THE REPUBLIC vs. THE CIRCUIT COURT "A" CAPTAIN BRIMPONG (RESPONDENT) EX-PARTE: RANSFORD AKWEI BULLEY [2004]DLCA6625

THE REPUBLIC vs. THE CIRCUIT COURT "A" CAPTAIN BRIMPONG (RESPONDENT) EX-PARTE: R... [2004]DLCA6625

Date	2004-02-12
Suit No.	CA 55/2000
Citation No.	[2004]DLCA6625

ESSILFIE BONDZIE JA (PRESIDING)

S. GBADEGBE JA

ANIN YEBOAH JA

[2004]DLCA6625
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>THE CIRCUIT
COURT "A" CAPTAIN BRIMPONG<o:p></o:p>(RESPONDENT)<o:p></o:p>EX-PARTE:
RANSFORD AKWEI BULLEY<o:p></o:p>(APPLICANT/APPELLANT)<o:p></o:p><o:p>&nbsp;</o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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55/2000 &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 12TH
FEBRUARY 2004<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
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(PRESIDING), S. GBADEGBE JA, ANIN YEBOAH JA<o:p></o:p>

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</div>GBADEGBE,
JA<o:p></o:p>This
is an appeal from the ruling of the High Court, Accra which refused an
application for the prerogative writs of certiorari and mandamus at the
instance of the appellant. In the Court below the applicant (to whom I shall in
these proceedings for convenience hereinafter refer as the appellant) moved for
an order of certiorari to quash the ruling of the Circuit Court refusing leave
to amend his pleadings and additionally sought mandamus to compel the learned
trial judge to apply the rules of Court in respect of the application for leave
to amend. I must say, however, that after the appellant was granted leave under
order 59 rules 2 of the applicable rules of Court to issue the application on
notice he purported to seek reliefs other than those in respect of which leave
was granted to him. In my view, the additional reliefs lacked legitimacy and as
such I shall not refer to them in this judgment. In doing so I take refuge
under Order 59 rule 5 of the rules of the High Court LN 140A.The circumstances
leading to the instant proceedings before us have been fully stated in the
judgment of the Court below and I shall therefore not detain the precious time
of this Court regarding the examination of the facts but proceed to a
consideration of the appeal. <o:p></o:p>Several
grounds of appeal have been filed and argued in the statements submitted to us
by learned counsel for the appellant. These grounds raise only issues of law.
In my opinion, a close scrutiny of these grounds shows that they allege
distinct errors of law against the decision of the Court below. As it seems to
me, the question which we have to decide in these proceedings is whether the
conclusion which the learned trial judge came to on the application was right?
Since the pivot of the application in the Court below was error of law by the
trial Circuit Court in not allowing the amendment, for certiorari to lie, it
was incumbent upon the appellant to show from the "record" on which
his application was based that the refusal to allow the amendment had the
effect of a denial of justice. If the said situation exists then in my view the
relief of mandamus which only becomes relevant after the appellant had
satisfied the condition regarding certiorari may be considered. See-(1) General
Medical Council v Spackman [1943] AC 627. I must at this point pause and say
that the statement that I have just made should not be misconstrued to mean
that in all cases where error of law is urged as a ground of certiorari there
should be a showing that there has been a denial of Justice. On the contrary
what it seeks to say is that where the allegation is based on a refusal to
grant leave to amend then the applicant must show that its effect was to deny
him justice. In any other case, in which the basis of the application is error
of law on the face of the record then the applicant is required to show that
the error of law is one which went to the jurisdiction of the Court or was so
obvious as to make the decision a nullity. See-(1) Republic v High Court,
Sekondi Ex parte Abuna II and Others [1992] 1 GLR 532. But, to succeed the
record on which reliance is placed must disclose the error which is alleged
apparently on the face of the record hence the use of the term "error of
law on the face of the record" and it is not permissible where as in the
case in the Court below the ground on which the relief was sought was error of
law and not absence or lack of jurisdiction to prove the error by resort to
affidavit evidence. <o:p></o:p>See-(1)
Rex v Nat Bell Liquors Ltd. [1922] 2 AC128 at 144 wherein the Court in its
delivery per Sumner LJ observed as follows: <o:p></o:p>"It may well be that
error as to the law of evidence, like any other error of law, might if it is
apparent on the record, is ground for quashing the order made below, but none
of the objections taken here show that the magistrate acted under any misapprehension
of the law." <o:p></o:p>At
pages 155-156 of the same decision it was stated as follows: <o:p></o:p>"…that the key of the
question is the amount of material stated or to be stated on the record
returned and returned to the superior Court. If the justices state more than they
are bound to state, it may be used against them, and out of their own mouths
they stand to be condemned, but there is no suggestion that, apart from
questions of jurisdiction, a party may state further matters to the Court,
either by new affidavits or by producing anything that is not part of the
record." <o:p></o:p>The
practice as to what constitutes the "record" is a strict one which
ensures that the inferior Court has not exceeded its jurisdiction and for that
matter ensures that the superior Court does not interfere with what has been
done with that jurisdiction by the inferio</main>