REPUBLIC vs. HIGH COURT, CAPE COAST; EX PARTE AABA AND OTHERS [1997-1998] 2 GLR 784

CASES REFERRED TO

(1) Duke of Devonshire v O0 ‘’Connor (1890) 24 QBD 468.

(2) Alexander v Mackenzie (1847) 9 Dunli (Ct of Sess) 748.

(3) Sandema-Nab v Asangalisa [1 996-97] SCGLR 302.

(4) Republic v High Court, Accra, Ex parte Laryea [1989-90] 2 GLR 99, SC.

(5) Republic v High Court, Kumasi; Ex parte Fosuhene [1989-90] 2 GLR 315, SC.

(6) Okofoh Estates Ltd v Modern Signs Ltd [1996-97] SCGLR 224.

(7) Ventouris v Mountain [1991] 3 All ER 472; [1991] 1 WLR 607, CA.

(8) United States v Nixon, 418 US 683 (1974).

(9) Chowôood Ltd v Lyall [1929] 2 Ch 406; 98 ULJ Ch 451.

(10) Merchants’ and Manufacturers’ ‘Insurance Co v Davies [1937] 2 All ER 767; 106 LJKB 433; 156 LT 524, CA.

APPEAL from the judgment of the High Court, Cape Coast, dismissing the appellant’s application for an order of certiorari to quash the judgment of the judicial committee of the Central Regional House of Chiefs. The facts are sufficiently set out in the judgment of Benin JA.

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Dr Daniels (with him Essien) for the appellants.

Dawson for the interested party-respondent.

Benin JA. Delivered the first judgment of the court at the invitation of Sapong JA. This appeal has turned up largely as to what correct interpretation to place on rule 11 of the Chieftaincy (National and Regional House of Chiefs) (Procedure) Rules, 1972 (CI 27). There are other ancillary matters too. The rule provides that: “The Judicial Committee shall at the conclusion of the hearing of the petition deliver its judgment, giving reasons therefor.” The appellants contend that by this provision reasons for the judgment must be given at the same time as, that is simultaneously with the judgment. The interested party-respondent contends otherwise. This is the bone of contention in this appeal; but as I said earlier there are other grounds of appeal which will be unfolded shortly.

The judgment against which the appeal was lodged was given by the High Court, Cape Coast dismissing an application for cer tiorari brought by the applicants, now appellants, seeking an order of the High Court to quash the decision of the judicial committee of the Central Regional House of Chief made on 23 September 1996, the reasons for which were delivered on 3 December 1996. In the course of the proceedings before the High Court, an applica tion for discovery of a certain document which was described as a judgment, was put in by the appellants. It was argued but rejected by the court. So too was the prerogative application dismissed. The total costs awarded in favour of the respondent and the interested party were ¢ 800,000.

It was against these decisions and order for costs that the appeal was lodged on grounds formulated as follows:

“(a) The learned judge erred in law in refusing to grant an order for discovery or production of the judgment in question.

(b) The learned judge erred in law by misconstruing the clear mandatory statutory procedural provision enacted in section 11 of the Chieftaincy (National and Regional House of Chiefs) (Procedure) Rules, 1972 (CI 27).

(c) The learned judge misdirected himself as a matter of lavw by determining that the remedy against errors of law made by chieftaincy tribunals are reviewable only by appeal and not by the prerogative writ of certiorari as laid down in article 141 of the Constitution.

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(d) The judgment of the judicial committee was wrong and should have been set aside in that it granted the reliefs prayed for, which were unintelligible and incompatible with each other.

(e) The costs awarded were excessive.”

Before I go on to discuss these grounds of appeal, let me give a bnrief background information to this case. On 8 June 1995 the interested party-respondent herein who claimed to be a royal from the stool house at Elmina brought a petition before the Central Regional House of Chiefs challenging the nomination and selection of one J C Anowi as the Omanhene-elect of the Edina Traditional Area. The respondents to that petition were the appellants herein. He succeeded in the petition to the Regional House of Chiefs at Cape Coast in the judgment given on 23 September 1996. It is that judgment which prompted the prerogative proceedings before the High Court.

The relief sought, as per the accompanying statement, was for an order of certiorari to remove into the High Court for the purpose of its being quashed the judgment delivered on the 23 September 1996 by the judicial committee of the Central Regional House of Chiefs. The grounds relied upon were:

“(1) By the provisions of CI 27 there was a statutory duty imposed on the judicial committee to give either written or oral reasons simultaneously on or before delivery of the judgment and not after. Upon a true interpretation of the section, that was the purpose of the law and failure to do so amounted to misuse of power by the judicial committee thereby drawing an inference that postpone ment of the date to give reasons sine die was an exercise of its power for a legally inadmissible purpose which should be quashed on the grounds that the applicants’ interest had been substantially prejudiced by a failure to comply with the relevant requirements of CI 27.

(2) The duty to give reasons for the decision implies the duty to deal with the substantial points that have been raised. The said judicial committee should have made an express finding of fact and the resolution of issues of disputed facts on all material matters and at the same time give reason for its decision.

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(3) A court of inferior jurisdiction such as the judicial committee was under a duty to act fairly by giving reasons for its judgment to those affected by its decisions.

(4) Further, the judicial committee failed in its duty to act fairly by abandoning its judicial duty to deliberate on its judgment in the presence of the President of the House, thus exposing itself to the risk of being influenced by a person who was not a member of the judicial committee. Justice was not seen to be done.

(5) The reserved judgment was a “should• be” judgment sometime in the future and never an “is judgment” which should have taken effect on the day it was announced with reasons.”

Indeed, the grounds set out above have been revisited here in this appeal backed by very strong and powerful legal reasoning and decided authorities, especially in regard to ground (b). The trial judge in his decision said this of rule 11 of CI 27:

“. . . the expression cannot mean more than giving reasons. In my view, it is an unmitigated abuse of language to construe it as giving reasons ‘forthwith’ or ‘simultaneously’ or ‘instanta neously.’ To accept it will be throwing reason unpardonably to the wind. I entirely reject it.”

Counsel for the appellants attacked this decision both from the point of view of grammar and on principles governing the interpretation of statutes.

From the grammatical view point, counsel said that the trial judge fell into error by regarding the rule as containing two separate or independent sentences, ie the duty to announce the decision one day, and the duty to assign reasons on another day. He submitted on this that rule 11 of CI 27 does not consist of two independent sentences. Rather, it consists of a dominant sentence and a phrase which is subordinate to the main sentence. The comma used in the rule “is merely a false stopping comma, it does not divide the two expressions and hence too much reliance should not be placed on its presence.” He said independent sentences should be parted by at least a semicolon and so submitted therefore “that on the ground of grammar the ordinary meaning of the words implies that the decision should be accompanied by the reasons therefor and not thereafter.”

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English common law regarded punctuation as a kind of “contemporanea expositio” but not as forming part of the statute itself. Thus in the case of the Duke of Devonshire v O0’ Connor (1890) 24 QBD 468 at 478, Lord Esher MR said: “In an Act of Parliament there are no such things as brackets any more than there are such things as stops.” And even as late as the middle of this century in the case of Alexander v Mackenzie (1847) 9 Dunl (Ct of Sess) 748, the English courts stuck to this principle. At 766 of the report Lord Jamieson said:

“While notice may therefore in my view be taken of punctuation in construing a statute, a comma or absence of a comma must I think be disregarded if to give effect to it would so alter the sense to be contrary to the plain intention of the statute.”

And also at 768 of the report Lord Stevenson said that:

“the older cases indicate that punctuation formed no part of the Act. In my opinion our duty is to ascertain the intention of the legislature as expressed in the Act itself and that while we may derive some assistance from punctuation we are entitled to disregard it or add commas, if it should be necessary to do so, in order to give effect to the obvious purpose of the Act.”

But even the English courts were careful enough to seek in all cases to give effect to the intention of the lawmaker in giving interpretation to any statute. Thus, even though they did not regard punctuations as part of a statute, they did not hesitate to rely on them if they would help them unearth the statutory intent. So the cardinal principle of interpretation remained that if the meaning of a statute is plain it is not legitimate to resort to any aid as afforded by usage or “contemporanea expositio.”

This country departed from this English common law policy and enacted the Interpretation Act, 1960 (CA 4), s 3 which provides that: “Punctuation forms part of an enactment and may be used as an aid to its construction.” Thus a comma placed in a paragraph, etc in an enactment should not just be glossed over as though it does not exist without forthcoming with good reasons to justify it. And you can only justify it if by so doing the statutory intent becomes manifest thereby. Thus the comma in rule 11 of CI 27 cannot be ignored as “merely a false stopping comma” as suggested by the appellants’ counsel, even if it is not to be

[p.792] of [1997-1998] 2 GLR 784 interpreted as dividing the sentence into two separate parts. It should also be borne in mind that though written in English, the enactment should not be interpreted strictly in accordance with strict English grammatical formula; it should not follow any such laid down formula. For if the English language experts say at least a semicolon should divide two separate sentences, it does not follow that that should strictly be applied in interpreting a statutory language even if that approach would lead to absurdity. The ordinary, plain language approach should be used as much as practicable to arrive at the statutory intent, and in the process any punctuation used has to be considered as an aid only. So the placement of the comma in rule 11 of CI 27 is to be considered as an aid in knowing exactly what the lawmaker intended. So much for grammar; let’s go into more serious discussion in respect of appellants’ counsel’s arguments urging this court to accept that the reasons for the judgment must come simultaneously with it.

To begin with, counsel referred to section 27 of CA 4 which says “shall” as used in an enactment, shall be construed as imperative. So he submitted that it is the intention of the statute that the words used in the rule are mandatory not only in the terms of the enactment but also in their ordinary meaning and tenure. And that the court should hold that rule 11 of CI 27 imposes a mandatory obligation on the judicial committee to give reasons at the same time of announcing its judgment. Next, counsel pointed out that rule 11 of CI 27 is the only procedural statutory provision in our laws which imposes a duty to announce judgment with the reasons. There are statutory time limits imposed on the High Court and even on this court to deliver judgment without imposing a time within, which to deliver their reasons. So counsel was of the view that the legislature did not intend to give the judicial committee such exceptional judicial latitude.

The duty to give a judgment and to give reasons for it is clearly imperative having regard to the word “shall” used. But the initial point is whether it is to be read simultaneously with the judgment. If there was some existing mischief which this provision was intended to cure, it would have helped in its interpretation. The references to the legislation that fix time limits for the superior courts to deliver judgments without imposing a duty on them to give reasons then or at any time thereafter are not helpful, for these are courts manned by trained and competent personnel who by their training and practice know they have to give reasons for

[p.793] of [1997-1998] 2 GLR 784 their decision; so a legislation to that effect is considered otiose. But the same cannot be said of the various chieftaincy tribunals. So the law has deemed it fit to make it obligatory for them to give reasons for their decisions.

Could it be said that the lawmaker intended that a decision given by a judicial committee without the reasons being given simultaneously be void? I do not think so; for if that had been the legislative intendment, express words to that effect would have been used. The rule does not impose a time limit within which the committee shall deliver its judgment after the hearing had been concluded so in that instance it will be wrong for one to argue that because “shall” is used the judgment must be delivered immedia tely or say two weeks or whatever time after the conclusion of the hearing. Where an enactment does not specifically appoint time for doing an act, it shall not be right to import time into it. So the rule should be read that the committee shall give judgment after it has concluded the hearing and shall give reasons for its judgment. As to what time the judgment shall be given or the reasons for the judgment given is not to be imported into the enactment. The comma placed after “judgment” clearly distinguishes it from the reasons. If the reasons were to be given simultaneously, the presence of the comma would be undesirable and it would have been replaced with an expression like “together with.”

Let me at this stage make a brief reference to the decision given by the Supreme Court on 23 July 1996 in the case of Sandema- Nab v Asangalisa [1996-97] SCGLR 302. In that case the judicial committee of the National House of Chiefs delivered its judgment on 25 May 1995 and gave its reasons on 2 August 1995. Though the point did not directly come up for decision, yet the Supreme Court in its consideration of other relevant issues in the case found nothing wrong with the procedure adopted by the said committee because according to that court reasons only constituted the basis for the decision. It is noted that rule 11 of CI 27 also applies to the judicial committee of the National House of Chiefs and I believe their lordships would not have hesitated to point out the illegality of the practice if indeed it was illegal.

I notice that counsel for the appellants was concerned that if the rule is not interpreted the way advocated by him, it would mean that the judicial committee “could announce their decision and delay for as long as they liked, and after five or, it may be ten months, suddenly publish their reasons.” This argument is quite

[p.794] of [1997-1998] 2 GLR 784 realistic but fortunately the law maker did not leave this large vacuum unfilled. Rule 28 of CI 27 states that where no provision is expressly made by these rules or by any enactment regarding the practice and procedure to be followed in any cause or matter before a judicial committee, it shall follow such practice and procedure as in the opinion of the judicial committee the justice of the cause or matter may require, regard being had to the principles of customary law, and to the practice and procedure of the High Court of Justice.

By this provision, even though no time limit is imposed, the judicial committee may be enjoined to follow the practice and procedure prevailing in the High Court whereby six weeks is imposed by law as the period within which judgment shall be delivered. And my understanding of these statutory time limits is that both the judgment and the reason for it should be delivered within six weeks after the close of the case. In conclusion, I hold that by rule of CI 27 a judicial committee of a Regional House of Chiefs is not enjoined to give reasons for a judgment simulta neously with it; reasons may be given subsequent to the judgment.

Next, I shall take ground (c). I do not think the ground of appeal as formulated does justice to the trial court’s holding on when certiorari is applicable against an erroneous decision of a chieftaincy tribunal. The court did not conclude that any error is appealable only. It indeed quoted from some of the Supreme Court’s decisions on the scope of this remedy, when it is available to quash an inferior court’s decision, and when such decision is appealable. Cases like Republic v High Court, Accra; Ex parte Laryea [1989-90] 2 GLR 99, SC and Republic v High Court, Kumasi; Ex parte Fosuhene [1989-90] 2 GLR 315, SC were cited in support and none of these cases decided that an error of law was reviewable only on appeal. Nonetheless, we have to examine this ground of appeal in the light of the grounds for relief placed before the High Court which I have set out earlier on in this judgment.

I have already dealt with the first ground which is the duty to give reasons simultaneously with the judgment. The second ground raised was that the committee ought to have made express findings of fact and the resolution of disputed facts on all material matters with reasons. This ground was rooted in rule 11 of CI 27. I would have thought that if a tribunal of fact fails to make proper findings of fact it gives room for an appeal on ground that the

[p.795] of [1997-1998] 2 GLR 784 judgment is against the weight of evidence, or that the judge erred in his conclusion because he did not adequately consider the party’s case etc. If the court has jurisdiction to hear a matter but its judgment is considered unsupportable, it is a matter for appeal and not the subject of a prerogative order, unless the decision amounts to a nullity for reasons apparent on the face of the record: see Republic v High Court, Accra, Ex parte Lairyea (supra) and Republic v High Court, Kumasi; Ex parte Fosuhene (supra).

In the case of Okofoh Estates Ltd v Modern Signs Ltd [1996-97] SCGLR 224, the issue of certiorari once again came up before the Supreme Court. At 247-248, this is what Aikins JSC said:

“Certiorari would lie to quash the decision of a court on ground of error on the face of the record if such error went to jurisdiction, or was so obvious as to make the decision a nullity. Jurisdiction used here simply means the power or authority of the court to give a decision on the issue before it, and in that regard the correctness or otherwise of the decision is irrelevant. This court’s duty is to see whether the order is or is not valid on its face, and was made within its jurisdiction.

Where, however, the proceedings are regular on the face of the record and it is clear that the court or tribunal acted within its jurisdiction, a superior court would not grant a writ of certiorari simply on the ground that it has misconceived a point of law or has misconstrued a statute .…”

Thus, in the face of these authorities, the trial judge was right in denying the prayer for certiorari on ground only that the judicial committee which acted within jurisdiction failed to make proper findings of fact. That clearly belonged to appeals. Accordingly, I dismiss this ground of appeal.

I turn next to ground (d) which says the judgment of the committee was wrong because the reliefs prayed for were unintelligible, and incompatible with each other. I do not think this ground was seriously canvassed, for any determination by the High Court and even by this court would hit stone wall for want of jurisdiction to delve into a cause or matter affecting chieftaincy. If the reliefs were unintelligible or what have you, it gave cause for an application to the committee to dismiss the petition on those grounds since it is the committee and not the High Court or for that matter this court which has jurisdiction. I reject this ground also.

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I now turn to ground (a). In the course of the proceedings it came out that whilst the committee was going to deliver its decision upon hearing the case, the solicitor for the house tendered an advice to them in the form of a written judgment which the committee rejected as being contrary to the decision they had arrived at and had instructed him to put into writing. Counsel for the appellants made a formal application under Order 31 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) for that judgment to be produced. This application was resisted on account of relevancy; and the court upheld the objection. The court in rejecting the application said:

“The production of that document passing for a judgment, aptly described as forbidden by counsel for the applicant, has, in my view nothing material to offer for the determination of the main application for the prerogative order of certiorari. It is, in my humble judgment, entirely irrelevant having regard to that application. In the clear circumstances of the complete irrelevance of the solicitor’s advice, packaged as a judgment, to the proceedings in this court for the grant of the order of certiorari, the ancillary application must fail.”

Hence, the ground of appeal that the court below erred in not making the order for discovery or production of the judgment in question. Counsel for the applicants referred to rule 10 of Order 31 of LN 140A in support. Counsel, in this court, submitted that since the document was in existence and in the possession of the committee and relevant, the court should have ordered its production. It was his contention that the “interests of justice are best served if parties to litigation are obliged to disclose and produce for the other party’s inspection all documents in their possession, custody, or power relating to the issue in action.” He cited these cases in. support: Ventouris v Mountain [1991] 3 All ER 472, CA and United States v Nixon, (1974) 418 US 683 (1974). I have to state have that I did not have the benefit of reading these decisions. But I am satisfied that the principle stated by counsel is correct.

Order 31, r 10 of LN l4O0A provides:

(10) Any party may, without filing an affidavit, apply to the Court or a Judge for an order directing any other party to any cause or matter to make discovery on oath of the

[p.797] of [1997-1998] 2 GLR 784 documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court or Judge may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at the stage of the cause or matter, or make such order, either generally or limited to certain classes of documents as may, in their or his discretion, be thought fit. Provided that discovery shall not be ordered when and so far as the court or Judge shall be of opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs.

This rule gives the court a discretionary power to order production for the purpose of inspection of the document. Therefore where no good is reasonably to be expected from an order, it should refuse it. However, it is a wide discretion the court has; so the court in order to take a decision on such an application is entitled to have a look at the pleadings (if any), affidavits and any proceedings in the action. When such an application is made, the party’s oath that the document sought to be produced by the application is irrelevant is conclusive against ordering its production, unless the court is satisfied from available evidence that in spite of the oath to the contrary the document is relevant: see Chowood Ltd v Lyall [1929] 2 Ch 406 and Merchants’ and Manufacturers’ Insurance Co v Davies [1937] 2 All ER 767, CA. In my view, since the rule talks of the judge being satisfied that the discovery is necessary before making the order, it means that the court should be able to give an affirmative answer to this question: will the production of the document have any relevant or positive bearing on an issue to be determined in the proceedings before it? If a negative answer is given, the application must be refused.

In this case the respondents to that application deposed that the judgment sought to be produced had no relevance to the application before the court. The court then had to decide on its own having due regard to the entire record of the matter before it. The court rejected it for reasons which I have already quoted. The point here is whether the trial judge was satisfied in denying the prayer. Any decision will have to take into account the role of the solicitor to the committee as by law established vis-à-vis the committee.

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There is no doubt that by the Chieftaincy Act, 1971 (Act 370) it is only persons who are properly described as chiefs who can occupy seats in the various chieftaincy institutions as by law established, namely the National House of Chiefs, the various regional houses of chiefs, the various divisional councils and the traditional councils. There are various officers attached to these institutions but by definition these officers, however designated, are not members of these institutions, so they cannot take part in their decisions by way of having voting rights. And so is the solicitor to the judicial committee; he merely advises on legal issues: See section 26 (8) of the Act 370. And if the solicitor is asked to write opinions for the committee, the committee, it is emphasised, is not bound to accept his opinions particularly on matters of fact. The committee has the ultimate responsibility to the members of the particular institution which elected them. It must be noted especially that these chieftaincy institutions were established so that they will, among other things, have exclusive jurisdiction to deal with causes or matters affecting chieftaincy. It was the lawmakers’ intention that with the exception of the Supreme Court no other non-chief will have jurisdiction to deal with causes or matters affecting chieftaincy. Hence, it will be wrong for anybody who is only privileged to be working for any of these institutions to think that by his position he is entitled to take part in any decision in a cause or matter affecting chieftaincy. The solicitor, as earlier said, acts in an advisory capacity only; the decision on any petition is for the judicial committee to take. And members of every judicial committee must necessarily be chiefs properly so-called and must belong to the particular chieftaincy institution which appointed the committee.

I think counsel was assuming too much power for the solicitor to the committee and clearly did not appreciate the role assigned him by law and failed to recognise that as a non-chief, the solicitor was not entitled to vote in any matter before the house, including even those which are not causes or matters affecting chieftaincy. In my view therefore, the opinion tendered by counsel to the committee was not bound to be accepted by the committee. I am not prepared to discuss the reasons why the committee rejected the solicitor’s opinion. It suffices to say that they were hearing a petition whose resolution was based on facts, so the committee was bound to rely largely on the evidence before it to reach their verdict. And even if they ignored the solicitor’ s advice on matters

[p.799] of [1997-1998] 2 GLR 784 of law, that would not be a good ground for an order of certiorari;, for if by a wrong application of the law they arrived at a wrong decision it properly belonged to the realm of appeals. In effect the opinion of the solicitor which did not form part of the committee ’s verdict, was not a relevant document to consider, not even in an appeal.

Reduced to the simplest of arguments, even if the solicitor was part of the decision making, he would be one out of four persons so that would make his opinion a minority one. But he has no right to take part in the decision. It is even arguable whether by CI 27 the minority opinion of a judicial committee member of the National and Regional House of Chiefs should be published. Whereas the judicial committee of a traditional council is required by law (see regulation 7 (5) of Chieftaincy (Proceedings and Functions) (Traditional Grounds) Regulations, 1972 (LI 798)) to publish both the majority and minority decisions, CI 27 deliberately leaves out this provision. Be that as it may, it is only a minority member of the committee whose decision may be published even if it is to be published, and not the advice of its solicitor. The trial judge was therefore right in rejecting the application for an order of production.

The final ground of appeal is the question of costs which was said to be excessive. No arguments were advanced on this so I take it that it has been abandoned. At any rate I do not consider the total costs of ¢800,000 to be excessive, so I reject this ground of appeal too. In the premises, the appeal fails entirely and is accordingly dismissed.

Sapong JA. I agree.

Esslifie-Bondzie JA. I agree.

Appeal dismissed.

LSNA