In the recent case of The Republic v. High Court (Commercial Division), Accra; Ex Parte Yvonne Amponsah Brobbey (Gladys Nkrumah – Interested Party), the Supreme Court held inter alia, that the Rules of Court Committee did not have the mandate to create a criminal offence under Order 66 rule 3 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47). The judgment raised several issues as gleaned from the lenses of some of its critics, which triggered a discussion by the writer in the previous publication.
In this edition, the writer seeks to continue with the discourse on some of the issues raised with the decision in some quarters with a view to enriching the ongoing debate.
The Republic v. High Court (Commercial Division), Accra; Ex Parte Yvonne Amponsah Brobbey (Gladys Nkrumah – Interested Party)
In May 2022, the interested party in the above case filed a motion under Order 66 rule 3 of C.I. 47 at the High Court praying for an order punishing the Applicant herein and Respondent therein for intermeddling in the estate of the late Richard Nkrumah who passed away in 2019. The Applicant filed a preliminary objection to the process, contending inter alia that, intermeddling under the Court rules was a criminal offence that could not be prosecuted by a private person by an originating motion on notice. The Applicant further contended that the Rules of Court Committee acted in excess of its jurisdiction when it created criminal offence under Order 66 rule (4) (sic) of C.I. 47 and that the High Court lacked jurisdiction to entertain the application. Upon hearing the parties, the trial judge dismissed the preliminary objection and assumed jurisdiction to hear the case; holding that an action to punish a person for intermeddling could be commenced by civil proceedings. The Applicant successfully invoked the supervisory jurisdiction of the Supreme Court for an order of certiorari to quash the order of the High Court dated 7th June, 2022.
A Critique of the Decision
There have been wild reactions within the legal fraternity to the decision and one of the issues which stands out flagrantly is whether the trial judge committed an error of law to have warranted its ruling to be quashed by way of certiorari. Did the trial High Court commit an error apparent on the face of the record warranting the ruling to be quashed by way of certiorari? In the critics’ view, the proper procedure to challenge the decision of the trial court was an appeal to the Court of Appeal and not by the invocation of the Supreme Court’s supervisory jurisdiction to quash the order by certiorari. It is further contended that prior to the ruling of the trial High Court, the Court of Appeal particularly in the case of Eric Akwetey Siaw & 2 Others v. Tetteh Siaw-Sappore & 2 Others had held that intermeddling proceedings under Order 66 Rule 3 of CI 47 could be commenced by an originating motion on notice and since the High Court was bound by the decision, it could not have decided otherwise.
Admittedly, the arguments advanced are fairly compelling; but ‘perilously contentious’. The reason being that the Court of Appeal which the High Court purportedly followed, had itself appeared to have fallen into a grave error and its decision in the Eric Akwetey Siaw & 2 Others v. Tetteh Siaw-Sappore & 2 Others supra thus stood as per incuram. It is worth noting that about six months prior to the decision in the Eric Akwetey Siaw case, the Supreme Court had decided in Samuel AttaMensah v. Attorney-General & Another that it is only the Attorney-General who can initiate criminal proceedings and thus declined the invitation urged on it to try a criminal matter which was initiated by a civil process.
His Lordship Gbadegbe JSC who delivered the unanimous judgement of the Apex Court held: “… [E]ven if we had jurisdiction to inquire into the allegation of high crime, it cannot be tried together with our interpretative function which is purely civil.” After making the point audibly, the learned Law Lord proceeded to remind the parties of the mode of prosecuting criminal cases thus: “That aside, the mode for the initiation of criminal proceedings is at the instance of the Attorney General and not a private person as we have before us in the matter herein. In the circumstances, the said question is not properly before us for determination and we proceed to have it struck out.”
Though the criminal offence in question on that occasion was not actually intermeddling, the decision had far-reaching consequences on the prosecution of cases of criminal intermeddling. It was for that reason that Lawyer Yaw Oppong in his invaluable book on immovable property, as far back as 2019, in discussing the appropriate mode of prosecuting criminal intermeddling cited the Supreme Court case to buttress his point as representing the current position of the law on the subject. He drew my attention to the fact that, “to the extent that the Court of Appeal failed in Eric Akwetey Siaw and Others v. Tetteh Siaw-Sappore and Others to follow the binding decision of the Supreme Court in the Samuel Atta-Mensah case, that decision is rather per incuriam, as … the Court of Appeal …. is bound to follow previous decisions of the Supreme Court at least on questions of law”.
It follows that in 2022 when the preliminary issue was raised by the Respondent at the High Court in respect of the case under review, the trial judge was bound by the Supreme Court’s decision and could not have assumed jurisdiction to try the criminal intermeddling by an originating motion on notice commenced by a private person. His assumption of jurisdiction to hear the case was palpably lacking and rendered the invocation of the Supreme Court’s supervisory jurisdiction by an order of certiorari to quash same inexorable.
The critics of the Supreme Court decision have been unable to come to terms with their Lordships’ position when the trial High Court was only following the precedent of the Court of Appeal which, in their view, was binding on it. “Could the trial High Court have ruled otherwise in the face of a binding decision?”, queried one critic. Assuming the Supreme Court had not even decided otherwise, it would still not have been irregular for their Lordships to quash the orders of the trial High Court Judge when they found out that the Rules Committee had exceeded its jurisdiction. It is beyond debate that jurisdiction is conferred by a constitution or a substantive statute and not by a court (in this case, the Court of Appeal) or through long practice. If a fundamental issue of want of jurisdiction is detected, its long indulgence by the courts offers no excuse. As Kpegah J. (as he then was) would say: “There is no way the illegal can become legal [simply] because of possible previous judicial ‘tolerance’ or ‘connivance’; and such an illegality would not require a side-wind to blow it, a human breath could usefully serve the purpose”. The Apex Court could not have waited for the wind to blow, when they could easily breathe to get it dislodged.
It did not therefore matter whether the Court of Appeal had charted a wrong practice for a long time by conferring jurisdiction on a court when there was no such jurisdiction to be conferred. In such circumstances and even in the absence of the Supreme Court’s binding decision, we could only express our sympathy to the trial High Court judge, but not be able to justify his ‘wrongful assumption of jurisdiction’. Being ‘innocent’ and inconceivably misguided by his immediate seniors holding the torchlight did not per se render his decision unassailable. If indeed the Rules Committee had overstepped their boundaries by unlawfully extending a jurisdiction on the High Court in a criminal matter under Order 66 rule 3 of C.I. 47; thereby making it unconstitutional; time could not stop their Lordships from intervening. No estoppel, acquiescence or any of the common law defences apply in issues of constitutional breaches. His Lordship Appau JSC said in the case of Nana Ofori Appiah & Others v. Nana Akua Ameahene & Others, that: “[M]atters that are strictly of constitutional character, do not lend themselves to common law principles like acquiescence and estoppel.” The fact that a constitutional provision has been breached for a long period cannot operate as estoppel to its challenge in a future action”.
Was it necessary for the High Court to have made a referral to the Supreme Court for interpretation?
One main point canvassed by the critics is that the trial High Court judge could have made a referral to the Supreme Court for guidance on the issue of how to proceed in an intermeddling case. I believe that since the Supreme Court had earlier stated that all criminal cases had to be inquired into and prosecuted by the Attorney-General, the question of referral was completely out of the equation. In the case of Banousin v. The Republic, the Apex Court per His Lordship Dotse JSC held thus: “It is not every constitutional provision that a lower court must as of necessity refer to the Supreme Court for interpretation … Where the provision has previously been decided by the Supreme Court, the lower courts are bound by that decision.”
Was the creation of the offence of intermeddling by the Rules Committee under Order 66 rule 3 of C.I. 47 novel?
In his Ruling, His Lordship Kulendi JSC noted that the Rules of Court Committee had no power to ‘create a novel offence (of intermeddling) with the sanctions attached thereto”. It is not clear what the Apex Court meant by ‘a novel offence’. The Cambridge Dictionary defines ‘novel’ as “something ‘new and original, not like something seen before”. It may however appear that the offence of intermeddling created by the Rules of Court Committee in the Rules book is actually not a new concept under Ghanaian jurisprudence. In fact, it is one of the oldest provisions in the Rules Book dating back to colonial times.
In the High Court (Civil Procedure) Rules, 1954 (LN 140A), criminal intermeddling was incorporated under Order 60 rule 3 thus:
- “If any person other than the person named executor or administrator, or an officer of the Court or person authorised by the Court, takes possession of and administers or otherwise deals with the property of a deceased person, he shall, beside the other liabilities he may incur, be liable to such fine not exceeding £100 as the Divisional Court, within whose jurisdiction the property so taken possession of or dealt with is situated, having regard to the condition of the person so interfering with the property, and the other circumstances of the case, may think fit to impose”.
In 1991, the Probate and Administration Rules, 1991 (L.I. 1515) which revoked the probate rules in the LN140A, reaffirmed the position and extended the sentence to cover an imprisonment under Order 1 rule 3 thus:
“Rule 3—Intermeddling with Property.
Where any person other than the person named as executor in a will or appointed by a court to administer the estate of a deceased person takes possession of and administers or otherwise deals with the property of a deceased person he shall be subject to the obligations and liabilities as an executor or administrator and shall in addition be liable to a fine not exceeding ¢200,000.00 or to imprisonment not exceeding six months or to both”.
It is worth emphasizing the point that the 1969 Second Republican and 1979 Third Republican Constitutions had provisions similar to that of Article 157 of the 1992 Constitution which created the Rules of Court Committee and mandated it to regulate rules for the practice and procedure of the courts.
Article 121 of the 1969 Constitution and Article 133 of the 1979 Constitution created the Rules Committee as follows:
“(1) There shall be established a Rules of Court Committee …
(2) Subject to the provisions of this Constitution, the Rules of Court Committee may, by constitutional instrument, make Rules of Court for regulating the practice and procedure of all Courts in Ghana, which shall include regulations relating to the prevention of frivolous and vexatious proceedings”.
Curiously, never on any occasion was it argued or contended in the past under any of these Constitutions that the incorporation of the criminal intermeddling by the Rules Committee into the rules book was unlawful.
Did the Rules of Court Committee confer jurisdiction on the High Court?
The Apex Court in its ruling underscored that the Rules of Court Committee could not confer criminal jurisdiction on the High Court under Order 66 rule 3 of C.I. 47. It stated thus: “… it must be pointed out that it is contrary to law for the Rules of Court Committee to arrogate to itself the power to enact laws that purport to confer substantive jurisdiction in the High Court under the guise of civil procedure rules”. Before arriving at that juncture, the Court took inspiration from some of its previous decisions that had refused to pay homage to the rules of courts. I venture to say that it is difficult to reconcile the reasoning in some of the cases with the Court’s own previous decisions.
In the case of Ankomah-Nimfah v. James Gyakye Quayson & 2 Others, His Lordship Kulendi JSC, for example, said: “… the rules of Courts do not supplant the established practice of the Court”. Since the rules of courts are basked in a constitutional instrument, can such an enactment be made to play second fiddle to the established practices of the court which ordinarily have no specific place in the hierarchy of the laws of Ghana? Arguably, under Rule 5 of C.I. 16 and Order 82 rule 1 of C.I. 47, resort is generally made to the court practices where the rules have not made adequate provision on a matter. In Standard Bank Offshore Trust Co. Ltd. substituted by Dominion Corporate Trustees Ltd. v. N.I.B. Ltd & 2 Ors., we are motivated to accord the rules its reverence in the scheme of things. His Lordship Benin JSC in expressing the unanimous opinion of the Court held thus: “The rules of court form an integral part of the laws of Ghana, see article 11(1) (c) of the 1992 Constitution and must be treated with equal amount of respect in order to produce sanity in court proceedings”. Appau JSC in Mining & Building Contractors Ltd v. Anglogold Ashanti Ghana Ltd. revealed that the Apex Court: “as the Court of last resort, would give a blind eye to the rules only in situations where the ends of justice would be defeated”.
According to Her Ladyship Akoto Bamfo JSC (as she then was), the rules of court are not ornamental pieces for decorations; they are meant to be complied with. His Lordship Akamba JSC also reminded judges that the taking of official oaths to apply the law includes the duty to enforce the rules of courts. He emphasized in the case of F.K.A. Company Ltd. & Another v. Nii Ayakai Akramah II Substitued by Nii Tettey Okorh-Aryee & 4 Others, that: “As courts if we fail to ensure compliance with the rules of court, we would by that lapse be enforcing the failure of the adjudication process which we have sworn by our judicial oaths to uphold.”
The Court in its decision under review also referred to the case of The Republic v High Court (Commercial Division) Tamale; Ex Parte Dakpem Zobogunaa Henry Kaleem, where it questioned the review jurisdiction of the High Court that had been created under Order 42 of C.I. 47 which had not been conferred by either the Constitution or the Courts Act. It appears that the said case is not in harmony with the case under consideration, with much deference to their Lordships, because that case had to do with the review jurisdiction of the High Court in the Rules book that had not been vested by either the Constitution or the Courts Act; while in the instant case, the High Court is categorically vested with original jurisdiction in all criminal cases by both the Constitution under Article 140 and the Courts Act under Section 15 (1) (a); which jurisdiction, obviously, includes a jurisdiction in determining cases of criminal intermeddling. Hence, it could not be said that it was the Rules of Court Committee that vested the High Court with jurisdiction in criminal intermeddling, when the Court was already draped with that jurisdictional regalia by the Constitution and the Courts Act.
I believe the issue in the case really was the procedure involved in approaching the Court and not actually a jurisdictional matter. In Samuel Atta Mensah v. Attorney-General & Another, the Supreme Court did not expressly say that it lacked jurisdiction to deal with the criminal matter before it. It was only concerned with the mode of commencing the matter. His Lordship Gbadegbe JSC said: “… [E]ven if we had jurisdiction to inquire into the allegation of high crime, it cannot be tried together with our interpretative function which is purely civil.” The dictum of Pwamang JSC in the case of Ogyeadom Obranu Kwesi Atta VI v. Ghana Telecommunications Co. Ltd and Another illuminates the point on Rule 20 of the Supreme Court Rules, (C.I. 16) that appeared to have conferred a jurisdiction on the Court. His Lordship adduced thus: “Rule 20 is not the source of the court’s jurisdiction it only regulates its exercise in terms of procedure …. Rule 20 only allocatesthe exercise of the jurisdiction … but does not confer it”.
If the High Court has jurisdiction to deal with a case of criminal intermeddling, was it right for the Rules Committee to incorporate it in the Rules Book?
Article 157 of the 1992 Constitution provides:
“(1) There shall be a Rules of Court Committee …
(2) The Rules of Court Committee shall, by constitutional instrument, make rules and regulations for regulating the practice and procedure of all courts in Ghana”.
It is also provided under Article 33 (4) of the Constitution as follows:
“The Rules of Court Committee may make rules of court with respect to the practice and procedure of the Superior Courts for the purposes of this article”.
The Supreme Court noted that the two articles in the Constitution are the enabling provisions of the Rules Committee. Its mandate to make rules and regulations for the purpose of regulating the practice and procedure of the courts in Ghana has been clearly accentuated. From the constitutional provisions cited above, there is no specific limitation regarding the subject matter of the rules and regulations it can make to regulate the practice and procedure of the courts. In other words, under the Constitution, the rules and regulations that the Committee can make for the courts are, in no less, not confined to only civil suits. The Constitution gives the Committee the general power to make rules to regulate ‘the practice and procedure’ of the courts and this authority unquestionably includes criminal practice and procedure. Although the law maker had in 1960 enacted the Criminal Procedure Code (Act 30) to regulate criminal practice and the Rules Committee had not bothered themselves over the years to make further rules and regulations to regulate criminal practice and procedure for the trial courts; in my view, it does not mean it lacks the authority to do so.
A careful reading of other provisions of the Constitution implicitly lends credence to the fact that the Rules Committee can regulate criminal practice and procedure in the courts. Under article 138 (a), the grant or refusal of an application in a criminal matter by a single Justice of the Court of Appeal exercising the powers of the Court may be varied, discharged or reversed by the Court of Appeal duly constituted. We may realize that there is no provision in Act 30 to regulate the practice and procedure in such criminal applications at the Court of Appeal to implement the constitutional provision. Since the Rules Committee have the constitutional mandate to make rules to regulate the practice and procedure in the courts (including criminal practice and procedure), it lawfully exercised its powers to enact the Court of Appeal (Amendment) Rules, 2016 (C.I. 100) where it laid down the procedure to be followed under the said article 138 of the Constitution which borders on criminal matters.
It is gratifying to say that since the enactment of C.I. 100 in 2016, no court, including the Supreme Court, has expressed doubts about the powers of the Rules Committee to make such criminal procedure or has questioned the legitimacy of the said rules till now. Needless to say, both the Supreme Court and the Court of Appeal have comprehensive provisions on criminal practice and procedure in their rules book. Indeed, that is a clear indication that the Rules Committee has power to make similar criminal procedure rules for the High Court and it does not matter whether they are made in distinctive constitutional instruments or are made together with civil procedure rules as contained in C.I. 16 and C.I. 19.
In the case, their Lordships emphasized in the ruling that the preamble of C.I. 47 is what should guide us, hence quoted it thus:
‘IN exercise of the powers conferred on the Rules of Court Committee by clause (4) of article 33 and clause (2) of article 157 of the Constitution these Rules are made this 1st day of June, 2004”.
There is nothing, strictly speaking in the preamble of C.I. 47, even remotely, to suggest that the Rules Committee made it only for civil cases and for which reason the inclusion of a criminal matter under Order 66 rule 3 would defeat its objective. The fact that the Rules are largely civil or its name has a civil undertone, does not in any way mean the Committee was bereft of mandate to make rules on criminal matters when its preamble and enabling constitutional provisions had not so limited it. It may be argued that even in the Criminal Procedure Code promulgated expressly for criminal matters as gleaned from its preamble (a primary legislation though), there is still an aspect of civil jurisdiction vested in the criminal courts.
In particular, Section 147B of Act 30 provides:
“(2) An order under subsection (1) is, for the purpose of this Act, an exercise of the civil jurisdiction of the Court in an action between the victim of the offence as plaintiff and the offender as defendant, and is enforceable in the manner and is subject to an appeal as are orders for the return of chattels or of money.
(3) Where there is a dispute as to the value of the property the issue shall be tried by the Court as if itwere a civil action”.
Significantly, it must be borne in mind that the law maker was careful with its choice of words in order not to make Act 30 the only mode of prosecuting criminal cases.
Section 1 of Act 30 provides:
“1. Procedure for criminal and other offences
(1) A criminal offence under the Criminal Offences Act, (Act 29) 1960 shall be enquired into, tried and dealt with in accordance with this Act.
(2) An offence under any other enactment shall, subject to that enactment, be enquired into, tried and dealt with in accordance with this Act”.
It can be observed from the above provision that Act 30 was enacted primarily to deal with the inquiry, prosecution and sentencing of offences created under the Criminal Offences Act, 1960 (Act 29),while offences created in any other enactment may be prosecuted and dealt with in accordance with that enactment, unless the procedure was not stated therein. Therefore, if the Rules Committee under Order 66 rule 3 of C.I. 47 created an offence, we may, as a matter of necessity, have to find out whether its rules can be deemed ‘an enactment’ and if so, whether it has the power to create such offence.
At Section 1 of the Interpretation Act, 2009 (Act 792), “enactment” means an Act of Parliament, or a statutory instrument, or a constitutional instrument, or a provision of an Act of Parliament, or of a constitutional instrument, or of a statutory instrument”.
Since C.I. 47 is a constitutional instrument, it is thus an enactment under the law and that would mean, if an offence is created therein, it can be prosecuted by the procedure laid down or in its absence, under Act 30.
Can the Rules Committee create an offence?
The Supreme Court in its decision said: ‘Criminal offences and the jurisdiction to try and enter into an inquiry of the same may only be created by substantive legislation and/or the Constitution.Consequently, having held that the Rules of Court Committee cannot enact substantive legislationwhich (sic) criminal offences and vests jurisdiction, we are of the considered view that Order 66 (3) of C.I. 47 cannot constitute a valid basis for the conduct of an enquiry into an offence of intermeddling and therefore occasions a nullity”.
The above statement tends to suggest that criminal offences can only be created by a substantive legislation and/or the Constitution, but since C.I. 47 is not a substantive legislation, it cannot create an offence. If my interpretation of the statement is correct, then I believe that we probably have to grill the issue further. The notion that an offence in Ghana may be created by a substantive legislation and/or the Constitution only is somehow doubtful. I understand the law to be that an offence can be created even by a subsidiary legislation.
Section 21 (7) of the Interpretation Act provides:
“(7) Where an enactment confers a power to make a statutory instrument that power includes a power to provide
(a) a punishment by way of a fine or a term of imprisonment or both or to community service for a contravention of a provision of that statutory instrument;
(b) that an offence against a provision of that statutory instrument may be tried summarily”.
This means that it is not only the Constitution or Parliament that can create an offence by a substantive enactment, but also where it has given power to a person or body to make statutory instrument, that person or body can also create an offence with its attached sanctions and that accounts for the numerous offences in the country created by diverse subsidiary legislations. Prominently among these subsidiary legislations that have created various offences are the Labour Regulations, 2007, (L.I. 1833), Fisheries Regulations, 1979 (L.I. 1235), the Civil Service (Regulations) 1960 (L.I. 47), the Timber Resources Management Regulations, 1998 (L.I. 1649), the Domestic Violence Regulations, 2016 (L.I. 2237), the Tobacco Control Regulations, 2016 (L.I. 12247), the Copyright Society of Ghana Regulations, 1992 (L.I. 1527) and the Road Traffic (Amendment) Regulations, 1995 (L.I. 1605).
If an offence can be created by a statutory instrument, is C.I. 47 a statutory instrument capable of creating an offence? A “statutory instrument” is defined under Section 1 of Act 792 to “mean an instrument made, whether directly or indirectly, under a power conferred by an Act of Parliament;” (Emphasis supplied).
The Supreme Court rightly posited that the Rules of Court Committee derives its powers from Article 33 (4) & 157 of the Constitution to make rules by way of constitutional instrument for the courts and it is from that source that C.I. 47 springs its legitimacy. We must however not think that the Rules Committee is only a constitutional creature; it is also statutory. Apart from the Constitution, it is further mandated by Section 80 of the Courts Act, 1993 (Act 459) to make rules and regulations to regulate the practice and procedure of the courts. Despite the fact that its rules and regulations are simply called constitutional instruments, they may plausibly qualify as ‘statutory instruments’ because the Committee is also vested with power conferred on it by Parliament under the Courts Act. Per the definition ascribed to statutory instrument supra, the instrument need not be directly made under a power conferred by an Act of Parliament before it can be recognized as such. Where it is indirectly made under an Act, such as in the case of C.I. 47, it suffices in my view, as a statutory instrument in the light of Section 1 of Act 792 and may be competent to create an offence with the attached sanctions of a fine and imprisonment as stated under Section 21 (7) of Act 792.
We may also advert our minds to article 297 (c) of the Constitution which reads:
“297. In this Constitution and in any other law – …
(c) where a power is given to a person or authority to do or enforce the doing of an act or a thing, all such powers shall be deemed to be also given as are necessary to enable that person or authority to do or enforce the doing of the act of thing”.
Can a procedural law create an offence?
The Apex Court sought to answer the above question in the negative. Commenting on C.I. 47, it noted that being a procedural law, “such rules made must strictly be confined to the remit of rules or practice and procedure as against substantive legislations that vests jurisdiction in court”. Their Lordships affirmatively asserted: “Criminal offences and the jurisdiction to try or enter into an enquiry of the same may only be created by substantive legislation and/or the Constitution.” In my research work, I tried to find authorities that reinforce the legal proposition that an offence may only be created by a substantive legislation, but in the end it turned out to be an exercise in futility. Undoubtedly, Act 29 is the substantive legislation in the remit of criminal law, while Act 30 is the procedural law. Nonetheless, one can find an offence created by the law maker in the procedural law in unambiguous terms with its defined penalty.
Section 222 of Act 30 provides:
“222. Penalty on jurors not attending
Any person summoned to attend the Court as a juror who does not, without reasonable excuse (the burden of proof whereof shall rest on such juror), duly attend and be present at the Court, and at all times appointed by the Court for adjournment, and any person present in Court who being called to serve as a juror, refuses, without reasonable excuse, so to serve until discharged by the court, shall be liable to a fine not exceeding 100 penalty units. [As amended by the Criminal Procedure Code (Amendment) Act, (Act 633), s. (22)]”.
The case of Act 30 is even more controversial since its preamble expressly states that it is an enactment promulgated to regulate criminal procedure only. The inference is that it is not always the case that an offence is created by a substantive legislation. Therefore, the creation of the offence of intermeddling under Order 66 rule 3 of C.I. 47, being a subsidiary procedural enactment, may not necessarily and legally be ‘a haram’.
The scope of the mandate of the Rules of Court Committee – Is it constitutionally circumscribed?
The Apex Court stated that C.I. 47 is a constitutional instrument because it was promulgated pursuant to a mandate prescribed by Articles 33 (4) and 157 (2) of the Constitution and so has to operate “within the strict confines of the enabling provisions of the Constitution”. The Court further stressed that C.I. 47 is a product of the Rules Committee based on the powers of the Constitution and so its powers are “constitutionally circumscribed”. In coming to that conclusion, it noted thus: “Any rulepromulgated pursuant to articles 157 (2) and 33 (4) of the Constitution that goes beyond the rules of practice or procedure would be contrary to the enabling provisions and therefore ultra vires the constitution. Jurisdiction may only be vested in the court by substantive statutes or the Constitution”.
It can be deduced from the decision that in their Lordships’ view, the mandate of the Rules of Court Committee is ‘constitutionally circumscribed’ and cannot be diminished or enlarged as they had pronounced in Ogyeadom Obranu Kwesi Atta v. Ghana Telecommunications Co. Ltd & Another.
It must be noted that while the Constitution confines the power of the Committee to regulate the procedure and practice of the courts in Ghana, Parliament appears to have set it loose from its circumscribed shells by practically extending its mandate in the Courts Act. After listing eight main duties entrusted to the Committee in relation to the courts under Section 80 (1); it then goes ahead to confer on it other functions not directly related to the operations of the courts. It also makes it lawful for the Committee’s mandate to be extended by an enactment.
Section 80 (3) of the Courts Act provides:
“(3) The Rules of Court Committee may also make rules—
(a) for the practice and procedure for the removal of a President under article 69 of the Constitution;
(b) for regulating the practice and procedure of inquiries conducted before a Commission of Inquiry for the purposes of clause (2) of article 281 of the Constitution and for regulating the practice and procedure of any committee or other body of inquiry appointed by the Government or established under any enactment; and
(c) regarding any matter in relation to which the Rules of Court Committee is authorised or required by any enactment to make rules” (My Emphasis).
The above provisions do not directly relate to the activities of the Courts and it is unclear whether Parliament could extend the powers of the Rules Committee beyond what the Constitution had expressly provided. We may recall that the Court’s decision and the preamble of C.I. 47 were silent on Section 80 of the Courts Act. However, His Lordship Kulendi JSC’s restatement of the law that jurisdiction may only be conferred by the Constitution and/or an Act tends to suggest that an Act of Parliament can expand the frontiers of the jurisdiction given by the Constitution. Where the jurisdiction conferred by Parliament is inconsistent with the Constitution, it may lend itself to being declared ultra vires the Constitution as happened in the case of Republic v. Yebbi & Avalifowhere the Constitution vested the Regional Tribunal with jurisdiction only in specific criminal cases, but Parliament sought to enhance it in the Courts Act by giving it concurrent jurisdiction with the High Court in all criminal cases. Section 80 (1) of Act 459 is plain that the section is ‘subject to the provisions of the Constitution’.
It must be put in its proper context that in the case under consideration, when His Lordship Kulendi JSC said the powers of the Rules of Court Committee is constitutionally circumscribed, he was speaking specifically in relation to C.I. 47 and since its preamble makes reference to only the Constitution and not the Courts Act, it may be difficult to fault him on that.
The ‘operative words’ of the mandate of the Rules of Court Committee
In expounding the limitation on the authority of the Rules of Court Committee, the Apex Court relied on its previous decision in the case of Mornah v. Attorney-General where the Court speaking through Benin JSC stated thus: “The operative words herein are ‘practice and procedure’. This means no more than the rules that prescribe what steps to follow in order to have a right or duty judicially enforced…”
It must be stated in clear terms that none of the constitutionally-created bodies is expressly empowered by the Constitution to create criminal offences in the constitutional instrument they make for the regulation of their respective sectors. All the same, they have been creating offences in the constitutional instruments they enact as a matter of course.
Constitutional instruments enacted by the Electoral Commission to regulate the conduct of general elections under the Fourth Republic have consistently been promulgated pursuant to article 51 of the Constitution, which provides:
“51. The Electoral Commission shall, by constitutional instrument, make regulations for the effective performance of its functions under this Constitution or any other law, and in particular, for the registration of voters, the conduct of public elections and referenda, including provision for voting by proxy”.
There is nothing explicitly stated in the above provision to mandate the Electoral Commission to create offences. Nonetheless, the constitutional instrument it enacts have always had elaborate provisions on offences which serve as the provisions that regulate electoral offences in the various elections. For instance, in C.I. 72, a litany of criminal offences with punishment of imprisonment and fines were created under section 8; in C.I. 91 of 2016 under sections 28 & 29; in C.I. 94, also of 2016, under section 44 (2) and in C.I. 127 of 2020 under section 45 (2).
Further, the National Media Commission (Newspaper and Publication) (Registration) Instrument, 2003 (C.I. 39) rests its authority on Article 167 (d) of the Constitution. The Article states as follows:
“167. The functions of the National Media Commission are – … (d) to make regulations by constitutional instrument for the registration of newspapers and other publications, except that the regulations shall not provide for the exercise of any direction or control over the professional functions of a person engaged in the production of newspapers or other means of mass communication”.
Similarly, under this provision, the power of the National Media Commission to create a criminal offence has not been expressly stated, yet under Section 8 of C.I. 39, criminal offences have been created. The common thread that runs through all these constitutionally-created bodies including the Rules of Court Committee is the mandate given to them to make regulations in their respective fields of operation. They are characterized by their power to enact constitutional instruments and the general ‘operative word’ is for them to ‘regulate’ their given jurisdictions. By ‘regulating’, we may assume that they can make rules and standards so that those who fall or contravene them are penalized or sanctioned. Therefore, while making an enactment, if the Rules Committee create an offence with a view to regulating and ensuring sanity in the courts, it should not be seen as ultra vires the Constitution. Conversely, if its crime creating power is non-existent; then, I believe that the same argument should go for the other constitutional instruments especially those enacted by the Electoral Commission and the National Media Commission that have created various offences when their enabling constitutional provisions do not expressly give them the power to do so.
Did the Supreme Court nullify Order 66 Rule (3) of C.I. 47?
The decision of the Supreme Court has been understood by many as nullifying Order 66 rule 3 of C.I. 47. Mention may be made of one Albert Gyamfi, who in his critique of the decision, asserted: “… the Supreme Court having declared the said law to be a nullity, the effect is that same is void ab initio”. He contended that the Apex Court’s original jurisdiction under article 130 (1) of the Constitution to interpret the Constitution is invoked by a Writ of Summons served on the Attorney-General and since that was not done in this case, the purported annulment of Order 66 rule 3 of C.I. 47 is manifestly wrong in law. If indeed the Court declared Order 66 rule 3 of C.I. 47 unconstitutional, I would personally be surprised. This is because the panel was only five on that occasion and not seven (or more) as pertains generally in such constitutional cases. In the case of Republic v. High Court, General Jurisdiction 6, Accra, Ex Parte Attorney General (Exton Cubic Group Ltd), Pwamang JSC re-echoed: “In fact, the settled practice of the court when its exclusive constitutional interpretation and enforcement jurisdiction is invoked is to constitute a panel of not less than seven members to hear and determine the case.”
Furthermore, it may be observed that in The Republic v High Court (Commercial Division) Tamale; Ex Parte Dakpem Zobogunaa Henry Kaleem, (from which their Lordships took great inspiration), when the Supreme Court found that the review jurisdiction conferred on the High Court by the Rules of Court Committee under Order 42 of C.I. 47 was unlawful, it only expressed an opinion on the provision and left it at that for another occasion, without making express pronouncements to invalidate it. It took the Rules Committee itself to tap into the wisdom of the Apex Court to revoke the said Order. Additionally, an annulment of an enactment without inviting the Attorney General to put in a response would gravely unsettle existing precedents.
However, it is heartwarming that after carefully reading the decision of the Court and digesting its import, I came to the realization that, we probably, have to be fair to their Lordships. They did nothing more than exercising their supervisory jurisdiction to quash the ruling of the trial High Court and overruled the previous (Court of Appeal) decisions upon which the High Court placed reliance to reach its conclusion. The Court did not make any pronouncement or declaration that Order 66 rule 3 of C.I. 47 is unconstitutional or is a nullity as has been contended.
I reproduce here the relevant portions of the decision of the Apex Court for its full effect:
“From the foregoing, we have no hesitation to conclude that in its current terms, Order 66 Rule 3 of CI 47, being a creature borne out of the constitutionally circumscribed powers granted the Rules of Court Committee, is incompetent to create a novel offfence of intermeddling and the sanctions attached thereto. Any previous decisions of other courts inconsistent with these statements of the law are in obvious error and are to that extent overruled. In the circumstances, the ruling of the High Court (Commercial Division), Accra wherein it held that it had jurisdiction to entertain, and enter into an inquiry of an alleged offence of intermeddling pursuant to Order 66 rule 3 of C.I. 47 is a clear, obvious and patent error of law, in the context of the express indication of the Constitutional basis of C.I. 47 in its preamble. The said error goes to jurisdiction and the resultant proceedings will occasion a nullity. Consequently, this application warrants the exercise of our supervisory jurisdiction as prayed. Accordingly, let the said ruling of the High Court (Commercial Division) dated 7 th June 2022 be brought up to this Court for the purpose of being quashed and same is hereby quashed.”
It must be emphasized that the invocation of the Supreme Court’s supervisory jurisdiction in the case under review was in order as the trial High Court Judge could not have entertained a criminal intermeddling case not prosecuted by the Attorney General or its authorized officer in view of the Supreme Court’s decision in Samuel Atta Mensah v. Attorney-General & Another. The writer agrees with the Apex Court that under article 88 of the Constitution, it is only the Attorney-General who is responsible for the initiation and conduct of all criminal offences in Ghana and must be the one to prosecute intermeddling cases under the Intestate Succession Law, 1985 (PNDCL 111), and even more, under Order 66 rule 3 of C.I. 47. While their Lordships were right in quashing the orders of the trial High Court Judge upon the exercise of their supervisory jurisdiction, it does not appear to be the case that they actually declared Order 66 rule 3 of C.I. 47 a nullity.
 The Republic v. High Court (Commercial Division), Accra; Ex Parte Yvonne Amponsah Brobbey (Gladys Nkrumah – Interested Party); Civil Motion No. J5/82/2022, delivered on 1 February 20233, S.C. (Unreported).
 Eric Akwetey Siaw & 2 Others v. Tettey Siaw-Sappore & 2 Others, Civil Appeal No. H1/197/2014, dated 16th June 2016 (Unreported), per Dordzie J.A. (as she then was).
 Samuel Atta Mensah v. Attorney-General and Another (Consolidated Writs No. J1/4/2015; dated 3rd December, 2015, S.C. (Unreported).
 Yaw D. Oppong: “Contemporary Trends in the Law of Immovable Property in Ghana” at page 896 and pages 914-915 of his second edition. Published by Black Mask Limited (2019).
 See the case of Sasraku III v. Ellis & Wood Families [1989-90] 1 GLR 498.
 In Kangberee v. Mohammed  30 GMJ 68 at p. 91, it was held that ‘Judicial sympathy however plausible can never be elevated to a principle of law.
 Nana Ofori Appiah & Others v. Nana Akua Ameahene & Others, Chieftaincy App. No. J2/02/2017, dated 14 December 2017, S.C. (Unreported).
 Banousin v. Republic  94 G.M.J. 1 at p. 62.
 See Order 9 Rule 2 (1) of L.I. 1515.
 Michael James Ankomah-Nimfah v. James Gyakye Quayson & 2 Others; Writ No. J1/11/2022, delivered on 13 April, 2022, S.C. (Unreported).
 Standard Bank Offshore Trust Co. Ltd substituted by Dominion Corporate Trustees Ltd v. N.I.B. Ltd & 2 Ors.; Civil App. No. J4/63/2016, delivered on 21 June 2017, S.C. (Unreported).
 Mining & Building Contractors Ltd v. Anglogold Ashanti Ghana Ltd; Civil Motion No. J8/68/2016, delivered on 19 May 2016, S.C. (Unreported).
 F.K.A. Company Ltd. & Another v. Nii Ayakai Akramah II substituted by Nii Tettey Okorh-Aryee & 4 Others; Civil Appeal No. J4/1/2016, delivered on 13 April 2016, S.C. (Unreported).
 The Republic v. High Court (Commercial Division) Tamale, Ex Parte Dakpem Zobogunaa Henry Kaleem; Suit No. J5/06/2015, delivered on 4 June 2015, S.C. (Unreported).
 Samuel Atta Mensah v. Attorney-General and Another (Consolidated Writs No. J1/4/2015; dated 3rd December, 2015, S.C. (Unreported).
 Ogyeadom Obranu Kwesi Atta VI v. Ghana Telecommunications Co. Ltd and Another; Civil Motion No. J8/131/2019, delivered 28 April 2020, S.C. (Unreported)
 See also Article 33 (4) of the 1992 Constitution.
 Under Article 295 of the Constitution ‘enactment’ means an Act of Parliament, a Decree, a Law, or of a constitutional or of a statutory instrument.
 See Regulation 38.
 See Regulation 13.
 See Regulation 57.
 See Regulation 41.
 See Regulation 44.
 See Regulation 19.
 See Regulation 22.
 See Regulations 7 (4) & 8.
 Ogyeadom Obranu Kwesi Atta v. Ghana Telecommunications Co. Ltd & Another; Suit No. JS/131/2019, S.C. (Unreported).
 Republic v. Yebbi & Avalifo (2000) SCGLR 149.
 Mornah v. Attorney-General  SCGLR (Special Edition) 502.
 Republic v. High Court (General Jurisdiction 6) Accra, Ex Parte Attorney-General (Exton Cubic Group Ltd); Civil Motion No. J718/2019, delivered on 14 January 2020, S.C. (Unreported).
 The Republic v. High Court (Commercial Division) Tamale, Ex Parte Dakpem Zobogunaa Henry Kaleem; Suit No. J5/06/2015, delivered on 4 June 2015, S.C. (Unreported).
 See the High Court (Civil Procedure) (Amendment) Rules, 2020 (C.I. 133).
 Samuel Atta Mensah v. Attorney-General and Another (Consolidated Writs No. J1/4/2015; dated 3rd December, 2015, S.C. (Unreported).
The author is a Justice of the High Court of Ghana and is currently on secondment in the Gambia. He obtained his LLB at the University of Ghana in 2000 and was called to the bar in 2002. In 2010, he joined the bench as a circuit court judge – after 8 years in private practice. He became a High Court Judge in 2013. Justice Alexander Osei Tutu holds an LLM in International Human Rights from the Fordham University and a Diploma in Transnational Criminal Law from the International Law Enforcement Academy at Roswell, USA.