Ankomah-nimfah [2022] GHASC 19 (5 April 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA - A.D. 2022

Coram

DOTSE JSC (PRESIDING) DORDZIE (MRS.) JSC AMEGATCHER JSC PROF. KOTEY JSC OWUSU (MS.) JSC TORKORNOO (MRS.) JSC HONYENUGA JSC PROF. MENSA-BONSU (MRS.) JSC KULENDI JSC

Civil Motion

NO. J7/12/2022

5TH APRIL, 2022

MICHAEL ANKOMAH-NIMFAH ……… PLAINTIFF/RESPONDENT

VRS

1. JAMES GYAKYE QUAYSON ………. 1ST DEFENDANT/APPLICANT

2. THE ELECTORAL COMMISSION ………. 2ND DEFENDANT/RESPONDENT

3. THE ATTORNEY-GENERAL ………. 3RD DEFENDANT/RESPONDENT

Ruling

TORKORNOO (MRS.) JSC:- The 1st defendant in this action is the applicant herein. He is seeking a review of orders made by this court on 8th March 2022.The present application invokes the jurisdiction of the court created by Article 133 (1) of the 1992 Constitution and Rule 54 of the Supreme Court Rules 1996, CI 16.

Article 133 provides in Article 133

(1) The Supreme Court may review any decision made or given by it on such grounds and subject to such conditions as may be prescribed by rules of court. To this end, Rule 54 of the Supreme Court Rules 1996, CI 16 sets the following condition inter alia:

54. The court may review any decision made or given by it on any of the following

Grounds

a. exceptional circumstances which have resulted in miscarriage of justice; Background Facts The plaintiff and 1st respondent to this application filed a Writ numbered J7/11/2020 invoking the original jurisdiction of this court on 24th January 2022.He sought the following reliefs against the defendants:

1. A Declaration that upon a true and proper interpretation of Article 94(2)(a) of the Constitution, 1992 of the Republic of Ghana at the time of filing his nomination form between 5 th -9th October 2020 to contest the 2020 Parliamentary Elections for the Assin North Constituency, the 1 st Defendant was not qualified as a member of Parliament.

2. A Declaration that upon a true and proper interpretation of Article 94(2)(a) of the Constitutio n, 1992 of the Republic of Ghana the decision of the 2 nd Defendant to permit the 1 st Defendant to contest Parliamentary Elections in the Assin North Constituency when the 1st Defendant owed allegiance to a country other than Ghana is inconsistent with and violates Article 94(2)(a) of the Constitution of the Republic of Ghana 1992.

3. A Declaration that upon a true and proper interpretation of Article 94(2)(a) of the Constitution, 1992 of the Republic of Ghana, the election of the 1 st Defendant as Member of Pa rliament for the Assin North Constituency was unconstitutional.

4. A Declaration that upon a true and proper interpretation of Article 94(2)(a) of the Constitution, 1992 of the Republic of Ghana the swearing in of 1 st Defendant as M ember of Parliament for the Assin North Constituency was unconstitutional, null and void and of no legal effect.

5. Any further Orders and/or Directions as the Court may deem fit to give effect or enable effect to be given to the Orders of the Court.

The plaintiff also filed an application for interlocutory injunction to restrain the applicant from ‘holding himself out as Member of Parliament for the Assin North Constituency, presenting himself, and/or attending before Parliament to conduct the business of Member of Parliament pending the determination of the suit’ The plaintiff was unable to serve the writ and application on the applicant and therefore sought and obtained an order for substituted service on 22nd February

This order for substituted service was executed in three different ways on 25th March 2022 and an affidavit of posting was filed in this court by the bailiff who conducted the service. In that affidavit, he made oath and stated inter alia:

1. That on the 24th February 2022, I was entrusted with an order for substituted service of plaintiff’s writ invoking the original jurisdiction of the supreme court, statement of case and M/N for the grant of an order of interlocutory injunction and affidavit in support of statement of case and hearing notice

2. That on the 25th February 2022 I duly posted up The Said Process as the following a. On the fence wall of James Gyakye Quayson of H/N SD/16 SDA in Assin Breku b. On the notice board of the High Court of Justice, Assin Fosu c. On the Notice Board of the Supreme Court building, Accra With the service of the processes on the notice boards and the house, was a hearing notice for parties to appear before the court on 8th March 2022

Proceedings on 8th March 2022 On 8th March 2022, when the case was called, lead counsel for applicant herein complained to this court there had been a publication in the Daily Graphic of 26th February 2022 in which only this court’s order for substituted service and a hearing notice to the parties to appear before the court were published. The hearing notice advertised the case as fixed for hearing on Tuesday 5th March 2022, when 5th March 2022 was a Saturday and not a Tuesday. Counsel for applicant went on to present to this court that Mr Teriwajah, substantive counsel for applicant had written to this court to obtain records on the order for substituted service that led to the publication in the Daily Graphic with the obviously defective date of hearing stated as 5th March 2022, on the accompanying hearing notice. He went on to say that subsequent to the first publication on 26th February 2022, the Daily Graphic again published on 1st March 2022 another Hearing Notice and the order for substituted service in which the date the parties were to appear before the court was stated as Tuesday 8th March 2022. According to counsel for applicant, these publications on 26th February 2022 and 1st March 2022, when compared with the court’s order for substituted service showed that the applicant had not been properly served with the processes in the suit. Although the records of this court indicate that in his submissions, counsel for applicant intimated that the first Daily Graphic publication was on 26th February 2022, the supporting affidavit to the application presents the date of first publication as 25th February 2022. In a supplementary statement of case adopted by this court on 29th March 2022, counsel for applicant now presented that the Daily Graphic publication was done on 28th February2022. Our checks indicate the publication to have been on 26thFebruary 2022. In responding to this submission that the applicant had not been properly served with the processes in this suit, counsel for plaintiff submitted that the order for substituted service given by this court on 22nd February 2022 had directed that copies of the processes were to be served in four places. Thus if all the processes

had been published in three out of the four places designated by the court, and there was a mistake in the publication of the date on the hearing notice in the Daily Graphic, the other three modes of service should be deemed as service of the processes filed on the applicant. Following these submissions, the Registrar of the court confirmed that after the posting of notices on the house of the applicant, and the notice boards of the High court in Assin Fosu and the Supreme Court, he received a letter from counsel for applicant on 28th February 2022. Counsel for applicant stated in his letter of 28th February 2022 that: ‘Following the execution of an order for substituted service against the 1st defendant in the instant case, I have been appointed to act for him in this regard. Kindly furnish me with certified true copies of the motion for substituted service, the affidavit in support of same and the order for substituted service thereof. Additionally, I hereby request for the court notes pertaining to the sitting of this court dated 22nd February 2022 when the said order for substituted service was made in respect of this case..’ It is the confirmation of appointment in this letter of 28th February 2022 that led the Registrar to additionally serve a hearing notice on counsel for applicant for the hearing of 8th March 2022. The Registrar also confirmed that on 1st March 2022, the Daily Graphic had corrected the originally defective date for hearing that was published as 5th March 2022. When called on to address the court, the Attorney General urged that Mr Teriwajah’s letter simply confirmed the fact that the applicant had been served as ordered by the court, and therefore, there was no controversy with the substituted service ordered by this court. Ruling and orders This court then ruled that ‘the essence of substituted service is to bring to the attention of the party to be served, the pendency of the suit against him.’ It was the considered view of the court that Mr Teriwajah’s letter of 28th February 2022 speaks

for itself on the point that the applicant has been served with all processes in the suit. The court therefore dismissed the objections of counsel for applicant against the substituted service undertaken, and ordered the applicant to file all responses to the documents served in this case on or by the 16th March 2022, ‘for the hearing of the interlocutory injunction’. It is this ruling that applicant is asking this court to review on the following grounds:

1. That the court fundamentally erred in law when it disregarded the terms of its own orders for substituted service, thereby occasioning a grave injustice to the applicant

2. The Court acted outside its jurisdiction and occasioned a miscarriage of justice to the applicant when it adjourned the case for hearing to 16th March 2022 in breach of the Supreme Court Rules, 1996, CI 16

3. The court fundamentally erred in law and occasioned miscarriage of justice to applicant by denying him the opportunity to file a statement of case within the time limits provided for under the rules of court

4. The order for a hearing on 16th March 2022 was arbitrary, unreasonable and not compliant with due process of law under Article 296 and the court lacked the jurisdiction to make such an order. On 29th March 2022, this court admitted a supplement to applicant’s statement of case in this application. The submissions therein accorded largely with those that had already been made to this court. Counsel for applicant added a new point in this supplement to his case. He urged that, included in the order that this court made on 22nd February 2022, was the order for all the processes filed by the plaintiff to be published. As such, the ruling of this court on 8th March 2022 accepting as sufficient service, the manner in which the plaintiff’s processes had been served constituted a veiled attempt to vary its earlier order. According to counsel for applicant, ‘it would be a recipe for chaos in the judicial system if when the attention of a court is drawn to non-compliance with its previous order, the court can now say that it did not expect the terms of the order it had made to be complied with’.

Ground 1 and Ground 4 will be considered together. Counsel for applicant has urged in his statement of case that despite the failure of the plaintiff to publish all the various processes in the Daily Graphic as ordered by the court, the court made a fundamental error which undermines the integrity of administration of justice when it ruled that service through the other means ordered by the court constituted sufficient service. According to counsel for applicant, since plaintiff had not fully obeyed the court’s orders and not sought variation of the court’s orders on how substituted service was to be effected, the court did not have jurisdiction to vary how service was to be considered as effected. Citing In re Ntrakwa (Decd) Bogoso Gold v Ntrakwa & Another [2007- 2008] SCGLR 389, he quoted Asiamah JSC at page 392, that the obligatory nature of court orders required an unquestioning obedience thereto. He urged that the court erred in varying its order of substituted service by accepting the publication of the processes in the Daily Graphic as compliant of its orders of 22nd February 2022. Under ground 4, counsel for applicant also urged that Article 296 of the Constitution requires that the exercise of discretionary power shall not be arbitrary, capricious or biased and shall be in accordance with due process of law. He cited Kyenkyenhene v Adu 2003 – 2004 SCGLR 142 in which this court set aside a decision of the High Court because the court had misapprehended the evidence before it and failed to give critical consideration to relevant issues. This court found the high court’s decision in the Kyenkyenhene case (cited supra) as lacking basis in clear principles. Do these submissions merit the grant of an order reviewing this court’s decision that the applicant has been served with the processes filed in this suit by the plaintiff?