REPUBLIC v. HIGH COURT, ACCRA, EX PARTE ADJEI
1986
SUPREME COURT
GHANA
CORAM
- SOWAH C.J.
- ADADE
- TAYLOR
- FRANCOIS JJ.S.C.
- AMUA-SEKYI J.A
Areas of Law
- Constitutional Law
- Civil Procedure
1986
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana considered a certiorari application arising out of Johnson Complex Ghana Ltd.’s enforcement of a liquidated judgment against Alex Adjei. After Adjei obtained an instalment payment order, a later application by the creditor led the High Court to revise its prior order outside the two-week review limit prescribed by Order 39 of the High Court (Civil Procedure) Rules, 1954. When the certiorari motion was called, counsel raised a fundamental objection contending the Supreme Court was not duly constituted because its membership had fallen below the statutory minimum and that inviting Court of Appeal judges to sit could not cure the defect. The court overruled the jurisdictional objection, holding that Article 115(2) and section 19 of P.N.D.C.L. 42 permit a duly constituted bench of five drawn from Supreme Court and Court of Appeal justices. On the merits, it set aside the High Court’s revision as ultra vires and ordered certiorari to quash the decision. One justice dissented on jurisdiction.
JUDGMENT OF SOWAH C.J.
When the instant application for an order of certiorari to quash the judgment of the High Court, Accra (in a suit entitled Johnson Complex Ghana Ltd. v. Adjei, High Court, Accra, 29 May 1985, unreported, per Adadevoh J.) was called, counsel for the respondent and his client were absent. Counsel for the applicant in moving his motion raised an objection to the jurisdiction of the court to sit. It must be observed that the objection was raised without notice to the respondent or the court. In ordinary circumstances the court would not have entertained the objection but it thought it was so fundamental that it should be heard. In the result the objection was overruled and reasons were reserved. The court now proceeds to give its reasons.
The burden of the objection was that though the Supreme Court exists it is not functional by reason of an infirmity in its membership. Counsel cited an analogous situation in which the Judicial Council exists but because its membership has been abolished the council is not operational. The court thinks that the analogy is rather far-fetched as there are in being, apart from the Chief Justice who is a member of the Supreme Court, three justices of the Supreme Court. Its membership has not been abolished.
It appears to this court that there is confusion of thought somewhere along the line. It is accordingly necessary to state briefly the history of this court. The Superior Court of Judicature was established by article 114 of the Constitution, 1979. And the said article 114 (1) and (5) provides:
“114. (1) The judicial power of Ghana shall be vested in the Judiciary of which the Chief Justice shall be the Head; and accordingly no organ or agency of the executive or the legislature shall be given any final judicial power ...
(5) The Judiciary shall consist of the Supreme Court of Ghana, the Court of Appeal and the High Court of Justice which shall be the superior courts of record and which shall constitute [p.516] one Superior Court of Judicature, and such other inferior Courts and traditional Courts as Parliament may by law establish."
The membership of the Supreme Court or the manner in which the Supreme Court is to be organised for work has nothing to do with the question whether the Supreme Court exists or not. Article 115 (1) of the Constitution, 1979, provides:
“115. (1) The Supreme Court shall consist of
(a) the Chief Justice, who shall be the president thereof; and
(b) not less than six o