Certiorari concerned with procedure and not the merits
At the risk of repetition, we must emphasise that the exercise of this Court’s supervisory jurisdiction does not entail a review of the substantive merits or correctness of the judgment of the Court of Appeal; indeed, even the most legally and jurisprudentially sound decision, where rendered in circumstances that properly invoke this Court’s supervisory jurisdiction, may be declared void and accordingly quashed.
It would be observed from the above grounds settled by the authorities that, the conditions for judicial review, are procedurally focused. A writ or order of certiorari is only limited to the procedure by which a decision is made, and not the rightness, or wrongfulness of the substantive decision. It is therefore not available to test the merits of a decision. That avenue is by way of an appeal. What this simply means is that, when a court of law is seised with a matter in the exercise of its supervisory jurisdiction, the court’s focus is strictly on the grounds of the review, which does not entail an examination and determination of the merits of the impugned decision but only the procedure by which the decision was arrived at.
Certiorari where the right to be heard has been denied
So fundamental is the right of hearing that when there is a breach notwithstanding the clear provisions of Order 81 of CI 47, which has brought into being a new regime of non-compliance with the rules of procedure, proceedings that suffer from its breach cannot be rectified by courts. When this occurs, we think that the court has no discretion in the matter but to make an accession to the relief of certiorari.
Error of law distinguished from excess of jurisdiction
When it comes to the exercise of the prerogative writ of certiorari with respect to decisions of the High Court, in view of the fact that the High Court is also part of the superior Courts of judicature by virtue of the provisions of article 126(1) of the Constitution, 1992, a great deal of caution is exercised. In that, it is not every error of law committed by the High Court of Justice that should lead to the exercise of the remedy of certiorari against decisions of the High Court; otherwise, that will lead to disabling the High Court from discharging its constitutional functions and also impede the right of appeal against the decisions of the High Court where mistakes or errors are committed by the High Court. Hence, this Court has pointed out that it is only errors of law which go to the jurisdiction of the High Court that should lead to the grant of certiorari against. Those errors of law must necessarily lead to a deprivation of the jurisdiction of the High Court.
We must emphasize that it is not every error of law by the High Court or the Court of Appeal which may warrant, justify and/or necessitate the exercise of the supervisory jurisdiction of this Court, given that these are in themselves, superior courts of judicature. The error complained of must be one that is obvious, patent or palpable on the face of the record and which goes to jurisdiction and/or renders the decision or proceedings a nullity. Our view of the degree of error that may make a decision or proceedings amenable to our supervisory jurisdiction was ably articulated by this Court in the case of Republic v. Court of Appeal, ex-parte Tsatsu Tsikata [2005-2006] SCGLR 612 in the following terms: “The clear thinking of this Court is that, our supervisory jurisdiction under article 132 of the 1992 constitution, should be exercised only in those manifestly plain and obvious cases, where there are patent errors of law on the face of the record, which errors either go to jurisdiction or are so plain as to make the impugned decision a complete nullity.”
In any case, failure to follow a binding authority by a lower court should not be construed as amounting to excess or want of jurisdiction to warrant the intervention of this court’s supervisory jurisdiction. Such errors if apparent should be redressed by appeals. See REPUBLIC v. HIGH COURT ACCRA, EX PARTE COMMISSIONER FOR HUMAN RIGHTS AND ADMINISTRATIVE JUSTICE (ADDO INTERESTED PARTY) [2003-24] SCGLR 312 and REPUBLIC v. HIGH COURT, ACCRA EX PARTE INDUSTRIALIZATION FUND FOR DEVELOPING COUNTRIES [2003-2004] SCGLR 348.
Even if the trial Judge had erred in his appreciation of the facts and conclusions drawn from them, that would be a matter for appeal; it would not be an egregious error of law apparent on the face of the record, curable by certiorari. The special supervisory jurisdiction inserted in the Constitution, 1992 by its framers, had been abused by legal practitioners who had been filing numerous applications in the Court for supervisory orders which clearly should be pursued on appeal
The Respondent High Court that gave the Ruling in contention before this Court was within jurisdiction in that, in the course of a trial, if an objection is raised, the trial Judge has to give a ruling one way or the other. Overruling or sustaining an objection in the course of a trial is part of a judge’s job and therefore, no fundamental error of law on the face of the record was committed by the Trial Judge. Consequently, no error of law was committed by the trial Judge to warrant this Court’s Supervisory Jurisdiction.
As demonstrated above, the adoption of the evidence in chief of PW1 in Suit No. CR/0264/2022 which evidence we have quoted extensively is not an error of law which can be said to violate section 60 (1) of the Evidence Act to warrant the invocation of the Supreme Court’s supervisory jurisdiction. Even if it was an error which we do not agree is an error, that error was made within jurisdiction and certiorari would not lie to quash same.
Refusal of certiorari on account of the applicant’s conduct
If it is ultimately established that the trial court lacked jurisdiction, participation by a party cannot validate proceedings that the law treats as void. The Court cannot decline an invitation to quash a decision merely because the applicant took part in the process that produced it, where the foundational complaint is that the entire proceedings were conducted without jurisdiction.
We are however not unmindful that, the scope of the jurisdiction invoked is discretionary. Therefore, the court can refuse a prayer for certiorari on the ground of the inappropriate conduct of the Applicant. That is, if there is evidence before the court, which demonstrates that, the Applicant is not deserving of the grant, especially when he himself has sanctioned the impugned order, in the sense of having participated in or encouraged the making of the order, the court will not lend itself to any such conduct which mitigates against the exercise of the judicial discretion.
The supervisory jurisdiction of this Court is a great residual jurisdiction that allows this Court to streamline the activities of the lower courts. Our control is limited to three main areas: against want or excess of jurisdiction; against patent errors of law on the face of the record; and against breaches or denial of natural justice.” Accordingly, our function, in proceedings such as this, is not to substitute our view for that of the court below, or to re-open contested factual issues, or to entertain dissatisfaction that properly belongs to the appellate structure. Rather, our task is more fundamental: to determine whether the proceedings under challenge were undertaken without lawful authority, that is to say, whether the court below acted without the requisite jurisdiction.
From the authorities considered, it seems well settled that the general rule that a person in contempt of court cannot be heard until the contempt was purged as derived from ancient canon law has outlived any inflexible application granted it was ever absolute and universal.
Under the 1992 Constitution, the Supreme Court, and the High Court are the only courts vested with jurisdiction to supervise superior courts and lower courts and other adjudicating bodies respectively. (See Articles 132 and 141 of the 1992 Constitution). This power of judicial review, is a special power that provides an inherent check in the administration of justice itself. It ensures that, even the courts (both inferior and superior) are not by themselves insulated from adhering to due process and the rule of law.
There is however power given to the Supreme Court to exercise supervisory jurisdiction over all Courts (including the High Court) and any adjudicating authority and may in the exercise of such jurisdiction issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory power—vide article 132 of the Constitution, 1992. Consequently, if it is found that the High Court in exercising its jurisdiction has breached any of the rules of natural justice or on the face of its orders erred in law, or has acted in excess of its jurisdiction or lacks jurisdiction in the matter it has acted on, this Court would have power to order the removal of those proceedings before it for the purpose of having those proceedings quashed. It must be stated however that a prayer for the grant of certiorari must be considered from a very broad perspective and that being a discretionary power, it must be shown that there is a real justification for its grant
The prerogative writ of certiorari is not given just for the asking. There must be reasonable grounds for the grant of certiorari. It must be shown that, the Judge or the arbiter whose decision is sought to be quashed had no jurisdiction at all to embark upon the enquiry resulting in the decision sought to be quashed. It must be shown, if he had jurisdiction to embark upon the enquiry, that he exceeded his jurisdiction when exercising his powers given to him. A breach of the rules of natural justice is also a ground for the grant of the prerogative writ of certiorari.
Generally, this Court’s supervisory jurisdiction may be invoked where a person alleges that there has been: a breach of the principles of natural justice; error of law apparent on the face of the record; or excess or want of jurisdiction.
In the circumstances, the ruling of the High Court (Commercial Division), Accra wherein it held that it had jurisdiction to entertain, and enter into an enquiry of an alleged offence of intermeddling pursuant to Order 66 rule 3 of C.I 47 is a clear, obvious and patent error of law, in the context of the express indication of the Constitutional basis of C.I 47 in its preamble. The said error goes to jurisdiction and the resultant proceedings will occasion a nullity. Consequently, this application warrants the exercise of our supervisory jurisdiction as prayed. Accordingly, let the said ruling of the High Court, (Commercial Division) dated 7th June, 2022, be brought up to this Court for the purpose of being quashed and same is hereby quashed.
I am of the considered opinion that the grounds for this application and the facts do not establish that the learned judge exceeded his jurisdiction or engaged in any serious illegality to warrant our intervention by way of certiorari. The application is thus dismissed for want of merit.
It should be noted that, an application invoking our supervisory jurisdiction is constrained by time. This is regulated by Rules 62 and 66 of the Supreme Court Rules, 1996 (C.I.16) (as amended) which demands that, an application to invoke the supervisory jurisdiction of the Court shall be filed within 90 days of the date when the grounds for the application first arose unless the time is extended by the court.
There is consensus of judicial authority from this court and the jurisprudence is well settled that, where an order, judgment, ruling or proceeding being sought to quashed is one, which is a nullity and therefore void, public policy frowns upon its subsistence and hence limitations of time shall not be a bar to enabling the court interrogate same. What this simply means is that, in appropriate circumstances, this court can dispense with the timelines for applications of this nature especially where, the subject of the application is void or a nullity ab initio. It must be stressed however that, each case is determined on its peculiar facts.
Usurpation of the Supreme Court’s exclusive jurisdiction by a lower court
As she decided to refuse the application, the trial Judge should have paused and asked herself, what was to become of the question of the constitutionality of SMCD 20. It seems to us that, by refusing to make reference and proceeding with the trial, the trial judge had concluded an affirmative answer to the question. By that she assumed a role outside her jurisdictional province to usurp the clear authority of this Court under article 2(1) of the Constitution.
