IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT OF GHANA

ACCRA, 2012

CORAM: DR. DATE-BAH JSC (PRESIDING)

ANSAH, JSC
YEBOAH, JSC
GBADEGBE, JSC
BAMFO,(MRS) JSC

CIVIL MOTION.
No. J5/16/2012

4TH JULY,2012

THE REPUBLIC

VRS

HIGH COURT,ACCRA
EX-PARTE; ATTORNEY GENERAL …… APPLICANT

KENNEDY OHENE AGYAPONG …… INTERESTED PARTY

RULING
DR DATE-BAH JSC:
This is the unanimous ruling of the Court. The remedy of certiorari has always
been a discretionary one. The authors of De Smith, Woolf & Jowell’s Principles of
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Judicial Review (1999), in discussing the historical development of judicial review
remedies and procedures, make the following pronouncement (at p. 530) in
relation to the four prerogative writs of certiorari, mandamus, prohibition, and
habeas corpus:

“Though the four writs had acquired their “prerogative” characteristics by

the middle of the seventeenth century, strangely it was not until a century
later, in 1759, that anybody (Mansfield) seems to have thought of
classifying the writs as a group. Those shared characteristics included the
following:

1) They were not writs of course which could be purchased by or on

behalf of any applicant from the Royal Chancery; they could not be
had for the asking, but proper cause had to be shown to the
satisfaction of the court why they should issue.
2) The award of the prerogative writs usually lay within the discretion
of the court. The court was entitled to refuse certiorari and
mandamus to applicants if they had been guilty of unreasonable
delay or misconduct or if an adequate alternative remedy existed,
notwithstanding that they have proved a usurpation of jurisdiction
by the inferior tribunal or an omission to perform a public duty. But
although none of the prerogative writs was a writ of course, not all
were discretionary. Prohibition, for example, issued as of right in
certain cases; and habeas corpus ad subjiciendum, the most famous
of them all, was a writ of right which issued ex debito justitiae when
the applicant had satisfied the court that his detention was unlawful.
These two writs, therefore, were not in the fullest sense writs of
grace.
3) …”

This Court has 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

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(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 Republic v High Court, Accra; Ex parte Tetteh Apain [2007-2008] SCGLR 72,
Atuguba JSC, delivering the ruling of the Supreme Court, said (at p. 75):

“In any case, an order of certiorari, as has often been said, is a discretionary
remedy. Therefore assuming that the High Court should not have
proceeded in the matter pending the determination of the applicant’s
application for prohibition pending before this court, as the applicant could
have applied to the Court of Appeal for an interim order to prevent the trial
court from proceeding pending the determination of his application for stay
of proceedings thereat, he had another remedy open to him which was not
less convenient but which he failed to pursue. The applicant was clearly
forum-shopping, which is an abuse of the process of this court. In the
circumstances, this court ought to shut the doors of the discretionary
remedy of certiorari against the applicant and we hereby so do.”

In this last case, Atuguba JSC is making the point that where an applicant has a
remedy other than certiorari open to him or her, this is a factor that may be taken
into account in denying the applicant the discretionary remedy that is certiorari,
even if the other preconditions for the grant of the remedy have been
established. The existence of an alternative remedy is one of the factors that a

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court can rely on to exercise its judgment against the grant of certiorari. (See, for
instance, Barraclough v Brown [1897] AC 615.)

Also, in In re Appenteng (Decd); Republic v High Court, Accra (Commercial

Division); Ex parte Appenteng [2010] SCGLR 327, Atugaba JSC, again delivering
the ruling of the Supreme Court, said (at p. 339):

“Against a background such as this, we have no difficulty in holding that

though certiorari is a discretionary remedy, the omission of a party to raise
objection to a proceeding in an inappropriate forum should disentitle the
applicant to that remedy where the omission was willful and an abuse of
the process of the court.”

This dictum is relevant to the facts before this court in this application. The
Attorney-General is seeking to quash proceedings that he himself has initiated
before the High Court against the interested party. After initiating the
proceedings before the High Court and that Court had assumed jurisdiction over
the matter, without any objection on his part, he has now turned round to apply
to the Supreme Court to quash those same proceedings that he himself has
initiated, on the ground that the High Court lacks jurisdiction in the matter.

The grounds for his application as stated on his motion paper are as follows:

1. “The High Court committed jurisdictional error through want of jurisdiction

when it purported to assume jurisdiction in the matter before it.
2. The High Court lacked jurisdiction to grant bail in the matter.”

By an affidavit sworn to by Anthony Rexford Wiredu, Principal State Attorney, the

applicant contends that the said Mr. Wiredu prepared committal processes (bill of
indictment together with the facts of the case) to file in the Registry of the District
Court, Adjabeng, Accra, in a case entitled The Republic v Kennedy Ohene
Agyapong. The said processes were filed on 18th April at the District Court, but
when the case was called the District Magistrate declined jurisdiction, after
listening to the legal submissions on behalf of the applicant and the accused. Mr.
Wiredu further deposed that on 19th April 2012, on the directions of the District
Court, Adjabeng and for the avoidance of doubt, he prepared two sets of
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processes; one for filing in the registry of the District Court, Accra, and the other
for filing in a division of the High Court, Accra. Both sets of processes were
handed over to the relevant judicial officers for filing in the appropriate forum.
Consequent on the filing of the process in the High Court, the High Court assumed
jurisdiction in the matter by taking the plea of the accused person. It also granted
the accused bail, upon an oral application made by his counsel.

The applicant’s argument is that the processes, being committal processes, had
been filed in the wrong court. He maintains that they should have been filed in
the District Court and not in the High Court and therefore the High Court has
wrongfully assumed jurisdiction.

The interested party has in turn deposed to an affidavit opposing the application,
in which he challenges the facts of the case as narrated in the affidavit of Mr.
Wiredu, the Principal State Attorney. He swears that what was filed in the High
Court was a charge sheet and not an indictment. He contends that the Principal
State Attorney cannot in good faith and in all conscience say that the processes
filed in the High Court ought to have been filed at the District Court. He states
that if the Principal State Attorney intended to commence committal proceedings,
he ought to have complied with the provisions of section 182 of the Criminal and
Other Offences (Procedure) Act 1960 (Act 30), which provides for the Court and
the accused to be furnished with not only a bill of indictment, but also a summary
of evidence and a list of the documents and things the prosecution proposes to
put in evidence at the trial. The interested party further deposes to the fact that
the Charge Sheet had as its heading:

“IN THE HIGH COURT

ACCRA – A.D. 2012”

Furthermore, it had no bill of indictment or summary of evidence annexed to it as

evidence that the Principal State Attorney intended a trial on indictment. In
paragraph 17 of his affidavit, the interested party states that:

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“Assuming without admitting that the case was filed in the wrong Court, then it
was due to the Heading of the Charge Sheet prepared by the Prosecutor and he
cannot therefore be allowed to take advantage of his own wrong-doing.”

He further states in paragraphs 22, 23 and 24 that:

“22. This application is targeted at the bail granted me and nothing more
and therefore have (sic) been brought in very bad faith. This Court ought
not therefore to exercise its discretion in favour of the applicant.

23. I am advised by Counsel and verily believe same to be true that the
Learned Principal State Attorney has other remedies open to him in
rectifying any anomaly caused by himself. There are options available to
the Prosecutor to withdraw charges or do other things to bring the
proceedings to a halt. Therefore, he does not need to apply to the Highest
Court of this Land for a relief which he himself can grant.

24. I am advised by Counsel and verily believe same to be true that the
wrong which the Learned Principal State Attorney is complaining about was
created by him. He acquiesced in the proceedings and failed to take
objection and therefore he is deemed to have waived his right to
complain.”

The points made in these three paragraphs are quite telling and render it
unnecessary to determine whether on the facts of this case the High Court had
jurisdiction or not. This is because the Attorney-General has in his own hands and
control a “remedy” that he can deploy to achieve the same result as if this court
had granted him the relief of certiorari. That ”remedy” is nolle prosequi which is
provided for in section 54 of the Criminal and Other Offences (Procedure) Act,
1960 (Act 30) in the following terms:

“(1) In any criminal case, and at any stage of a criminal case before
verdict or judgment, and in the case of preliminary proceedings before the
District Court, whether the accused has or has not been committed for trial,
the Attorney-General may enter a nolle prosequi, either by stating in Court

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 or by informing the Court in writing that the Republic does not intend to
continue the proceedings.

(2) Where the Attorney-General enters a nolle prosequi under subsection

(1),

(a) the accused shall be discharged immediately in respect of the

charge for which the nolle prosequi is entered, or

(b) the accused shall be discharged where the accused has been
committed to prison, or

(c) the recognisances of the accused shall be discharged where

the accused is on bail.

(3) The discharge of the accused shall not operate as a bar to any
subsequent proceedings against the accused in respect of the same case.

(4) Where the accused is not before the Court when the nolle prosequi is
entered the registrar or clerk of the Court shall ensure that notice in writing
of the entry of the nolle prosequi is given to the keeper of the prison in
which the accused is detained and where the accused has been committed
for trial, to the District Court by which he was so committed.

(5) The District Court shall cause a similar notice in writing to be given to
any witness bound over to prosecute and to their sureties, and also to the
accused and the sureties of the accused where the accused has been
admitted to bail.”

From these provisions, it is clear that the Attorney-General can achieve the same
nullification of the proceedings before the High Court which he seeks from this
Court by exercising this statutory power of nolle prosequi conferred on him. The
discharge of an accused consequent on the exercise of the power of nolle
prosequi is equivalent to wiping the slate clean, as far as the discontinued
proceedings are concerned. This is, of course, without prejudice to restarting
fresh proceedings against the accused, on the same facts. In these circumstances,
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it would be inappropriate for this Court to exercise its discretion in the applicant’s
favour to grant him an order of certiorari, when he himself is able help himself
lawfully. The grant of certiorari, on the facts of this case, is unnecessary.
Secondly, it would be extremely odd for an applicant who has invoked the
jurisdiction of the High Court and who has not objected to the jurisdiction of the
High Court, before that court, to be allowed to quash the proceedings that he
himself has initiated by a certiorari order issued from this Court. In support of this
view, it would be apposite to cite the observation of Atuguba JSC in In re
Appenteng (Decd); Republic v. High Court, Accra (Commercial Division); ex parte
Appenteng (Appentengs Interested Parties) [2010] SCGLR 327 where he said (at p.
334):

“It is well-established that this remedy being discretionary, a suitor for it,
even on the ground of want or excess of jurisdiction, will not obtain it ex
debitio justitiae unless he can show that he had raised an objection to the
want of jurisdiction if he was aware of it.”

The applicant here, by his conduct, has clearly acquiesced in whatever want of
jurisdiction attended the High Court’s conduct of this case. Whilst such
acquiescence may not cure any want of jurisdiction, it can found the basis for a
negative exercise of discretion in relation to the grant of an order of certiorari.
We would like to reiterate that we have deliberately not examined the merits of
the argument of the applicant that the High Court lacks jurisdiction in this case.
Given our view of this case, it is unnecessary to go into the merits of that issue.

For these reasons, we consider that the Honourable Attorney-General’s

application for “an order of Judicial Review in the nature of Certiorari directed at
the High Court, Accra to quash the order of that Court presided over by His
Lordship Justice Charles Quist and given on the 19th day of April, 2012 in a case
entitled The Republic vrs. Kennedy Ohene Agyapong SUIT NO. ST 36/2012” should
be dismissed and it is hereby dismissed.

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 [SGD] DR. S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT

[SGD] J. ANSAH
JUSTICE OF THE SUPREME COURT

[SGD] ANIN YEBOAH

JUSTICE OF THE SUPREME COURT

[SGD] N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT

[SGD] V. AKOTO-BAMFO [MRS.]

JUSTICE OF THE SUPREME COURT

COUNSEL;

KWAME AMOAKO (ASA), LED BY ANTHONY REXFORD WIREDU (PSA),

ASIAMAH SAMPONG (PSA), JOHN TULASI OFORI (ASA), OWUSU AMEYAW(ASA)

FOR THE REPUBLIC.

AYIKOI OTOO WITH FRANK DAVIS AND ATTA AKYEA FOR THE INTERESTED
PARTY.

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