KURANCHIE VRS THE ATTORNEY GENERAL & ANOR (J7/16/2024) [2024] GHASC 64 (11 December 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – AD. 2024 CORAM: SACKEY TORKORNOO (MRS.) CJ (PRESIDING) PWAMANG JSC AMADU JSC PROF. MENSA-BONSU (MRS.) JSC KULENDI JSC ACKAH-YENSU (MS.) JSC GAEWU JSC KWOFIE JSC DARKO ASARE JSC CIVIL MOTION NO: J7/16/2024 11TH DECEMBER 2024 KENNETH KWABENA AGYEI KURANCHIE … APPLICANT VRS. 1. THE ATTORNEY GENERAL … 1ST RESPONDENT 2. OFFICE OF THE SPECIAL PROSECUTOR … 2ND RESPONDENT RULING KULENDI JSC. INTRODUCTION Page 1 of 17 1. On the 11th day of December, 2024, this Court dismissed the instant Application for review and deferred its reasoned ruling to a later date which we hereby proceed to deliver: 2. The Applicant seeks a review of the order of the Ordinary Bench dated 17th July, 2024 which obliged his prayer for the withdrawal of his writ invoking our original jurisdiction, which writ had been filed without an accompanying statement of the Plaintiff’s case as required under Rule 46 of the Supreme Court Rules, 1996 (C.I. 16) 3. This defective writ had been pending for well over nine (9) months and consequently, in granting the Applicant’s prayer to withdraw his suit, this Court further ordered that the said withdrawal was “without leave to reapply. Evidently, it is this latter portion of the order that has provoked the filing of the instant application. APPLICANTS CASE: 4. In a seven (7) paragraphed affidavit in support of his application, the Applicant asserts that the said order denying him the right to reapply to the apex court to ‘dilate on the constitutional eligibility of the body called Office of the Special Prosecutor is an egregious abuse of his fundamental human rights as a Ghanaian.’ 5. In his statement of case, the Applicant argues that this order of the Court amounts to a fundamental error which if allowed to persist, would have debilitating effects on the administration of justice generally, and on the Applicant specifically. Consequently, he submits that these fundamental errors are so grave that they amount to exceptional circumstances which have occasioned a grave miscarriage of justice. Page 2 of 17 6. Specifically, the Applicant articulates the following as the particulars of exceptional circumstances constituting fundamental errors: i. The ruling sins against the 1992 Constitution more particularly Articles 129(3), 1(2), 2(1)(b), 125(2), 17(1), 2(1)(a); and 2(2) of the 1992 Constitution. ii. The Plaintiff/Applicant's right at law and under the 1992 Constitution to pursue a matter against a specific defendant; iii. The ruling further sins against the 1992 Constitution in that it puts 2nd Defendant/Respondent, a body created by an enactment of our legislature, beyond the purview of judicial supervision under Article 2(1)(a), (b) and (2). iv. Lastly, that were the ruling be allowed to stand, Plaintiff/Applicant would be denied his right at law among all Ghanaians, and under the 1992 Constitution under Articles 2(1)(b), 125(1) and (2), 17(1) and 2(1)(a) to access the judiciary on a specific matter. 7. In expatiating the above serialized grounds, the Applicant contends that the combined effect of Articles 2(1) and Article 125 requires that, as a citizen of Ghana, he ought not to be barred from exercising his right under Article 2(1) to call into question any act which he considers as being in contravention of the 1992 Constitution. In consequence, he argues that such an order, restraining his constitutional right and duty to ensure the protection and preservation of the Constitution, infringes the intent and spirit of Articles 2, and 125 of the Constitution. Page 3 of 17 8. Additionally, the Applicant submits that since the Constitution guarantees the right and imposes a duty in every citizen to protect and preserve the Constitution, any decision that detracts from this right and duty would amount to the application of a different treatment to him, as compared to all other Ghanaians and therefore, unless justifiable grounds are established by this Court as to why his enjoyment and exercise of this constitutional right as a citizen has been curtailed, the said ruling infringes on Article 17 as it is discriminatory against him. 9. Finally, the Applicant asserts that the effect of the ruling restraining his ability to file any future action against the Attorney General and the Office of the Special Prosecutor on the same reliefs and facts as those struck out in his earlier suit to examine the constitutionality of their conduct, puts the Office of the Special Prosecutor (2nd Respondent) beyond the purview of judicial scrutiny, at least in relation to himself. 10. On the basis of the foregoing, the Applicant outlines the followings as being the miscarriage of justice that he stands to suffer, should this Court fail to intervene by vacating its earlier order: i. That should the order of the Ordinary Bench stand, he would have been treated in a manner contrary to how every other person who is a citizen of Ghana like himself has been treated by the Courts of Ghana. ii. That he would not have received the rights accorded to every Ghanaian to be treated equally with respect to the right of access to the Courts of the land. Page 4 of 17 iii. That the order of the ordinary bench sins against the guaranteed constitutional right of a citizen of Ghana to ventilate a claim alleging that any act or omission is in contravention of the Constitution. 1ST RESPONDENT’S CASE: 11. The 1st Respondent filed its statement of case on the 21st of November, 2024 strenuously opposing the case of the Applicant. 12. Specifically, the 1st Respondent argues that the Applicant filed the substantive writ and failed to file his statement of case within 14 days as required by the Rules of Court. Instead, he sat aloof for well over nine (9) months only to file a notice of discontinuance, which the Ordinary Bench, by reason of the Applicant’s indolence and non-compliance with the rules, struck out ‘without leave to reapply’. 13. The 1st Respondent further contends that the instant application lacks merit and ought to be dismissed as there is no error of law or exceptional circumstance which has occasioned a miscarriage of justice. 14. Furthermore, they submit that the order of the Court denying the Applicant leave to refile the suit, was calculated to obviate any further attempt by the Applicant to waste the time and resources of the Apex Court. This order, in the opinion of the 1st Respondent, was a justified application of the Court's discretion and did not amount to an error of law and/or occasion any miscarriage of justice whatsoever. Page 5 of 17 15. The 1st Respondent raised an even more fundamental argument on the amenability of the order of the Court to the “review” jurisdiction of this Court under Article 133 of the Constitution and Rule 54 of Supreme Court Rules, 1996 (C.I. 16). They argue that the Ordinary Bench, on the 17th of July 2024, did not address the merits of the Applicant’s case, and therefore a review could not be brought in the matter. According to the 1st Respondent, the decision denying the Applicant leave to reapply did not delve into the merits of the case and therefore this Courts review jurisdiction could not be validly invoked as, ‘there was nothing to review’. 16. In paragraph 20 and 21 of their Statement of Case, the 1st Respondent submits as follows: ‘20. A consideration of the substantive case would have presented the situation which may provide a basis to raise exceptional circumstances which could lead to a miscarriage of justice if not addressed by the Court by way of a review. In applying for a discontinuance of his case, a full nine months after filing his Writ without supporting it with a Statement of Case, the Applicant merely presented a case absent of any substantial rights to be addressed by the Court. This Honourable Court's decision in the case of In Re Effiduase Stool Affairs (NO. 3); Republic vrs. Numapaw and Others [2000] SCGLR 59 at 60 addresses the issue of substantial rights. Here, Edward Wiredu JSC, (as he then was, in giving the majority opinion of the Court, had this to say in respect of Rule 54 (a) of C.I. 16: "In sum, therefore, ...it was incumbent on the applicant to show that his substantial rights in the matter that came before this court have by the majority been prejudiced by some fundamental or basic error made." Page 6 of 17 21. Respectfully, my Lords, the situation described above did not arise. No decision was made regarding any substantive rights raised by the Applicant in his Writ, as he failed to file a Statement of Case that would have addressed these issues. Consequently, the order of this Court to withdraw the Writ, at the Applicant's request, does not constitute a ruling on the merits of the case. It does not engage with any issues or relief sought in the substantive matter, and therefore cannot be seen as a fundamental or basic error that could lead to a miscarriage of justice.” 2ND DEFENDANT/RESPONDENT’S CASE: 17. Consistent with the position adopted by the 1st Respondent, the 2nd Respondent asserts that the review jurisdiction of the Court has been improperly invoked because the order striking out the Writ as withdrawn ‘without liberty to reapply’ is not a decision, judgment or ruling of the court in respect of the substantive matter and is therefore not reviewable within the context of Rule 54 of C.I.16. 18. Additionally, 2nd Respondent argues that this Court did not commit any fundamental or basic error, whether inadvertently or otherwise, resulting in a miscarriage of justice, when it only granted the Applicant's request to withdraw his suit albeit without liberty to reapply, following the applicant's intentional non-compliance with the rules after filing Writ No: J1/23/2023. 19. The 2nd Respondent also contends that a review of the decision of the Ordinary Bench would doubtlessly amount to an abuse of the court process as it would set a dangerous precedent by promoting indolence amongst litigating parties and encourage the deployment of strategies to delay and frustrate the progress of cases and waste valuable judicial time and resources without the fear of any real repercussions or consequences. Page 7 of 17 20. Finally, in reaction to the Applicant's claim that by refusing him leave to refile his suit, the office of the Special prosecutor has been put beyond the purview of judicial supervision, the 2nd Respondent contends that this argument is untenable and unfounded as the order barring the Applicant from commencing the action on the same fact operates to limit only the Applicant and none other. THE LAW: 21. Article 133 of the 1992 Constitution which gives the Supreme Court the power to review its own decisions provides that: “(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”. 22. Supplemental to this is Rule 54 of the Supreme Court Rules, 1996 (C.I 16) which provides as follows: 54. Grounds for review “The Court may review a decision made or given by it on the ground of: (a) exceptional circumstances which have resulted in a miscarriage of justice, or (b) the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by the applicant at the time when the decision was given” emphasis supplied. Page 8 of 17 23. Various decisions of this Court have reiterated and expounded on the grounds for judicial review. The court has emphasized time without number, that the review jurisdiction of the court is a special one which is only exercised on limited grounds. 24. In the case of Mechanical Lloyd Assembly Plant Ltd v. Nartey [1987-88] 2 GLR 598, this court re-echoed these view thus: ‘The review jurisdiction is a special jurisdiction to be exercised in exceptional circumstances. It is not an appellate jurisdiction. It is a kind of jurisdiction held in reserve, to be prayed in aid in the exceptional situation where a fundamental and basic error must have occasioned a gross miscarriage of justice.’ (emphasis ours) 25. Furthermore, in Ababio and Others vs. Mensah [1989-1990] 1 GLR 560 Taylor JSC laid down some of the instances that may constitute exceptional circumstances: “(a) all cases of void orders come under the Mosi v. Bagyina principle and applicants affected by such orders are entitled ex debito justitiae to have the orders set aside. Lapse of time does not affect the right and indeed the court itself is entitled suo motu to set aside such orders when it has the opportunity to do so; (b) all decisions of the Supreme Court given per incuriam by inadvertently overlooking a statute or a binding decided case which would have indicated a contrary decision in circumstances where the ratio decidendi does not support the decision and where there is no material which can be legally used as a ratio to support the said decision, are candidates for the exercise of the review power if they have occasioned a miscarriage of justice; and Page 9 of 17 (c) any other Supreme Court decision having exceptional circumstances which demonstrably indicates [as in the instant case] that the said decision is not legally right and has actually occasioned a miscarriage of justice, is liable to be reviewed on the Fosuhene principle.” 26. As was aptly summarized in the case of Agyekum v. Asakum Engineering Construction Ltd [1992] 2 GLR 635 at 637 (per holding (2)): “The acid test remained always the existence of exceptional circumstances and the likelihood of a miscarriage of justice that should provoke the conscience to look at the matter again.” 27. In consequence, the grounds relied upon by the Applicant must demonstrate compelling reasons that make the exercise of this Court's power of review absolutely essential to prevent irreparable harm to the Applicant’s interests. Merely rearguing the original case will not be sufficient: see also Fosuhene v. Pomaa [1987-88] 2 GLR 105. 28. As a preliminary issue of whether or not this Court’s jurisdiction has been properly invoked, the Respondents have argued that the orders made by this Court on the 17th of July 2024 are not ‘reviewable’. A close reading of Article 133 however reveals that the review power of the Court may be exercised over ‘any decision made or given by the Court’. 29. We are therefore unconvinced by the arguments canvassed by the Respondent, seeking to impose a rather restrictive meaning to the scope of Rule 54 of the Supreme Court Rules, and by extension, Article 133 of the Constitution. 30. It is a given that the Court did not delve into the merits of the case presented by the Applicant. However, this fact could not ipso facto equate to an argument Page 10 of 17 that no decision was made, particularly when the Court struck out the case and expressly deprived the Applicant of leave to reapply to this Court on the same facts, and seeking the same reliefs. 31. Article 2(1) of the Constitution clearly establishes the right of the Applicant, as a citizen of Ghana, to bring an action before this Court on suspicion of an unconstitutionality being committed. Quite clearly, the order of the Court refusing the Applicant leave to refile the same case before us was a curtailment of that right in some respect; justified or not, it was a curtailment all the same. 32. In the Mechanical Lloyd case cited supra, this Court posited as follows: ‘In sum, therefore, in this application, it was incumbent on the applicant to show that his substantial rights in the matter that came before this court have been prejudiced by some fundamental or basic error made by the majority.’ 33. Evidently, there was a right at law which had been affected by the orders of this Court on the 17th of July, 2024, it mattered not whether the right emanated from the case being pursued or like in this case, were creations of statute or the Constitution. To the extent that the decision so made affected a cognizable right at law, the Applicant had every right to apply to this Court under Article 133 for a review of the said decision. 34. We are therefore of the considered opinion that the order of the Ordinary Bench refusing the Applicant leave to reapply was indeed a decision within the meaning of Article 133, which was amenable to review, as it affected his constitutional right under Article 2(1). Page 11 of 17 35. We hasten however to note that the decision being amenable to our review jurisdiction does not automatically translate into success upon the review. As we have indicated above, to succeed in an application for Judicial Review under Rule 54(a), this Court must be convinced that some exceptional circumstances exist which have occasioned a miscarriage of justice. It is only when these conditions are met that this Court will be justified in reviewing the decision implicated. 36. The crux of the Applicant’s argument is that the Ruling of the Court, denying him liberty to reapply after his writ was struck out as withdrawn was a fundamental error of law and occasioned a substantial miscarriage of justice because by this Ruling, the court is seeking to curtail his fundamental human rights under the 1992 Constitution. 37. The Applicant must however be reminded of Article 12(2) of the 1992 Constitution which provides: “Every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest.” (emphasis mine) 38. The judiciary, as the administrator of justice, is tasked with the vital role of safeguarding the integrity of the judicial process. Through the use of inherent powers and judicial discretion, the courts must ensure that parties are not permitted to delay cases, waste judicial resources, or hold the administration of justice hostage to their whims and caprices. Page 12 of 17 39. In appropriate circumstances therefore, the courts are empowered to issue 'punitive' orders in the interest of the public to maintain the sanctity of the judicial process, prevent the wastage of judicial resources, and ensure effective and expeditious delivery of justice. This duty is essential for fostering public confidence in the justice system and upholding the principles of fairness and efficiency. 40. Significantly, in situations where it becomes evident that a plaintiff is consistently frustrating the progress of a case, the court is justified in striking out the matter and denying the plaintiff leave to reapply. Such measures are not punitive in a vindictive sense but are necessary to prevent abuse of the judicial process and to protect the finite resources of the judiciary from being wasted on frivolous or unreasonably delayed matters. 41. This exercise of discretion is particularly critical when the matter is before the Supreme Court, the apex court of the land, which bears the responsibility of addressing the justice needs of the entire population of Ghana. As the highest court, the Supreme Court must prioritize the efficient and judicious use of its time and resources to serve the broader public interest and ensure that justice is not only done but seen to be done expeditiously. Such decisions reinforce the judiciary’s role as the custodian of justice, ensuring that its processes are not undermined by individual interests at the expense of the collective good. 42. While the Court recognizes that its primary objective is to afford disputing parties’ adequate opportunity to be heard, this objective is not without limits. It cannot be interpreted to mean that the Court, other parties, and the judicial process as a whole can be made a mockery of or subjected to the whims of litigants who intentionally retard the progress of cases. Page 13 of 17 43. Where, in the estimation of the Court, the prejudice caused by such delays outweighs its duty to provide a party the opportunity to be heard, an opportunity which the party refused to take due advantage of in reasonable time, the Court is empowered to act decisively. In such circumstances, the Court may strike out the case, with or without leave to reapply, to safeguard the integrity of the judicial process and ensure the efficient administration of justice. 44. At this juncture, it is important to recall that the Applicant initiated this action by filing a writ and failed to file the accompanying statement of case within fourteen (14) days, as required by the Rules of this Honourable Court. 45. Notwithstanding this procedural failure, he disappeared for ninety (90) long days, only to resurface with a notice of discontinuance on the 17th of July, 2024. What is particularly striking is that even at the time of seeking to withdraw his case, the Applicant made no effort to explain his protracted delay or show any remorse for his indolence and the considerable waste of this Court’s time and resources. This conduct constitutes a blatant abuse of the processes of this Honorable Court and undermines the efficient administration of justice. 46. The Applicant’s dilatory actions reflect an alarming disregard for the rules of procedure and the sanctity of this Court’s time. His sudden reappearance, without justification for his delay, demonstrates a pattern of conduct that is inconsistent with the principles of fairness and expediency that underpin the judicial process. The enjoyment of fundamental human rights, as guaranteed by the 1992 Constitution, is not absolute; it is subject to respect for the rights of others and the public interest. By abusing the judicial process, the Applicant undermined the dignity and integrity of the justice system, ultimately affecting the fair administration of justice. Page 14 of 17 47. It is the duty of this Court, as the custodian of justice, to safeguard the judicial process from such conduct. The refusal to grant the Applicant leave to reapply is entirely justified in these circumstances. This decision reinforces the principle that the judicial process cannot be held hostage to the whims of litigants who exhibit indifference to the Court’s time and resources. By exercising its discretion to deny the Applicant leave, this Court ensures the proper administration of justice and sends a clear message that such conduct will not be tolerated in the interest of fairness, efficiency, and the rule of law. 48. Admittedly the exercise of judicial discretion is modulated by the prescriptions of Article 296 of the 1992 Constitution which provides that: ‘Where in this Constitution or in any other law discretionary power is vested in any person or authority - (a) that discretionary power shall be deemed to imply a duty to be fair and candid; (b) the exercise of the discretionary power shall not be arbitrary, capricious or biased wither by resentment, prejudice or personal dislike and shall be in accordance with due process of law’ 49. It is our considered view that this Court’s discretion, in striking out the Applicant’s case without leave to reapply, was exercised fairly and candidly, in strict adherence to due process and without any hint of arbitrariness, capriciousness, or bias. 50. The Applicant has suggested that by denying him leave to reapply, the 2nd Respondent is insulated from judicial scrutiny. We find this argument most Page 15 of 17 untenable and disingenuous. Indeed, any other person, other than the Applicant in this instant application, can commence an action based on the same facts, alleging the same grounds of unconstitutionality and seeking the same reliefs. CONCLUSION: 51. We have considered the entirety of this application and the respective statements of case filed by the parties and also had the benefit of the viva voce submissions of parties in support of and in opposition to the Application. 52. We are however of the reasoned opinion that the Applicant has failed to establish the existence of any exceptional circumstances which has led to a miscarriage of justice and in the circumstances, the application must fail, and same is hereby dismissed. (SGD.) E. YONNY KULENDI (JUSTICE OF THE SUPREME COURT) (SGD.) G. SACKEY TORKORNOO (MRS.) (CHIEF JUSTICE) (SGD.) G. PWAMANG (JUSTICE OF THE SUPREME COURT) Page 16 of 17 (SGD.) I.O. TANKO AMADU (JUSTICE OF THE SUPREME COURT) (SGD.) PROF. H. J. A. N. MENSA-BONSU (MRS.) (JUSTICE OF THE SUPREME COURT) (SGD.) B. F. ACKAH-YENSU (MS.) (JUSTICE OF THE SUPREME COURT) (SGD.) E. Y. GAEWU (JUSTICE OF THE SUPREME COURT) (SGD.) H. KWOFIE (JUSTICE OF THE SUPREME COURT) (SGD.) Y. DARKO ASARE (JUSTICE OF THE SUPREME COURT) COUNSEL THE APPLICANT APPEARS FOR HIMSELF ANNA PEARL AKIWUMI SIRIBOE (MRS.), CHIEF STATE ATTORNEY WITH MERCEDES KONADU MARI (SENIOR STATE ATTORNEY) FOR THE 1ST RESPONDENT DR. ISIDORE TUFOUR (DIRECTOR OF PROSECUTIONS) WITH ADELAIDE KOBIN – WOODE (PRINCIPAL PROSECUTOR) AND FA-IZA ISSAKA (ASSISTANT PROSECUTOR) FOR 2ND RESPONDENT Page 17 of 17