2011
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana, per Date‑Bah JSC with a concurring opinion by Atuguba JSC, dismissed an appeal by siblings who sought to reinstate a High Court order quashing a Circuit Court judgment. The underlying dispute involved a son’s trespass and injunction action against his mother and sisters over land near Accra. The High Court (Ashong‑Yakubu J.) had granted certiorari, voiding the son’s title and the Circuit Court’s judgment on the ground that a stool land indenture lacked prior ministerial concurrence under the Administration of Lands Act (Act 123). The Court of Appeal reversed. In clarifying supervisory jurisdiction, the Supreme Court held that, when reviewing courts (as opposed to administrative bodies), certiorari lies only for jurisdictional errors or fundamental non‑jurisdictional errors patent on the face of the record; mere legal errors are for appeal. It further held that a pending appeal does not bar certiorari and that absence of ministerial concurrence on the face of a conveyance is not a patent error. The appeal was dismissed, and the Court of Appeal’s decision affirmed.
J U D G M E N T
ATUGUBA, J.S.C:
I have had the advantage of reading beforehand the able judgment of my brother Dr. Date-Bah JSC. I agree that Ashong-Yakubu, J. was wrong in quashing the judgment, the subject matter of the application for certiorari on the ground that the conveyance of title did not have the requisite Ministerial concurrence in breach of the Administration of Lands Act (Act 123). A court cannot give a judgment contrary to statute. However, for my part I cannot see such an error on the face of the record. I know of no law which states that the concurrence of the Minister when obtained must be stated on the face of the conveyance. Indeed it is trite law that such concurrence need not be contemporaneous with the grant but can validly and subsequently be obtained after the execution of the conveyance. It may well be that such concurrence was not obtained before or at the time of the Circuit Court’s judgment in this case. However such error, if there be, has not been carried on the face of the record in this case. If that error therefore exists it must be a latent error and certiorari does not lie for latent errors.
As regards whether the common law principle that certiorari normally would not lie if there is a pending appeal has been overtaken by the provision of the 1992 Constitution relating to the supervisory jurisdiction of this court, I do not think that principle has been necessarily so overtaken. The supervisory jurisdiction of this court is derived from the common law which formulated it as a prerogative process. See Darawi & Sons v. Dako (1961) 1 GLR 72 S.C. and Republic v. High Court, Accra; Ex parte CHRAJ (Addo Interested Party) (2003-2004) SCGLR 312 at 326. Certiorari is certainly among the remedies open to an applicant under the court’s supervisory jurisdiction. Thus, article 161, the relevant interpretation provision, provides as follows:
“161. Interpretation
“supervisory jurisdiction” includes jurisdiction to issue writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto.”
The nature of the jurisdiction to issue these remedies has not been stated in the Constitution. But there is some law within the Constitution which spells out that jurisdiction. That law is the existing law under article 11 of the Constitution which is the law that spells out the common law nature of those remedies. It follows that the common law nature of those remedies has been adopted by article 132 which provi