REPUBLIC VRS THE REGISTRAR & 2 OTHERS (C13/03/2024) [2024] GHAHC 94 (25 April 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE HELD AT KIBI ON 25TH DAY OF APRIL, 2024 BEFORE HER LADYSHIP RUBY NAA ADJELEY QUAISON (MRS) HIGH COURT JUDGE. SUIT NO. C13/03/2024 THE REPUBLIC THE REGISTRAR …. RESPONDENT CIRCUIT COURT KIBI VRS: EX-PARTE ATTORNEY-GENERAL ….. APPLICANT MINISTRIES KOFORIDUA ABRAHAM AKUNOR ---- INTERESTED PARTY PT249/1, ESTTE TOP KASOA, AWUTU SENYA =========================================================== Respondent absent Represented by Paul Tetteh Assistance Registrar Circuit court Kyebi Interested Party present Mustapha Mahama for the Republic/applicant present George Kumordzie holding the brief for Suleman Musah for Interested Party present. =========================================================== JUDGMENT =========================================================== Article 141 of the 1992 Constitution states as follows; “The High Court shall have supervisory jurisdiction over all lower courts and any lower adjudicating authority and may in the exercise of that jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory powers” 1 Flowing from the Constitutional provision, Section 16 of the court Act, 1993 (Act 459) says; “In accordance with article 141 of the Constitution, the High Court has supervisory jurisdiction over the lower courts and all lower adjudicating authority and may in the exercise of that jurisdiction, issue orders and directions including orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto for the purpose of enforcing or securing the enforcement of its supervisory powers”. Order 55(1) & (7) of CI 47 also states thus “…ORDER 55—APPLICATION FOR JUDICIAL REVIEW Rule 1—Cases Appropriate for Application for Judicial Review: An application for (a) an order in the nature of mandamus, prohibition, certiorari or quo warranto; or (b) an injunction restraining a person from acting in any public office in which the person is not entitled to act; or, (c) any other injunction, shall be made by way of an application for judicial review to the High Court… Rule 7—Certiorari (1) Where the applicant seeks an order of certiorari to remove any proceedings for the purpose of quashing them the applicant shall at least seven days before the hearings of the application file in the registry of the Court a copy of any order, warrant, commitment, conviction, inquisition or record verified by affidavit, otherwise the applicant shall not be heard unless the applicant's failure to do so is explained to the satisfaction of the Court. (2) On the hearing of an application for certiorari, the Court if satisfied that there are grounds for quashing the decision or proceeding to which the application refers, may quash it and may in addition to quashing it remit the matter to the court, tribunal or authority concerned with a direction to reconsider it and proceed in accordance with the findings of the Court...” It is pursuant to these provisions that the applicant has invoked the supervisory jurisdiction of this court and is seeking to quash by way of certiorari, the ruling and order 2 of the circuit court kibi dated 17th November 2023 attached as Exhibit OAG 9 and Exhibit 3. The applicant submits that this Court being a High Court exercises supervisory jurisdiction over the Circuit Court, Kibi and as such may issue orders and directions for enforcing its supervisory powers. The Applicant anchors this Application on the ground that the Circuit Court, Kibi made an order for the release of a 1 unit used UNPKD Caterpillar 325d tracked excavator- CAT0325DPPKE00314 on 17th November, 2023 to the Interested Party when the court lacked jurisdiction in the case. The high court supervisory jurisdiction over the lower court and lower adjudicating and administrative authorities include the issuing of writs or orders and directions in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto for the purpose of enforcing or securing the enforcement of its supervisory powers. It also includes restraining a person from acting in a public office which the person is not entitled to act or any other injunction. Per order 55 rule 7 of CI 47, the applicant seeking an order of certiorari must file a copy of the order, warrant, commitment, conviction, inquisition or record duly verified by affidavit at least seven days before the hearing of the application. Failing compliance, the applicant would not be heard unless the default is satisfactorily explained. The applicant in this application has attached the order for release of the said 1 unit used UNPKD Caterpillar 325d tracked excavator- CAT0325DPPKE00314 but did not attach the ruling delivered by the circuit court kibi dated 17th November 2023 based upon which the order attached as Exhibit OAG 9/ Exhibit 5 was drawn. It is the explanation of the applicant that the said ruling was not readily available at the time of filing this application though they had applied for same hence only the Order being attached. This explanation was not refuted /denied by the respondent or the 3 interested party hence this court finds the default to have been satisfactorily explained and went ahead to hear the parties. There is replete of authorities on the subject as to when and how the supervisory jurisdiction of the high court in the form of certiorari may/can be invoked. In the case of Republic v Court of Appeal; Ex parte Tsatsu Tsikata [2005-2006] SCGLR 612 at 619 Georgina Wood JSC (as she then was) stated thus; “The clear thinking of this court is that, our supervisory jurisdiction under article 132 of the 1992 constitution, should be exercised only in those manifestly plain and obvious cases, where there are patent errors of law on the face of the record, which errors either go to the jurisdiction or are so plain as to make the impugned decision a complete nullity. It stands to reason then, that the error(s) of law alleged must be fundamental, substantial, material, grave or so serious as to go to the root of the matter.” On the same subject-matter, the Supreme Court in Republic v High Court, Accra; Ex Parte Industrialization Fund for Developing Countries [2003-2004] 1 SCGLR 348 held (as stated in holding (1) of the headnote) that; “Certiorari is a discretionary remedy which would issue to correct a clear error of law on the face of the ruling of the court; or an error which amounts to lack of jurisdiction in the court as to make a decision a nullity. In the case of errors of law or fact not apparent on the face of the ruling, the avenue for redress is by way of an appeal.” The applicant in his statement of case giving the contextual/ antecedent to this instant application had this to say in the following paragraphs ‘’… 1.12 That the Applicant on 6th November 2023 filed a Nolle Prosequi dated 30th October 2023 and signed by the Chief State Attorney of the Eastern Region in the suit with case number B1/80/22 titled the Republic v Ofori Isaiah and 5 Others. 4 1.13 1.14 That the Court had notice of the Prosequi filed by the Applicant. That flowing from the Nolle Prosequi files, the applicant filed a new charge sheet before the Circuit Court B, Koforidua on 10th November, 2023 with court case number B1/2/2024 titled the Republic V Ofori Isaiah, Stephen Afrifa, Samuel Aduako, Abel Nti Hinampong @ Abel Joe, Danso (at large) & Ransford Boakye Nuamah. 1.15 That the Accused Persons in the case before the Circuit Court B, Koforidua were charged with the offence of conspiracy to commit crime to wit, mining without license, mining without licence abetment of mining without licence and provision of an excavator for mining operations contrary to Sections Section 23(1) of the Criminal Offences Act, 1960 (Act 29) and 99 (2A), 99(2)(B) and 99(7) of the Minerals and Mining Act, 2006 (Act 703) as amended by the Minerals and Mining (Amendment) Act, 2019 (Act 995) respectively. 1.16 That the 4th Accused Person was presented before the Circuit Court B Koforidua on 15th November, 2023 and his plea was taken. 1.17 That the Court proceeded to make further orders in the case, granting bail to the 4th Accused Person, issued bench warrant for the arrest of the 1st 2nd 3rd, 5th and 6th Accused Persons and ordered for the preservation of all exhibits in the case with the Kibi, District CID. 1.18 That on 17th November, 2023, the representative of the Applicant was before the Circuit Court Kibi in respect of the case of The Republic v Agyaku Ohene to oppose a motion for transfer of a criminal case. 1.19 That to the surprise of the Applicant the case of the Republic v Ofori Isaiah and 5 Others with court was number B1/80/22 was listed on the cause list for the day. 5 1.20 That when the case was called, Counsel for the Applicant rose to his feet to inform the Court that there had been a Nolle Prosequi filed in the case and as such the court had no jurisdiction to proceed with the case in that instance, the reading of the ruling. 1.21 That the learned judge confirmed that he had seen the Nolle Prosequi but insisted on proceeding with his ruling because the Nolle Prosequi was filed in respect of the substantive case and not the motion. 1.22 That despite the prayer of the Applicant to be heard and his objection recorded to the steps being taken by the Judge the learned judge refused to record him and insisted that he would proceed to deliver his ruling. 1.23 That the Judge mentioned that he would only listen to the representative of the Applicant after he has delivered his ruling. 1.24 That the learned judge continued and delivered his ruling in the case and erroneously granted the application for the release of the impounded excavator despite the court not having the jurisdiction in the case after the filing of the Nolle Prosequi on 6th November 2023. 1.25 That when the representative of the Applicant prayed to be recorded based on the earlier direction of the judge, the judge refused him audience a second time claiming he was now functus officio. 1.26 It is for this reason that the Applicant has applied for an order of certiorari to quash the order of the Circuit Court, Kibi dated 17th November 2023 for the release of a 1 unit used UNPKD Caterpillar 325d tracked excavator- CAT0325DPPDE00314. 1.27 The Applicant is invoking the supervisory jurisdiction of the High Court under Article 141 of the 1992 Constitution and also relies on Sectio 16 of the Court Act, 1994 (Act 459) as amended. 6 1.28 My Lord, the sole ground put forward by the Applicant in support of the instant application for judicial review is want of jurisdiction of the Circuit Court, Kibi.’’ The interested party vehemently opposed this application stating that the circuit court kibi had jurisdiction and the redress available to the applicant was an appeal and not come by way of a prerogative writ. In his statement of case the interested party opined that Certiorari is a discretionary remedy granted on the grounds of excess of jurisdiction and /or some breach of a rule of natural justice. He also contended that even though the applicant has failed or refused to indicate to the Honourable Court which rule of court he is coming under he believes the application resonates with Order 55 Rules 2 and 7 of the High Court (Civil Procedure), 2004 (CI 47) which invokes the supervisory jurisdiction of this court for judicial review in the nature of Certiorari to quash the ruling of the Circuit Court, Kibi delivered by the Circuit court Kibi which unfortunately is not attached to the application and therefore the Honourable Court is not privy to. The application is resisted by the interested party vehemently in a 42-paragraph affidavit in opposition sworn to by the Interested Party. The interested party says the Court had jurisdiction to deliver its ruling in an application that had been heard long before the filing of the Nolle prosequi and simply awaiting a ruling. The interested party also says that the Nolle prosequi did not affect the application since neither the interested party herein nor the applicant therein was on trial and the said application was not part of the criminal proceedings before the circuit court which delivered the ruling. Further, the interested party has averred that the respondent only exercised its discretion to proceed to deliver its ruling notwithstanding the filing of the Nolle prosequi. To that extent, the interested party has averred that the application should be dismissed as misconceived. Clearly Nolle prosequi affect only criminal matters and the Attorney General cannot use same to overread private interest in civil proceedings. 7 The Supreme Court in the case of Republic V High Court, Sekondi, Ex Parte Ampong Aka Akrufa Krukoko I (Kyerefo III and Others) – Interested Parties) [2011]2SCGLR 716 @ 722 stated the law with regards to the scope and ambit of certiorari application as follows: “An order of certiorari, it is trite learning, is discretionary remedy granted on grounds of excess of jurisdiction and/or some breach of a rule of natural justice”. The Supreme Court has also on numerous occasions accepted and stressed the above- mentioned discretionary character of the remedy of certiorari. For instance, in Republic v High Court, Denu; ex parte Agbesi Awusu II (No. 2) (Nyonyo Agboada (Sri III) Interested Party) [2003-2004] 2 SCGLR 907, Atuguba JSC explained (at p. 914) that: “It is well-known that certiorari is a discretionary remedy and therefore it does not follow that when the technical grounds upon which certiorari lies are established, it will be pro tanto granted”. Kpegah JSC has also said, in Republic v High Court, Accra; ex parte Aryeetey (Ankrah Interested Party) [2003-2004] 1 SCGLR 398 at p. 410, that: “Needless for us to say that certiorari is a discretional (sic) remedy and the conduct of an applicant can disentitle him to the remedy”. In his statement of case, the counsel for the interested party further argued that the conduct of the applicant in this case smacks of double standards, unfairness and abuse of the court processes. The accused persons had been arrested and arraigned for prosecution for over a year. The prosecution kept telling the court on any adjourned date that the docket had been forwarded to the applicant for advice. Indeed, it was after the interested party filed the application for the release of the said excavator that the applicant found it necessary to appear in court to argue in opposition to the application. It is also worth noting that in the affidavit in opposition to the release of the excavator the applicant herein deposed to the fact that the Circuit Court Kibi did not have 8 jurisdiction to hearing the substantive matter, even though he did not attach any evidence to support this claim. A legitimate question that arises from this claim is at what point the applicant realized that the trial court did not have jurisdiction, especially as the court does not list cases unto themselves but criminal cases are initiated by or on behalf of the applicant. Therefore, assuming without admitting that the filling of the nolle prosequi estopped the trial court, we are of the opinion that the applicant herein should have filed it much earlier and not come and argue the application and taking a date for the ruling before filing the nolle prosequi. What is even worse is the fact that the applicant after filling the nolle prosequi appeared in court and when the case was announced he got up and announced himself ad representing the state that is the applicant herein, and sat through the entire ruling. This conduct is a clear manifestation of double standards on the part of the applicant and as such does not deserve the grace of discretion of your lordship. Also, the counsel for the interested party argued that the applicant admits that the arresting officers arrested four excavators. There is a further admission that one of the excavators got released through an application which they have no problem with. The law enjoins the applicant to be fair in the discharge of its duties and therefore if an arrested excavator could be released on notice to prosecution in the course of the trial, it cannot be unlawful for same to happen in this case. Clearly the provision regarding nolle prosequi is simply in relation to the accused person and the criminal trial, and nothing else. Therefore, to the extent that the interested party herein and the applicant therein was not an accused person in the trial and the application he filed was a civil application or motion, he humbly submits that the nolle prosequi did not affect the said application. The court has held that both civil and criminal claims may arise from the same facts, and the civil court does not have the power to stop the criminal proceedings. Therefore, the trial court can continue to hear 9 civil applications even if a nolle prosequi has been entered in the criminal case. Apparently, it cannot be the case that the filling of nolle prosequi estopped the trial court from proceeding to rule on the application that was filed and argued by the same applicant much earlier before the filing of the said nolle prosequi. In fact, the law of nolle prosequi does not extend its branches to affect civil matters albeit the same case. It is the view of this court that this is not wholly accurate as can be seen on the face of the order for the release of the said excavator (exhibit 5). It is the same case title and suit number as the substantive suit struck out by way of the nolle prosequi. Clearly the excavator was one of the retrieved excavators from the crime scene by the arresting officers. This Honourable Court is clothed with the necessary authority under Article 141 of the 1992 Constitution (stated supra) and section 16 of the court Act, 1993 (Act 459)(supra). The gravamen of this application is hinged on the Notice of Nolle Prosequi filed on 30th November 2023 and the subsequent order of the Circuit Court dated 17th November 2023 ordering for the release of a 1 unit used UNPKD Caterpillar 325d tracked excavator- CAT0325DPPKE00314 to the Interested party. It is further on the strength of Section 54(3) of the Criminal and Other Offences (Procedure) Act, 1960, (Act 30) that the Applicant after the discharge of the accused filed fresh charges before the Circuit Court, B Koforidua as the Nolle Prosequi did not operate as a bar to subsequent proceedings against the accused in respect of the same case. The Counsel for the applicant invited the court to observe that Exhibit OAG 6 which is the charge sheet dated 10th November, 2023 filed at the Circuit Court Koforidua and Exhibit OAG 8 being the certified record of proceedings of the Circuit Court, Koforidua on 15th November 2023 confirms that the Accused Persons after their discharge wee arraigned before the Circuit Court B, Koforidua. 10 That as at 10th November 2023 which was the date the new charge sheet was filed, the only court which had jurisdiction in the case was the Circuit Court B, Koforidua and there was no case pending before the Circuit Court Kibi. It is for that sole reason that the said Circuit Court B, Koforidua had the jurisdiction and authority to make orders in relation to the exhibits in the case including the excavators. Thus, the Court granted an order for the preservation of the Excavators, Excavator control boards and motorbikes currently at the premises of District Police Headquarters, Kyebi. In sum, it is the Applicant’s submission that the Circuit Court Kibi could not have proceeded to make an order for the release of an excavator because it did not have such jurisdiction to deal with the excavator in law. The combined reading of Section 99(8) and (9) of the Minerals and Mining Act, 2006 (Act 703) as amended by the Minerals and Mining (Amendment) Act, 2019(Act 995); “Where a person is arrested for an offence under subsection (3), (5), (6) or (7) any equipment used in or associated with the commission of the offence and any product derived from the commission of the offence and any product derived from the commission of the offence shall, without regard to the ownership of the equipment or product, be seized and kept in the custody of the police.” “A court that convicts a person for any offence under subsection (2), (3), (5), (6) or (7) shall in additional to the penalty that the court may impose, order the forfeiture of any equipment or product seized under subsection (8) to the State.” In the words of the celebrated jurist and learned author, His Lordship Sir Dennis Dominic Adjei in his book Criminal Procedure and Practice in Ghana, 2nd Edition at page 36: There has been a debate whether nolle prosequi could be entered after a case has been adjourned for a date for judgment. The law is clear from section 54 of Act 30 that nolle prosequi may be entered by the Attorney-General at any time before judgment. A 11 dicey issue to iron out is whether nolle prosequi could be entered when judgment is being read. In fact, nolle prosequi shall not be entertained where it was filed when the judgment was being read else it will give unfair advantage to the Attorney-General. Where Attorney-General is of the opinion that a case was not straight forward, he may prepare nolle prosequi and when it becomes clear that the charges stand to be dismissed for failing to prove same, the Attorney-General may rush to enter nolle prosequi to compel the court to discharge the accused to prevent that accused person from relying on the defence of autrefois acquit. The proper meaning to be given to section 54(1) of Act 30 is that nolle prosequi may be entered at any time before judgment and not when the judgment is being read.” The only available remedy to the Applicant is the grant of the instant application for certiorari. That based on the decision in the case of REGINA V OKAI [1961] GLR 191 and REPUBLIC V DUFA AND ANOTHR [1976] 2 GLR 18 the Circuit Court after delivering its judgment and sentence became functus officio and as such would not even entertain a change in its position even where it was minded. It is the Applicant’s respectful submission that it is trite learning that Certiorari is a discretionary remedy and the Applicant has the burden to establish that there is a real and justifiable need for the Honourable Court to exercise that discretion in its favour. It further should be shown that the order sought would achieve real or just results. SEE; REPUBLIC V HIGH COURT, EXPARTE FREDERICK SALIM HANAWI, CIVIL MOTION NO. J5/1/2014, 13TH NOVEMBER, 2013, See also: REPUBLIC V HIGH COURT, ACCRA; EXPARTE ATTORNEY-GENERAL (OHENE AGYAPONG INTERESTED PARTY) (2012) 2 SCGLR 1204, See also: REPUBLIC V CIRCUIT COURT, ACCRA; EX PARTE KOMELEY ADAMS & OTHERS (KOMIETTEH ADAMS (SUBSTITUTED BY) OTSIATA IV, INTERESTED PARY) (2012) 1 SCGLR 111 12 See also: IN RE APPENTENG (DECD); REPUBLIC V HIGH COURT, ACCRA (COMMERCIAL DIVISION); EXPARTE APPENTENG (2010) SCGLR 327, See also: REPUBLIC V HIGH COURT, ACCRA; EXPARTE INDUSTRIALIZATION FUND FOR DEVELOPING CONTRIES (2003-2004) 1 SCGLR 348. In conclusion, this court has heard the parties and carefully examined and considered the affidavits filed and statement of case submitted as well as the authorities cited by parties. It is not in doubt that both the substantive case and motion before the Circuit Court, Kibi bore the same suit number B1/80/22 and title the Republic v Ofori Isaiah, Stephen Afrifa, Samuel Aduako, Abel Joe (at large), Danso (at large) & Ransford Boakye Nuamah. This the respondent as well as the interested party did not dispute. It is also not in doubt that the Attorney-General on 6th November 2023 filed a nolle prosequi dated 30th October 2023 and signed by the Chief State Attorney of the Eastern Region in the suit with case number B1/80/22 titled the Republic v Ofori Isaiah and 5 Others. It is also not in doubt that the Court had notice of the nolle Prosequi filed by the Applicant. The applicant did inform the circuit court kibi of a new charge sheet before the Circuit Court B, Koforidua duly filed on 10th November, 2023 with court case number B1/2/2024 titled the Republic V Ofori Isaiah, Stephen Afrifa, Samuel Aduako, Abel Nti Hinampong @ Abel Joe, Danso (at large) & Ransford Boakye Nuamah. The 4th Accused Person was presented before the Circuit Court B Koforidua on 15th November, 2023 and his plea was taken. That the Circuit Court B Koforidua proceeded to make further orders in the case, granting bail to the 4th Accused Person, issued bench warrant for the arrest of the 1st 2nd 3rd, 5th and 6th Accused Persons and ordered for the preservation of all exhibits in the case with the Kibi, District CID. BY COURT: It is the view of this court that the circuit court judge kibi was clearly functus officio having struck out the criminal matter before him and discharged the accused persons. 13 He could therefore not have heard a fresh application in respect of the same matter which had been struck out. Especially when he was duly aware a fresh case was before the circuit court B in Koforidua for which that court now had jurisdiction over the said excavator which is part of the exhibits in that suit. The application is granted as prayed. The ruling and order of the circuit court kibi dated the 17th November 2023 releasing the 1 unit used UNPKD Caterpillar 325d tracked excavator- CAT0325DPPDE00314 is hereby quashed. H.L RUBY NAA ADJELEY QUAISON (MRS.) JUSTICE OF THE HIGH JUDGE 14