, but not final on the law. Notwithstanding that the decisions is by a statute made ‘final,’ certiorari can still issue for excess of jurisdiction or for error of law on the face of the record.”

On the remedy by declaration, it is to be noted that it applies to administrative acts as well as judicial acts whenever their validity is challenged because of denial of justice, or for other good reason. It is clearly available to enable the court to declare whether the acts or omissions of a lower court or adjudicating authority are valid, no matter whether that authority is acting judicially or administratively.

In this case, it is my considered opinion that the ouster clause in Act 456 which established the commission did not clearly and explicitly oust the common law supervisory jurisdiction of the High Court. Rather, section 16 of the Courts Act, 1993 (Act 459) and article 33 of the Constitution 1992, reaffirm the common law supervisory jurisdiction of the High Court by means of the prerogative writs. For avoidance of doubt, I quote in extenso section 16 of Act 459 which states:

“16. The High Court shall have supervisory jurisdiction over all lower courts and any lower adjudicating authority; and may, in the exercise of that jurisdiction, issue orders and directions including orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto for the purpose of enforcing or securing the enforcement of its supervisory powers.”

In any case, in R v Barnsley Metropolitan Borough Council; Ex parte Hook [1976] 1 WLR 1052, where the Court of Appeal dealt with the street trader’s indiscretion, Lord Denning MR, stated the position very succinctly when he said at 1055 that:

“It is said to be an administrative decision, but even so the Court, has jurisdiction to quash it. Certiorari would lie to quash not only judicial decisions but also administrative decisions.”

From the above, it is patently clear that the commission’s decisions, findings and recommendations, be it judicial or administrative, are

[p.559] of [1999-2000] 1 GLR 548 subject to the prerogative writs of the High Court, notwithstanding the ouster clause in section 22 of Act 456.

I now come to the third objection of the second defendant-commission which is also on the issue of jurisdiction (ie forum for this action). In arguing the application, counsel for the second defendant submitted that since the matter was heard at the second defendant’s head office in Accra, the action should be heard and determined there. Counsel for the plaintiff opposed the application. He contended that there is only one High Court and for purposes of convenience the High Court, Swedru by its proximity to Cape Coast and Accra where the first and second defendants reside, respectively, is best placed; hence the action before the court was competent.

This application is under the provisions of Order 5, r 1 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) as substituted by rule 1 of the High Court (Civil Procedure) (Amendment) Rules, 1977 (LI 1107), which has the following relevant provisions:

“1. (1) Every writ of summons shall be issued out of the Registry and shall, without prejudice to the provisions of section 99 of the Courts Act, 1971 (Act 372), be regulated in accordance with this rule.

(2) All actions relating to land, or any mortgage or charge thereon or any other interest therein or for any injury thereto, shall be commenced in the Region in which the land or any part thereof is situated.

(3) All actions relating to movable property distrained or seized for any cause shall be commenced in the Region in which the distress or seizure took place.

(4) All actions for recovery of a penalty or forfeiture, and all actions against public officers, shall be commenced in the Region in which the cause of action arose.

(5) All actions for the specific performance, or upon the breach of any contract, shall be commenced in the Region in which such contract ought to have been performed or in which the defendant resides.

(6) All other actions shall be commenced in the Region in which the defendant resides or carries on business.

(7) If there are more defendants than one resident in different Regions, the action may be commenced in any such

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Region, subject however to any order which the Court may upon the application of any of the parties or on its own motion think fit to make with a view to the most convenient arrangement for the trial of such action.

(8) Where an action is commenced in a Region other than that in which it ought to have been commenced, the action may, notwithstanding, be tried in the Region in which it was commenced unless the Court reports to the Chief Justice that in its opinion the action ought to be transferred, and the Chief Justice orders that it be transferred accordingly, or the defendant raises an objection to the jurisdiction before or at the time when he is required to plead in the action ….

(10) [sic](3) In this rule, ‘Region’ means a Region of Ghana.”

By these rules, it is clear that the otherwise unlimited jurisdiction of the High Court in civil matters can be curtailed territorially if a defendant acts timeously. By subrule 8 of LI 1107, a defendant may object after entering appearance but before filing a defence. By entering an appearance in order to object to the court’s jurisdiction, to my mind, does not amount to succumbing to the court’s jurisdiction. Apart from that stage, the defendant may also object to the court’s jurisdiction in his statement of defence which is the right time “when he is required to plead in the action.” The second defendant raised the objection after entering conditional appearance but before filing a defence and can thus be heard.

Now, the question is: what is the real test to apply on the issue of jurisdiction? This may be found by examining the entire record of the case and not simply from the wording of the claim, and, I may add, from the particulars of the defendant as stated in the title and statement of claim. See cases like Vanderpuye v Botchway (1957) 2 WALR 16 at 20-21 and Ennimah v Kanga (1957) 2 WALR 38 at 40. Looking at the entire record, one can see that the claim is for the breach of contract of employment by the first defendant university to promote the plaintiff from the position of senior lecturer to that of associate professor and a declaration that the decision of the second defendant dated 29 September 1995 is without justification and be set aside.

For the present purpose, it is clear that the objection has been taken under subrule 6 of LI 1107. The use of the word “or” in subrule

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6 of LI 1107 should be interpreted disjunctively. The position therefore is that in any case not coming under any of subrules 1 to 5 of LI 1107, the action should be commenced in the region in which the defendant either resides or carries on his business. Read disjunctively, it appears the plaintiff is given a right of choice of forum where one of the alternatives favours him. Thus, if the defendant resides in Swedru for instance but does not work here, he can be sued here, and in the alternative, if he works here but does not live here, he can still be sued here under subrule 6 of LI 1107. If on the other hand, the defendant lives and works here then the plaintiff has no choice but to sue him in this region in which he lives and works. In each case therefore, the plaintiff must give sufficient facts to show that the defendant either resides or works in the region where the action was commenced.

In this case, the totality of the plaintiff’s claim which was admitted by the first and second defendants was that the first defendant university is at Cape Coast, while the second defendant commission is in Accra. And exercising his right of choice of forum under subrule 6 of LI 1107, the plaintiff can sue the two defendants in either the Central Region where the first defendant university is situated or in the Greater Accra Region where the second defendant commission’s head office is and where the plaintiff’s complaint was heard. However, the plaintiff sued the two defendants herein at the High Court, Agona Swedru which is within the Central Region where the first defendant university is situated and more importantly, which serves as a central or convenient point between Accra and Cape Coast where the two defendant institutions are situated. The action therefore is properly before the court and this court, I rule, has jurisdiction in this matter.

Before resting this ruling, I wish to consider the question whether or not the second defendant commission is a lower adjudicating authority. In my view, this issue appears to be the bone of contention between the parties. But in fairness to learned counsel for the commission, he did not raise this objection in his application. However, learned counsel for the first defendant university by way of comment drew the attention of the court to this issue, and I think that in the exercise of my power of superintendence derived from my inherent jurisdiction, I can completely raise the same at least by way of comment for discussion and guidance.

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Here, while counsel for the respondent would seem to suggest that the commission is a lower adjudicating authority, counsel for the applicant would contend otherwise. But the logical question to ask is, why in the face of the clear provisions of article 1(2) of the Constitution 1992, Parliament proceeded to enact section 22(1) of Act 456 which is clearly inconsistent with the provisions of article 33 of the 1992 Constitution? I tried to lay hands on the parliamentary debates on the commission’s bill but without success. But be as it may, it seems to me that Parliament did that because they think if the commission consists of a commissioner and two deputy commissioners who enjoy the terms and conditions of service of a justice of the Court of Appeal in the case of the commissioner and justice of the High Court in the case of a deputy commissioner, then ipso facto they are of the same status as Court of Appeal and High Court justices, respectively and as such the commission should at least be equated to the Court of Appeal in the hierarchy and thus not a lower adjudicating authority. And flowing from this presumption, Parliament placed the commission under the supervisory control of the Supreme Court as provided in section 22(1) of Act 456.

It seems to me, however, that the determination of the issue as to the status of the Commission for Human Rights and Administrative Justice established by Parliament under the Fourth Republic in 1993 does not depend entirely on the qualifications, terms and conditions of service of the commissioner or his two deputies or personnel managing or administering that authority or establishment. The qualification, terms and conditions of service of personnel administering the commission are matters which are taken into consideration when determining the job evaluation and emolument of the personnel there which is quite a different thing from its status: see Republic v Military Tribunal; Ex parte Ofosu Amaah (supra) at 32. In the same way, the status of the commission is distinct from its jurisdiction, condition of service and job evaluation.

It is my candid view that the fact that the staff of a lower court or any adjudicating authority is given the same terms and conditions of service as that of justices of the Court of Appeal and the High Court, cannot by itself be conclusive evidence that the status of that lower court or adjudicating authority has been raised to that of the superior courts. The status of a court or any adjudicating body or authority is

[p.563] of [1999-2000] 1 GLR 548 conferred by an enactment. Therefore, if the enactment creating that court or adjudicating authority confers some rights and privileges or special powers but is silent as to its status, then notwithstanding those special powers or rights and privileges, the lower court or adjudicating authority will continue to be regarded as a lower one. In any case, in Act 456 and Act 459, the status of the commission has not been indicated. However, article 126(1) of the Constitution 1992, provides that the superior courts of judicature comprise of the Supreme Court, the Court of Appeal, the High Court and Regional Tribunals. The implication here is that all other courts or adjudicating authorities, including the Commission on Human Rights and Administrative Justice, are lower in status to the High Court.

I therefore hold that the Commission on Human Rights and Administrative Justice as established by Parliament under Act 456 is a lower adjudicating authority and that the High Court, therefore, has jurisdiction over the said commission, and the High Court can interfere where the said commission has given its decision in bad faith, made a decision it had no power to make, failed to comply with the requirements of natural justice in its decision, failed to take into account matters which it ought to take into account, or based its decision on matters it ought not to have taken into account.

From the foregoing reasons, I find that the High Court has jurisdiction to entertain the present action against the second defendant herein. In the result, the preliminary objection by the second defendant will be and is hereby overruled. The case is to be heard on its merits. No order as the costs.

DECISION

Preliminary objection overruled.

LSNA

Endnotes

1 (Popup – Footnote) [sic] same in original. 2 (Popup – Footnote) [sic] same in original. 3 (Popup – Footnote) [sic] same in original.