REPUBLIC vs. HIGH COURT, ACCRA; EX PARTE CONTINENTAL CARGO AND TRADE SERVICES INC [2001-2002] 1 GLR 72

CASES REFERRED TO:

(1) Jupiter Airlines v Continental Cargo and Trade Services Inc, High Court, Accra, 29 January 2001, unreported.

(2) MacFoy v United Africa Co Ltd [1962] AC 152; [1961] 3 WLR 1405; [1961] 3 All ER 1169, PC.

(3) Mosi v Bagyina [1963] 1 GLR 337, SC.

(4) Republic v High Court, Accra; Ex parte Darke XII [1992] 2 GLR 688; [1992-93] GBR 1138, SC.

(5) Smith v East Elloe Rural District Council [1956] AC 736; [1956] 2 WLR 888; [1956] 1 All ER 855, HL.

(6) Hoffman-La Roche (F) & Co AG v Secretary of State for Trade and Industry [1975] AC 295;

[1974] 3 WLR 104; [1974] 2 All ER 1128, HL.

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APPLICATION to invoke the supervisory jurisdiction of the Supreme Court for an order of certiorari to quash the judgment of the High Court, Accra in Jupiter Airlines v Continental Cargo and Trade Services Inc, High Court, Accra, 29 January 2001, unreported on the ground that the judgment was null and void because the court lacked jurisdiction over the subject matter of the dispute to which a PRELIMINARY OBJECTION was taken by the interested party on the ground that the application was woefully out of time. The facts are sufficiently stated in the decision of the court delivered by Afreh JSC.

Justina Tete-Donkor (Miss) (with her Tagoe and Joseph Mantey) for the applicant.

Addo Atuah for the interested party.

Afreh JSC. Delivered the ruling of the court. This is an application for an order of certiorari directed to the High Court, Accra presided over by Gyamera-Tawiah J, to quash its judgment given on 29 January 2001 in the suit entitled Jupiter Airlines v Continental Cargo and Trade Services Inc, High Court, Accra, 29 January 2001, unreported. The only ground for the application is that: “The judgment is null and void because the court lacked jurisdiction in the suit the subject matter of this application.” The main reason for this contention is that both the plaintiff and the defendant in the suit sought to be quashed were outside the jurisdiction of the court and the alleged contract for sale, as well as the subject matter of the sale, an aeroplane, also were all outside the jurisdiction and had no connection with Ghana.

The interested party has raised a preliminary objection to the application. His reason is that the application is woefully out of time: the judgment sought to be quashed was delivered on 29 January, 2001; and the instant application was filed on 15 May 2002, some fifteen months later. Rule 62 of the Supreme Court Rules, 1996 (CI 16) requires that an application to invoke the supervisory jurisdiction of the court must be filed within 90 days of the date of the decision sought to be quashed.

The applicant’s answer to the preliminary objection is that since

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the decision of the High Court was a nullity it can be set aside at any time.

In applications for an order of certiorari, lawyers for applicants are fond of saying:

“If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

See Macfoy v United Africa Co Ltd [1962] AC 152 at 160, PC; Mosi v Bagyina [1963] 1 GLR 337 at 346–347, SC and Republic v High Court, Accra; Ex parte Darke XII [1992-93] GBR 1138 at 1168, SC.

This is an impeccable statement of a common law principle. But it contains a logical difficulty where the proponent has invoked the supervisory jurisdiction or other jurisdiction of the court conferred by statute, since unless an order of a competent court is obtained there is no way of establishing the nullity of the order or the judgment. A decision of a court is presumed to be valid until its invalidity has been established in a court of competent jurisdiction. In an oft-quoted passage, Lord Radcliffe in Smith v East Elloe Rural District Council [1956] AC 736 at 769, HL said:

“An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.”

If a party is aggrieved by a decision of a court he may attack it directly or collaterally. The methods of direct attack are the prerogative orders, declaration and injunction. A collateral attack may take the form of defence to enforcement proceedings. If the aggrieved party chooses to launch a direct attack by seeking a pre-

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rogative order, such as certiorari, he must comply with the statutory provisions under which the supervisory jurisdiction of the court is exercised as well as other rules which must be complied with such as locus standi. It is only after a party has complied with all such rules that he may hope to obtain an th order. As Wade and Forsyth state in their Administrative Law (1994) (7 ed), pp 342-343:

“The truth of the matter is that the court will invalidate an or only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff’s lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reasons. In any such case the ‘void’ order remains effective and is, in reality, valid. It follows that an order may be void against one person but valid against another. A common case where an order, however void, becomes valid is where a statutory time limit expires after which its validity cannot be questioned. The Statute does not say that the void order shall be valid; but by cutting off legal remedies it provides that result.”

(The emphasis is mine.)

In the course of arguments on the preliminary objection, counsel for the applicant kept saying that since the decision of the High Court was a nullity, because it lacked jurisdiction, it can be set aside at any time and lapse of time is immaterial in such a case. It is clear that this submission cannot be correct in a case such as this where the aggrieved party is invoking the supervisory jurisdiction of the court. This jurisdiction was conferred on this court by article 132 of the Constitution, 1992. See also section 5 of the Courts Act, 1993 (Act 459). The procedure for the exercise of the jurisdiction is set out in Part VI of CI 16, rr 61-66. An application for an order of certiorari under Part VI of CI 16 must comply with its provisions. Rule 62 of CI 16 provides that:

“62. An application to invoke the supervisory jurisdiction of the Court shall be filed within three months of the date of the decision against which the jurisdiction is invoked unless the

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time is extended by the Court.”

And rule 66 of CI 16 says:

“66. An application for the extension of time within which to invoke the supervisory jurisdiction of the Court under rule 62 shall not be made after the expiration of the three months period within which an application seeking to invoke the supervisory jurisdiction may be filed.”

These statutory provisions are binding on the court which must enforce them in full.

But counsel for the applicant contended that these time limits are not applicable because the decision against which the supervisory jurisdiction was being invoked was null and void and with such cases, time is not of the essence; it is immaterial. A similar argument was rejected in the Smith v East Elloe Rural District Council case (supra). And if I may adapt the words of Lord Diplock in F Hoffmann-La Roche and Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 366, HL it leads to confusion to use such terms as “voidable”, “void” or “a nullity” as descriptive of the legal status of a decision of a lower court alleged to be ultra vires for patent or for latent defects, before its validity has been pronounced on by a court of competent jurisdiction. And that is why the applicant has come to this court. But we cannot consider the merits of the application unless it is properly before us in terms of Part VI of CI 16.

It is not in dispute that the application was brought about fifteen months after the judgment sought to be quashed was delivered, long after the 90 days’ period had expired. After that period, any legal remedy that could have been given in exercise of the court’s supervisory jurisdiction was cut off. Any cause of action for a prerogative order that the applicant might have had become extinguished. Therefore, the application is not properly before us. The preliminary objection must be upheld.

Consequently, the application should be dismissed. Bamford-Addo JSC. I agree.

[p.78] of [2001-2002] 1 GLR 72 Kpegah JSC. I agree.

Adjabeng JSC. I agree.

Adzoe JSC. I agree.

Preliminary objection upheld.

Application dismissed.

DRKS