Ouster Clauses and Judicial Review is a reference to the power of the court to strike out enactments made by parliament in excess of jurisdiction or to declare an enactment as incompatible. Per FDA v Brown and Williamson Tobacco Corp the FDA enacted regulations to regulate tobacco consumption among persons below 18 years, COA struck out the Regulation for having been passed in excess of the powers conferred on it by congress. The SC affirmed the judgment of the CA and struck out the regulation.
In GH, the power to strike out legislation is exclusively vested in the SC Art 130, per >Adjei –Ampofo v Attorney-General and President of the National House of ChiefsPersons amenable to judicial review: SC all other courts including the other superior courts, lower courts, and inferior tribunals including administrative tribunals; administrative bodies and administrative officials; fact finding tribunals which have a duty to act judicially, and any other fact finding tribunal or commission of enquiry whether statutory or not –provided it makes decisions affecting the rights of subjects or people-are expected to act judicially and are amenable to judicial review
Grounds for judicial Review: depend on the particular relief the applicant is seeking, certiorari and prohibition include a court or tribunal or anybody exercising judicial function and, acts ultra vires, breach of the rules of natural justice, lacks jurisdiction, commits a patent error
The supervisory powers of the courts: SC and HC are vested with supervisory powers, per CHRAJ V AG CHRAJ claimed that by the use of the phrase “on any other basis in section 35(2) of the Transitional provisions of the 1992 Constitution, they had the power to investigate confiscations made by a court or tribunal during the AFRC and PNDC administrations and if satisfied, order restoration of that property. Art 132 confers supervisory jurisdiction on the SC over all courts and over any adjudicating authority in the country, Art 141 supervisory jurisdiction of the HC, the Courts in exercising their supervisory powers issue orders and directions including orders in the nature of habeas corpus, certiorari, mandamus, prohibition, quo warranto, declaratory orders and injunctions. They may also award damages to compensate a victim who has suffered injury.
Order 55, Rule 1 of the HC (Civil Procedure) Rules, CI 47 provides the reliefs which could be granted by the HC in an application for judicial review, mandamus, prohibition, certiorari or quo warranto, an injunction, does not include the power to strike out enactments or legislations, only the SC is vested with the power to interpret the Constitution. Hence if the issue raised involves a constitutional interpretation
Administrative Bodies Art 23 to act fairly and reasonably and comply with the requirements imposed on them by law, a person seeking the supervisory powers of the court over administrative bodies or administrative officials must come under Article 23 vis-à-vis article 33 of the 1992 Constitution. Therefore, you don’t trigger Articles 132 and 141, the CL is recognized as part of the laws of GH, CL has prerogative remedies. Therefore, a chief can be subjected to the Court’s Supervisory jurisdiction and will be wrong for him to suggest that because he is neither an administrative body or a court he cannot, remedies include: Certiorari, Prohibition, mandamus, quo warranto, habeas corpus
Certiorari and Prohibition: per Rep v HC, Accra; Ex parte Industrialization Fund for Developing Countries and another, the difference between certiorari and prohibition is only that whereas certiorari looks to remedy past errors, prohibition looks to the future to prevent what will be done from being done.
What goes on for the former equally applies to the latter.” May be granted: Breach of the rules of natural justice Nemo Judex In Causa Sua test is a real likelihood of bias (don’t be a judge in your own cause) Audi Alteram Partem (Hear both parties), Where the decision maker has financial interest, material interest, personal interest, he ought to recuse himself, Lack of Jurisdiction, Excess of Jurisdiction, Wednesbury Principle-three methods where the judgment is illegal, where the judgment is irrational, procedural impropriety, which does not go to jurisdiction and can be cured by the court, per Rep v COA; Ex Parte Tsatsu Tsikata supervisory jurisdiction under article 132 of the 1992 Constitution, should be exercised only in those manifestly plain and obvious cases, where there are patent errors of law on the face of the record, which errors either go to jurisdiction or are so plain as to make the impugned decision a complete nullity, a minor, trifling, inconsequential or unimportant error which does not go to the core or root of the decision complained of; or, stated differently, on which the decision does not turn would not attract the courts superior jurisdiction.”
Per Rep v Committee of Inquiry into Nungua Traditional Affairs a certiorari was a discretionary remedy which would lie to quash not only the finding or decision of a lower court or inferior tribunal which has acted ultra vires, per Enekwa & Ors v Kwame Nkrumah University of Science and Technology (KNUST) appeal were under wrong impression that universities were not amenable to judicial review as they do not exercise judicial and quasi-judicial functions, respondent university was a public institution established as a corporate body to perform a public function by way of offering education to the public
Persons eligible to apply for certiorari and prohibition: At CL only person who are affected either directly or indirectly by an order can apply, all the prerogative writs are discretionary remedies and are not granted to applicants as of right, persons aggrieved by the order sought to be impugned, that is, the person whom the order was directed or whose legal rights have been infringed, busybodies are not entitled to certiorari in matters they do not have any interest per Rep v HC, Denu; ex parte Agbesi Awusi II (No1)
discretionary remedy of certiorari would generally be granted to any person, against whom the order was directed, for whose legal rights have been infringed by the order, exceptional cases that that, remedy would be extended to an applicant who was not aggrieved, per Rep v HC HO, Ex parte diawoo bediako [2011]; Rep v GH medical association SC held that anybody at all can bring an action for certiorari or prohibition.
Interestingly, the SC was silent on a departure from the Agbesi case, it must be pointed out that certiorari and appeal are not mutually exclusive. Hence a party can apply for certiorari and also file an appeal at the same time.
Meaning of the words “Shall be final” in ouster clauses: S 57 of Act 459 oust the original and appellate jurisdictions of a District court, a Circuit Court, a Regional Tribunal, the HC and the COA in causes or matters affecting chieftaincy, Art 131 which is on the supervisory jurisdiction of the HC has vested the power to supervise all lower courts and any other adjudicating authority in the HC. The word “shall be final” cannot be used to oust the supervisory jurisdictions of the HC.
Cause or matter affecting chieftaincy: The HC is ousted from hearing or determining a cause or matter affecting chieftaincy but the law does not oust the supervisory jurisdiction of the HC over the Judicial Committees of the Traditional Councils, Judicial Committees of the Regional Houses of Chiefs and the Judicial Committee of the National House of Chiefs, per In Re Osu Stool; Ako Nortei II (Mankrado of Osu) the mere incidence of an issue relating to chieftaincy in proceedings in the ordinary courts didn’t constitute a cause or matter affecting chieftaincy, per Rep v HC, Koforidua, Ex parte Bediako II mere fact that the questions of whether or not a person is a chief raise its head during an application for certiorari before the HC does not necessarily constitute the matter as the one affecting chieftaincy
MANDAMUS: an order issued by a court of competent jurisdiction to compel a public officer whose office was created by a statute or the Constitution to perform a duty that he has failed to perform. Mandamus is a discretionary remedy and under common law, for an action of mandamus to succeed, there should be “a demand and refusal”, requirements-duty imposed by statute, duty must be of public nature, applicant must have the right to enforce the performance, demand and a refusal to perform, per Rep (NO. 2) v National House of Chief, ex parte Akrofa Krukoko II (Enimil VI Interested Party) (No. 2) the requirement, however that before the court will issue a mandamus there must be a demand to perform the act sought to be enforced and a refusal to perform it cannot be applicable in all cases, and does not apply where a person has by inadvertence omitted to do some act which he was under a duty to do, and where the time within which he can do has passed. The demand and refusal as a precondition for the grant of mandamus should not be permitted to govern an application under Article 23, normally, if there exists alternative remedy such as right of appeal mandamus may not be granted. But where there is a danger or threat that an interest or otherwise may be interfered with, it may be granted per Rep v Lands Commission ex parte Vanderpuye Orgle Estates Ltd
Quo warranto: meaning, where is your warrant? issued against persons occupying public offices. Where a person has assumed public office and you think he is not entitled to occupy that office, you can go for quo warranto, any person can go for quo warranto, in the form of injunction, at CL, where a person sought any of these reliefs, that person could not ask for damages. In Gh however, ask for injunction, where you are able to make a case for damages, the court shall award you damages, per Awuni v WAEC.
Habeas Corpus: Habeas Corpus Act;
In sum, ouster clauses are to the effect that you can do certain things but not everything. If you do what you cannot do you will be supervised.