IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KOFORIDUA - A.D 2018
THE REPUBLIC - (Defendant/Respondent/Appellant)
THE JUDICIAL COMMITTEE OF KWAHU TRADIOTIONAL COUNCIL-MPRAESO - (Respondent/Respondent)
EX PARTE; OPANIN KWAME ADOFO - (Applicant/Appellant)
AND OPANIN KWADWO AMPADU - (Interested Party)
DATE: 25TH JULY, 2018
CIVIL APPEAL NO: H1/05/2018
JUDGES: K. A. ACQUAYE J.A. (PRESIDING), S. K. GYAN J.A., M. M. AGYEMANG (MRS.) J.A
MR. MOHAMMED MUSAH FOR THE APPLICANT/APPELLANT
MR. OBENG MANU JNR. FOR THE INTERESTED PARTY
On 7th March, 2017, the Applicant/Appellant filed in the High registry of the Court, Koforidua, a motion for an order of certiorari to quash the proceedings and judgment of the Judicial Committee of the Kwahu Traditional Council, Mpraeso which judgment was delivered on 23rd September, 2015 on the ground of error of law, excess of jurisdiction and bias. The grounds upon which the application for certiorari was brought, according to the affidavit in support, were that the Interested Party filed a petition against the applicant/appellant before the Respondent/Respondent trying to set aside a judgment of a tribunal of the paramount chief of Kwahu given on 18th January, 1944 and an accord reached between the parties at an arbitration dated 14th September, 1989. After hearing the petition, the respondent/respondent gave judgment against the applicant/appellant. Aggrieved by the judgment, the applicant/appellant appealed against same to the Judicial Committee of the Eastern Regional House of Chiefs. After the record of proceedings had been typed, the applicant/appellant’s lawyer discovered or found out that the whole proceedings before the Kwahu Traditional Council was flawed with serious errors of law that go to the jurisdiction of the respondent/respondent. The applicant/appellants therefore filed an application for certiorari before the High Court, Koforidua. The applicant’s complaint was that one Colonel Osei Owusu (Retired) who testified for the respondents in the earlier petition fell ill in the course of his evidence and gave a power of attorney to one Solomon Kwasi Gyamera who came to be cross-examined on the evidence already given by Colonel Osei Owusu (Retired). The applicant/appellant complained that that procedure was flawed and the judgment based on the legally inadmissible evidence was in excess of the judicial committee’s jurisdiction. The applicant/appellant also complained that the Judicial Committee needlessly took upon itself to cross-examine the petitioner spanning several pages which affected their impartial role leading to the committee becoming biased against the petitioners/appellants.
In his affidavit in opposition, the Interested Party denied that there was any error of law on the face of the record of proceedings and even if there was, it did not affect the jurisdiction of the Council. The Interested Party swore that the evidence that Colonel Osei Owusu (Retired) led was traditional history and therefore his substitute or attorney, Solomon Kwasi Gyamera could answer questions on the traditional history handed down by word of mouth which was common to their generation. The Interested Party swore in his affidavit in opposition that the rules of procedure of the Judicial Committee of Traditional Councils allow traditional evidence to be led and also to admit hearsay evidence. The Interested Party denied that the Judicial Committee’s cross-examination of the parties was needless but was rather proper in order to clarify the evidence and that the application for certiorari was incompetent and must be thrown out.
Responding to Counsel for the applicant/appellant’s submissions, Counsel for the Interested Party admitted the supervisory jurisdiction of the High Court over all inferior adjudicating bodies including the respondent/respondent but submitted that the application was incompetent as it was filed out of time. Counsel relied on Order 55 rule 3, which provides that “an application for judicial review shall be made not later than six months from the date of the occurrence of the event giving grounds for making the application”. Counsel submitted that from 23rd September, 2015 to 7th March, 2017 is almost 18 whole months and urged the High Court to dismiss the application for certiorari”.
Counsel for the applicant replied to the last submission of the Interested Party that where the judgment complained of is a nullity, time does not run so Order 55 rule 3 is not applicable. Counsel relied on the case of Republic v. Court of Appeal and Thomford; Exparte Ghana Chartered Institute of Bankers (2011) 2 S.C.G.L.R. 941.
In his ruling, the trial High Court judge found “that in the Thomford case cited above the nullity arose because of a breach of the rules of audi alteram partem which is not the case in the case before me. I therefore find that the principle in the Thomford case is inapplicable to the matter before me.
I therefore find that the time limit in Order 55 rule 3 of C.I. 47 applies and the application before me is incompetent as it was filed seriously out of time”. The trial judge therefore dismissed the application for certiorari as being without merit.
Not satisfied with the ruling, the applicant filed a notice appeal against same setting forth these two grounds of appeal
1. The ruling is against the weight of evidence
2. The learned judge erred in his appreciation of the time limits for judicial review
In his submissions justifying the appeal, Counsel for the applicant/appellant submitted that where the decision or order complained of is a nullity, time does not run. In other words, the six (6) months limitation period imposed by Order 55 rule 3 of the High Court (Civil Procedure) Rules 2004, C.I. 47 will not prohibit a person affected by a void order from applying to a High Court to quash the said void order. Counsel again relied on the case of Republic vrs Court of Appeal and Thomford; Ex Parte Ghana Chartered Institute of Bankers Supra argued that Rule 62 od C.I. 16 is no different from order 55 rule 3 so the legal position is the same that there is no time limit for bringing an application to set aside a void ruling or order. Counsel for the applicant/appellant thus submitted that there is a fundamental error apparent on the face of the record which goes to the root of the judicial committee’s jurisdiction which renders their judgment a nullity and takes the case out of the ambit of order 55 rule 3 of C.I. 47 of 2004.
In answer to the submissions made on behalf of the petitioner/appellant, Counsel for the interested party submitted that the decision in the Thumford case was based on the audi alteram partem rule which made a breach thereof a nullity as distinguishable from a case where the tribunal had jurisdiction to try a case but applied a wrong principle of law. Where a decision was a nullity, Counsel for the interested party seem to agree that time was not a bar to bring an application for certiorari to set it aside but insisted that as this case was not a nullity, a strict adherence to the law for applying certiorari as set out in order 55 rule 3 of C.I. 47 was necessary. Counsel found solace in the case of Republic v High Court, Accra; Ex Parte Pulplampu I (1991)2 GLR 472.
Before we go into the merits of this application we think we must clear the air on the manner in which the application has been brought before us. Order 55 of the High Court (Civil Procedure) Rules 2004, C.I. 47 which governs applications for judicial reviews states in Rule 1(a) that application for an order in the nature of mandainus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review to the High Court. Rule 3 of the same order 55 states that an application for judicial review shall be made not later than six months from the date of the occurrence of the event giving grounds for making the application. This restatement of the law which had been in existence since 1954 in Order 59 of the High Court (Civil procedure) Rules L.N. 140 has been variously interpreted in our courts. In the case of the Republic vrs High Court, Accra; Ex Parte Puplampu I (1991) 2 GLR 472 the Supreme Court held that “because of the peculiar nature of the procedure in certiorari proceedings, the application whether ex parte or on notice must be brought within six months no matter for what purpose the application was brought”. The same case held that “certiorari proceedings like all proceedings for prerogative orders were technical and must be prosecuted strictly and according to the rules. Accordingly, if for any reason it was impossible to bring the application within six months, an extension of time with notice to the other party must first be applied for. The decision, order and judgment to be quashed must be exhibited. Furthermore, there must be legal grounds for bringing the application”. These rules have been the subject of many decisions in our courts where it has always been assumed that the decision or order complained of had been given regularly or within the tribunal’s jurisdiction. Where however the decisions or orders to be challenged have been found to be a nullity, the time limited by the rules of court for bringing an application does not run i.e the six months rule does not apply and an aggrieved party can bring the application at any time after discovery of the omission or harm. Thus in the case of the Republic vrs Court of Apeal and Thomford; Ex Parte Ghana Chartered Institute of bankers (2011) 2 SCGLR 941 which both parties have referred to, it was held that where the subject matter of the application was a nullity, time limits could not apply to shut the applicant from pursuing the application for certiorari. The same conclusion was reached in the case the Republic vrs High Court, /Accra; Ex Parte Seedline Stevedoring Co. Ltd (2007- 2008) 1 SCGLR 102 relying on the celebrated case of Mosi vrs Bagyina (1963) 1 GLR 337. Thus it has come to be accepted that in cases where there has been a fundamental breach of the law such as where the court assumed jurisdiction when it had none or where the rules of natural justice such as the audi alterem patterm rule had been breached, certiorari laid to quash such infractions which could be seen or are apparent on the face of the record of proceedings without recourse to time lapse.
In this appeal the applicant/appellants main ground of appeal is that the trial judge applied the six months’ time limit for applying for certiorari when he should not have set any time limit because the ruling complained of was a nullity. In such a case it was incumbent upon the appellant to show that there was either want of jurisdiction on the part of the judicial committee which heard the petition, or that it breached the rules of natural justice, or that it committed a grave error of law which is apparent on the face of the record of proceedings which is so grave as to make the proceedings a nullity. See the case of the Republic vrs High Court, Sekondi; Ex Parte Ampong (2011) 2 SCGLR 716. Where the error of law was not apparent on the face of the record, the applicants/appellant’s remedy lied in an appeal, which from the record of proceedings before us, the applicant/appellant pursued and lost. It is not every error of law that renders proceedings or decisions a nullity. It has not been argued that apart from the Judicial Committee of the Kwahu Traditional Council sitting at Mpraeso there is any other Judicial committee capable or competent to hear a chieftaincy complaint from Obomeng-Kwahu as to make the respondent/respondent lack jurisdiction to hear the petition. In the case of the Republic vrs Eastern Regional House of Chiefs; Ex Part Birikoramaa (1987-88) 1 GLR 40 it was held that the Eastern Regional House of Chiefs is the only competent judicial tribunal under the chieftaincy Act 1971 (ACT 370) to determine appeals from the Judicial Committees of the Traditional Council. If therefore in the course of hearing an appeal it had made a mistake of law, that would amount to an error made within the jurisdiction and not an error which went to the jurisdiction. Thus in Armah vrs Government of Ghana (1963) 3 WLR 838 also reported in (1966)3 ALL ER 117 and in (1968) AC 192 it was reported at page 234 that “If a magistrate or any other tribunal has jurisdiction to enter on the enquiry and to decide a particular issue, and there is no irregularity in the procedure, he does not destroy his jurisdiction by reaching a wrong decision. If he has jurisdiction to go right, he has jurisdiction to go wrong. Neither an error in fact nor an error in law will destroy his jurisdiction”. The fact that the respondent/respondent continued with the cross-examination of Colonel Osei Owusu (Retired) by cross-examining Solomon Kwasi Gyamera does not affect the jurisdiction of the tribunal as argued by Counsel for the petitioner/appellant. That procedure does not make the proceedings nor the judgment a nullity to take way the technical provision or requirement of order 55 rule 3. As was held in the case of Essah vrs Sofo (1972)2 GLR 301 “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. Where there is no jurisdiction the judgment or proceedings are not irregular but void; but where a court of competent jurisdiction makes an erroneous order, it is appealable”.
We have looked at the proceedings in this case and we are convinced that the matters complained of do not render the proceedings or ruling a nullity. We therefore agree with the trial judge that this is a case where order 55 rule 3 applies. Having filed the application on 7th March 2017 against a ruling delivered on 23rd September 2015 there is a period of (18) eighteen months in between and this application is way out of time and must not be considered.
The practice whereby Counsel alleging nullity and using that as a pretext for not obeying the six-month rule prescribed by Order 55 rule 3 was deprecated in the case of the Republic vrs High Court, Accra; Ex Parte Tweneboah Kodua, Civil Motion No. J5/22/2014 decided on 29th July 2014 by the Supreme Court. Needless to say the courts have attempted to curtail that practice by adopting a strict interpretation of the statutes governing applications for certiorari. In the case of the Republic vrs High Court, Accra; Ex Parte Continental Cargo and Trade Services Ing. (2001 – 2002) SCGLR 901, it was held that “The submission of Counsel for the applicant, namely, that since the decision of the High Court complained was a nullity because it lacked jurisdiction, it can be set aside at any time and lapse of time is immaterial would be rejected because the applicant is invoking the supervisory jurisdiction of by article 132 (or 141) of the Constitution 1992. The procedure for the exercise of the supervisory jurisdiction is set out in part VI of the Supreme Court rules 1966 (C.I. 16) an application for an order of certiorari under Part Vi must comply with its provisions see also Republic v national Public Tribunal Ex parte Special public prosecutor (1992 -93)2 GBR 556. The courts have also tried to limit the time an application can be brought to quash orders which are null and void by introducing the requirement of when the nullity came to the attention or knowledge of the applicant, the dictates of common sence, and the need for closure and finality of sometime or other in litigation. See Agyekum and Alhassan (No. 2) vrs Amadu Baba
(No. 2)(2007 -2008) 1 SCGLR 386.
As this application was filed out of time against the dictates of order 55 rule 3 we agree with the ruling delivered by the trial judge that the application is incompetent and must be dismissed.
The appeal fails and it is dismissed. We award cost of Gh⊄5,000.00 against the applicant/appellant.
K. A. ACQUAYE
(JUSTICE OF APPEAL)
S. K. GYAN, J.A. I AGREE S. KWEKU GYAN
(JUSTICE OF APPEAL)
M. M. AGYEMANG (MRS) J.A. I ALSO AGREE MABEL M. AGYEMANG (MRS)