Conferring jurisdiction by agreement or acquiescence
This Court has consistently held that estoppel, waiver or acquiescence is no answer to a breach of a mandatory statutory requirement. A party cannot, by consent or conduct, confer jurisdiction on a court where the law has withheld it, nor can participation in proceedings validate what the statute renders invalid.
A statutory time-limit for instituting an election petition is not akin to an ordinary procedural timeline that can be extended or overlooked; it is a condition attached to the right of action itself. Since the timeline is a statutory precondition, defences founded on estoppel or acquiescence are clearly untenable, for estoppel is not, and cannot operate to suspend or override, the prescriptions of statutes—in this instance, Article 99 of the 1992 Constitution vis-à-vis PNDCL 284. In ABABIO AND OTHERS VS. KARIKARI AND ANOTHER [2001-2002] 1 GLR 381, it was held that: “Estoppel of all kinds was subject to the general rule that it could not override the laws of the land, i.e. where a particular formality was required by statute, no estoppel could cure the defect nor give jurisdiction to a court where statute denied it
Parties and their lawyers before our courts cannot by agreement or acquiescence or out of the lack of exercise of due diligence or skill confer jurisdiction on the courts where none exists except a statute specifically says so, as, for example, the provision in section 42(3) of the Courts Act, 1993, Act 459 (as amended) which gives parties before the Circuit Court, the power to agree that the Circuit Court may proceed to hear an action notwithstanding that the amount being claimed or the value of the property being claimed exceeds the jurisdiction given the Circuit Court under the Courts Act.
It is trite learning that parties cannot by agreement or acquiescence, confer jurisdiction on a Court where the exercise of such jurisdiction is prohibited, or not provided for by law.
Consequential orders on the dismissal of an action
The trite position of the law is that a court that is seised with the power to dismiss a suit for whatever reasons including capacity, jurisdiction, or merits has the jurisdiction to make consequential orders, but where a court dismisses an action for want of jurisdiction, capacity, or locus standi, it is prohibited from discussing its merits notwithstanding the fact that the party whose action is dismissed may have a cast-iron case. The consequential orders are made to tidy up the case and that was the exact thing that the ordinary bench embarked upon.
Effect of an administrative directive on the jurisdiction of a court
It follows, therefore, that an administrative directive issued by the Chief Justice pursuant to Rule 1 of C.I. 19, regulating the regional sittings of the Court of Appeal for the hearing of appeals originating from the Central and Western Regions, neither divests nor is capable of divesting the Court of Appeal — being a single court properly seised of the appeal of its constitutional jurisdiction to determine and deliver judgment therein.
Effect of proceedings commenced in breach of a mandatory statutory requirement
Proceedings commenced in clear violation of mandatory statutory requirements might not escape the scrutiny of the law. It seems to us that this is a useful tool in the hands of the court by which we are enabled to strike down proceedings even though the default in complying with mandatory requirements might have escaped notice in the courts below. It is a weapon that enables us to uphold the rule of law as to do otherwise would have the effect of condoning breaches of statute.
Jurisdiction denotes the authority of a court to adjudicate upon a given subject matter and is derived from statute or the Constitution. Venue, on the other hand, pertains merely to the geographical location at which a duly constituted court sits and is essentially administrative in character. The Court of Appeal is a single superior court of record established under Article 126(1)(a)(ii) of the 1992 Constitution and, by virtue of Article 137(1), is vested with jurisdiction extending “throughout Ghana.” Its sittings in the various regions are matters of administrative convenience rather than jurisdictional constraint.
Power of a court to determine its own jurisdiction
We wish to state without equivocation that every Court has the jurisdiction to determine whether it has jurisdiction in any matter or proceedings. This is to say that in the teeth of an objection, preliminary or at any stage in the proceedings, whether formal or oral, to the jurisdiction of a Court in any matter or proceedings, the Court has an inherent jurisdiction to make a determination on the question of whether or not it has jurisdiction. This is what is described in the law of arbitration as competence-competence. However, the nature of the error which may result from such a determination of a question of jurisdiction may render the decision amenable to the supervisory jurisdiction of the High Court or this Court. As opined supra, if the error is patent and goes to jurisdiction, occasions or will result in a nullity, such a decision, without more, will be amenable to the supervisory jurisdiction of the appropriate higher court.
It is also settled law that jurisdiction is conferred by the Constitution or substantive enactments and that rules of court contained in subsidiary legislation only regulate the exercise of existing jurisdiction but do not confer jurisdiction and so cannot take it away or diminish or enlarge it.
Any rule promulgated pursuant to articles 157(2) and 33(4) of the Constitution that goes beyond the scope of rules of practice or procedure would be contrary to the enabling provisions and therefore ultra vires the Constitution. Jurisdiction may only be vested in the court by substantive statutes or the Constitution.
Jurisdiction is, in its simplest sense, the legal authority of a court to hear and determine a cause or matter brought before it. Where a court lacks jurisdiction, any decision delivered or order made is a nullity. (See: Ghana Bar Association v. Attorney General [1995-96] 1 GLR 598 - 623], per Bamford Addo JSC; Edusei no.2 v. Attorney General [1998-1999] SCGLR 753). Jurisdiction is not assumed; it is conferred by law, whether by the Constitution or by statute. Accordingly, where a statute defines the nature, scope, and limits of a court’s jurisdiction, it is those provisions that govern the court’s competence. Any proceedings conducted in breach of those limits, however well-intended, may resulted in a nullity.
We must reiterate the learning that the jurisdiction of a Court is one which is properly conferred and circumscribed by law. Therefore, no Court has the power, by judicial fiat, to assume jurisdiction that is not properly conferred or extend its jurisdiction beyond the scope or remit granted it by law. The arrogation to itself of jurisdiction which is not conferred by law constitutes an error patent on the face of the record and which goes to jurisdiction. Needless to say, the purported exercise of same will not only occasion a want of jurisdiction but also a nullity.
