IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA – A.D 2015
THE REPUBLIC – (Plaintiff)
vs.
CIRCUIT COURT ACCRA – (Respondent)
EX PARTE: GIFTY OWARE-ABOAGYE (APPLICANT) AND
THE INSPECTOR GENERAL OF POLICE POLICE HEADQUARTORS AND THE ATTORNEY GENERAL (Interested Parties)
DATE: 30TH NOVEMBER, 2015
SUIT NO: HRCM 4/2016
JUDGES: HIS LORDSHIP SIR DENNIS ADJEI J. A,
LAWYERS: MS OFOSUA ANIAGYEI HOLDING THE BRIEF OF NANA ASANTE BEDIATUO FOR THE APPLICANT
CECIL ADADEVOR (PSA) FOR THE RESPONDENT
JUDGMENT
The applicant is before this Court to invoke its supervisory jurisdiction over the Circuit Court with respect to the application granted by a Circuit Court Accra in suit no. 21/140/16 entitled “Motion Ex parte: for application for order to stop LET MY VOTE COURT ALLIANCE’, Alliance for Accountable Governance (AFAG). The movement for change, coalition for Free, Fair and Transparent Elections from Demonstrating on the 29/09/2015, Public Order Act 1994 Section 106).
The applicant is seeking from this court a declaration that the restraining order of the Circuit Court Accra dated 28th September, 2015, was made without jurisdiction and it also breached the audi alterem partem rule and should be quashed by an order of certiorari.
The facts of the applicant’s case is that on 1st September, 2015 a movement in which she is a member and known as “Let my Vote Count Alliance” wrote to the Police in accordance with Section 1 of the Public Order Act, 1994 (Act 491) to notify them of the day, time and place of their intended demonstration. The police invited the members of “Let my Vote Count Alliance” to a meeting to discuss the impending demonstration. After the meeting “Let my vote Count Alliance” wrote another letter to the police to assure them of their intention to peaceful picket the parliament House and the Electoral Commission. The Police initially agreed to the date, time and the route for the demonstration. All of a sudden the police went to the Circuit Court to obtain an interim injunction on 14th September, 2015 when no substantive action or suit was pending.
The proceedings from the Circuit court on 28th September, 2015 states as follows:
“Prosecutor moves motion ex-parte praying for an order directed at the Let my vote Count Alliance, Alliance for Accountable Governance. The movement for change, coalition for Free, Fair and Transparent Election, from Demonstrations on the 29th September, 2015 and comes under Section 1(C.) of the Public Order Act, 1994.
Moves in terms of the motion paper and the supporting affidavit and prays accordingly.
BY COURT:
The application is granted”.
A look at the applicant’s application raises three major issues and they are;
Whether or not a Circuit Court is served with jurisdiction to entertain a suit filed under Section(1)of the Public Order Act; (2) Whether or not the ex-parte application not premised on any substantive suit was proper and whether the applicant and the members of her movement were denied a hearing when they were injuncted ex parte without giving them a hearing.
Article 141 of the Constitution of Ghana, 1992 confers supervisory jurisdiction on the High Court to supervise all the lower courts and lower adjudicating authorities. Article 141 provides as follows:
“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 for the purpose of enforcing or securing the enforcement of its Supervisory Powers”.
Article 141 of the Constitution was reproduced with explanations under Section 16 of the Courts Act, Act 459. It provides thus:
“The High Court shall have supervisory jurisdiction over all lower courts and any lower adjudicating authority; any 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 of its supervisory powers”.
Traditionally, habeas corpus was not a relief that could be sought under the Supervisory powers of the High Court. Hebeas Corpus application was regulated by the Hebeas Corpus Act, 1964 (Act 244). However, the Courts Act has included habeas corpus and one of the supervisory powers that could be exercised by the High Court.
Order 55 of the High Court (Civil Procedure) Rules 2004 (C.I. 47) provides the reliefs that the High Court could grant in the exercise of its supervisory powers in the form of judicial review. Order 55 rule 1 and 55 rule 2 of the High Court Rules provides for cases appropriate for application for judicial review and orders obtainable by Judicial Review respectively. Order 55 Rules 1 and 2 of C.I. 47 provides thus:
“(1) An application for
(a) An order in the nature of mandamus, prohibition, certiorari or quo warranto; or
(b) An injunction restraining a person from acting in any public office in which the person is not entitled to act; or
(c) Any other injunction, Shall be made by way of an application for judicial review to the High Court.
(2) On the hearing of an application for judicial review the High Court may make any of the following orders as the circumstances may require
(a) an order for prohibition, certiorari or mandamus
(b) an order restraining a person from acting in any public office in which that person is not entitled to act;
(c) any other injunction a declaration
(d) a declaration
(e) payment of damages
(3) In granting an injunction or making a declaration under paragraphs (c.) or (d) of subrule (1) of this rule the Court shall have regard to
(a) the matter in respect of which relief may be granted by way of prohibition, certiorari or mandamus;
(b) the nature of the person against whom relief may be granted by way of the order; and
(C.) whether in all the circumstances of the particular case it would be just and convenient to grant an injunction or make a declaration on an application for judicial review”.
The High Court Rule C.1.47 is the first legislation in the country to confer on the High Court the power to make declaration and award damages in an application for judicial review. Order 55 provides that in granting an injunction or making a declaration, the court should consider the circumstances of the case and may grant where it is just and convenient to do. In the award of damages, the applicant must make a case for it and the court may grant it where it is of the opinion that damages arose from a matter to which the application relates and damages would have been awarded to the applicant in the action begun by the applicant at the time of making the application.
By the proper application of expression unius est exclusies alterius an application for habeas corpus cannot be determined under order 55 of C.I. 47; that is it cannot be determined under Judicial Review even though the Courts Act treat it as one of the supervisory powers of the High Court; it must be filed under the Habeas Corpus Act, 1964 (Act 244).
The Public Order Act, 1994 Act 491 is meant to provide for the maintenance of Public order and other related matters. Its long title provides thus:
“AN ACT to provide for the maintenance of Public Order and related matters and purposes”.
Section 13 of the Interpretation Act, 2009 (Act 792) provides that long title and preamble form part of an act intended to assist in explaining the intent and object of the Act. This Act is meant to provide for the maintenance of Public Order and other related matters in Ghana whose Constitution declares its commitment to freedom, Justice, Probity and accountability and above all the rule of law. This is in accordance with the preamble of the 1992 Constitution of Ghana. In the case of Customs Excise and Preventive Service V. National Labour Commission [2009] SCGLR 530 the Supreme Court described preamble as gateway to understanding the reasons why the Act was enacted and the mischief it was meant to cure.
The Act provides that a person seeking to hold a special event shall notify the public about his intention to hold the event, not less than five days before the event comes off. The notification shall be submitted to a Police Officer not below the rank of Assistant Superintendent of Police officer responsible for the police station nearest to the location of the special event. Section 1(4) of the Act gives a discretion to the police where they have reasonable grounds to believe that the special event should be postponed because the security threats or Public order. Section 1(47) of the Act provides thus:
“Where a Police Officer notified of a special event under subsection (1) has reasonable grounds to believe that the special event if held may lead to violence or endanger Public defence, Public order, public safety, Public health or the running of essential services or violate the rights and freedoms of any other persons the police officer may request the organizer to postpone the special event to any other date or to relocate the special event.
5.An organizer requested under subsection (4) to postpone or relocate the holding of a special event shall within forty-eight hours of the request, notify the police officer in writing of the willingness to comply.
Where the organizer refuses to comply with the request in accordance with subsection (5) the police officer may apply to a justice or the chairman of the Regional Tribunal for an order to prohibit the holding of the special event on the proposed date or at the proposed location.
The Justice or Chairman may make an order that the Justice or the Chairman considers to be reasonably required in the interest of Public defence, Public Order, Public Safety, Public health, the running of essential services to prevent a violation of the rights and freedoms of any other persons”.
The Act provides that where the demonstrators failed to comply with the directives by the police to postpone the special event to any other date or to relocate it, the police officer may apply to a Justice or the Chairman of a Regional Tribunal for an order prohibiting the holding of the special event.
I will now determine whether the Circuit Court is seized with jurisdiction to entertain an application under Section 1 subsection (6-7) of the Public Orders Act.
Section 42 of the Courts Act provides for the Circuit Court. Section 42 (1) does not confer jurisdiction under the public Order Act on the Circuit Court. However, Section 42(b) provides for any other jurisdiction conferred by this Act or any other enactment. The Public Order Act does not confer express jurisdiction on the Circuit Court. By Article 126 of the Constitution of Ghana, 1992, the Circuit Court is a lower court created by Parliament. Neither the Courts Act when created or the Circuit Court nor the Public Order Act confers jurisdiction on the Circuit Court to entertain an application brought under the Public Order Act.
In the case of Chief Timitimi V. Amabebe (1953] 14 WACA 374; the West Africa Court of Appeal held that lower courts are presumed not to have any jurisdiction unless it is expressly provided.
Chief Timitimi’s case was quoted with approval by the Supreme Court in the case of Dolphyne (No. 3)
Speedline Stevedoring Co. Ltd [1996-97] SCGLR 514 where the Supreme Court held that a lower court only possesses such jurisdiction as is conferred on it by statute.
Furthermore, Section 1 Subsections (5-7) of the Public Order Act provides that “that Police Officer may apply to a Justice or the Chairman of a Regional Tribunal”. “The Justice or Chairman may make an order that the Justice or the Chairman considers to be reasonably required in the interest of Public defence “.
A justice as used in the statute if construed ejudem generis refers to a justice of the High Court or a justice who may be required by the Chief Justice to sit in the Regional Tribunal or the High Court. The judges of Circuit Court are referred to as Circuit judges and no statute refers to them as Justices and the word “Justice” used in Section 1 of the Public Order Act excludes Circuit Judges.
The Constitution of Ghana, which is the Supreme Law on the land refers to Magistrates and Circuit Judges as Judicial Officers and not justices. Article 148 of the Constitution of Ghana, 1992 Clothes the Chief Justice acting on the advice of the Judicial Council to appoint Judicial Officers and it includes Circuit Judges and Magistrates.
Section 40 of the Courts Act which provides for the establishment of Circuit Court by Chief Justice refers to those appointed to preside over the Circuit Court as Circuit Justices. Section 40 (4) (5) of the Courts Act provides thus:
“4. A person shall not be appointed a Circuit Court judge unless that person is of high moral character and proven integrity and is of not less than five years’ standing as a lawyer.
A Circuit Judge shall exercise the jurisdiction conferred on the Circuit Court or the Judge by this act or any other enactment in respect of causes and matters arising within the relevant area of jurisdiction”,
It is the trite that when the Chief Justice nominates a Justice of the Superior Court in accordance with Section 41 of the Courts Act, the Superior Court Judge is described as an additional Circuit Judge and he is addressed as Justice and not a Circuit Judge. “Judge is a generic word which usually referred to justices of the Superior Court and Circuit Judges but Justice is refers to only Superior Court Judge. For example, Order 82 of C.I. 47 defines a Judge to include Chairman of a Regional Tribunal and a Circuit Judge and not vice versa.
I am satisfied that the District Court and the Circuit Court do not have jurisdiction to entertain any application under the Public Order Act; 1994 (Act 491).
The second issue I would like to address is whether one can use an ex-parte application for injunction to initiate an action. Order 2 rule 2 of the High Court Rules C.1.47 provides that subject to any existing enactment to the contrary all Civil Proceedings shall be commenced by the filing of writ of summons.
Order 82 rule 3 defines writ to include a writ of summons and statement of claim or a petition in a cause of matter.
The law is that where an enactment provides that a suit shall be commenced by a motion then the initiating it must commence the action by a motion. Order 19 rule (2-3) of C.1.47 provides thus:
“2. Proceedings by which an application is to be made to the court or a Judge of the Court under any enactment shall be initiated by motion and where an enactment provides that an application shall be made by some other means, an application by motion shall be deemed to satisfy the provision of the enactment as to the making of the application.
Except where these Rules otherwise provide, motion shall be made without previous notice to the parties affected”.
The above provision is that any action which is to be initiated by an application shall be an application on notice to the other side. Any application that is used to initiate an action or that is filed in the course of proceedings shall be made on notice to the person who may be affected by the outcome of the application. Statutes are interpreted in democratic societies in a way that advances human rights and fundamental freedoms and further the creative developments of the provisions of the constitution and the laws of Ghana. The approach adopted by the police should not be approved to thrive in a democratic country such as ours. An ex-parte application should be premised on a substantive suit apart from where the law specifically provides that such an application should be ex-parte. Example of such application are Probate and Letters of Administration.
Section 1(6) of the Public Order Act provides that the Police may file an application to prohibit the holding of the special event once the law does not say such an application should be ex-parte, it should be on notice to the people who have written to go on demonstration as any decision taken by the Court would affect them
Any application under the Public Order Act should be on notice as it is used to initiate an action and what the Police is of the opinion that there is the need to apply for an interim injunction which is fixed ex-parte, he may subsequently file it under Order 25 rule 7 of C.1.47 it provides that in case of urgency, a party may make the application ex-parte supported by an affidavit to pray for an interim injunction which if granted shall remain in force, for not more than ten days unless the court decides otherwise. which
I further declare that any action what is initiated ex-parte under the Public Order Act is void as it is filed contrary to law and procedure and would constitute a breach of the rules of natural Justice. It would be unfair to use an ex-parte application to initiate an action whose outcome would affect the rights of other people and once it is granted, the action terminates. Such a crude approach should not be encouraged in a democratic society as the Police in their ex-parte application may depose to false information which may persuade the courts to grant the application.
The order made by the Circuit Court which was made in excess of its jurisdiction has lapsed and it would not serve any purpose to discuss whether certiorari should be decreed to grant it or not. The law is that certiorari is a discretionary remedy and would be granted where it is just and convenient.
I hereby declare that Circuit Court lacks jurisdiction to entertain an action under the Public Order Act. I further order that any application to initiate an action under the Public Order Act should be on notice to the parties who may be affected by the outcome of the case.
I cannot grant the order for certiorari because the order I am being called upon to quash has become moot.
(SGD)
DENNIS ADJEI, JA
JUSTICE OF APPEAL COURT
