• IN THE SUPERIOR COURT OF JUDICATURE
  IN THE HIGH COURT(COMMERCIAL DIVISION),
  ACCRA - A.D 2019
  

MENZGOLDGHANALIMITED - (Plaintiff)

vs.

BANK OF GHANA AND SECURITIES AND EXCHANGE COMMISSION - (respondent)

RULING

---

 

The Plaintiff/Respondent (Plaintiff) describes itself as a Limited Liability Company incorporated under the laws of Ghana with its registered objectives being eng aging in gold and diamond mining, dealers in the purchase and sale of gold and other precious minerals and consultancy. Plaintiff says that it has been duly licensed by the Minerals and Mining Commission of Ghana to engage in its business objectives. By an amended writ dated the 2nd day of October, 2018, Plaintiff has sued the Defendants namely "the Central Bank of the Republic of Ghana established by the 1992 Constitution and responsible for the regulation, supervision and direction of banking and credit system and ensure the smooth operation of the financial sector in Ghana" and the 2nd Defendant, "a body corporate established and operating under the Security Industry Act, 2016 (Act 929) to regulate and promote the growth of the securities industry in Ghana."

 

 

 

Among the reliefs endorsed on the writ are for;

 

"a) A declaration that the Plaintiff's business does not fall within the scope of the Banks and Specialize Deposit-Taking Institutions Act 2016 (Act 930).

 

b) A declaration that the Plaintiff's business activities does not involve the issuance of gold back depository notes (amended as of right on 1st October, 2018);

 

c) A declaration that the 1st Defendant's Notices No. BG/GOV/SEC/2018/12 and BG/GOV/SEC/2017/ dated the 6th day of August, 2018 and the 28th day of November, 2017 respectively have hurt the business reputation of Plaintiff;

 

d) A declaration that 1st Defendant's Notices No. BG/GOV/SEC/2018/12 and BG/GOV/SEC/2017/24 date the 6th of August, 2018 and 28th November, 2017 respectively are an abuse of the Defendant's discretional powers contrary to Article 23 and Article 296 of the 1992 Constitution;

 

e) A declaration that the directives contained in the of 7th September 2018 was an abuse of the 2 Defendant's discretion as same was arbitrary, capricious and contrary to Article 23 and Article 296 of 1992 Constitution;

 

f) An order setting aside the directives contained in the 2nd Defendant's letter dated 7^th September, 2018;

 

g) An order of the Court directed at the 1st Defendant to publish an unqualified retraction and an apology with the same prominence with respect to Notices dated the 6th August, 2018 and 2 September, 2017 respectively.

 

h) An order of Perpetual Injunction to restrain the 1st and 2nd Defendants, its officers, servants and age from interfering with the plaintiff's business activities or further acts of disobedience or non-compliance with law by publishing any such derogatory Notices.

 

i) Exemplary and Aggravated Damages for the harm caused to the plaintiff's business reputation.”

 

 

 

The 1st and 2nd Defendants/Applicants (Defendants) however, by motions filed on the 19th day of October 2018 and the 22nd day of October, 2018 respectively have applied for orders setting aside Plaintiff's writ stated grounds. The record of this Court discloses that the 1st and the 2nd Defendants entered condition appearance to Plaintiff's writ on the 4th and the 8th day of October, 2018 respectively. No Statements Defence have however been filed by either Defendant till date.

 

 

 

That said, the fundamental issue for consideration at this interlocutory stage is whether the Plaintiff has properly invoked the jurisdiction of this Court. Both Defendants have canvassed various grounds in support of their respective motions. In the case of 1st Defendant, the main ground upon which it rests its application is that, the plaintiff ought to have commenced its action by way of an application for Judicial Review and not by Writ of Summons since the remedies sought by the Plaintiff arise from an alleged infringement of its public law rights by the 1st Defendant, a statutory and/or public institution established by law. This is a ground also relied upon by the 2nd Defendant, an entity describing itself as a public institution performing its functions under the Security Industry Act, 2016 (Act 929) in paragraph 16 of its affidavit in support. Also common to both Applicants is the contention that Plaintiff's suit is an abuse of process. The 2nd Defendant however relies on an additional ground which I consider central to its application. This is that;

 

"The suit or action is premature as the mandatory local or domestic remedies provided under the Securities Industry Act 2016 (Act 929) have not been complied with by the Plaintiffs" 

 

 

 

But before I proceed to determine the merits of both applications, there is the need to address certain concerns raised by the 1st Defendant in respect of the depositions in paragraphs 28, 29, 30 and 31 of t plaintiff's affidavit in opposition. The 1st Defendant's complaint is that the said depositions tend to impugn the integrity of Counsel for the 1st Defendant and his firm. Indeed, aside the fact that the said depositions, me, have no bearing on the issues at stake in the instant matter, Plaintiff has failed to provide any evidence to substantiate its allegations. Order 20 Rule 8 of the High Court (Civil Procedure) Rules (CI 47) makes clear that an affidavit shall only contain facts that the deponent can prove. Admittedly, there appears to some interlineations made to the time stated on the Notice of Representation filed by Counsel for 1 Defendant, on the 19th day of October, 2018. However, that in and of itself cannot be conclusive proof Plaintiff's allegation that the said time was "forcefully amended." I agree with Counsel for 1st Defendant the having duly filed the said processes in the Registry of this Court, the maxim omnia praesemantur rite es acta will apply in this case until the contrary is proved. Counsel for Plaintiff however, in the best tradition of the bar, has indicated a willingness to withdraw the said depositions if the Court deems same appropriate. I therefore proceed to strike out the depositions in paragraphs 28, 29, 30 and 31 of Plaintiff affidavit in opposition as withdrawn.

 

 

 

It is also worth stating at this stage that I do not intend to consider the matters raised in Plaintiff “FURTHER WRITTEN SUBMISSIONS” filed on the 14th day of December, 2018 as the same was filed o of time and without leave of this Court.

 

 

 

With these preliminary issues out of the way, I shall now examine the points advanced by Plaintiff opposition to the grounds upon which both applications are hinged.

 

 

 

The first legal point hurled by the Plaintiff in opposition to the 1st Defendant's application is that, the sa application is flawed as it failed to follow the procedure laid down in Orders 9 Rule 7 and 8 of CI 47 f challenging the issuance of a writ and the jurisdiction of the Court..

 

 

 

It is Plaintiff's case that the 1st Defendant's application ought to be dismissed on that basis. Orders 9 Rules 7 and 8 of the High Court rules provide that;

 

 

 

Conditional Appearance.

 

"7(1) A defendant may file conditional appearance.

 

2) A conditional appearance, except by a person sued as a partner of a firm in the name of a firm and serv as a partner is to be treated for all purposes as unconditional appearance unless the defendant applies to the court within the time limited for the purpose, for an order under rule and the Court makes an order under that rule.” (Emphasis mine)

 

Application to set aside Writ

 

"8. A defendant may at any time before filing appearance or, if the defendant has filed conditional appearance, within 14 days after filing appearance apply to the court for an order to

 

 

 

(a) set aside the writ or service of the writ...." (Emphasis mine)

 

In my considered view, when Orders 9 Rules 7 and 8 are read individually or together, a clear picture emerges that a Defendant, who enters conditional appearance to a writ must within a specified period ta the necessary steps to obtain an order setting it aside, failing which the conditional appearance crystallise into unconditional appearance. Order 9 Rule 8 (supra) specifies that such application should be made with fourteen (14) days.

 

 

 

Both legal authority and principle point to the fact a defendant will be deemed to have waived any objection he has to a writ or its service on him once unconditional appearance is entered. Thus in the case of EDUSEI DINERS CLUB SUISSE SA {1982-83) GLR 809, the Court held that;

 

"..by appearing unconditionally to the writ, the appellant is deemed to have waived any issue relating the appropriateness of a forum.”

 

 

 

Turning now to the case at hand, the record of this Court shows that the 1st Defendant was served w Plaintiff's amended writ on the 3rd day of October, 2018. On the 4th day of October, 2018, the 1st Defendant entered conditional appearance to the said writ, leaving it fourteen (14) days within which to move the Court to set aside the writ, if it was minded to do so. What appears to be the dividing line between t Parties however, is when time begun to run against the 1st Defendant. It is the contention of the Defendant, that the application dated the 19th day of October, 2018 was filed within time as time only beg to run after the 8th day of October, 2018 when the legal year commenced. If we accept the 1st Defendant argument, the prescribed fourteen (14) days would expire on the 22nd day of October 2018. Counsel f Plaintiff however takes a different position, which is that, the 1st Defendant's application was filed after t expiry of the time allowed under the rules. By his computation the same was filed on the 15th day. I thi that in resolving this particular issue this Court needs look no further than Order 79 of CI 47. For o purposes the relevant rule should be Rule 4 (b) which states the period to be observed as vacation by the Court as

 

"the period commencing the 1st of August in each year and ending on the 30th September, in the year."

 

 

 

Thus, even if we decide to proceed on the basis of the 1st Defendant's argument that time froze as a result the vacation, by the above rule, time indeed begun to run from the 4th day of October, 2018 when 1 Defendant entered conditional appearance to Plaintiff's writ..

 

 

 

It is to me, however doubtful if the legal vacation will stop time from running in respect of applications such as the present. For, Order 80 Rule (2) of CI 47 makes it clear that it is in respect of the serving, filing amendment of pleadings that vacations will be excluded in the reckoning of timelines prescribed by t rules. See also Holdings 1 and 2 in the case of TINDANA v CHIEF OF DEFENCE [2011] 2 SCGLR 732..

 

 

 

What is obvious from the record is the fact that the 1st Defendant's motion was filed after its condition appearance to Plaintiff's writ had crystallised into unconditional appearance. The effect of which constitution a waiver of any objection it may have had to the writ or the service of same on it. Dealing with a similar situation in the case of ACKERMAN V SOCIETE GENERAL DE COMPENSATION (1967) GLR 212, t Court held that;

 

"Where a Defendant enters an ordinary appearance, without any condition or protest reserving his right object to the irregularity of the writ or service, or the jurisdiction of the Court, he is debarred from raising an objection afterwards."

 

 

 

In its written submissions, it appears to be the position of the 1st Defendant that Rule 8 of Order 9 (sup requiring that an application be brought within fourteen (14) days is not couched in mandatory terms however beg to differ. The use of the word "may", in my understanding, refers specifically to the option granted a Defendant under the rule to apply to the Court to set aside a writ at any time, before filing appearance. This to me does not amount to the grant of a carte blanche to bring an application whenever suits the Defendant's convenience. Put differently, a Defendant may apply to set aside a writ even before entering appearance to same, however, if the Defendant decides to enter conditional appearance to the writ the application to set it aside will have to be brought within fourteen (14) days. I think there are w meaning policy reasons for this legal requirement. A Plaintiff who issues a writ deserves to be timeous made aware of any objection(s) the Defendant may have to same, to enable Plaintiff advise himself appropriately. Thus, even in instances where conditional appearance is entered to a writ, it will be fair f the Plaintiff to conclude that the Defendant has decided to abandon or waive any objection he may have h to the writ, if an application is not made within the set timelines.

 

 

 

It is further submitted on behalf of the 1st Defendant that even if its application fell outside the prescribe fourteen (14) days, that will only amount to an irregularity which is curable under Order 81 of CI 47. 1 Defendant relies on the seminal case of REPUBLIC v HIGH COURT, ACCRA; EX-PARTE ALLGATE C LTD (2007-2008) 1041, in support of its contentions. What can be distilled from the decision in Ex Par Allgate is that;;

 

 

 

Where there has been non-compliance with any of the rules contained in CI 47, such non-compliance is to regarded as an irregularity that does not result in nullity unless the non-compliance is also a breach of t constitution or of a statute other than the rules of court or the rules of natural justice or otherwise goes jurisdiction.

 

 

 

This notwithstanding, the Court is empowered under Order 81 Rule (2) to set aside wholly or in part a proceeding, document, judgement or order on grounds of non-compliance with the rules, unless the pa seeking the order setting aside same, has taken a fresh step after knowledge of the non-compliance irregularity. Counsel for 1st Defendant argues, that, the filing of an affidavit in opposition to its application by the Plaintiff constitutes a fresh step which amounts to a waiver of the irregularity complained of. To mind, the filing of an affidavit in opposition per se will not amount to having taken a fresh step within t meaning of Order 81 Rule (2)(2), if the essence of the said affidavit is to have the offending proceeding thrown out. In this case however, Plaintiff/Applicant goes beyond merely objecting to the filing of t application outside the prescribed fourteen (14) days to depose to facts challenging the very substance of Defendant's motion. This in my opinion amounts to a waiver of the irregularity complained of.

 

 

 

In respect of the 2nd Defendant, Counsel for Plaintiff submits that, having applied to have the writ set aside under Order 9 Rule 8 (supra) on grounds that the Court has a no jurisdiction to entertain the matter, the 2 Defendant could not in another breath call on the Court to strike out the pleadings under Order 11 Rule

 

(1)(d). He argues that it is only a Court clothed with jurisdiction that has the power to consider pleading filed in a matter. The call on the Court to consider the pleadings of Plaintiff according to its Counsel constitutes a fresh step which clearly amounts to a waiver of its challenge to the jurisdiction of this Court.

 

 

 

Now, in the case of The REPUBLIC V HIGH COURT, DENU: EXPARTE AVADALI IV [1993-94) IGLR 56 ADADE JSC held at page 566 of the report that;

 

"The term "conditional appearance' means an appearance in qualified terms, reserving to the appearing defendant the right to apply to the Court to set aside the writ, or service thereof, for an alleged informality or irregularity which renders either the writ or service invalid or for lack of jurisdiction..... The who purpose of a conditional appearance is to stop the case in its tracks, stop it from being gone into at all..."

 

 

 

On the basis of the above reasoning, I am persuaded to agree with the submissions of Counsel for Plaintiff the effect that, it is irregular for the 2nd Defendant to invite the Court to consider its pleadings under Or 11 Rule 18 (1) (d) for the purpose of striking out same in addition to applying to set the same aside und

 

 

 

Order 9 Rule 8.

 

But in determining whether or not the 2nd Defendant has waived its objection to the Court's jurisdiction consider it necessary to examine the grounds upon which the 2nd Defendant mounts its challenge. The fi and the main ground is spelt out in ground one (1) on the face of its motion paper. It is that, the suit/action premature as the plaintiff has failed to exhaust the mandatory local or domestic remedies provided for und Act 929 before approaching this Court for redress. It is significant to note that the 2nd Defendant's complaint relates to the failure of Plaintiff to comply with a statutory and not a procedural provision.

 

 

 

In the case REPUBLIC v HIGH COURT (COMMERCIAL DIVISION), ACCRA EXPARTE; REPUBL BANK LTD, HFC BANK CIVIL AND SECURITIES EXCHANGE COMMISSION, CIVIL MOTIO JS/45/2014, the Supreme Court, faced with a similar situation under the previous Security Industry La (PNDCL 333) remarked as follows per Atuguba JSC;

 

 

 

"The second contention of Mr. Ace Ankomah is that S. 8(C) (1) is procedural and therefore since t applicant took steps in the action in the High Court, it thereby submitted to the jurisdiction of that cou and is concluded by the same. We do not see how the jurisdiction of the Board per the hearings committee respect of "A complaint, dispute or a violation under this Act....submitted... for hearing and determinati can be regarded as procedural... ... It has been trite law from early times that the consent of the parti cannot (except in a few cases such as common law jurisdiction under the rules of Private Internation Law), confer jurisdiction where there is none, see Watson v Petts (No 2)(1889)1 QB 430. Clearly therefore whether the applicant took steps in the matter in the High Court or not is of no avail...."

 

 

 

Flowing from the above I think that it is quite evident that no fresh step taken by the 2nd Defendant or an other Party for that matter, will have the effect of conferring jurisdiction on this Court where none exists where the same is deferred by statute.

 

 

 

This brings me to the vexed issue of whether the jurisdiction of this Court has been properly invoked by the Plaintiff. It is the contention of both Applicants that an examination of the reliefs sought by the Plaintiff inexorably establish that the plaintiff ought to have commenced proceedings in this Court by an Originating Notice of Motion and not by Writ of Summons. As this is a ground canvassed by both Applicants, I propose to deal with the points raised by them both, in support and those advanced by the Plaintiff in opposition thereof, together. I think it is not in dispute that both Applicants are public institutions. A careful reading the pleadings contained in Plaintiff's Statement of Claim disclose allegations of the infringement of its public law rights by the Applicants. Plaintiff accuses Defendants of "regulatory overreach" and by the endorsements on its writ seeks among other reliefs, a declaration that both Defendants have abused the discretionary powers, contrary to Articles 23 and 296 of the 1992 Constitution. Frankly, my examination the pleadings and the reliefs sought by the Plaintiff leave me in no doubt at all that, this is a matter the lends itself to resolution by Judicial Review under Order 55 of CI 47, regardless of the plaintiff's assertion that the need for the interpretation of statute in this case renders approaching this Court by way of Judicial Review inappropriate. It is quite clear from Rule 2(d) of the said Order that this Court is not only limited the issuance of orders, directions and writs in situations such as the present but is also clothed with jurisdiction to make declarations as and when appropriate. This Court is further empowered in deserving cases to order under Rule 8, that a matter commenced by an application for Judicial Review continue though it was commenced by a Writ of Summons. I therefore fail to appreciate how Plaintiff would ha been prejudiced by proceeding under Order 55 instead of by Order 2 Rule 2. That said, can it be reasonable argued that the Plaintiff has failed to properly invoke the jurisdiction of this Court by the issuance of a Writ of Summons instead of an Originating Notice of Motion?

 

 

 

Counsel for Plaintiff, relying on the case of THE REPUBLIC vrs HIGH COURT WINNEBA EX PART UNIVERSITY TEACHERS ASSOCIATION& ORS CIVIL MOTION NO J5/65/2017, argues rather forceful that there are no provisions either in Acts 930 or 929 (supra) that enjoin a party resorting to Court for redress to come by way of application. In the EX-PARTE UNIVERSITY TEACHERS ASSOCIATION case the Supreme Court was clear that;

 

"It is where such provision has been made in a statute that a person alleging to be entitled to a right created by that statute or aggrieved by the exercise of authority under the statute may properly invoke t jurisdiction of the High Court by using the procedure under Order 19 Rule 2 of CI 47.... The declaration of reliefs and consequential orders sought by the 1st interested party in the High Court are regular civ proceedings and therefore ought to have been initiated by writ of summons pursuant to Order 2 Rule 2 a not Order 19 Rule 2."

 

 

 

I am unable to find any provision in both acts stipulating the procedure by which the beneficiary of a rig or a person aggrieved by the exercise of authority under those enactments should initiate proceedings in th Court. Under Order 2 Rule 2 of CI 47;

 

"Subject to any existing enactment to the contrary all civil proceedings shall be commenced by the filing a writ of summons.”

 

 

 

Thus in the absence of any statutory provision regarding the procedure by which an aggrieved party m seek redress, such party will ordinarily be required to initiate civil proceedings by writ of summons.

 

 

 

In response to the submissions of Plaintiff on this point, Counsel for 1st Defendant posed this pertinent question, which is "What is the procedure to adopt where one seeks to question the decision of a statutory body and/or public institution like the first defendant that the decision is arbitrary, capricious or bias either by resentment, prejudice or personal dislike and not in accordance with due process of law?”

 

 

 

I think my simple answer to the question, based on recent authorities would be that an Applicant m proceed by application for Judicial Review but cannot be faulted for commencing action by writ particular if he seeks declaratory reliefs in respect of the infringement of his rights by a public body or authority. careful reading of the case of O'REILLY v MACKMAN [1982] 3 AER 1124 will reveal that even though t Court held as a general rule that a claim for such infringements should be by application for Judicial Revie it conceded that the rule was not absolute and that there exceptions could be made under certain circumstances

 

 

 

But assuming, arguendo, that I am wrong in my conclusion that Plaintiff is properly before this Court, it evident that a breach of Order 55 if at all, will only amount to a procedural defect which can be cured Order 81 of CI 47 (supra)

 

 

 

It is indeed significant to note the growing tendency of Supreme Court to waive procedural defect particularly with regards to matters involving or relating to fundamental human rights and freedom guaranteed under the Constitution. Thus, in dealing Article 33 of the 1992 Constitution, the Supreme Court in the case AWUNI v WAEC [2003-2004) the Court held as follows;

 

 

 

Per Kpegah JSC at page 492;

 

"And "apply" is wide enough to admit any procedure by which the court can be approached… “

 

 

 

To buttress this view, His Lordship at page 496 referred to the dictum of Warrington J to the effect that

 

"...where the act merely provides for an application and does not say in what form that application is to made, as a matter of procedure, it may be made in any way the court can be approached”

 

 

 

Per Dr Twum JSC at page 532;

 

"In the case of ABDILMASIH v AMARH (1972)2 GLR 414@422...Apaloo, JA (as he then was) said"; "Nobody has a vested right in procedure and modern notions of justice require that court should do substantial just between the parties unhampered by technical procedural rules. I can conceive of no injustice caused by procedure adopted by the applicant. I hold that the procedure adopted by applicant was not fatal to action.”

 

 

 

Per Date-Bah JSC at page 557;

 

"The spirit of procedural flexibility in constitutional matters which is embodied in this approach, is given emphatic re-affirmation in the recent unanimous decision of the Supreme Court in Luke Mensah v Attorn General, Writ No JI/1/2004, 5th March, 2004 reported in (2003-2004) SCGLR, 122, where in spite of procedure flaws identified by the court in plaintiff's action seeing to invoke the original jurisdiction of the Supreme Court, the court decided to deal with the merits of the plaintiff's case. Acquah CJ, delivering the judgement the court held that it was right for the court to do this if the subject matter falls within the jurisdiction the court and the procedural errors committed by the plaintiff are not so fundamental as to amount to denial of the court's jurisdiction"

 

 

 

On the basis of the foregoing, I am unable to set aside the writ merely on the basis of Defendants' contention that the action has been wrongly commenced, which even if established, will only amount to a procedure defect in respect of which this Court in dealing with the proceedings, has the discretion under Order 81 R

 

(1)(2), to make any orders it considers just. It follows therefore that I am also unable to find the same to an abuse of the process of this Court.

 

 

 

This leaves for consideration, the one issue which as I have already observed, is central to the application 2nd Defendant. This is whether the Plaintiff's action is premature for its failure to exhaust the available mandatory domestic remedies under Act 929 (supra) prior to seeking redress in this Court. Plaintiff count this point raised by the 2nd Defendant on two main grounds namely;

 

1) That its business does not fall within the ambit of the Security Industry Act and therefore cannot be regulated under Act 929.

 

2) That the 2nd Defendant has evinced a clear intention to make adverse findings against t Plaintiff even if it were to seek redress by way of internal remedies.

 

 

 

Now, it is well settled under Article 140 of the 1992 Constitution that this Court, subject to the provisions the said Constitution, has jurisdiction in all matters and indeed, as was rightly pointed out by my respect brother Asiedu J in the case of AKWETE AKITA AND ANOR v REPUBLIC BANK AND ANOR, civil suit BDC/42/2014, no act of Parliament can effectively oust the jurisdiction of this Court in any matter, civil criminal. What Section 19 of Act 929 obviously seeks to do, is to defer the jurisdiction of this Court until internal or domestic remedies have been exhausted. There is no dearth of legal authority in support of fact that, the jurisdiction of the Courts will not be exercised where domestic remedies available have not be utilized, save in very exceptional circumstances. Section 19 of Act 929 provides that;

 

 

 

Submission of complaints and examination of issues

 

 

 

19. (1) “A complaint, dispute or a violation arising under this Act shall before any redress is sought in t courts, be submitted to the Commission for hearing and determination in accordance with this Act."

 

 

 

In determining whether the Plaintiff's suit is premature, there is the need to consider the case being p forward by the Plaintiff vis a vis that of the 2nd Defendant. In paragraph 6 and of the Statement of Claim Plaintiff states that its activity does not fall within the legislated scope of Act 929. Pursuant to this, it pray for a declaration that its business activities do not involve the issuance of gold backed depository notes. was lucidly explained by my brother Asiedu J in the AKITA case, "if the complaint, dispute or violate does not arise under the Act, it cannot be submitted to the board for hearing and determination.” Applying the said reasoning to the case at hand, the arguments put forward by Plaintiff appear very attractive. For will seem that the question regarding whether or not the plaintiff falls under the regulatory ambit of the 2 Defendant remains an issue to be determined at the trial. In resolving this issue, it should be necessary take a second look at the specific reliefs being sought by the Plaintiff against the 2nd Defendant. examination of the reliefs endorsed on Plaintiff's writ discloses that the Plaintiff, empowered by t provisions of Articles 23 and 296 of the 1992 Constitution seeks a declaration that the directives contained the letter of the 7th day of September, 2018 was an abuse of the 2nd Defendants discretion as same w arbitrary, capricious and contrary to Article 23 and Article 296 of the 1992 Constitution.

 

 

 

2) Article 23 of the Constitution provides;

 

"Administrative bodies and administrative officials shall act fairly and reasonably and comply with requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before court or other tribunal."

 

 

 

Article 296 - "Where in this Constitution or in any other law discretionary power is vested in any person authority.

 

a) That discretionary power shall imply a duty to be fair and candid.

 

b) The exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment prejudice or personal dislike and shall be in accordance with due process of the law..."

 

 

 

I think the fact that the 2nd Defendant is an administrative body admits of no dispute. In the case of AWU v WAEC (Supra);

 

The Court, speaking through Date- Bah JSC held at page 559 that;

 

"The term administrative bodies and administrative officials should be interpreted as references to bod and individuals respectively which or who exercise public functions which affect individuals...”

 

 

 

My understanding of relief (e) endorsed on the writ is that the Plaintiff charges the 2nd Defendant, a creature of statute, with abusing its (2nd Defendant) discretionary powers. This leads me to the ultimate question. How does a public body like the 2nd Defendant abuse its discretion with regards to Plaintiff if it is not law imbued with regulatory powers over Plaintiff? Put differently, for the 2nd Defendant to be guilty of abuse of its discretion contrary to Article 296 it must first and foremost by law be vested with the power exercise such discretion. For, the power to exercise a discretion must first exist before the same can susceptible to abuse. Having called on this Court to determine whether the exercise of the 2nd Defendant discretion was capricious, arbitrary and in violation of the Constitution, I am left in no doubt at all that t plaint falls under "a violation arising under the Act” within the meaning of Section 19 of Act 929. This because even in the absence of an express provision in the Act to that effect, an implied duty is imposed bodies like the 2nd Defendant to be fair and candid in the exercise of their discretion. Any failure to observe this duty will therefore constitute a violation of the law by which that body or authority came into being. Flowing from the above analysis, it is my considered opinion that, the challenge mounted by Plaintiff, of which reason it insists that it is not required to exhaust the 2nd Defendant's internal remedies cannot stan The reliefs being sought by Plaintiff against the 2nd Defendant particularly relief (e) in my opinion brings under the remit of Act 929 for which reason it is bound to submit its complaint to the 2nd Defendant for t internal dispute mechanisms to be exhausted before coming to Court for redress. I must say that I also do n see how Plaintiff's contention that there is currently a tussle between the 1st and the 2nd Defendant regarding who wields authority over Plaintiff, even if true, helps its case. This is because an entity such Plaintiff can by law be subject to the supervision and regulation of more than one public entity. Again, I f to be persuaded by Plaintiff's argument that the fact that the 2nd Defendant has evinced a clear intention make adverse findings against it, is good enough reason to side step the internal remedies provided f under Act 929. Counsel relies on the EX-PARTE REPUBLIC BANK CASE (supra) to buttress this contention. It should however be noted that their Lordships in the same case emphasised that;

 

 

 

It is "...Ordinarily the trite principle of law, that a statutory duty must be performed in case of necessity des the element bias". One cannot ignore the fact that the fears of the Plaintiff may be well founded but the plain is clearly not left without remedy, as Section 23 of the Act grants Plaintiff the option of seeking redress Court if it is dissatisfied with the decision of the Commission (2nd Defendant). On the basis of the forgoing is my view that the Plaintiff must exhaust the procedure set out under Section 19 to 21 of Act 929 before seeking to invoke the jurisdiction of this Court, if need be. I must say in conclusion however, that I h given this matter my very anxious thought and consideration. I have carefully considered its history and events leading up to the present proceedings. I find much force in the written submissions of Counsel for Defendant that public interest requires that both decision making bodies and the person (s) affected by the decision, should not be kept in suspense as to the legal validity of their decisions. Paragraph 6 of the affidavit filed by Plaintiff in opposition to 1st Defendant's motion and paragraph 5 of the affidavit filed in opposition that of 2nd Defendant clearly indicate grave concerns on the part of Plaintiff that any delay in determining this suit will result in grave financial repercussions for thousands of people in this country. I am of the vi that the Order 1 Rule (1) (2) of CI 47 vests this Court with discretion to interpret and apply the rules in manner that will expedite proceedings. My understanding of the decision in the case KWAGYENA VAD [1992] 1GLR, 189 is also that, the Court has a discretion (of course within legal confines) to determine procedure to be adopted in its control of Statutory Bodies. In the event that Plaintiff finds it necessary return to this Court by way of appeal, after going through the motions set out under Act 929, I am of humble opinion that proceeding by Originating Notice of Motion will be most suitable for an expeditious disposal of the matter, as proceeding under the Commercial Court procedure set out under Order 58 of CI will result in undue delay which may defeat the very nature of the reliefs being sought by the Plaintiff

 

 

 

Given the circumstances of the instant application, I make no order as to costs.