THE REPUBLIC v. HIGH COURT (GENERAL JURISDICTION), EX PARTE: RICHARD KWABENA FRIMPONG & ANOR
2016
SUPREME COURT
GHANA
CORAM
- GBADEBGE, JSC (PRESIDING)
- AKOTO - BAMFO, JSC
- BENIN, JSC
- APPAU, JSC
- PWAMANG, JSC
Areas of Law
- Civil Procedure
2016
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana, per Gbadegbe JSC, considered an application for judicial review in the nature of certiorari seeking to quash a High Court order made on 8 February 2016 that compelled the defendant (the present applicant) to give bail for his appearance in a civil action under Order 73 of the High Court (Civil Procedure Rules), CI 16. The Court emphasized that under Order 73 a warrant may be issued to bring a defendant before the court to show cause, and only if the defendant fails to show cause may bail be ordered. Reviewing the record, the Court found the trial judge failed to observe this condition precedent, did not afford the applicant an opportunity to be heard, and thereby acted in excess of jurisdiction. The Court analogized the purpose of civil bail to criminal bail—securing appearance and satisfaction of judgment—and, guided by Ex parte Osae-Akonnor, granted certiorari and quashed the impugned proceedings.
RULING
GBADEGBE JSC:
The simple question for our decision turning on the application before us for judicial review in the nature of certiorari is whether the learned trial judge of the High Court acted within jurisdiction when he made an order on February 08, 2016 that the applicant (a defendant to the action before the trial High Court) to give bail for his appearance in a civil action by virtue of Order 73 of the High Court (Civil Procedure Rules), CI 16. From the impugned order , which appears at page 1 of what is loosely described as Exhibit “A” series, the learned trial judge did not as required by the rules afford the applicant, the opportunity of showing cause why he should not provide good and sufficient cause for his appearance in the action. The obligation imposed on the learned trial judge is expressed in the following words of Order 73 rule1 sub-rule (2) and rule (2) thus:
(2).“ Where the court is satisfied that the provisions in paragraph (a) or (b) of sub-rule (1) have been substantiated and that the execution of any judgment in the action against the defendant is likely to be obstructed or delayed, it may issue a warrant to bring the defendant before the Court to show cause why the defendant should not give good and sufficient bail for the defendant’s appearance.
Where the defendant fails to show cause, the Court shall order the defendant to give bail for the defendant’s appearance at any time while the action is pending and the execution or satisfaction of any judgment that may be given against the defendant in the action, and the surety shall undertake to pay any money that may be adjudged to be paid by the defendant in the action, in default of the appearance of the defendant.”
We venture to say without any hesitation that the order for bail arises only when following his appearance before the court under a warrant issued under order 73 rule (1) sub-rule (2), he is unable to show cause as provided for in rule 2 of the Order. The order for bail so made upon his failure to satisfy the court in regard to his appearance while the action is pending may be likened to bail in criminal cases. The purpose of the bail granted to the defendant is to ensure that he appears not only at the trial but as some form of security that any judgment obtained against him in the action may be satisfied. It seems therefore that the failure of the defendant to satisfy the court that he would appear at the trial and also satisfy any judgment that might be ren