RULING

Applicants have invoked the supervisory jurisdiction of the High Court coming under Order 55 of the High Court (Civil Procedure) Procedure Rules, C.I 47 for orders for judicial review of the decision of the District Magistrate dated the 9^th of May, 2018. More specifically the Applicants seeks the following reliefs from the court:

i. A declaration that the District Court exceeded its jurisdiction when it ordered Applicants to be reminded in prison custody for safe keeping even though this court had already granted me bail pending trial.

ii. An order of certiorari bringing up into this court for purposes of being quashed and quashing the order of the District Court that I myself and three other Applicants be remanded in prison custody for safe keeping.

The basis for the invocation of the supervisory jurisdiction of the High Court by the Applicants have been set out in the various affidavits of Adam Bawa Gunta, Mohammed Issah and Yakubu Ibrahim that accompanied the application. To the deponent to the first affidavit – Adam Bawa Gunta, he was arraigned with the three other Applicants before the District Court on the offences of conspiracy to commit murder and murder. They were also served with the bill of indictment on the 19^th of July, 2017 setting the stage for the commencement of the committal proceedings of the Applicants which was completed on the 9^th of May, 2018. That before the commencement of the committal proceedings, the Magistrate indicated to them that he had no jurisdiction to admit them to bail which then compelled them to apply for bail before the High Court which bail was granted them. To Applicants with the District Court finding a prima facie case against them leading to their committal before the High Court for trial, the Magistrate purported to have revoked the bail granted them by the High Court by reminding them in prison custody. It is the claim of the Applicants that the order reminding them in custody was an act in excess of the jurisdiction of the District Magistrate as they were already on bail having been so admitted to bail by the High Court. It is on the above facts that has made them apply to the court for judicial review of the decision of the District Court.

The Republic has opposed the application in an affidavit in opposition deposed to by Lily Badungbana Atutiga, an Assistant State Attorney at the office of the Attorney General. She concede that the Applicants are facing five counts of conspiracy to commit murder and murder and were committed to stand trial at the High Court by the District Court after committal proceedings. And it was when the order for committal was made that the Accra Central District Court Magistrate exercised his discretion by committing them to prison. That the order committing them to prison was well within his discretion as that power is granted by law. She further claim that the invocation of judicial review is not the proper procedure to cure the exercise of the discretion of a Magistrate and accordingly prays for the dismissal of the application.

The power of judicial review in the form of supervisory jurisdiction of the High Court over all lower courts, administrative bodies and inferior bodies is founded under article 141 of the Constitution, where the Constitution grants power to the High Court over all lower courts and lower adjudicatory bodies in the exercise of that jurisdiction to 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. Section 16 of the Courts Act, 1993, Act 459 echoes this power granted to the High Court under article 141 of the Constitution. The crucial question is whether the Applicants have properly triggered the jurisdiction of the court by asking for declaratory relief and certiorari. To answer this question, it would be necessary for the court to briefly state the scope and ambit for the invocation of certiorari. In the case of REPUBLIC v CAPE COAST DISTRICT MAGISTRATE GRADE II; EX PARTE AMOO [1979] GLR 150 CA Apaloo CJ noted as follows on certiorari applications:

“As is well known, the remedy of certiorari is a useful tool in aid of justice and ought to be used to correct defects of justice whether they arise from illegality, fraud, breach of the rules of natural justice, error on the face of the record and the like. I am not even prepared to say that the category of cases in which this useful remedy can or should be used is closed. There is no reason why I should stifle the development of the law by any such assertion”

And in the case of REPUBLIC v HIGH COURT, ACCRA; EX PARTE THE CHARGE D’AFFAIRS, BULGARIAN EMBASSY; (Unreported) Suit No J5/34/2015 dated the 24^th Feb., 2016; Pwamang JSC noted on certiorari as follows:

“It is well-settled that certiorari will be granted to quash a decision of a court that has been made without jurisdiction or in excess of jurisdiction or where there is an error of law apparent on the record that makes the decision a nullity. Certiorari will also be granted to quash a decision given in breach of a rule of natural justice”.

See also the following cases: REPUBLIC V HIGH COURT ACCRA; EX-PARTE SOKU [1996-97]

SCGLR 525; 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.

HAS THE DISTRICT COURT ACTED IN EXCESS OF JURISDICTION?

It is stated under section 190(4) of the Criminal and Other Offences Procedure Act, Act 30 that:

“The District Court shall admit the accused to bail or send him to prison for safe keeping until the day so named”.

The decision to commit the Applicants to prison after the end of the committal proceedings was founded on the above provision in Act 30. In the face of the earlier stand of the District Court that it had no jurisdiction to admit the Applicants to bail, and with the Applicants having secured their bails from the High Court pending trial, can a Magistrate after committal proceedings commit the Applicants to custody which effectively and practically revokes the order of the High Court admitting the Applicants to bail?

The law gives exclusive original jurisdiction to the District Court to conduct committal proceedings and to exercise the powers granted that court under section 190(4) of the Law. The exercise of the power to commit the applicants to prison has been attacked as an act in excess of jurisdiction. To exceed jurisdiction which formed the basis for the invocation of the declaratory relief and writ of certiorari has been explained in the case of REPUBLIC v DISTGRICT MAGISTRATE, ACCRA, EX PARTE ADIO [1972] 2 GLR 125 at holding 2 that:

“When the term “excess of jurisdiction” is used, it may mean that from the inception of the case, the court has no jurisdiction whatsoever because the nature of the case or value involved is beyond its jurisdiction. But it may also mean that although the court has jurisdiction to hear the case, the orders which the court can pronounce are restricted by statute. If an order is therefore beyond the powers of the court, it is perfectly correct to say that it has exceeded its jurisdiction. Since the statutory notice was not affixed to the appellant’s premises as required under the Act, the District Magistrate exceeded his jurisdiction in granting the order of sale to the city council”.

To make a determination as to whether the Magistrate exceeded his jurisdiction in committing the Applicants to prison would not rest on a simplistic look at section 190(4) of Act 30. The powers exercisable by the Magistrate under section 190(4) of Act 30 is not absolute and must be seen and interpreted to be subject to overriding orders for bail granted by a higher court. For the bail granted by the High Court were not to subsist until the end of the committal proceedings for it to be reviewed by a Magistrate. And the committal to custody order amounts to nothing than a review of the orders and decisions of the High Court. If the applications for bail before the High Court had been refused and the Applicants had gone all the way to the Supreme Court, is it the case of the prosecution that at the conclusion of the committal proceedings, the Magistrate would have still had the power to decide whether to commit the Applicants to prison as he did? Surely not as that amount to a review of the orders of the Supreme Court. And if a Magistrate cannot be permitted to do that to the orders of a Supreme Court, can he do that to the orders of the High Court?

The trial High Court for which the Applicants have been committed to stand trial had prior to the orders of the orders of the Magistrate denying them bail admitted them to bail and the District Court could not have acted under the guise of Act 30 to revoke the orders of the High Court. And assuming as contended by the learned Assistant State Attorney that some of the Applicants had not complied with their bail terms, it was for the District Court that did not admit them to bail to review the bail? I agree with Abu Juan Jiagara Esq. that the powers of the District Court to grant bail must be subject to orders made in respect of the same subject matter by a higher court. And this can be viewed as an error so grave as to amount to excess of jurisdiction. The right of the High Court to admit the Applicants to bail was founded under the Constitution. And having so secured such a right, any act by a lower court purportedly founded under the Act 30 must be seen to be subject to the rights secured under the Constitution but not override it. Where even the Applicants have flouted their bail terms, it was not up to the District Court to revoke the bail as after all it did not grant the bail to them. And in any case certiorari has never concerned itself with the merits of a case. As noted by Twum JSC in REPUBLIC v COURT OF APPEAL, EX-PARTE GHANA CABLE CO. LTD. (BARCLAYS BANK GHANA LTD - INTERESTED PARTY) [2005-2006] SCGLR 107 at 118 where Dr. Twum JSC, delivering the lead judgment of the Supreme Court noted that:

“Certiorari is not concerned with the merits of the decision. It is a complaint about jurisdiction or some procedural irregularity like the breach of natural Justice”

Therefore the claim of their non-compliance with their bail conditions, even if true, cannot right an act that amounts to a reversal of the orders of the High Court by a District Court. In the statement of case of the learned Assistant State Attorney, she has argued that the Magistrate only acted in accordance with the jurisdiction granted him by the law and even if there was an error it was not one that goes to jurisdiction or excess of it as there was jurisdiction to act neither was there any error patent on the record and the remedy of the Applicants lies in an appeal against the decision.

The scope and ambit of the supervisory powers of the High Court under article 141 is said not to be closed. And the performance of a statutory duty of reminding Applicants when same considerations had been done by the High Court can be said to be acting in excess of jurisdiction. I also reject the claim that at the time of committing the Applicants to stand trial before the High Court, the bail granted them had elapsed and was no longer applicable. I find no such law to that effect and if there was the need for a review of the bail granted them then it should be the very court that admitted them to bail that should exercise the power to review the bail or rescind it but not the District Court. For the reasons provided the court thinks that the matter merit the exercise of the discretion of the court in favour of the Applicants.

Accordingly the reliefs sought succeeds and the order of the District Court committing the Applicants to custody is hereby quashed which amount to restoration of the status quo of the bail terms and conditions of the Applicants before the order of the Magistrate.