Order of Prohibition - The Legal Solicitors

Definition

It is trite learning that prohibition is an order restraining a court or a public authority from acting outside its jurisdiction. The Republic v High Court, Accra. Ex Parte; Dan Ashie Kotey (SCGLR) Civil Motion No.: J5/9/2015

Prohibition is a prerogative order of the High Court, directed at a lower court, inferior tribunal or public authority, which forbids such court, tribunal or authority from acting or doing something that would be in excess of its jurisdiction or against the law. The Republic v The Chief Registrar of Lands, Ex-Parte Andrew Nikoi Dsane [17/03/04] CA No. 21/2002

Bamford-Addo JSC, 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. The Republic v High Court, Accra; Ex Parte Industrialization Fund For Developing Countries And Another [2003-2004] SCGLR 348.

The Scope and Purpose of Making such an Order

The orders of certiorari and prohibition, as the form of the proceedings showed were means for ensuring that the machinery of public administration worked properly and that justice was done to individuals. And because these remedies had a special public aspect to them, an applicant for certiorari or prohibition did not have to show that some legal right of his was at stake. If the action concerned an excess of jurisdiction or abuse of power, for example, the court would quash it at the instance of a mere stranger, although it retained the discretion to refuse to quash it if it thought that no good would be done to the public. The Republic v Korle Gonno District Magistrate Grade I Ex-Parte Ampomah, [1991] 1 GLR 353

prohibition is not meant to prevent a person or a court from exercising general judicial functions; Re Appenteng (Decd); Republic v High Court, Accra; Ex Parte Appenteng And Another [2005-2006] SCGLR 18
it is rather to challenge an attempted exercise of the judicial function in specific jurisdictional situations, i.e., for excess or absence of jurisdiction or departure from the rules of natural justice such as the existence of actual bias or strong likelihood of bias or interest; Re Appenteng (Decd); Republic v High Court, Accra; Ex Parte Appenteng (Supra)

And

an applicant for prohibition or certiorari is not restricted by notion of locus standi, i.e. he does not have to show that some legal right of his is at stake. Re Appenteng (Decd); Republic v High Court, Accra; Ex Parte Appenteng (Ibid)

A Motion for other relief, in this case an order of prohibition, does not automatically operate to stay proceedings in the Court whose proceedings are being challenged. A Motion for an order of prohibition does not come within the ambit of Article 130(2), and the Fast Track High Court is perfectly within the law to continue with its proceedings until and unless there is an order from a higher court. THE REPUBLIC v THE FAST TRACK COURT, ACCRA EX-PARTE GARIEL DANIEL (2003-2004) ISC GLR 364.

Grounds/Conditions for Grant

To prevent an excess of jurisdiction (ultra vires act, i.e. outside its jurisdiction). Amadu v Mohammed [2007-2008] SCGLR 58 At 59
Real likelihood of bias Amadu v Mohammed (Supra)

The common law disqualifies a judge, magistrate or an independent administrator from adjudicating whenever circumstances point to a real likelihood of bias, by which is meant ‘an operative prejudice whether conscious or unconscious’ in relation to a party or an issue before him. This applies in particular, where the circumstances point to a situation where a decision may be affected by pre-conceived views. The Republic v High Court, Kumasi; Ex Parte Mobil Oil (Ghana) Ltd Hagan (Interested Party) [2005-2006] Scglr 312.
It is a basic principle of common law that prohibition would automatically be granted to prevent a biased judge from hearing a suit upon satisfactory proof of the breach of any principles of the rules of natural justice independent of grounds of error on the face of the record or excess of jurisdiction. The Republic v High Court, Denu; Ex Parte Agbesi Awusu Ii (No 2) (Nyonyo Agboada (Sri Iii) (Interested Party) [2003-2004] SCGLR 907
3. Prohibition would lie to prevent reaching a decision which would be quashed subsequently by certiorari. The Republic v High Court, Accra, Ex Parte Commission On Human Rights And Administrative Justice (Addo Interested Party) [2003-2004] 312

The right to certiorari or prohibition may be lost by acquiescence or implied waiver. The Republic v The High Court, Accra Ex Parte The Attorney-General (Delta Foods Ltd. – Interested Party) [1999-2000] 1GLR 255