THE REPUBLIC vs DISTRICT MAGISTRATE COURT, KANESHIE ,EX PARTE GLADYS NTOW
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (GENERAL JURISDICTION DIVISION 7)
    ACCRA - A.D 2018
THE REPUBLIC - (Plaintiff)
DISTRICT MAGISTRATE COURT, KANESHIE EX PARTE GLADYS NTOW - (Defendant)

DATE:  18 TH JANUARY, 2018
SUIT NO:  CR/550/17
JUDGES:  HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
LAWYERS: 
RULING

 

Applicant has invoked the supervisory jurisdiction of the High Court under Order 55 of the High Court (Civil Procedure) Procedure Rules, C.I 47 for orders in the nature of certiorari to bring to the court for the purpose of being quashed, one, a ruling of the District Court 1, Kaneshie dated the 15th May, 2017 which varied the Social Security nomination by Nicholas Ntow (decd) and two, a ruling of the same District Court, dated the 6th of July, 2017 striking out the motion filed by Applicant to set aside the order varying the social security contribution beneficiary nomination by Nicholas Ntow Dartey granted on the 15th of May, 2017.

 

The grounds for seeking certiorari to quash the two rulings of the District Court, Kaneshie has provided as:

a. Lack of jurisdiction to make the order varying the Social Security beneficiary nomination by

Nicholas Ntow dated the 15th of May, 2017 and the Ruling dated the 6th July, 2017 striking out the Applicants motion for an order to set aside the order varying the Social Security Contribution beneficiary nomination by Nicholas Ntow Dartey (deceased).

b. Breach of the rules of natural justice

 

The basis for seeking the prerogative writ of certiorari has been provided for in the affidavit that accompanied the application and sworn to by the Applicant. Gladys Ntow claim to be a widow and a beneficiary of the Social Security contribution of the deceased Nicholas Ntow as she was apportioned 70% of the entitlements of the deceased with 30% allocated to Michael Ntow Dartey. To Applicant unknown to her and without any notice one Paulina Dartey and Isaac Dartey filed a motion before the District Court, Kaneshie for an order for variation of the nominations and which order was granted by the District court. It is the claim of the Applicant that in so far as her interest under the benefit was to be affected by the grant of that application before the Magistrate, she ought to have been placed on notice and the failure had denied her the right to be heard before her benefit was slashed to 10% and contend that the said order of the Magistrate is void.

 

It is the further claim of the Applicant that she took steps by appearing before the District Court on the 15th of June, 2017 to move a motion to set aside the order of variation. Her lawyer was short served with two affidavits in opposition causing the court to adjourn the application to set aside the order of variation to the 10th of July, 2017. Applicant contend that the District Court without any recourse to its earlier order of 15th of June, 2017 struck out her application for want of prosecution. It is her case that the motion to set aside the order for variation was not slated to be moved on the 6th of July, 2017 but rather the 10th of July, 2017 and any purported exercise of jurisdiction by the Magistrate by striking out the motion without a hearing notice to her was wrong and done without jurisdiction. To her no matter the merit of the case as long as she had been denied notice of the two motions before the District Court it amounts to a denial of the audi alteram partem rule of natural justice, a breach of which is amenable to be quashed by certiorari.

 

The Respondent in its affidavit in opposition deposed to by Linda Annan, a Registrar of the Kaneshie District Court claim that upon the filing of the motion for variation of the Social Security nominations made by the deceased, the District Court found out that the deceased was survived by four adult children and a widow, Doris Dartey without any reasonable provision having been made for the widow and two of the children who were still in school. The Registrar of the District Court further claim that the court upon hearing the application and being satisfied that Doris Dartey was married to the deceased under the Marriage Ordinance, Cap 127 varied the nominations by reducing the quantum of the Applicant from 70% to 10% and ensuring that the surviving spouse, Doris Dartey had 15% and the rest distributed among the children. And that this was allowed under the National Pensions Act, 2008, Act 766 and article 22 of the Constitution. It is the case of the Respondent that the Applicant is not known as a wife and the application for variation was duly served on the Administrator of Pensions. She however, conceded that the motion seeking to set aside the order of variation which was struck out was done without jurisdiction.

 

In similar faction, the 2nd Interested Party, Paulina Dartey has also opposed the application and in her affidavit in opposition, she first contest the claim of the Applicant as a widow as this issue came before the High Court when a caveat filed by the Applicant in their quest for Letters of Administration to administer the estate of the deceased and the High Court removed the caveat upon being satisfied that the Applicant was not a widow. And that without their late father failing to nominate the children and the surviving spouse in respect of the Social Security benefits, it was right that they apply for a variation which was done. Being in a tertiary institution and with the mother married to the deceased under the Marriage Ordinance, the variation effected in accordance with the National Pensions Act was in order and accordingly call for the dismissal of the application.

 

GROUNDS FOR INVOKING CERTIORARI

Certiorari is one of the several writs that falls under the exercise of the High Court’s powers of judicial review. Article 141 of the 1992 Constitution provides as follows:

“The High Court shall have supervisory jurisdiction over all lower courts and any lower adjudicating authority; and may in the exercise of that jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory powers”

 

There is further enforcement of the powers of the High Court under section 16 of the Courts Act, 1993,

Act 459 which states as follows:

“The High Court shall have supervisory jurisdiction over all lower courts and any lower adjudicating authority; and may in the exercise of that jurisdiction, issue orders and directions including orders in the nature of habeas corpus, certiorari, mandamus-prohibition and quo warranto for the purpose of enforcing or securing the enforcement of its supervisory powers”.

 

The Applicant is seeking just the issuance of one of the writs in the form of certiorari to quash the two rulings of the District Magistrate, Kaneshie dated the 15th of May and 6th of July, 2017. In his work, Administrative Law, 8th Ed at page 591, Wade and Forsyth defines certiorari as:

“…It is used to bring up into the High Court the decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed. That is to say, it is declared completely invalid, so that no one need to respect it. The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds”.

 

For an Applicant to be entitled to the grant of certiorari it has been held in a number of cases that the writ would lie if there had been a lack of jurisdiction, or excess of jurisdiction, or breach of the rules of natural justice or there had been an error apparent on the face of the record etc. In fact the categories of matters that would trigger the issuance of certiorari is deemed not be closed. In REPUBLIC v HIGH COURT; EX PARTE APPIAH [1999-2000] 2 GLR 420 the Supreme Court noted as follows:

“An order for certiorari would be made where the order sought to be quashed had been made, inter alia, without jurisdiction, either because the court had exceeded its jurisdiction or lacks jurisdiction. A court having jurisdiction might nevertheless lose that jurisdiction if its decision was made in bad faith; or if it had failed in the course of the inquiry to comply with the requirements of natural justice; or if it had refused to take into account something which it was required to take into account. The list could not be said to be exhaustive. However, where the court had jurisdiction to entertain the action, its judgment or ruling could not be impeached on the mere ground that its decision was wrong. Under those circumstances, the proper thing to do was to appeal that decision. Where however upon the face of the proceedings it appeared that the decision was wrong in law, certiorari to quash it would be granted”.

 

The preconditions for the grant of certiorari could also not have been rendered better than in the case of REPUBLIC v HIGH COURT; ACCRA; EX PARTE TASTASU TSIKATA [2005-2006] SCGLR 612 @ 619 per Wood JSC (as she then was) that:

“the clear thinking of the court is that our supervising jurisdiction … should be exercised only in those manifestly plain and obvious cases where there are patent errors of law on the face of the record, which errors either go to jurisdiction or are so plain as to make the impugned decision a complete nullity. It stands to reason that the reasons then, that the error(s) of law alleged must be fundamental, substantial, material, grave or so serious as to go to the root of the matter. The error must be one on which the decision depends. A minor, trifling, inconsequential or unimportant error or for that matter an error which does not go the core or root of the decision complained of or stated differently, on which the decision does not turn, would not attract the court’s supervisory intervention”.

 

See also the following cases: REPUBLIC v CAPE COAST DISTRICT MAGISTRATE GRADE II; EX PARTE AMOO [1979] GLR 150 CA Apaloo CJ REPUBLIC v HIGH COURT, ACCRA; EX PARTE THE CHARGE D’AFFAIRS, BULGARIAN EMBASSY; (Unreported) Suit No J5/34/2015 dated the 24th Feb., 2016; Pwamang JSC REPUBLIC V HIGH COURT, SEKONDI, EX-PARTE AMPONG AKA AKRUFA KRUKOKO I (KYEREFO III AND OTHERS – INTERESTED PARTIES) [2011] 2 SCGLR, 716 AT 722; REPUBLIC v COURT OF APPEAL, ACCRA; EX PARTE TSATSU TSIKATA [2005-2006] SCGLR 602.

 

Having set out the perimeters for the invocation of the supervisory jurisdiction of the High Court in the form of certiorari, I find it necessary to test the grounds upon which the Applicants has approached the court to determine if the grounds are well founded in law and certiorari should lie to quash the ruling of the District Court, Kaneshie dated 15th May, 2017 and the 6th of July, 2017.

 

WANT OR EXCESS OF JURISDICTION

It has been argued on behalf of the Applicant that the Magistrate lacked jurisdiction when she made the order varying the Social Security beneficiary nominations of Nicholas Ntow Dartey (decd). Jurisdiction which is the authority conferred by statute on a court to adjudicate on a matter is so crucial that without it any purported exercise of powers by the court is a nullity. Indeed jurisdiction cannot even be conferred by parties on a court. It is the legal power that any court must possess before it set out to determine the merits of a case. In REPUBLIC v HIGH COURT; ACCRA; EX PARTE AKITA (MANCELL-EGALA & ATTORNEY GENERAL INTERESTED PARTTIES [2010] SCGLR 374 the Supreme Court noted on jurisdiction as follows that:

“Jurisdiction is a condition precedent to the assumption by any court to determine any case brought before it. Therefore if the lack or excess of jurisdiction is raised before any court of law, it should not be treated as a fanciful or trifling objection as was done by the learned trial Judge in the instant case. Since jurisdiction is so basic to the foundation of any court’s powers to determine any matter before it, issues regarding jurisdiction must properly be invested and dealt with by the court before it can proceed with the trial or hearing of the suit”.

 

See also KUMNIPAH v AYIREBI [1987-88] 1 GLR 266 REPUBLIC v DISTRICT MAGISTRATE, ASAMANKESE; EX PARTE IDE ZABRAMA [1972] 1 GLR 398. Is it the case as Applicant contends that the District Magistrate did not have the power to vary the nominated beneficiaries of the deceased?

Section 73(1) &(3) of the National Pensions Act, 2008, Act 766 states as follows:

“(1) Where a member of the scheme dies, a lump sum benefit is payable to the deceased's family who

(a) are dependants of the deceased; and

(b) have been validity nominated as beneficiaries of the deceased.

(3) Where a deceased member failed to nominate a surviving spouse and children as beneficiaries, the spouse and children may apply to the court for a variation of the nomination to include them.

The Interested Parties as children of the deceased having then applied to the court for a variation under the section supra, the court was clothed with the authority and power to make necessary orders that it deemed fit. Claim that the District Magistrate lacked jurisdiction, I find to be unfounded and this ground of attacking the propriety of the order for variation is dismissed.

 

BREACH OF AUDI ALERAM PARTEM RULE OF NATURAL JUSTICE

It is my understanding of the claim of the Applicant of the breach of the audi alteram partem rule of natural justice to be in two respect. The first is in respect of an alleged breach of her right to be heard before the 16th of May, 2017 order for variation was made changing her entitlements from 70% to 10%. And the second allegation of the breach of audi alteram partem rule is in respect of the order striking out her motion to set aside the order of variation. The first ground can be gleaned from paragraphs 8 and 9 of the affidavit of the Applicant in support of the application which she states as follows:

“8. That the Applicants for variation order opted not to make me a party so an official search was conducted at the District Court, Kaneshie – Accra confirmed that I was not served.

9. That I am advised by my lawyer and I verily believe same to be true that if any decision from a court shall affect the interest of a party in any way that party ought to be heard, hence the failure to make me a party and serve me has deprived me of the right to be heard so the proceedings and the order for variation are void and or a nullity and should be quashed”.

 

The above quoted paragraphs in the affidavit of Applicant attacks the order for variation made by the Magistrate on grounds of failure of being heard even though in the statement of case of her counsel, this point seems not to have been touched on but rather the second alleged denial of the right to be heard which is regarding the striking out of the motion to set aside the order for variation, the Applicant depose as follows in paragraphs 13, 14, 15 and 16 as follows:

“13. That in respect of the proceedings and the order dated the 6t thof July, 2017, I am advised by my lawyer and I believe same to be true that the District Court had no jurisdiction to hear the matter on grounds of non service of a hearing notice and that the motion per the Courts own notes dated 15/6/2017 the court was not clothed with jurisdiction or seize with jurisdiction to hear the motion on 6/07/17 instead of 10/07/17”.

 

She further claim that this constitute a breach of the audi alteram partem principle. It is necessary that I begin the resolution of these grounds by taking the allegation of the breach of natural justice regarding the order of variation on 16th May, 2017. There is no doubt that in the application for variation, the applicant herein was an interested party as the order was sought to reduce her entitlements granted her by the deceased. In that respect, it is my view that she ought to have been placed on notice. And as it is always trite law that certiorari does not concern itself with the merits of the case at all. This application is not a re-hearing of the merits of the order made by the District Magistrate. And it appears that the affidavits in opposition delved into the merits of the correctness of the decision of the Magistrate. The concern here is whether the Magistrate used the correct legal procedure and if not whether the failure has occasioned fundamental and substantial injustice to the Applicant. It may be that if the Applicant had appeared to proffer arguments, the decision of the Magistrate would not have been remarkably different.

 

Nonetheless, all this will be in the realm of conjecture as her right as a nominee and an interested party to have been placed on notice was totally disregarded, I find that there was a breach of the audi alteram partem rule of natural justice. On the attack mounted on the order of 6th of July, 2017, the learned Chief State Attorney in her statement of case concedes that the motion to set aside the order for variation was not slated for 6th for July, 2017 but rather the 10th of July, 2017. If that is so then the motion could only have been heard on the 6th of July, 2017 where the Magistrate had abridged the time for the hearing of the motion and the parties placed on notice. The Applicant unaware of the 6th of July. 2017 date could not have been in court to move the motion and the striking of the motion was not only a breach of the audi auditeram partem rule but also made without jurisdiction as proceedings undertaken without hearing notice to a party goes to jurisdiction.

 

I find the ground of breach of audi alteram partem rule of natural justice made out and certiorari being a discretionary remedy, I find it apt and grant same quashing the orders of the District Magistrate, Kaneshie dated the 16th of May, 2017 and the 6th of July, 2017 as all made in breach of natural justice.

I will make no order as to cost.

 

 

 

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