REPUBLIC vs. HIGH COURT, SUNYANI; EX PARTE PRESBYTERIAN CHURCH [1997-98] 1 GLR 462

CASES REFERRED TO

(1) R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338; [1952] 1 All ER 122; [1952] 1 TLR 161, CA.

(2) R v Tomlinson (1872) LR 8 QB 12.

(3) Anisminic v Foreign Compensation Commission [1969] 2 AC 147; [1969] 2 WLR 163; [1969] 1 All ER 208, HL.

NATURE OF PROCEEDINGS

APPLICATION by the plaintiff church to the Supreme Court for an order of certiorari to quash the decision of the High Court, Sunyani ordering the plaintiff to pay the defendant, a minister it had retired from its employ, six months’ salary on humanitarian grounds pending the hearing of the plaintiff’s action for recovery of possession of its manse and the defendant’s counterclaim for payment of salary for remaining seventeen years of his service.

COUNSEL

Dr Seth Twum (with him Miss Shilla Mintah) for the plaintiff—applicant.

Defendant-respondent for himself.

JUDGMENT OF AIKINS JSC

Aikins JSC delivered the ruling of the court. This is an application for certiorari to bring up and quash the decision of the High Court, Sunyani (Gyaesayor J) dated 12 June 1996.

On 25 January 1995 the Presbyterian Church of Ghana filed a writ in the High Court, Sunyani titled: “Presby Church, Ghana, [p.464] of [1997-98] 1 GLR 462 Sunyani v Rev C E N Doku, The Manse of the Presby Church, Nkoranza.” On receipt of the writ the defendant filed a statement of defence on 11 October 1996 in which he stated that he was entitled to live in the manse because “the dispute over his retirement has not been resolved.” He then counterclaimed for:

“(a) the gross monthly salaries of the remaining seventeen years of his service;

(b) the payment of ¢162,008 with interest at the current bank rate being part of his entitlements; and (c) an order of perpetual injunction restraining the plaintiffs or their agents or both from interfering in

any way with the defendant’s stay in the manse until the final determination of their case.”

From the foregoing, the court was faced, inter alia, with the following issues for determination: (a) whether or not the defendant’s continued occupation of the manse at Nkoranza is justifiable; (b) whether or not the defendant has been lawfully retired; and (c) whether or not the defendant is entitled to the monthly salaries of the remaining seventeen years of his service, and the payment of ¢162,008 being part of his entitlements.

The record shows that after the plaintiff had closed its case and the defendant was due to open his defence, the defendant filed a motion on notice at the High Court, Sunyani on 18 April 1996 asking for an order of the court for payment to himself by the plaintiff of cash the sum of ¢500,000 on grounds stated in the accompanying affidavit, namely paragraph (12) thereof, ie “as a temporary measure to enable the defendant to honour his duty or obligation to maintain his standard of living out of just and favourable working conditions and in the event of lack of livelihood in circumstances beyond his control.”

In granting the application the presiding judge ordered that “purely on humanitarian grounds and without prejudging the

[p.465] of [1997-98] 1 GLR 462

issues set down for trial, the church is to pay six months’ salary to the defendant-applicant.”

The ominous question that looms for resolution is whether Gyaesayor J had jurisdiction to entertain the motion for an order to pay to the defendant an amount of ¢500,000 on the grounds stated in the accompanying affidavit. Learned counsel for the applicant contends that the learned judge had no jurisdiction to make such an order, and that the order should be brought into this court to be quashed.

As stated earlier, the plaintiff had issued a writ for the renovery[sic](2) of its manse at Nkoranza which was being occupied by the defendant, together with all its properties in the manse. Though the defendant had counterclaimed to be paid the gross monthly salaries of the remaining seventeen years of his service if he was to be retired prematurely, he is yet to open his defence to adduce credible evidence to justify his clam.

It must be noted that certiorari does not only lie where an inferior tribunal has acted without or in excess of its jurisdiction; it also lies to quash the decision of such tribunal though it has jurisdiction, but has embodied its reasons in its order, ie has made a “speaking order”, and those reasons are bad in law: see R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338, CA. In this wise, there is no need for the tribunal to set out in its adjudication the reasons which led to the decision, but if it does state them the superior court will consider the question whether they are right in law, and if they are wrong in law, will quash the decision, eg where an order is made which is unauthorised by the finding of the tribunal: see R v Tomlinson (1872) LR 8 QB 12.

Lord Pearce in his classic decision in Anisminic v Foreign Compensation Commission [1969] 1 All ER 208 at 233, HL enumerated some of the circumstances which may occasion lack of jurisdiction. Among these he mentioned the absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry; or the tribunal may at the end make an order that it has no jurisdiction to make, or in the intervening stage, while engaged in a proper inquiry, the tribunal may take into account matters which it was not directed to take into account. In so doing, it would step outside its jurisd-

[p.466] of [1997-98] 1 GLR 462

iction. Further, when it is clear from the record that though the tribunal was keeping within its mandated area of jurisdiction, it comes to an erroneous decision through an error of law, the courts will intervene.

Surely, in the instant case, the order to pay to the defendant on humanitarian grounds six months’ salary flows from the defendant’s counterclaim for payment to him of the monthly salaries of the remaining seventeen years of his service. This has to be proved by credible evidence. In our view even though the judge had jurisdiction to embark on the inquiry it would be wrong for him to prejudge the issue and make such an order. We think that it would have been more prudent for the judge to stand down the motion and quickly ask the defendant to open his defence, and deliver his judgment on the issue. We think the judge has no business to order payment of the six months’ salary at that stage. The order was baseless, wrong in law and without any legal justification whatsoever. It was bad on its face in the sense that it was apparent on the face of it.

We therefore grant the application for certiorari, and order that the order of the High Court judge, Sunyani dated 12 June 1996 be brought up to be quashed.

DECISION

Application granted.

Endnotes

1 (Popup – Footnote) [sic] same in document 2 (Popup – Footnote) [sic] same in document