THE REPUBLIC v. HIGH COURT, EX PARTE: ATTORNEY GENERAL
2012
SUPREME COURT
GHANA
CORAM
- DR. DATE-BAH JSC (PRESIDING)
- ANSAH, JSC
- YEBOAH, JSC
- GBADEGBE, JSC
- BAMFO,(MRS) JSC
Areas of Law
- Administrative Law
- Criminal Law and Procedure
- Evidence Law
2012
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court dismissed the Attorney-General's application for an order of certiorari to quash High Court proceedings due to the discretionary nature of certiorari and the availability of alternative remedies such as nolle prosequi. The Attorney-General failed to object to jurisdiction in the High Court, participated in the proceedings, and was accused by the interested party of forum-shopping and bad faith. The Court emphasized the importance of raising jurisdictional issues in the initiating court and recognized that the applicant's conduct may disentitle them to certiorari.
R U L I N G
DR DATE-BAH JSC:
This is the unanimous ruling of the Court. The remedy of certiorari has always been a discretionary one. The authors of De Smith, Woolf & Jowell’s Principles of Judicial Review (1999), in discussing the historical development of judicial review remedies and procedures, make the following pronouncement (at p. 530) in relation to the four prerogative writs of certiorari, mandamus, prohibition, and habeas corpus:
“Though the four writs had acquired their “prerogative” characteristics by the middle of the seventeenth century, strangely it was not until a century later, in 1759, that anybody (Mansfield) seems to have thought of classifying the writs as a group. Those shared characteristics included the following:
They were not writs of course which could be purchased by or on behalf of any applicant from the Royal Chancery; they could not be had for the asking, but proper cause had to be shown to the satisfaction of the court why they should issue.
The award of the prerogative writs usually lay within the discretion of the court. The court was entitled to refuse certiorari and mandamus to applicants if they had been guilty of unreasonable delay or misconduct or if an adequate alternative remedy existed, notwithstanding that they have proved a usurpation of jurisdiction by the inferior tribunal or an omission to perform a public duty. But although none of the prerogative writs was a writ of course, not all were discretionary. Prohibition, for example, issued as of right in certain cases; and habeas corpus ad subjiciendum, the most famous of them all, was a writ of right which issued ex debito justitiae when the applicant had satisfied the court that his detention was unlawful. These two writs, therefore, were not in the fullest sense writs of grace.
This Court has on numerous occasions accepted and stressed the above-mentioned discretionary character of the remedy of certiorari. For instance, in Republic v High Court, Denu; ex parte Agbesi Awusu II (No. 2) (Nyonyo Agboada (Sri III) Interested Party) [2003-2004] 2 SCGLR 907, Atuguba JSC explained (at p. 914) that:
“It is well-known that certiorari is a discretionary remedy and therefore it does not follow that when the technical grounds upon which certiorari lies are established, it will be pro tanto granted.”
Kpegah JSC has also said, in Republic v High Court, Accra; ex parte Aryeetey (Ankrah Interested Party) [2003-2004] 1 SCGLR 398 at p. 410, that:
“Needless for us to