2009
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana considered an application by William Ansah-Otu and another for certiorari under article 132 to quash a Koforidua High Court order granting an interlocutory injunction in Koans Building Solutions Ltd v William Ansah-Otu & Another. The applicants argued that because they had opposed the injunction below, the trial judge erred by failing to require Koans to give an undertaking under Order 25 rule 9(1)–(2) of the High Court (Civil Procedure) Rules, 2004 (CI 47), creating an error of law apparent on the face of the record. Writing for the Court, Ansah JSC accepted that the omission was an error but held it was a procedural irregularity under Order 81 that did not nullify the order or affect jurisdiction; certiorari therefore did not lie. The Court emphasized that judicial review by certiorari targets jurisdictional or nullity-level errors and that applicants had taken fresh steps by seeking review and a receiver/manager, undermining their entitlement to discretionary relief. Anin Yeboah JSC concurred, stressing that undertakings are procedural and should not fetter jurisdiction. The Court dismissed the application.
ANSAH, J.S.C. :
The applicants herein applied to this court, pursuant to article 132 of the 1992 Constitution, for an order of certiorari directed at the High Court, Koforidua presided over by Anyimiah J, to quash a ruling by the said court dated 12 June 2008 in Suit No E149/2008 intituled Koans Building Solutions Ltd v William Ansah-Otu & Another. The ground for the application was that: “There was an error of law apparent on the face of the record.”
According to the supporting affidavit, the first applicant deposed that he had negotiated with the plaintiff-company, Koans Solutions Ltd (hereinafter called the interested party), through its managing director on behalf of the other applicant, for the hire or purchase of a farmland at Okotokrom-Asuboi. The interested party paid ¢60 million old cedis (Gh¢6,000.00) and a second payment of Gh¢700 (seven million old cedis) for the preparation of a site plan. The interested party was put in possession of the land and started cultivating corn on part of it. Before then, the applicants had cultivated some economic crops like palm trees, cassava and plantain on part of the land. It was agreed that if by 31 December 2005, the interested party failed to complete the applicants' uncompleted family house situated at another place at Aburi, the applicants reserved unto themselves the right to terminate the agreement. When the interested party failed to complete the building within the period agreed upon, the applicants abrogated the agreement. By then, the interested party had harvested the cash crops cultivated on the land and had nothing left there. However, the first applicant offered to reimburse him of the sum of Gh¢1,000.
Later the interested party sued the applicants for specific performance of the contract and prayed for an order of interlocutory injunction. On 12 June 2008, the High Court (per Anyimiah J) gave its ruling, granting the application exhibited as exhibit WKA 119. It was the case of the applicants that there was an error of law apparent on the face of WKA 119 for it was not warranted by the rules of court.
The ground of the application in a nutshell was that the rule of court which governed the order of interlocutory injunction gave the court the discretion not only to grant the order sought but also to attach conditions to it. Where the application was opposed, then the rule had the effect of fettering the discretion of the court as provided in rule 1(1) of Order 25 of the High Court (Civil Proc