REPUBLIC vs. CIRCUIT TRIBUNAL, ACCRA; EX PARTE ADAS [1997-98] 1 GLR 933

CASES REFERRED TO

(1) Essah v Sofo [1972] GLR 301.

(2) Republic v Asamankese District Magistrate; Ex parte Ide Sabrama [1972] 1 GLR 398.

(3) Attorney General v Hotham (1827) 3 Russ 415,; 38 ER 631.

(4) Parkin v Thorold (1852) 16 Beav 59; 51 ER 698.

(5) Timitimi v Amabebe (1953) 14 WACA 347.

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

(7) R v Northumberland Compensation Appeal Tribuinalsic(1); Ex parte Shaw [1952] 1 KB 338;

[1952] 1 All ER 122; [1952] 1 TLR 161, CA.

(8) R v Akiwumi and Bannerman; Ex parte Dako (1958) 3 WALR 372.

(9) Republic v Court of Appeal Ex parte Ekumtan II [1989-90] 2 GLR 168; [1990] 4 WASC 33, SC.

NATURE OF PROCEEDINGS

APPLICATION by the applicant, the co-defendant in a land suit pending before the High Court, Accra, to the High Court for an order of certiorari to quash the order of the Circuit Tribunal, Accra restraining the parties in the land dispute before the High Court from entering the land until the dispute as to title had been adjudicated by the High Court in a ruling made by the circuit tribunal while granting bail to some accused persons in a criminal trial against them for trespass to the land in dispute. The facts are sufficiently stated in the ruling.

COUNSEL

E D Kom for the applicant.

E A Accam for the respondent.

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JUDGMENT OF GYAMERA-TAWIAH J.

This is an application for an order of certiorari to quash the ruling delivered by the Circuit Tribunal, Accra per his Honour Charles L Quist as presiding chairman, D K Ashileve and H E Golightly as members in suit No CB 2/362/96.

The events which have given rise to this application can be stated as follows. On 10 March 1989 one Nii Mate Tesa and five others instituted a court action against Nuumo Nortey Adeifio Ayittey and others for, inter alia, a declaration of title to a parcel of land at Tesa near Accra. Upon an application to the High Court for a joinder, one Moufid EL Adas, (the present applicant) was joined to the suit as the seventh defendant on 10 November 1995. On 9 September 1996 one Shamo Quaye and twelve others were arraigned before the Circuit Tribunal, Accra as above constituted on alleged acts of trespass on the land in dispute at the High Court. On that same day, the said circuit court granted bail to all the accused persons. In granting the bail, the circuit court made a further order as follows: “The complainant and the accused persons are all restrained from entering onto the land till the matter before the High Court as to title to the land is adjudicated upon.”

It is against this order that the present application seeks to quash by a writ of certiorari. In arguing the application, learned counsel for the applicant submitted that the said order was made without jurisdiction. His ground was that since the matter is pending before the High Court, it is only the High Court which can grant an order of an interim injunction, and not a circuit court tribunal, an inferior court. Learned counsel therefore invited the court to pronounce upon the said order as given without any jurisdiction and therefore void.

Section 44(3) of the Courts Act 1993, (Act 459) states as follows: “3. A Circuit Tribunal does not have jurisdiction in any civil causes or matters.” In my opinion, the jurisdiction conferred on a circuit tribunal excludes civil causes or matters. Edusei J (as he then was) said in Essah v Sofo [1972] 2 GLR 301 at 303, that: “An inferior court has no jurisdiction except that which is expressly conferred by statute.” Similarly in Republic v District Magistrate, Asamankese; Ex parte Ide Zabrama [1972] 1 GLR 398 at 404 it was stated: “Where a prerequisite for the exercise of the court’s jurisdiction is wanting, any purported exercise of jurisdiction is an act in excess of jurisdiction against which

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certiorari would lie.” In the ancient case of Attorney-General v Hotham (1827) 38 ER 631 it was held that if a limited tribunal exercises a jurisdiction which does not belong to it, its decision amounts to nothing and does not create the necessity for an appeal.

In the present application, though the order made was in a criminal trial, the substance of the order was in the form of an interim injunction. Since equity looks to the substance and not to the form, I think despite the fact that in paragraph (15) of the affidavit in opposition to this application it was stated: “That … it is the duty of every competent and responsible court to make orders for the maintenance of peace and good order in society”, the substance of the order should not be overlooked. For as late as 1852, Romilly MR had emphatically made it clear! that:

“Courts of equity made a distinction in all cases between that which is a matter of substance and that which is a matter of form; and if it finds that by insisting on the form the substance will be defeated; it holds it to be inequitable to allow a person to insist on such form and thereby defeat the substance”

Based on the above, therefore I hold that the order made by the circuit tribunal was made without any jurisdiction and is therefore a nullity.

If one takes the other side of the coin, the order is still a nullity, ie the order can be said to have been made in excess of jurisdiction. What I mean is that even if the circuit tribunal has jurisdiction over civil causes and matters, so far as the said order, in the form of an interim injunction, affected a suit pending before a High Court, the said order can be said to have been an usurpation of the High Court’s jurisdiction. It looks strange to me how a circuit tribunal (an inferior court) can make an order in respect of a case pending before the High Court.

In Timitimi v Amabebe (1953) 14 WACA 374 at 377, the court held that:

“There is a distinction between an order or judgment which a Court is not competent to make and an order which, even if erroneous in law or in fact, is within the Court’s competency

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. . . [W]here there is no jurisdiction the proceedings are void, but where a court of competent jurisdiction makes an erroneous order, it is appealable.”

The order made by the circuit court was one made in excess of its jurisdiction and therefore void. I must say that however well-intentioned an order or judgment is delivered, if it was made either without jurisdiction or in excess of jurisdiction, that judgment or order will be a nullity and nothing can flow from it.

In the often-quoted case of Mosi v Bagyina [1963] 1 GLR 337 at 347, SC, the Supreme Court held, inter alia, per Akufo-Addo JSC (as he then was):

“(1) where a judgment or an order is void either because it is given or made without jurisdiction or because it is not warranted by any law or rule or procedure, the party affected is entitled ex debito justitiae to have it set aside, and the court or a judge is under a legal obligation to set it aside. No judicial discretion arises here …

(3) There is no time limit in which the party affected by a void order or judgment may apply to have it set aside.”

It has also been held that: “Certiorari exists to correct error of law where revealed on the face of an order or decision or irregularity, or absence of, or excess of jurisdiction where shown”: see R v Northumberland Compensation Appeal Tribunal: Ex parte Shaw [1952] 1 KB 338, CA. See also R v Akiwumi and Bannerman; Ex parte Dako (1958) 3 WALR 372 at 373 and Republic v Court of Appeal; Ex parte Ekuntan [1989-90] 2 GLR 168, SC. In the latter case, the Supreme Court quashed the orders made by the High Court and the Court of Appeal since the action was clearly a cause or matter affecting chieftaincy over which neither the High Court nor the Court of Appeal had jurisdiction.

Since I have come to the conclusion that the order made by the circuit tribunal on 9 September 1996 is a nullity, the application for certiorari is granted as prayed.

DECISION

Application granted.

Endnotes

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