November 17, 2010
SUPREME COURT
GHANA
CORAM
AI Generated Summary
Al‑Hassan Limited, a real estate developer, sought the Supreme Court’s supervisory intervention under Article 132 to quash a High Court (Land Division, Court 2, Accra) ruling by Justice F.K. Awuah that set aside its supplementary affidavit in an interlocutory injunction motion in Al‑Hassan Limited v. Thaddeus Sory, and to prohibit the judge from further handling the injunction application and the substantive land suit. The High Court had accepted an objection that the supplementary affidavit was unwarranted under Order 25 of the High Court Rules (C.I. 47) and filed without leave, finding it duplicative and not crucial. Before the Supreme Court, Al‑Hassan argued breaches of audi alteram partem and apparent bias. The Supreme Court (Adinyira, JSC, writing; with Yeboah, Baffoe‑Bonnie, Gbadegbe, and Akoto‑Bamfo, JJSC) held both parties were heard and the ruling was a discretionary procedural decision, correctable on appeal, not by certiorari. It also found no evidence of bias or real likelihood of bias. Reaffirming that only fundamental non‑jurisdictional errors warrant supervisory relief, the Court dismissed the application.
R U L I N G
ADINYIRA (MRS), JSC:
“The right of appeal is jettisoned frequently for an immediate tryst with prerogative proceedings. I think the time has come when the distinction should be punitively maintained.” Per Francois J.A. (as he then was) in The Republic v. Circuit Court Accra; Ex parte Appiah [1982-83] GLR 129 at page 145.
The applicant, Al-Hassan Limited, a real estate development company has invoked the supervisory jurisdiction of the Supreme Court under Article 132 of the Constitution of Ghana, 1992 for an order of certiorari for the purpose of quashing a ruling dated 5 July 2010, of the High Court (Land Division, Court 2) Accra presided over by Justice F.K. Awuah and a further order of prohibition to prevent the said judge from sitting on the Applicant’s Motion for an Order of Interlocutory Injunction and the substantive land suit entitled Al-Hassan Limited v. Thaddeus Sory .
The grounds for the application are that:
“The Order by the Trial High Court precluding the Applicant from relying on the Applicant’s Supplementary Affidavit filed on 4/5/2010 in support of the Motion on Notice filed on 7/4/2010 by the Applicant for an Order of Interlocutory Injunction was a grave violation of the rules of natural justice, especially in its audi alteram partem ambit, as the said Order denied the Applicant the opportunity to respond to the Interested Party’s Affidavit filed on 15/4/2010 in opposition to the Applicant’s Motion for an Order of Interlocutory Injunction that the trial Judge adjourned to 9/7/2010, not to mention the sequel of such preclusion to Applicant’s Motion.
While making the Order on 5/7/2010 precluding the Applicant from relying on the Applicant’s Supplementary Affidavit filed on 4/5/2010 in support of the Motion on Notice filed on 7/4/2010 by the Applicant for an Order of Interlocutory Injunction, the trial judge, Mr. Justice F.K. Awuah, J, prejudged the issues raised by the Applicant’s Motion for an Order of Interlocutory Injunction by making such statements, amongst others, to the effect that:
The Application for Interlocutory Injunction must be taken without the Supplementary Affidavit quickly because the Defendant was suffering hardship. This is a clear indication that the Judge is so biased against the Applicant herein that he has already made up his mind to dismiss the Applicant’s application for an Order of Interlocutory Injunction even before same is heard on 9/7/2010;
The Supplementary Affidavit filed on 4/5/2010 by