April 10, 2019
SUPREME COURT
GHANA
CORAM
AI Generated Summary
In a supervisory review application, Ms. Arch Adwo Company Ltd sought certiorari and prohibition in relation to rulings of the High Court (Financial and Economic Crimes Division 2), presided over by Justice Afia Serwaa Asare-Botwe, arising from efforts to challenge the Auditor-Generals disallowance and surcharge of GH2,153,506.33 under IPC 4. The company first appealed on 19 March 2018 pursuant to Article 187(9) and Act 584, but the High Court struck out the appeal and later refused extension by applying Order 54A of C.I. 102s 14-day timelines. The Supreme Court, per Dotse JSC, held that Act 584s 60-day period controls and that Acts of Parliament outrank conflicting subsidiary rules. Invoking its supervisory jurisdiction and inherent powers, the Court set aside the High Courts void decisions of 24 May and 23 July 2018, validated the Notice of Appeal as filed within time, and directed the matter to proceed as an appeal. Prohibition was refused for lack of real likelihood of bias, and, save for directions to prevent failure of justice, certiorari was not granted.
RULING
DOTSE, JSC:-
This Ruling is premised upon the twin applications of judicial review, namely Certiorari and Prohibition which the Applicants herein seek against specific Rulings/Orders of the High Court (Financial and Economic Crimes Division 2) presided over by Her Ladyship Justice Afia Serwaa Asare-Botwe (Mrs) dated 23rd day of January 2019 in the Suit intitutled Ms. Arch Adwo Company Ltd. v Auditor General & Attorney-General and numbered FT/0044/2018.
In the words of the Applicants, they specifically want the said High Court Judge consequent upon the grant of the application for Certiorari to also be prohibited from determining and or adjudicating the suit that is before her.
GROUNDS OF APPLICATION
The grounds upon which the Applicant seeks these reliefs have been stated by them as follows:-
“That the High court (Financial and Economic Crime Division – 2) made a jurisdictional error of law apparent on the face of the record when she declined jurisdiction to hear and determine the suit intitutled Ms Arch Adwo Company Ltd v Auditor General & Attorney General suit numbered FT/0044/2018 on the ground that the action relates to disallowance and surcharge and the avenue open to applicant is appeal and not Writ of Summons.
That by virtue of the inconsistent and /or contradictory rulings made by the Learned Justice of the High Court against applicant there is a likelihood of bias if she is permitted to proceed to hear the suit.
That having regard to all the circumstances of this case applicant are unlikely to get a fair trial of the matter should Learned Justice of the High Court proceed to hear and determine Suit No. FT/0044/2018 intitutled Ms Arch Adwo Company Ltd v Auditor General & Attorney General. “ Emphasis
DEPOSITIONS IN THE APPLICANT’S AFFIDAVIT IN SUPPORT OF THE INSTANT APPLICATION
In view of the novelty of this application arising as it is under the powers of the Auditor-General under his powers of disallowance and surcharge, it is considered appropriate to set out in detail the following paragraphs of the affidavit in support of the above application deposed and sworn to by Esther Adwo Archer as follows:-
5. “That on 24th September 2018, applicant invoked the original jurisdiction of the High Court and commenced proceedings by writ of summons for the following mixed claims and or reliefs:-
(a) A declaration that the findings and /or disallowance of plaintiff’s claim per IPC no. 4 in the sum of GH¢4,153,506.33 contained in the 1st D