REPUBLIC vs. HIGH COURT, ACCRA; EX PARTE EXPANDABLE POLYSTYRENE PRODUCTS LTD [2001-2002] 1 GLR 98

CASES REFERRED TO:

(1) Wor Sea Co (Ghana) Ltd v Expandable Polystyrene Products Ltd, High Court, Accra, 25 January 2002, unreported.

(2) Republic v Judicial Committee of the Central Regional House of Chiefs; Ex parte Aaba [2001-2002] SC GLR 545.

(3) Sallah v Attorney-General, Supreme Court, 20 April 1970, unreported; digested in (1970) CC 55;

(1970) 2 G & G 493, SC.

(4) Boye-Doe v Teye [2000] SCGLR 255.

APPLICATION by the defendant-applicant under article 132 of the Constitution, 1992 to the Supreme Court for an order of certiorari to quash the judgment of the High Court, Accra in Wor Sea Co (Ghana) Ltd v Expandable Polystyrene Products Ltd, High Court, Accra, 25 January 2002, unreported on the ground that the judgment was null and void because it had been delivered more than six weeks after the close of the case contrary to the mandatory provision of Order 63, r 2A of the High Court (Civil Procedure) Rules, 1954 (LN 140A) as inserted by the High Court (Civil Procedure) (Amendment) Rules, 1977 (LI 1107), r 7.

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R S Agbenoto for the applicant.

Justina Tete-Donkor (Miss) (with her Lawrence Tagoe, Helen Arnoah and Joseph Mantey) for the interested party-respondent.

Bamford-Addo JSC. delivered the ruling of the court. This is a motion invoking the supervisory jurisdiction of the Supreme Court, under article 132 of the Constitution, 1992 for the order of certiorari directed to the High Court, Accra to quash its judgment in a case titled Wor Sea Co (Ghana) Ltd v Expandable Polystyrene Products Ltd, High Court, Accra, 25 January 2002, unreported.

The ground for this application is that:

“The judgment is null and void because at the time it was given the six-week period prescribed by the rules for it to be delivered had elapsed.”

The facts are that the present applicant was the defendant in the case of Wor Sea Co (Ghana) Ltd v Expandable Polystyrene Products Ltd (supra). The plaintiff therein instituted an action against the applicant seeking the following reliefs:

(a) The export value of sea food assessed at Ff 88,318.50 or its equivalent.

(b) Interest at the commercial bank lending rate calculated from the date of first demand until the date of payment.

(c) Damages for breach of contract.

After the hearing of evidence in the case had been completed, the plaintiff filed its address on 8 December 1999 and the defendant also filed its address on 28 January 2000. The case was then adjourned for judgment by the trial High Court which was eventually delivered on 25 January 2002 in favour of the plaintiff for all the reliefs sought.

According to the applicant, since the judgment was delivered almost two years after the close of the case in the High Court, instead of the stipulated six weeks as contained in Order 63, r 2A of the High Court (Civil Procedure) Rules, 1954 (LN 140A) as amended by the High Court (Civil Procedure) (Amendment) Rules, 1977 (LI 1107), r 7 the judgment is null and void and ought to be so declared and quashed by certiorari. The relevant rule relied on is

[p.102] of [2001-2002] 1 GLR 98 rule 7 of LI 1107 which amends Order 63 of LN 140A by adding rule 2A to Order 63. Rule 2A as contained in rule 7 of LI 1107 states:

“2A. (1) At the close of a case before it the Court shall fix a date, which shall be not later than six weeks after the close of that case, for the delivery of judgment therein.

(2) It shall be the duty of the Court to deliver judgment as soon as possible after the close of each case before it, and in any event not later than six weeks after the close of any such case.

(3) For the purposes of this rule a case shall be deemed to be closed when the evidence has been given to the Court and the speeches subsequent thereto have been concluded.

(4) The times of the vacations in any year shall not be reckoned in the computation of the period of six weeks referred to in this rule.

(5) Where for any reason judgment has not been delivered within the period of six weeks referred to in this rule, the Court shall forthwith inform the Chief Justice in writing of that fact and shall state the reasons for the delay in so delivering judgment and the date upon which it is proposed to deliver judgment.

(6) Where judgment has not been delivered within the period of six weeks referred to in this rule, any party to the proceedings may in writing notify the Chief Justice of that fact and request that a date be fixed for the delivery of judgment.

(7) Upon receiving a notification from the Court or a party under paragraph (5) or (6) the Chief Justice may fix a date for the delivery of judgment by the Court and notify the Court accordingly, and it shall be the duty of such Court to ensure that judgment is delivered upon the date so fixed by the Chief Justice.”

(The emphasis is mine.) As can be seen, even though rule 7 of LI 1107 provided seven sub-rules, only the first three rules were relied on by the applicant to support his case and arguments. The other

[p.103] of [2001-2002] 1 GLR 98 four sub-rules which are more relevant to the issue before us were completely ignored.

In none of the rules set out earlier was a provision made either directly or by necessary implication for the taking away of a court’s jurisdiction in a part-heard case thus preventing the delivery of judgment and nullifying same if given after six weeks after the close of the case. On the contrary, the intention of the law-maker as gathered from LI 1107 is to ensure the early delivery of judgment after a case has been heard either within six weeks or thereafter. For this reason, time for delivery of judgment is given as six by weeks after the close of the case. Thereafter when judgment has not been delivered within the stipulated time and this fact has been reported to the Chief Justice in writing, either by the judge himself with reasons or by a party to the proceeding, then in the case of the judge he may fix another date himself or the Chief Justice would in either case fix a new date for delivery of judgment after the six-week period and it would be the duty of the judge to comply with the order of the Chief Justice to deliver judgment at the stipulated time.

This simply is the interpretation of LI 1107. The interpretation sought to be put on it by the applicant so as to nullify any judgment given after six weeks is wrong because if it were so why would the rules provide procedure for delivering a delayed judgment so as to complete a part-heard case, only for same to be declared a nullity as given without jurisdiction? It would be an exercise in futility considering sub-rules 4-7 of Order 63, r 2A of LN 140A and produce an undesirable and erroneous effect quite contrary with the intention of the law and the mischief meant to be cured or prevented.

The proper interpretation which is to be given to LI 1107 can be clearly seen when that law is considered vis-à-vis the Constitution, 1992. If this is done, there would be no room left for making implications such as the depriving a court of jurisdiction in a part-heard case and nullifying the resultant judgment. Indeed, once a court has acquired jurisdiction in a case such jurisdiction continues until the case is completed by delivery of judgment. Then and only then does a judge become functus officio in any case: see article

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157(3) of the Constitution, 1992. As provided in article 145(4) of the Constitution, 1992 once a judge has started hearing a case, even if he goes on retirement, he has to continue in office for a period of six months thereafter as may be necessary to enable him deliver judgment or do anything in relation to proceedings that were commenced before him previous to his attaining the retiring age.

Further, article 157(3) says:

“(3) Without prejudice to clause (2) of this article, no person sitting in a Superior Court for the determination of any cause or matter shall, having heard the arguments of the parties to that cause or matter and before judgment is delivered, withdraw as a member of the court or tribunal, or as a member of panel determining that cause or matter, nor shall that person become functus officio in respect of that cause or matter, until judgment is delivered.”

See also section 103 of the Courts Act, 1993 (Act 459) which repeats the same provision of the Constitution, 1992.

These constitutional provisions referred to above make it crystal clear that regardless of rules of practice and procedure of all courts a judge became functus officio only after delivery of judgment in a case he has finished hearing and that such judgment is anything but invalid; neither can it be said to be void. These constitutional provisions together with rule 2A of Order 63 of LN 140A do not support the applicant’s interpretation of LI 1107. It is my view that rule 7 of LI 1107 cannot be interpreted to make a delayed judgment void as such interpretation put on LI 1107 by the applicant would be in conflict rather than in conformity with the Constitution, 1992 when properly interpreted as I have indicated above.

In support of the applicant’s case, the case of Republic v Judicial Committee of the Central Regional House of Chiefs; Ex parte Aaba [2001-2002] SCGLR 545 was cited. In that case, it was decided that the provision of LI 1107 was mandatory and judgment must be delivered after the stipulated time of six weeks, otherwise it would be void. The applicant has asked that we depart from that finding by virtue of our power under article 129(3) of the Constitution, 1992, namely:

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“(3) The Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law.”

I have carefully considered the above mentioned case. It appears to me that the court’s attention was not directed to, nor it did not consider the relevant provisions of the Constitution, 1992 which I have referred to in this judgment. In my opinion, if it had done so, I have no doubt that a different conclusion would have been arrived at which would conform with my views as expressed in this ruling. Therefore, the judgment in the Ex parte Aaba case (supra), with due respect, was given per incuram and the applicant’s reliance on it is unhelpful to this case.

For the above reasons, it is my view that the application for certiorari is unmeritous and should be dismissed.

Kpegah JSC. I reluctantly agree that the application be dismissed and will associate myself with the sentiments expressed by my learned brother Adzoe JSC.

Adjabeng JSC. I have read beforehand the opinion of my brother, Afreh JSC, which he is about to read. I agree with his reasoning and conclusion and I have nothing useful to add. I agree, therefore, that the application ought to be dismissed.

Adzoe JSC. I will reluctantly agree to dismiss the application. In the case of Republic v Judicial Committee of the Central Regional House of Chiefs; Ex parte Aaba [2001-2002] SCGLR 545 we firmly believed that the language of the High Court (Civil Procedure) (Amendment) Rules, 1977 (LI 1107) was clear, and that it ought to be construed as being mandatory and not merely directory. In that case, the judicial committee of the National House of Chiefs had announced its decision without giving reasons therefore; it reserved its reasons to be given later. The decision was announced on 23 September 1996. The reasons were given on 3 December 1996 after several adjournments. So we said that the reasons given long after

[p.106] of [2001-2002] 1 GLR 98 the six weeks’ statutory period could not be accepted as part of the decision and that the decision without reasons was no judgment since the relevant rule, ie rule 11 of the Chieftaincy (National and Regional Houses of Chiefs) Procedure Rules, 1972 (CI 27) provides that: “The Judicial Committee shall at the conclusion of the hearing of the petition deliver its judgment, giving its reasons therefore.”

In our judgment, we made it clear that we did not have any meaningful assistance from both counsel. Perhaps if our attention had been drawn to article 157(3) of the Constitution, 1992, our decision might have been different. I say “might have been” because in the instant case, I have had anxious moments over the precise effect of article 157(3) of the Constitution, 1992 on LI 1107. The opening words of that clause, “Without prejudice to clause (2) of this article”, in my opinion, may suggest that the said clause (3) cannot be said to be inconsistent with any rules made under clause (2) by the Rules of Court Committee. I conceive article 157(3) of the Constitution, 1992 to mean that without any detraction from any rules made by the Rules of Court Committee, once a judge has begun hearing a case he should not withdraw from it until he becomes functus officio. My mind goes back to the case of Sallah v Attorney-General (1970) G & G 493, CA sitting as SC, the famous Sallah case, where Justice Siriboe who was a member of the panel of judges hearing the case announced his withdrawal from the case after a decision was reached but before the court delivered its judgment. It may therefore be that article 157(3) of the Constitution, 1992 and LI 1107 are dealing with two different situations, but I have not been able to convince my colleagues on this panel, and I need not articulate my feelings into a dissent.

It is to this extent that I join my colleagues to dismiss the application.

Afreh JSC. This is an application for an order of certiorari directed to the High Court, Accra to quash its judgment given in a case titled Wor Sea Co (Ghana) Ltd v Expandable Polstyrene Products Ltd, High Court, Accra, 25 January 2002, unreported. The only ground for the application is that: “The judgment is null and void because at the time it was given,

[p.107] of [2001-2002] 1 GLR 98 the six-week period prescribed by the rules for it to be delivered had elapsed.”

The brief facts of the case as stated in the affidavit in support of the application (and not denied by the respondents) are that the respondents sued the applicants for the export value of sea food assessed at Ff88,318.50 or its cedi equivalent, interest on the said amount and damages for breach of contract. They claimed that they lost the consignment of sea food stored in the applicants’ cold store as a result of malfunctioning of the facility. After three years of protracted litigation the case finally closed on 28 January 2000 when the applicants filed their address. After various adjournments for the judgment to be given it was finally delivered on 25 January 2002 — that is two years after the close of the case.

The applicants based their submissions on the first three sub-rules of Order 63, r 2A of the High Court (Civil Procedure) Rules, 1954 (LN 140A) as amended by the High Court (Civil Procedure) (Amendment) Rules, 1977 (LI 1107), r 7 which provides as follows:

“2A. (1) At the close of a case before it the Court shall fix a date, which shall be not later than six weeks after the close of that case, for the delivery of judgment therein.

(2) It shall be the duty of the Court to deliver judgment as soon as possible after the close of each case before it, and in any event not later than six weeks after the close of any such case.

(3) For the purposes of this rule a case shall be deemed to be closed when the evidence has been given to the Court and the speeches subsequent thereto have been concluded.”

Before I proceed further, I want to comment on the way counsel for the applicants has dealt with Order 63, r 2A of LN 140A as amended by rule 7 of LI 1107. It has seven sub-rules. Counsel chose to quote and base his submissions on only three of them. It is an established rule of interpretation that the provisions of a statute to be interpreted must be read as a whole and must be considered in both its internal and external context. If counsel had read and considered all the provisions of the rule together in their proper context his submissions before this court might have been more helpful.

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Relying on the first three sub-rules only, counsel submitted that the time within which the judgment was delivered, ie two years after the close of proceedings, had adverse implications for the jurisdiction of the court and the validity of the judgment delivered. Under the provisions of Order 63, r 2A of LN 140A as amended by rule 7 of LI 1107 that he had quoted, regarded as imposing mandatory requirements, judgment should have been given by the end of the second week of March 2000. After that period the jurisdiction of the court over the case lapsed and it was incompetent and had no authority to deliver the judgment dated 25 January 2002. In support of his submissions, he relied on the Supreme Court cases of Republic v Judicial Committee of the Central Regional House of Chiefs; Ex parte Aaba [2001-2002] SCGLR 545 and Boye-Doe v Teye [2000] SCGLR 225. (Counsel only listed but did not discuss them in his statement.)

In response, counsel for the respondents has submitted that any law that seeks to declare a superior court judge functus officio or to strip such a judge of jurisdiction prior to the delivery of his judgment is contrary to and inconsistent with article 157(3) of the Constitution, 1992 and will be void to the extent of the inconsistency. Therefore, to interpret Order 63, r 2A of LN 140A as amended by rule 7 of L1 1107 as stripping a superior court judge of jurisdiction if the court is unable to deliver judgment within six weeks after the close of proceedings, is to make the judge functus officio before the delivery of judgment, contrary to the provisions of article 157(3) of the Constitution, 1992 and therefore unconstitutional. To uphold such argument as advanced by counsel for the applicants will be to perpetuate an unconstitutionality.

Article 157 of the Constitution, 1992 provides:

“(2) The Rules of Court Committee shall, by constitutional instrument, make rules and regulations for regulating the practice and procedure of all courts in Ghana.

(3) Without prejudice to clause (2) of this article, no person sitting in a Superior Court for the determination of any cause or matter shall, having heard the arguments of the parties to that cause or matter and before judgment is delivered, withdraw as a member of the court or tribunal, or as a member of panel

[p.109] of [2001-2002] 1 GLR 98 determining that cause or matter, nor shall that person become functus officio in respect of that cause or matter, until judgment is delivered.”

In my opinion, the interpretation put on Order 63, r 2A of LN 140A as amended by rule 7 of LI 1107 by the applicants’ counsel is contrary to, and inconsistent with article 157(3) of the Constitution, 1992, and should be rejected. In view of this provision, a judge of a superior court who fails to deliver judgment within six weeks after the close of the case does not cease to have jurisdiction over the case or become incompetent or functus officio. Therefore, a judgment delivered by him after the six-week period is not null and void.

In the case of Ex parte Aaba (supra) this court decided that a judgment delivered by a judge of the High Court (or the judicial committee of a regional house of chiefs) more than six weeks after the close of the case was null and void because in the view of the court, the requirements of Order 63, r 2A of LN 140A as amended by rule 7 of LI 1107 were mandatory. But in that case, the attention of the court was not drawn to article 157(3) of the Constitution, 1992. I am sure if the court’s attention had been drawn to it, its decision would have been different. The decision in Ex parte Aaba (supra) was, with respect, made per incuriam and therefore does not create a binding precedent. Now that the court’s attention has been drawn to the relevant constitutional provision, it should accept the invitation of the respondents’ counsel and depart from it.

It, however, must be stressed that by so doing, Order 63, r 2A of LN 140A (or rule 33 of the Court of Appeal Rules, 1997 (CI 19)) is not being declared unconstitutional. It is only when it is interpreted as imposing mandatory requirements, which would render any judgment given more than six weeks after the close of a case null and void, that the rule becomes unconstitutional. If the requirements are regarded as directory only it is perfectly consistent with article 157(3) of the Constitution, 1992.

Sub-rules 4-7 which the applicants’ counsel omitted in his statement of case contain the consequential measures that may be taken if a judge fails to deliver judgment within six weeks after the close of a case. They provide:

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“(4) The times of the vacations in any year shall not be reckoned in the computation of the period of six weeks referred to in this rule.

(5) Where for any reason judgment has not been delivered within the period of six weeks referred to in this rule, the Court shall forthwith inform the Chief Justice in writing of that fact and shall state the reasons for the delay in so delivering judgment and the date upon which it is proposed to deliver judgment.

(6) Where judgment has not been delivered within the period of six weeks referred to in this rule, any party to the proceedings may in writing notify the Chief Justice of that fact and request that a date be fixed for the delivery of judgment.

(7) Upon receiving a notification from the Court or a party under paragraph (5) or (6) the Chief Justice may fix a date for the delivery of judgment by the Court and notify the Court accordingly, and it shall be the duty of such Court to ensure that judgment is delivered upon the date so fixed by the Chief Justice.”

If the whole of Order 63, r 2A of LN 140A as amended by rule 7 of LI 1107 (and not just the first three sub-rules) are read together with article 157(3) of the Constitution, 1992 it will be seen that they have the same goal: a judge who has heard a case to its conclusion cannot withdraw from it; he must give judgment; and must do as soon as possible; after the close of the case. Order 63, r 2A of LN 140A (or rule 33 of CI 19) goes further by prescribing the time within which the judgment must be delivered.

Since the rule contains the consequential measures that may be taken if a court fails to deliver judgment within six weeks after the close of the case it must be assumed that that is all that the legislature intended should be done: If there is such a failure, the judge must forthwith inform the Chief Justice of that fact and state the reasons for the delay and the date upon which judgment will be delivered; or a party may in writing notify the Chief Justice of the delay. In either case, the Chief Justice may fix a date for the delivery of judgment and it will be the duty of the judge or the court to ensure that judgment is delivered on that date.

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I believe the power of the Chief Justice to fix a date for the delivery of a delayed judgment coupled with the duty of a judge or court to inform the Chief Justice of the delay or the right of a party to notify the Chief Justice of it, constitute enough sanction. At least it must be assumed that the legislature thought that was enough. If that is thought to be inadequate it is the function of the legislature and not the court to impose stiffer sanctions.

These requirements are for the benefit of parties to causes and matters in the superior courts; that is, to ensure that judges deliver judgment expeditiously. Any interpretation of these provisions which may deprive them of these benefits could not have been intended by the legislature.

I think the application must be dismissed.

Application dismissed.

DRKS