February 11, 2009
SUPREME COURT
CORAM
AI Generated Summary
The Supreme Court of Ghana, exercising its supervisory jurisdiction, addressed whether certiorari should quash a High Court (Fast Track Division) proceeding held before Justice Ofori‑Atta and his subsequent ruling on an interim injunction application. The applicant challenged the Registrar’s act of moving the case—originally before Justice Abada and then properly transferred to Justice Edward Amoako Asante—without a formal order by the Chief Justice as required under section 104 of the Courts Act. The Interested Party relied on directives from the Chief Justice’s Secretariat and urged urgency and public interest. Writing for the Court, Dr. S.K. Date‑Bah JSC held that section 104 reserves transfer power exclusively to the Chief Justice; Registrar-initiated reassignments confer no jurisdiction on the receiving judge. The Court found no exceptional circumstances to justify bypassing the statute and rejected discretionary bars to certiorari in a clear case of want of jurisdiction. It therefore quashed the proceedings and ruling and remitted the interim injunction application to Justice Asante for urgent hearing, with Atuguba JSC concurring and elaborating the statutory construction of section 104.
ATUGUBA, J.S.C:
I agree with the Ruling of my able brother Dr. Date-Bah J.S.C. However I find it necessary to express my views on certain aspects of t his case.
The first is the ambit of the power of transfer of cases given to the Chief Justice under S.104(1) – (3) of the Courts Act, 1993 (Act 459), as amended.
It provides thus:
“104 (1) Subject to the provisions of the Constitution, the Chief Justice may by order under his hand transfer a case at any stage of the Proceedings from any Judge or Magistrate to any other Judge or Magistrate and from one court to another court of competent jurisdiction at any time or stage of the proceedings and either with or without an application from any of the parties to the proceedings.
(2) The order may be general or special and shall state the nature and extent of the transfer and in any case of urgency the power of transfer may be exercised by means of a telegraphic, telephonic or electronic communication from the Chief Justice.
(3) A transfer of a case made by telegraph, telephone or electronic communication and not confirmed immediately by order signed and sealed in a manner specified by the Chief Justice or any other person authorized in that behalf by him shall be of no effect.”
These provisions are not new: They are a carry over from the inception of our legal system. They came up for consideration in Osei v. The Republic (1968) GLR 704 C.A. The issue arose and was dealt with by Apaloo J.A. (as he then was) delivering the judgment of the court at 711 as follows:
“The last submission which was made on behalf of the first appellant is supposed to be a plea to the jurisdiction of the court below as constituted. It is said that as the case originally came before the court constituted by Edusei J. he was lawfully “seised” of it and he could therefore not be divested of jurisdiction without a formal order of transfer made by the Chief Justice in accordance with paragraph 38 of the Courts Decree, 1966 (N.L.C.D. 84). As no such order was made Amissah J.A., who eventually heard the case, had no jurisdiction.
This argument, whatever its attraction, is not new. It was made in almost identical language in Akainyah v. The Republic [1968] G.L.R. 548, C.A., a case in which Mr. Adade was junior counsel, and was rejected in a judgment delivered by this court on 1 July 1968. Learned counsel for the first appellant did not profess ignorance of this decision. His point is, that the Akainyah decision claimed its authority f