Declaration and injunctions though private law remedies have become increasingly important in public law due to human rights and administrative law issues.
DECLARATION: This is a common law remedy developed by the common law courts. The declaration is the authoritative statement by a court of law as to the state of the law in relation to the particular issue or the relationship between the parties. Thus it is a definitive statement of the law. Hence declarative by the court. See Article 2 of the 1992 Constitution and the 31st December Case, Shalabi v Ag, Tuffour v AG. The only remedy sought in the Sallah case was declaration. An application for a declaration is often joined by an injunction so as to give force to a declaratory judgment. Even without this joinder, it can be useful as it lies to give force to all kinds of actions both of a regulatory and administrative character. This explains the relevance of the remedy because actions for declarations will lie to test the legality of legislation. It requires no leave.
INJUNCTION: Whereas the declaration is a common law remedy , injunction is an equitable remedy. At times, the common law remedies of declaration and damages may not be adequate. This led to the development of the injunction by the equity courts. An injunction is an order from the court directing a named person to do or refrain from doing certain specified acts. It may take one of two forms, : positive or negative. Positive means mandatory, thus requiring the performance of certain acts whereas negative implies prohibitive ,thus restraining act requiring that certain acts should not be done. The injunction is both available in private litigation and in public litigation: breach of contract, nuisance, succession dispute, family law matter etc. It is also available in public law, constitutional law, administrative law, human rights law etc.
Prohibitory or mandatory injunction may be permanent or interlocutory(interim). The permanent injunction is issued at the end of het trial after the determination of the rights of the parties. Thus, it is granted after a judicial decision has established that an act or omission is unlawful and that the complainant is entitled in law to be free from the consequences of such act or omission. See NPP v IGP; NPP v GBC
An interim or interlocutory injunction is an order of the court to freeze a certain situation, to arrest the execution or doing the consequences of an action during the pendency of the action. During is important so as not to render the decision of the court nugatory. It is automatically violated at the end of the decision. For that reason, an interlocutory injunction unlike the permanent injunction can be issued against both parties in an action whereas the permanent injunction can only be granted against the loosing party. The application for an interim injunction will be refused if the granting of the application would cause greater hardship than the refusal of it.
The interim injunction is to preserve the status quo and enable the court to determine the case. For this to be granted, there must be a substantive case. If there is no substantive case pending before the court, you cannot apply for an interim injunction. Section 13 of the State Proceedings Act, (Act 555) makes it possible for an injunction to be granted against the state. This thus overrules that portion of Akuffo Addo v Quashie Idun.
WHAT ARE PREROGATIVE REMEDIES?
The prerogative writs include certiorari, prohibition, mandamus, quo warranto and habeas corpus. These are strictly public law remedies and hence are not available in private litigation. They are thus only available against public official statutory bodies, governmental agencies, constitutional bodies.
These remedies are available under two main circumstances or situations :
First, under the original human rights jurisdiction of the High Court and this can be seen in article 33:
33(1) “ Where a person alleges that a provision of this Constitution on the fundamental human rights and freedoms has been , or is being or is likely to be contravened in relation to him, the, without prejudice to may other action that is lawfully avaible, that person may apply to the High Court for redress.”
33(2) “ The High Court may, under clause (1) of this article issue such directions or orders or writs including writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition , and quo warranto as it may consider appropriate for the purposes of enforcing or securing the enforcement of any of the provisions on the fundamental human rights and freedoms to the protection of which the person concerned is entitled.”
The second situation where these remedies may be issued is in the exercise of the supervisory jurisdiction of the high court or the Supreme Court. The Supervisory jurisdiction is the jurisdiction which is given to the High Court and the Supreme court to regulate, oversee, supervise public bodies, adjudicating tribunals, constitutional bodies in the performance of their duties. The Supervisory Jurisdiction of the High Court is conferred by Article 141 and that of the Supreme Court is under article 132.
Article 141 “The High Court shall have supervisory jurisdiction over all lower courts and any lower adjudicating authority; and may, in the exercise of that jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory powers.”
Article 132 “The Supreme Court shall have supervisory jurisdiction over all courts and over any adjudicating authority and may, in the exercise of that supervisory jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory power.”
See Ex parte CHRAJ (Kwame Addo Interested Party), Republic v Court of Appeal; ex parte Tsatsu Tsikata-here an invitation was made to the SC to quash the decision of the Court of Appeal but the Supreme Court declined that the court of appeal had done anything.
WHAT IS CERTIORARI AND PROHIBITION?
An order of prohibition lies to restrain, forbid and inferior tribunal, state body or constitutional body, public tribunal or public person in the exercise of its functions of powers. Certiorari on the other hand lies to quash, to invalidate, nullify a decision or action which has been taken by the body or person.
The main distinction between the two is that certiorari looks backwards, thus it lies to invalidate something which has already been done and prohibition looks forward, it lies to stop, prevent an act which has not been done or which is continuing. This means that where the action has already been done or taken and everything is complete, then your proper remedy is certiorari and not prohibition since there is nothing to prohibit but you think it is unconstitutional or breaches natural justice. Conversely, if there is something to be done or the thing has not been done then your appropriate remedy is prohibition and you cannot apply for certiorari if the thing has not taken place but there are situations where you can apply for both.
See Ex Parte Bannerman. In this case, the respondent Chairman of a Commission of Enquiry established to probe the affairs of the State Fishing Corporation purported by letter to suspend the applicant, the Distribution Marketing Manager of the Corporation. The applicant initiated proceedings for certiorari to quash the letter of suspension and prohibition to prevent the Chairman from suspending , dismissing, interdicting or in any manner interfering with the applicant in the performance of his duties as Distribution Marketing Manager of the Corporation. Counsel for the respondent argued that the suspension of the applicant had nothing to do with the quasi-judicial functions of the respondent as Chairman of the Commission of Enquiry. In suspending the applicant, the respondent acted in an administrative capacity. Consequently, certiorari and prohibition would not lie. The Court held inter alia, that granting the existence of the alleged power to suspend the applicant, the respondent could not suspend him without affording him an opportunity to present his case. The audi-alteram partem rule applied just as much to the exercise of administrative functions as to the exercise of judicial or quasi –judicial functions.
In Republic v High Court, Accra ; Ex parte Ghana Medical Association (Arcmann-Ackummey Interested Party) [2012] 2SCGLR 768 @ 769 , the SC held that “an order of prohibition or certiorari would issue to prevent a court or tribunal from exceeding or continuing to exceed its jurisdiction on grounds of want or excess of jurisdiction; error of law on the face of the record; failure to comply with the rules of natural justice; and breach of the Wednesbury principle, namely, that an administrative action or decision would be subject to judicial review on the grounds that it was illegal, irregular or procedurally improper. And the difference between certiorari and prohibition was only that whereas certiorari would look to remedy past errors, prohibition would look to the future to prevent what was to be done from being done.”
WHAT RULES GOVERN CERTIORARI AND PROHIBITION?
Against whom, what bodies and acts? : These are public law remedies and lie against public persons, statutory bodies, constitutional bodies, commissions of enquiries , local government bodies-municipal assemblies , district assemblies, medical and dental board (Ex parte Abban), Chieftaincy tribunals-the decision of a traditional council to destool a chief has been quashed because it appeared on the face of the record that the whole traditional council had decided the case instead of a judicial committee of it as provided in the Chieftaincy Act (Ex parte Tiwaa), Disciplinary bodies –police (Ridge v Baldwin), private persons-limited liability companies, inferior tribunals-rent officer.
Personal Interest or Locus standi / Who may bring an action for an order of certiorari and prohibition : The courts have held that persons who bring an action for these prerogative writs must show that they have a specific individual or personal interest in the subject matter. Thus, he must have a locus standi-Article 33, again , invoking the original jurisdiction of the High Court in human rights matters, the person must be a victim and not a mere busy body. Contrast Article 2 to Article 33. Remember the Tuffour Case.
In ex parte Kusada, the court held that in granting this remedy, where the objection of a decision of an inferior court is taken merely by a member of the public and not by an aggrieved party, then the granting of certiorari is discretionary however where it is taken by an aggrieved party, then it is ex debitio justitiae. However, if an aggrieved party is entitled to the order, the order could still be refused on grounds of unreasonable conduct of the applicant which the court may take into account.
Exhaustion of Statutory Remedies : The law is that, the courts have held that certiorari and prohibition can be applied for without having to go through any statutory processes of appeal. For instance, where there is breach of the rules of natural justice, they need not exhaust any statutory processes of appeal. Ex Parte Aryitee however holds that though you need not exhaust , where in fact you have lodged an appeal , then you cannot apply for certiorari.
Certiorari and prohibition do not go to the substantive merit of the case but procedural matters such as : breach of natural justice
Grounds : There are three main grounds ; breach of the rules of natural justice; lack or excess of authority or jurisdiction (Ultra vires);
Error of law on the face of the record: Ex parte Tsikata , Hesse. The court will be reluctant to exercise jurisdiction on the basis of error of law because the superior court will not make such fundamental mistake. In such a case, it should be done through the appellate means (Kwame Addo). Where on the face of the record, there are obvious patent to the high heavens, which is so fundamental to the extent that it had led to a mistake then the action, decision may be quashed or may be prohibited by prohibition or certiorari.
What is Mandamus?
Mandamus is an order of the court which lies against public or statutory persons who have failed to discharge their obligation to discharge their duty. If it is a private matter, the appropriate remedy is a mandatory injunction and not a mandamus. See Ex Parte Abban, Marbury v Madison; Mould v Divine; Ex parte Akanya; Re Botwe & Mensah
WHAT ARE THE REQUIREMENTS FOR THE GRANT OF MANDAMUS?
First it lies against public institutions
Second it lies only where there is non performance of the public or statutory duty: Hence, there must first be a duty and second the duty must not have been performed. It means that where there is no duty, mandamus will not lie. It has thus been held that where a body has a discretion, then mandamus will not lie to compel the body to exercise the said discretion.
Prior demand to the respondent by the applicant to perform his duty : Ex parte Abban.
No other equally convenient or appropriate remedy : In ex parte Abban, the court held that mandamus was the appropriate remedy. Ex parte Vanderpuye also holds that the existence of a right of appeal is no bar.
WHAT IS QUO WARRANTO?
This literally means by what authority or by what warrant? It is issued to restrain a person from acting or purporting to act in an office to which he is not entitled. Thus, it is a restraining order to a person who has usurped and acting unlawfully.
Public /Statutory Office : It will not lie in the situation, were the office is private. Whether or not quo warranto lies in chieftaincy disputes? There are two lines of conflicting decisions with the quo warranto with regards to chieftaincy disputes. Is the office of a chief a public office? If so , can the High Court deal with such matters? Chieftaincy tribunals do not exercise supervisory jurisdiction which is allowed to only the High Court and the Supreme Court so certiorari, quo warranto, mandamus will not lie there but rather with the High Court and Supreme Court. So it is not possible to go to the High Court with a matter affecting chieftaincy. However, in the exercise of the supervisory jurisdiction, the High Court can order certiorari etc. to the tribunal
The second requirement is that there must be an actual usurpation: That is , the person is unlawfully exercising the powers of those office. It is not that he claims, the person must rather actually have usurped the office.
Third, there must be no unreasonable delay between the usurpation and the application for quo warranto.
Procedure for the court to grant these remedies (Prohibition, certiorari, quo warranto, mandamus) : The procedure can be found in Order 55 of CI 47. Under Order 55 r 3, an application for judicial review in the nature of mandamus, prohibition , certiorari or quo warranto must be brought within six months of the occurrence of the event complained of. Hence it must be brought quite speedily.
55 r 4 indicates that the application must be on notice. That the application shall be supported by an affidavit, and the affidavit should state the following particulars : the full name and description and the address of the applicant, the facts upon which the applicant relies or remedies sought by the applicant and the grounds on which he seeks the remedy. Lastly, the full name, description and address of the respondents.
Rule 5 : The motion and the affidavit in support must be served on the respondent. Within 7 days of the service of the notice paper and the serving of the affidavit on the respondent, the respondent shall file an affidavit in opposition. Within 14 days of the filling of the application by the applicant, the applicant must file a statement of his case. Thereafter, the case is set out for hearing. The hearing or the application is usually by legal argument, by counsel for the applicant and counsel or counsels for the respondent. Usually no oral evidence except in exceptional cases, it is trial by affidavit evidence.
The case will be set out for trial in three weeks, and in the exception where the oral evidence is taken, the legal argument may take one or two days. Quite clearly this procedure is much faster than the ordinary civil litigation. If you notice, all these prerogatives is by the republic and so time is of the essence.
Ghann v Tamakloe : The court restrained the appointed chairman of the ashanti interim regional assembly from acting in that office because the office of an Interim Regional Assembly is an office of a public nature against which a writ of quo warranto could have issued.
WHAT IS HABEAS CORPUS? (PRODUCE THE BODY)
It lies to compel a public person (police, prison authorities, military, BNI, EOCO-Economic and Organize Crime Office) detaining another person to produce the body of the detained person and to justify the detention. Where the detaining authority fails to satisfy the court that the detention is lawful then the court will order that the person is released. It is designed to check unlawful detention and interference with personal liberty by public persons.
According to Dicey, habeas corpus is more powerful in protecting the liberties of the individual than any constitutional protection. In Ghana, the remedy has had a checking instrument. See Re Akoto, Re Okine, Ex parte Ibrahim. The courts by these cases held that where upon an application by a detained person for habeas corpus , the state in its reply provided that it was in the interest of the detained person or in the interest of the republic that he was detained and exhibit the executive instrument under which hew as detained. This position was from the 50s to the 79 when the case of Ex parte Quaye Mensah came up. This case held that the mere exhibition of the executive instrument that it is in the public interest is not sufficient justification of the arrest and that the court has authority to inquire into the reasonableness of the executive in detaining a person.
In 1984 however, the habeas corpus amendment law , took us back to the position in Re Akoto. That is should not be lawful. In 193, the Habeas Corpus (Adaptation) Constitutional Instrument, 1993, CI 6 repealed PNDCL 91 and returned to the position in Ex Parte Quaye Mensah. It provided under section 2 that the court shall enquire into an allegation of unlawful intervention and for this purpose the court may order the production of the person detained and secondly order the detaining authority to submit a document in writing stating the grounds of detention. Order 56 also deals with Habeas Corpus.