IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
THE REPUBLIC - (Defendant/Respondent/Appellant)
THE DISTRICT COURT - (Applicant/Respondent)
MENA KUMA & ANOR - (Interested Parties/Appellants)
DATE: 28 TH NOVEMBER, 2018
SUIT NO: H1/06/18
JUDGES: MARIAMA OWUSU J.A. (PRESIDING), HENRY A. KWOFIE J. A., AMA GAISIE (MRS) J. A.
SHADRACK YEBOAH OBENG ESQ. FOR INTERESTED PARTIES/APPELLANTS
MATTHEW APPIAH ESQ. FOR APPLICANT/RESPONDENT
MARIAMA OWUSU, JA
On 31st July, 2015 the High Court, Mampong Ashanti, granted the applicant’s application for
certiorari and quashed the judgment of the District Magistrate Court, Effiduase-Ashanti, dated 28th October, 2010, as being void on the ground of being a mistake.
Dissatisfied with the decision of the High Court, the interested parties/appellants appealed to the
Court of Appeal on the following grounds:
The trial Judge erred when he held that the orders of the High Court dated 10th February, 2005 was a mistake and therefore void.
That the trial Judge erred by ordering for the judgment of the District Magistrate Court, Effiduase to be quashed.
Further grounds to be filed when the records are ready.
The relief sought from the Court of Appeal is to set aside the honourable court’s said ruling dated 31st July, 2015 and rule in favour of the interested party.
The matters culminating in the present appeal are as follows:
On 2nd April, 2015, the applicant/respondent (herein referred to as respondent) filed an application for judicial review in the nature of certiorari for the purposes of bringing up and quashing the judgment of the District Court, Effiduase-Ashanti dated 28th October, 2010 in Suit No. A9/6/09 entitled.
In the Matter of
Opanin Kwaku Nkansah
1. Mena Kuma
2. Opanin Akwasi Acheampong
The application was brought pursuant to Order 55 rule 2 (1) (a), (c), (d) and (e) of the High Court (Civil Procedure) rules, 2004 C. I. 47.
In the affidavit in support, the respondent averred among others that, he is the head of the Okuase Bretuo Royal family of Bomeng and Effiduase and brought the action in that capacity. The respondent averred further that sometime in the year 2001, his head of family Abusuapanin Kwaku Nkansa instituted an action in Suit No. LS11/2001 at the Mampong High entitled.
“Abusuapanin Kwaku Nkansah
Madam Adwoa Frema of Mampong Akrofoso
for a declaration of title and recovery of possession of House No. Ok 5 Okuase, Effiduase. The defendant in the above case, Madam Adwoa Frema was a maternal family member of one Kwabena Pie who the 2nd interested party herein claim was the owner of the disputed house and as such claim his root of title from. The respondent continued that, during the pendency of the suit mentioned above, the matter was withdrawn for an out of court settlement. The parties in the said suit LS 11/2001 amicably settled the case out of court and filed terms of settlement.
Per the terms of settlement, the disputed house was declared as the property of the respondent’s family and the High Court, Mampong, struck out Suit No. L1 11/2001 as settled per the terms of settlement.
Subsequent to the settlement, Abusuapanin Kwaku Nkansah commenced another civil matter at the District Court, Effiduase against tenants in the said house, house no. OK 5 Okuase, Effiduase for declaration of title and recovery of possession in Suit No. A9/6/09 titled;
Opanin Kwaku Nkansah
The nephew of Op. Kwabena Pie, Opanin Kwasi Acheampong (who is the 2nd interested party herein) joined suit no. A9/6/09 as co-defendant and counterclaimed for a declaration of title and recovery of possession of House No. OK 5 Effiduase. Plaintiff’s action in Suit No. A9/6/09 was dismissed and the 2nd interested party herein, then co-defendant’s counterclaim was upheld. It is the case of the respondent that, in arriving at its conclusion, the trial Magistrate held that the Terms of Settlement reached at the High Court, Mampong was null and void on the basis that the persons who signed the Terms of Settlement had no capacity to bind the successor of Kwabena Pie in the judgment of the District Court dated 28th October, 2010. The respondent concluded that the judgment of the District Court dated 28th October, 2010 is null and void among others in that, once the High Court, Mampong, had made its valid orders affecting H/No. OK 5 Okuase, Effiduase, it was not open to the District Magistrate Court, the lowest of the courts in Ghana to question the orders of the High Court even if they were void. Thus, by so doing, the District Court reviewed and or sat as an appellate court over the terms of settlement by the High Court, Mampong hence the application seeking to quash the said judgment and or orders of the District Court by judicial review in the nature of certiorari. He maintained that the District Court is not clothed with jurisdiction to declare the orders/judgment of the High Court, Mampong as null and void.
Based on the foregoing, the respondent concluded that there is clear error of law on the face of the judgment of the District Court dated 28th October, 2010 and this goes to the root of the judgment hence the application.
The application was vehemently opposed by the appellants. In their affidavit in opposition, the appellants depose that the District Magistrate Court had jurisdiction to hear the matter brought before it. They continued that 2nd interested party wrote to the respondent saying the disputed property was not for the respondent’s family. As a result of this letter, Abusuapanin Kwaku Nkansah cited 2nd interested party and 1st interested party and one Madam Akosua Anokyewaa for contempt of court for having flouted the orders of the court as contained in the terms of settlement.
The High Court, Mampong on 10th February, 2005 dismissed the contempt application on the basis that the contemnors were not parties to the original suit and thus the terms of settlement wasnot binding on the interested parties and Madam Akosua Anokyewaa. Thereafter, Opanin Kwaku Nkansah instituted a fresh action at the District Court against the interested parties. The appellants concluded that, the District Magistrate Court had jurisdiction to hear the matter which was before it and if the respondent believed the judgment of the District Magistrate was wrong, his right lies in an appeal.
After going through the application and the affidavit in opposition as well as the documents attached to the respective affidavits and the statement of case filed by the parties, the High Court, Mampong in its judgment dated 31st July, 2015 granted the application for certiorari and quashed the judgment of the District Magistrate Court, Effiduase-Ashanti, dated 28th October, 2010, hence this appeal.
In arguing the appeal, counsel for the appellant argued that, the High Court Judge did not follow the rules of certiorari. He continued that, the superior courts have variously held that the scope or application for certiorari is limited only to jurisdiction lapse, procedure such as rules of natural justice and fundamental error on the face of the record that renders the proceedings a complete nullity.
Counsel argued that any other error or misconception of law or mistake in the evaluation of evidence resulting in a wrong decision is only appealable and not subject to quashing orders by judicial review. He referred to the case of Okofoh Estates Ltd. Vs. Modern Signs Ltd. & Another [1995-96] 1 GLR 310, 349 to buttress his point. He also referred to the case of Republic Vs. Court of Appeal, Accra, Ex parte Tsatsu Tsikata [2005-2006] SCGLR 612 and the case of Republic Vs. High Court, Accra, Ex parte Alhaji Abdul Rashid, Civil Motion No. J5/13/14 dated 13th February, 2014 and submitted that, certiorari is granted in very limited circumstances and that it is not an alternate to appeal or “a quick fix approach” to have a matter reheard on its merits.
In applying the cases referred to supra, to the case under consideration and in arguing ground ‘2’ of the appeal, counsel for the appellant submitted that, the District Court, whose decision is in contention had jurisdiction to entertain the suit, being a land matter both in terms of geographical and value as no one raised objection as to monetary or geographical jurisdiction of the District Court in respect of the subject matter.
That being the case, the District Court at the time of the trial had jurisdiction to hear the matter and there cannot be want or excess of jurisdiction on its part to warrant certiorari.
Secondly, counsel argued, the trial High Court misconceived the import of the application before it and dealt with the matter as if it was an appeal before him. This is because, certiorari is about procedure and not the merits. He submitted that, from the judgment, the High court could not point out any procedural lapse that deprived the District Court jurisdiction to hear the matter. He concluded on this point that, the decision of the High Court amounts to an evaluation of the evidence adduced before the District Court which in the opinion of the High Court ought to have gone in favour of the respondents. If that was the case, counsel argued, it became a matter of an appeal and not a grant of certiorari. It was therefore wrong for the High Court to quash the judgment of the District Court and same should be set aside by this court.
This is because when the District Court took evidence from the parties and made findings based on the evidence, it did not commit any error of procedure and if aggrieved by the manner the evidence was evaluated which formed the basis of the decision of the trial Magistrate, the aggrieved party ought to appeal as misconception of the law or wrong evaluation of evidence is only appealable. Counsel referred to the following cases in support of his position:
1. Republic Vs. High Court, Accra; Ex parte Asakum Engineering and Construction Ltd. & Others [1993-94] 2 GLR 643, 662
2. The Republic Vs. Circuit Court ‘B’, Accra; Ex parte Komeley Adams and Others (Komietteh Adams) (substituted by Otsiata IV, Interested Party  1 SCGLR III; and
3. Republic Vs. Accra Circuit Court, Ex parte Appiah [1982-83] GLR 129, 143
Based on the above cases, counsel for the appellant submitted that the High Court, Mampong was wrong in quashing the judgment of the District Court when same did not suffer any jurisdictional, procedural or fundamental error that makes the decision a nullity. He therefore invited us to set aside the decision of the High Court, Mampong and restore the District Court judgment.
In response to the above submissions, counsel for the respondent after giving the facts of the case, referred to Article 141 and 161 of the 1992 Constitution as well as Section 39 of Act 459 and Section 5 of the Courts Amendment Act, 2004, Act 620 on the supervisory jurisdiction of the High Court over lower court and lower adjudicating authority. He also referred to Order 55 Rule 1 (a) and 2 (1) of C. I. 47.
Counsel then submitted that the trial Magistrate knew the consent judgment in Suit No. LS 11/2001 in respect of the disputed property was settled before the Mampong High Court. He referred to portions of the judgment of the District Court and submitted that, the trial Magistrate in discussing the issues in the consent judgment was determining whether the terms of settlement at the High Court were valid or not. Counsel then submitted that, the Magistrate did not have jurisdiction to declare the transfer of the house which had been given the legal blessing by the Mampong High Court by way of consent judgment as null and void even if what the High Court, Mampong did was a nullity. By virtue of the hierarchy of the courts, the District Court did not have jurisdiction to declare what the High Court, Mampong had done as null and void. Counsel referred to the cases of Asin Apimanim Local Council Vs. Williamson  GLR 18; Ampofo Vs. Samampa [2008-2009] SCGLR 1153 and The Republic Vs. High Court, Accra, Ex parte Industrialization Fund for Developing Countries & Anor. [2003-2004] SCGLR 348, and submitted that the decision by the trial Magistrate to declare the judgment of the High Court, Mampong as a nullity is an error of law and not a fact and same can be quashed by judicial review. Counsel also referred us to the book, “The Law of Chieftaincy in Ghana “by S. A. Brobbey, JSC in which the learned Judge categorized the errors of law which may be committed by the lower courts as follows:-
Non-statutory jurisdictional error of law committed by lower courts
Error of law patent on the face of the record committed by lower courts and
Error of law not patent on the face of the record committed by lower courts.
Counsel for the respondents opined that, in all the situations mentioned by the learned author and jurist, he was of the view that judicial review would lie against any such lower court.
On the point by counsel for the appellant that the learned trial Judge went into the merits of the case in his judgment, he denied that allegation and submitted that the question should be whether the judgment of the District Court was a nullity and not whether the trial Judge delved into the merits of the case. He continued that, the cases cited by counsel for the appellant are all in respect of application to quash decisions of the High Court and not lower courts or lower adjudicating bodies and that those principles are inapplicable to lower courts.
Counsel for the respondent concluded that, from the cases cited supra, one could impugn the error of law if it goes to the very foundation of the decision such as to make the court lose its jurisdiction to make it a nullity. Consequently, counsel submitted, the High Court has jurisdiction to undo the effect of the decision of a lower court but a lower court lacks the jurisdiction to touch any decision of the High Court even if it is a nullity. This is on the strength of staris decisis. He therefore invited us to dismiss the appeal as the act of the District Court goes to the heart of that judgment and that would automatically strip the District Court of its jurisdiction of declaration of title and that is exactly what the trial Magistrate did in this case and the judgment of the District Court was rightly quashed.
The application of judicial review is provided for by Order 55. Order 55 Rule 1 of the High Court (Civil Procedure) Rules 2004, C. I. 47 provides that:
“An application for;
a. An order in the nature of mandamus, prohibition, certiorari or quo warranto, or
b. An injunction restraining a person from acting in any public office in which that person is not entitled to act, or
c. Any other injunction shall be made by way of an application for judicial review to the High Court.”
There is no doubt that the High Court in its supervisory role has the power to entertain application in the nature of judicial review for example certiorari.
The question then is what are the circumstances under which a High Court would grant an application of judicial review in the nature of certiorari. In the case of Okofoh Estates Ltd. Vs. Modern Signs Ltd. & Anor. [1996-97] SCGLR 224, 226, Aikins JSC held that:
“Certiorari would lie to quash the decision of a court on the ground of error of law on the face of the record if such error went to jurisdiction or was obvious as to make the decision a nullity.
Where however, the proceedings are regular on the face of the record and it is clear that the court or tribunal acted within its jurisdiction, a superior court would not grant a writ of certiorari simply on the ground that it has misconceived a point of law or has misconstrued a statute or misdirected itself as to weight of evidence neither can certiorari be granted to quash the decision (where the court or tribunal acts within its jurisdiction) on the ground that the decision is wrong in matters of fact.”
See also the case of Republic Vs. Court of Appeal, Accra, Ex parte Tsatsu Tsikata [2005-2006] SCGLR 612, 613 to 614 holding (1) of the headnotes, where the Supreme Court in unanimously dismissing the application for certiorari held:
“The discretionary jurisdiction of the Supreme Court under Article 132 of the 1992 Constitution should be exercised only in those manifestly plain and obvious cases where there were patent errors of law on the jurisdiction or were so plain as to make the impugned decision a nullity.
The error of law on which the decision was founded, must therefore be fundamental, substantial, material, grave or so serious as to go to the core or root of the matter complained of. Furthermore, where the proceedings were regular, a charge that the trial court had misread or misconceived a point of law or misdirected itself or had improperly exercised its discretion did not constitute a sufficient ground for the grant of the order…”
The above position was re-emphasized in the case of The Republic Vs. Circuit Court Accra, Ex parte
Komeley Adams & Others (Komietteh Adams (substituted by) Otsiata IV Interested Party  1
SCGLR 111, 112 – 113 holding (2) where their Lordships held that:
“In relation to the High Court’s supervisory jurisdiction on an error of law patent on the face of the record could not found the invocation of that jurisdiction of the court unless it was fundamental, substantial, material, grave or so serious as to go to the root of the matter. In sum, in addition to jurisdictional errors, only a fundamental non-jurisdictional error of law could be the basis for the exercise of the High Court’s supervisory jurisdiction. A fortiori, an error of law not patent on the face of the record could not found the High Court’s intervention by way of its supervisory jurisdiction where such jurisdiction was exercised in relation to a lower court.”
From the decisions referred to supra, it is not true that the decisions cited by counsel for the appellant were in relation to High Courts. Lower Courts like the Circuit Court’s decision was the subject of the superior court’s intervention by way of judicial review.
Now the question is, was there an error of law patent on the face of the record of the District Magistrate Court, Effiduase/Ashanti is Judgment, which goes to the jurisdiction? To be able to answer this question, a look must be taken at the issue that went before the court. The claim before the District Court was for:
The recovery of rent arrears which the defendant failed to pay for the past six years at Gh¢6.00 per month from August, 2002 (Gh¢432.00).
Declaration of title and ownership by way of inheritance to house number OK 5 situate at Effiduase/Ashanti.
Clearly, these claims, the District Court had jurisdiction to try them. The co-defendant applied and was joined to the suit. The defendants pleaded not liable and the co-defendant filed a counterclaim for:
Declaration of title and ownership as the customary successor of the late Kwabena Pie to House No. OK 5 Effiduase/Ashanti.
Perpetual injunction order restraining the plaintiff, his agents, workers, etc.
The parties participated in the trial and the Magistrate delivered his judgment.
As stated above, the trial Magistrate had jurisdiction to trial the matter that went before him. He evaluated the evidence before him and came to a decision. He might be wrong in the decision or the conclusion he reached in the matter. If that is the case, the respondent’s right lies in an appeal and not judicial review in the nature of certiorari.
In the case of Republic Vs. Circuit Court, Accra, Ex parte Komeley Adams & Others referred to supra, the plaintiff in that case successfully sued at the Circuit Court over a plot of land, claiming damages for trespass and perpetual injunction to restrain defendants either by themselves, their agents, etc. The High Court set aside the Judgment of the Circuit Court because it had based its judgment primarily on plaintiff’s document of title which was defective and in breach of the Administration of Lands Act, 1962 (Act 123). The High Court therefore set aside the document of title as void along with the judgment of the Circuit Court and all the proceedings before that court.
The Supreme Court held among others that an error of law simplicitor should not be a ground for the exercise of the supervisory jurisdiction of the High Court.
In the instant case, the trial Magistrate had jurisdiction to hear the matter that went before it. The procedure he adopted in hearing the matter too was right. He never breached any of the rules of natural justice. He took evidence from the parties and their witnesses and evaluated the evidence before him. If his evaluation of the evidence and application of the law were wrong, the right of the respondent lies in an appeal and not judicial review.
Consequently, the order of the High Court, Mampong, dated 31st July, 2015, which sought to quash the judgment of the District Court, Effiduase/Ashanti, dated 28th October, 2010 was wrong exercise of the High Court’s supervisory jurisdiction and same is hereby set aside.
From all of the foregoing, the appeal succeeds and is hereby upheld.
The judgment of the District Court, Effiduase/Ashanti dated 28th October, 2010 is hereby restored.