THE REPUBLIC vs. HIGH COURT, HUMAH RIGHTS DIV. ACCRA EX-PARTE: JOSEPHINE AKITA, INTERESTED PARTIES; MRS. SALMA F. MANCELL-EGALA AND AG [2010]DLSC4140

THE REPUBLIC vs. HIGH COURT, HUMAH RIGHTS DIV. ACCRA EX-PARTE: JOSEPHINE AKITA,... [2010]DLSC4140

Date	2010-02-17
Suit No.	CIVIL MOTION NO. J5/7/2010
Citation No.	[2010]DLSC4140

BROBBEY JSC (PRESIDING)

ANSAH JSC

DOTSE JSC

ANIN YEBOAH JSC

BAFFOE-BONNIE JSC

KIZITO BEYUO FOR THE APPLICANT.

KWAME BOAFO AKUFFO BEING LED BY SOMUAH ASAMOAH FOR THE 1ST INTERESTED PARTY.

CECIL ADADEVOH (SSA) FOR THA ATTORNEY GENERAL.

[2010]DLSC4140
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>HIGH
COURT, HUMAH RIGHTS DIV. ACCRA EX-PARTE: JOSEPHINE AKITA, INTERESTED PARTIES; MRS. SALMA F.
MANCELL-EGALA AND AG<o:p></o:p>&nbsp;[SUPREME COURT, ACCRA]<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">

CIVIL MOTION NO. J5/7/2010&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: 17TH FEBRUARY, 2010<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>KIZITO
BEYUO FOR THE APPLICANT.<o:p></o:p>KWAME
BOAFO AKUFFO BEING LED BY SOMUAH ASAMOAH, FOR THE 1ST INTERESTED
PARTY.<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">

CECIL ADADEVOH (SSA) FOR THA
ATTORNEY GENERAL.<o:p></o:p>

</div>CORAM:
<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">

BROBBEY
JSC (PRESIDING), ANSAH JSC, DOTSE JSC, ANIN YEBOAH JSC, AND BAFFOE-BONNIE JSC<o:p></o:p>

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

RULING<o:p></o:p>

</div>BROBBEY, JSC:<o:p></o:p>This is
a ruling on an interlocutory application. The facts which gave rise to the case
are as follows: Mancell Vocational Institute (hereinafter referred to as the
Institute) was owned by Mrs. Rosamund Mancell who died testate on 14 August
1987. She bequeathed the Institute to her five children. After the necessary
probate had been taken, vesting assent was given to the children. <o:p></o:p><o:p>&nbsp;</o:p>One of
the children was Elizabeth Mansa Mancell. She died in 1993, leaving behind
three children by name Josephine Akita, Francisca Hammond and Ronald Renee. The
three children took over the interest of Elizabeth Mansa Mancell in the estate.
In this application, Josephine Akita describes herself as the applicant, the
administratrix of the estate of the deceased Elizabeth Mansa Mancell and
representative of herself and the two children (as appearing in the suit she
brought earlier in the High Court).<o:p></o:p><o:p>&nbsp;</o:p>In 2006,
an agreement was allegedly reached to sell the Institute. It was eventually bought
by the Ghana Government through the Ministry of Children and Women’s’ Affairs. After
the purchase price had been agreed upon, the children took action to request
the Government to issue five separate cheques for the benefit of the five
children. In that action, the children of Elizabeth Mansa Mancell were
represented by Josephine Akita the eldest daughter and administratrix of her
estate. When the Government complied with the request, the children
discontinued the action. <o:p></o:p><o:p>&nbsp;</o:p>In
December 2008, the applicant took action in the Human Rights Division of the
High Court to nullify the sale for the sole reason that it was concluded
without the knowledge and consent of the children of the deceased Elizabeth Mansa
Mancell. It was in that action that the applicant described herself as the
eldest daughter, administratrix and representative of herself and the other two
children. The respondent is the High Court judge who handled the action which
has culminated in this application. The interested parties are the other
children of the late Rosamund Mancell and the Ghana government, the purchaser
of the Institute. In the High Court, the applicant applied for an interim
injunction against the Government and the interested persons in the instant
application. The trial judge dismissed the injunction and the entire action. He
proceeded to order the Government to take over the Institute. The applicant
appealed against the decision of the court. She then filed a motion to restrain
the interested parties from acting in any manner inconsistent with the applicants’
beneficial interest in the Institute. The motion was predicated on the appeal
filed against the decision of High Court.<o:p></o:p><o:p>&nbsp;</o:p>The
return date for the motion was 11 November 2009. On the 10 November, the High
Court registrar served Form 6 on the applicant. Counsel for the applicant took
the view that since Form 6 had been served, the Court of Appeal was seised of
the case and that the High Court had no jurisdiction over the matter. The High
Court judge ruled that he had jurisdiction and dismissed the application for
injunction. A writ of possession was issued in favour of the interested parties.
The applicant thereafter applied to this court for an order of certiorari to
quash the last decision of the High Court for two reasons: Firstly that the
High Court judge had no jurisdiction over the case since the issuance of Form 6
automatically transferred the case to the Court of Appeal: Secondly there was a
breach of the audi alteram partem
rule since she was not heard on the motion before the judge and further that an
affidavit filed by the interested party was not served on the applicant before
the judge disposed of the case.<o:p></o:p><o:p>&nbsp;</o:p>The
first ground turned on the meaning and effect of the Court of Appeal Rules,
1997<o:p></o:p>&nbsp;(C I 19), r 21 as mended by CI 25 which reads;<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>