THE REPUBLIC vs. THE HIGH COURT, ACCRA EX-PARTE: PAA KWESI YALLEY FRANCIS GYANE, BEN ATTOR [2008]DLSC2469

THE REPUBLIC vs. THE HIGH COURT, ACCRA EX-PARTE: PAA KWESI YALLEY FRANCIS GY... [2008]DLSC2469

Date	2008-05-21
Suit No.	CIVIL MOTION NO. J6/2007
Citation No.	[2008]DLSC2469

MRS. WOOD C.J. (PRESIDING)

KPEGAH J.S.C.

ATUGUBA J.S.C.

ANSAH J.S.C.

MRS. ADINYIRA J.S.C.

A. G. BOADU FOR THE RESPONDENTS.

[2008]DLSC2469
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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 HIGH COURT, ACCRA&nbsp;&nbsp;&nbsp;
EX-PARTE:&nbsp; PAA KWESI YALLEY
FRANCIS GYANE, BEN ATTOR<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
MOTION NO. J6/2007<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE: 21ST MAY 2008.<o:p></o:p>

</div>COUNSEL:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

A.
G. BOADU FOR THE RESPONDENTS.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

MRS.
WOOD C.J. (PRESIDING), KPEGAH J.S.C., ATUGUBA J.S.C., ANSAH J.S.C., MRS.
ADINYIRA J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>R U L I N G<o:p></o:p>MRS.
WOOD, C.J.:<o:p></o:p>The
case which triggered this instant application has suffered a series of dramatic
twists and turns. Little wonder that we have been invited to intervene by
issuing an order of certiorari to quash an order of the High Court presided
over by Mrs Justice Ivy Ashong –Yakubu, dated the 22nd of January 2007.<o:p></o:p>The
self explanatory grounds of the application to invoke our supervisory jurisdiction
are that:<o:p></o:p>“The High Court acted without or in
excess of jurisdiction by hearing the said suit which has been transferred from
another High Court without the seal and authorisation of His Lordship the Chief
Justice.<o:p></o:p>There was a patent error on the face
of the record when the said High Court assumed it had jurisdiction and ordered
a bench warrant for the arrest of the applicant.<o:p></o:p>That the orders of the High Court,
Accra were made without jurisdiction and as such are null and void.”<o:p></o:p>The
facts leading to this application are quite straightforward. In September 2006,
the applicant caused a writ of summons to be issued against the interested
parties in respect of a plot of land he claimed the respondents have trespassed
on, and successfully applied for an order of interim injunction against them
for the statutory ten day maximum period.<o:p></o:p>On
the 1st of November, however, the respondent initiated contempt proceedings
against the applicant. Curiously, none of the affidavits offer any explanation
as to why this step was taken against the applicant. The lapse is however not
fatal to these present proceedings. The more crucial issue however is that the
contempt application was placed before Mrs Justice Owusu –Arhin, where, in line
with court management practices, it continued to be managed by her court clerk
during the period she was away on leave. Indeed, when the matter came up in her
absence on 15th November, 2006, it was accordingly adjourned, in the presence
of both parties to the 18th of January 2007 by the court clerk.<o:p></o:p>Soon
after this adjournment, the respondent, through his counsel succeeded in having
the Registrar of the court not only abridge the date by bringing it forward to
the 14th of December 2006, but without an order from the Chief Justice, caused the
matter to be transferred to an entirely different court and placed before a new
judge.<o:p></o:p>The
new Judge ordered a bench warrant to issue against the applicant when he failed
to attend court on the 14th of December, 2006. As if not to be outdone in what
I may describe as a game of charades, the applicant in turn manoeuvred and made
an appearance before yet an entirely different judge sitting in another court,
who rescinded the warrant. Subsequently, the judge who issued the original
warrant of arrest nonetheless ignored the rescission order by the other court
of concurrent jurisdiction, and on the 22nd of January 2007, made further
orders of arrest against the applicant. In making the order she reasoned:<o:p></o:p>“So far as this Court is concerned,
the bench warrant was issued on 14/12/06, and so far as the person it was
directed has not appeared in response to the warrant, the warrant still
subsists and remains valid, notwithstanding any intervention by another court
of concurrent jurisdiction.”<o:p></o:p>It
is against this order of 22nd January, 2006, that this instant application has
been lodged on the grounds stated. While the applicant contends that the
contempt proceedings which was pending before Mrs Justice Owusu-Arhin, could
not be removed from her court without a formal transfer order under the hand
and seal of the Lord Chief Justice, the respondent, as is to be expected,
argues that no formal order were required, it being an ordinary motion, albeit
in the nature of contempt proceedings, a matter which needed to be dealt with
expeditiously, given that the applicant, cited as the contemnor, was persisting
in his contemptuous act. <o:p></o:p>On
the facts, the respondent admits per his affidavit that generally, the power to
transfer cases resides exclusively in the Chief Justice. His main argument
however is that there are exceptions to the rule and that the power to do so
extends to the registrar of a court, particularly with regards to those motions
needing urgent attention, as in the contempt proceedings he had filed. <o:p></o:p>The
arguments raise a number of primary and secondary issues. Basically, it calls
for an interpretation of S. 104 (1) - (3) of the Court’s Act 1993, Act 459 as
amended by the Courts (Amendment) Act, 2002, (Act 620), s. 7 and sched.&nbsp; <o:p></o:p>The
broad issue we would have to resolve is what is the proper construction to be
placed on this important statutory provision, in the context of the word “case”
as appears in the legislation? <o:p></o:p>It
is imperative that we clearly spell out the parameters of this law, for reasons
that will become evident in due course. Indeed, my first quick reaction is that
it is these very chaotic events which&nbsp;
bedevilled the contempt application, happenings which in my view amount
to nothing more than the parties, with the active connivance of their counsel and
registrar having gone&nbsp; foru</main>