Introduction

In February 2023, the Supreme Court in its decision in the Republic v. High Court (Commercial Division) Accra, Ex Parte Yvonne Amponsah Brobbey^[1] (described in this paper as ‘the case under review’), underscored that the Rules of Court Committee is incapable of conferring criminal jurisdiction on the High Court in intermeddling cases. In their Lordships’ view, jurisdiction can only be conferred on a court by the Constitution or a substantive legislation. The restatement of the law by their Lordships comes with its own ramifications on other provisions of the rules of courts. It may be recalled that prior to their decision, the Apex Court had queried the Rules of Court Committee’s mandate to confer review jurisdiction under Order 42 of C.I. 47 on the High Court^[2]; thereby resulting in its revocation by the Rules Committee five years later. Provisions of analogous review jurisdiction contained in the Court of Appeal^[3] and the District Court Rules^[4] were similarly revoked. 

The Supreme Court’s denunciation of the conferment of jurisdiction on the High Court in 2015 and the eventual revocation of Order 42 of C.I. 47 did not however dissuade the Courts below from applying Order 66 Rule (3) of C.I. 47 that sought to confer jurisdiction on them to deal with criminal intermeddling cases^[5]. Conceivably, they acted on the assumption that Order 66 Rule (3) of C.I. 47 had not expressly been revoked by the Rules Committee or declared void by the Supreme Court. In February this year when the Supreme Court declared the conferment of criminal jurisdiction on the High Court under Order 66 rule (3) of C.I. 47 unlawful, many were the disenchanted who disagreed with their Lordships. The skeptics were taken aback upon their realization that the Apex Court exercised its supervisory jurisdiction to quash the orders of the High Court which was only following binding precedents of the Court of Appeal and committed no error in their view.

It must be pointed out that although the decision of the Supreme Court in the case under review touched on only Order 66 Rule (3) of C.I. 47, it inevitably had an overbearing effect on other provisions of the court rules. In this paper, the writer identifies some of the rules that have been directly or indirectly affected by the decision in the case under review. 

COURT RULES DIRECTLY AFFECTED BY THE DECISION IN EX PARTE YVONNE AMPONSAH BROBBEY

Order 66 Rule (3) of C.I. 47 provides:

Where any person, other than the person named as executor in a will or appointed by Court to administer the estate of a deceased person, takes possession of and administers or otherwise deals with the property of a deceased person, the person shall be subject to the same obligations and liabilities as an executor or administrator … “.

Among the rules of courts that are not only inextricably linked to the case under review pertaining to the conferment of jurisdiction by the Rules of Court Committee, but are also susceptibly overwhelmed are discussed hereunder. 

A. ORDER 31 RULE (3) OF THE DISTRICT COURT RULES, 2004 (C.I. 59)

Despite the fact that in the case under review, the Supreme Court only considered the validity of Order 66 Rule (3) of C.I. 47, it must be borne in mind that a similar provision is contained in the District Court Rules, 2004 (C.I. 59).

 

Order 31 Rule (3) of the said Rules provides:

“Intermeddling with property

3. Where any person, other than the person named as executor in a will or appointed by Court to administer the estate of a deceased person, takes possession of and administers or otherwise deals with the property of a deceased person, the person shall be subject to the same obligations and liabilities as an executor or administrator and shall in addition be guilty of the offence of intermeddling and liable on summary conviction to a fine not exceeding 500 penalty units or twice the value of the estate intermeddled with, or to imprisonment for a term not exceeding 2 years or to both“.

By parity of reasoning, the Apex Court’s pronouncement on Order 66 Rule (3) of C.I. 47 in the case under review renders the criminal jurisdiction of the District Court in the above provision of C.I. 59 equally ineffectual. 

B. ORDER 66 RULE (4) OF C.I. 47

In the case under review, the Supreme Court clearly held that the Rules of Court Committee had no power to create an offence in the Rules of Court. Incidentally, the Committee had created another intermeddling offence under Order 66 Rule (4) of C.I. 47; this time, not against the person who interferes with the estate of a deceased person, but rather against the executor of an estate who fails to apply for probate within three months.

 

Order 66 Rule (4) of C.I. 47 provides:    

“Neglect to apply for probate

4. Where a person named executor in the will of a deceased person takes possession of and administers or otherwise deals with any part of the property of the deceased, and does not apply for probate within three months after the death, or after the termination of any proceedings in respect of probate or administration, the person may in addition to any other liability which the person may incur, be guilty of contempt of Court, and shall also be guilty of the offence of intermeddling and liable on summary conviction to a fine not exceeding 500 penalty units or to imprisonment for a term not exceeding 2 years or to both”.

It may be underscored that under section 66 of the Administration of Estates Act, 1961 (Act 63)[6], an executor has only one month after the death or the termination of proceedings in respect of the probate to apply for probate and not three months as prescribed by Order 66 Rule (4) of C.I. 47. It seemed manifestly incongruous for the Rule, which is a subsidiary legislation, to purport to thump the provision of a substantive enactment by extending the period for the application of a probate after the death of the testator from one month to three months.

Further, while the neglect of an executor to apply for probate within a specified period amounted to contempt of court under Act 63, the Rule in addition criminalizes the neglect of the executor to apply for the same. In the case under review, the Supreme Court held that the Rules are incapable of conferring criminal jurisdiction in the High Court. The decision has thus, exposed Order 66 Rule (4) of C.I. 47 which also seeks to confer criminal jurisdiction in intermeddling cases on the High Court to possible constitutional challenge. Accordingly, a Court will be treading on dangerous grounds if it applies the criminal provision on intermeddling of the above rule, the lack of a definitive pronouncement by the Supreme Court on Order 66 Rule (4) of C.I. 47 notwithstanding.

C. ORDER 31 RULE (4) OF C.I. 59

The immediately preceding rule in C.I. 47 has been substantially replicated in the District Court Rules, specifically under Order 31 Rule (4), which also makes it an offence for an executor not to apply for probate within three months after the death of the testator. The Order states as follows: 

“Failure to apply for probate

4. Where a person named executor in the will of a deceased person takes possession of and administers or otherwise deals with any part of the property of the deceased, and does not apply for probate within three months after the death, or after the termination of any proceedings in respect of probate or administration, the person may, in addition to any other liability which may be incurred, commits, the offence of intermeddling and is liable on summary conviction to a fine of not more than 500 penalty units or to imprisonment for a term of not more than two years or to both”.

Since the above provision has not been expressly invalidated by the Supreme Court, District Magistrates may plausibly be in a dilemma as to its legal effect. Are they to treat it as an ‘unconstitutional’ provision or to apply it as it is? I reckon that it is unsafe for their Worships to apply the said provision in the light of the case under review.

D. REVOCATION OF THE REVIEW JURISDICTION – A JUSTIFICATION OF THE DECISION IN THE CASE UNDER REVIEW 

Under the 1992 Constitution, it is only the Supreme Court that is vested with review jurisdiction^[7]. It may be reiterated that Benin JSC in the Republic v. High Court (Commercial Division) Tamale Ex parte Dakpem Zobogunaa Henry Kaleem^[8], deprecated the review jurisdiction of the High Court under Order 42 of C.I. 47 as lacking legal foundation. The Rules of Court Committee thus took steps to revoke the said Order, courtesy the High Court (Civil Procedure) (Amendment) Rules, 2020 (C.I. 133)⁸. 

Corresponding review jurisdiction conferred on the Court of Appeal and the District Court under Rule 34 of the Court of Appeal Rules, 1997 (C.I. 19) and Order 29 of the District Court Rules, 2004 (C.I. 59) were also revoked by Rule 5 of the Court of Appeal (Amendment) Rules, 2020 (C.I. 132) and Order 2 of the District Court (Amendment) Rules, 2020 (C.I. 13) respectively. It could be asserted without any equivocation of doubt that the Rules Committee by taking the bull by the horn to revoke the affected provisions, but not amending them, implicitly concedes that they promulgated them without the requisite mandate to do so.

It should however be noted that despite the revocation of the review jurisdiction by the Rules Committee, the Courts, particularly the High Court and the Court of Appeal still have the power to ‘review’ their orders in appropriate circumstances, such as when their orders are irregular or are in want of jurisdiction. This power is a jurisdiction inherent in the courts. Akuffo-Addo JSC in Mosi v. Bagyina^[9] speaking of this peculiar inherent jurisdiction of the court stressed that it is “not warranted by any enactment or rule of procedure”. Akoto-Bamfo (Mrs) JSC in Dankwa & Others v. Anglogold Ashanti Ltd^[10], in reaffirming the ratio of Akuffo-Addo JSC drew a sharp distinction between it and the review jurisdiction conferred by the Rules thus:

 “The law does not limit the exercise of this inherent jurisdiction, as it does in the case of a review, to the judge who actually gave the judgment or made the order. The jurisdiction is vested in the court qua court, and may be exercised, but not necessarily, by the judge who gave the judgment or made the order”.

It must be borne in mind that the courts in the exercise of their inherent jurisdiction may suo motu[11] set aside their orders, unlike the review jurisdiction contained in the rules that was to be formally applied for by an aggrieved party within fourteen days after the delivery of the judgment or order. The Court of Appeal in Aninwaa Yeboah & Another v. Ampadu & Others^[12] highlighted:                                            

“Order 42 of CI 47 is on review which is different from the inherent jurisdiction of the court to set aside its void judgment or order . . . . Review application has its procedure such as time limits within which an application for review (either interlocutory or final) could be brought.”                                                    

E. THE REVIEW JURISDICTION CONFERRED ON THE HIGH COURT AND THE CIRCUIT COURT UNDER ORDER 74 RULE (12) OF C.I. 47

Although the review jurisdiction conferred on the High Court and the Circuit Court under Order 42 of C.I. 47 has now been revoked by C.I. 133, one should be slow in jumping to the conclusion that the review jurisdiction vested in the said Courts which embarrassed the Rules Committee has effectively been obliterated from the High Court Rules^[13]. It is interesting learning that the Rules Committee conferred review jurisdiction on the Courts in C.I. 47 from two fronts and it is only one door which was detected and barricaded by C.I. 133. The other entry point where the Rules Committee arguably conferred review jurisdiction on the Courts was through Order 74 Rule (12) relative to costs.

Order 74 Rule 12 of C.I. 47 provides: 

“Review

12. (1) Where the Court awards costs, or declines or fails to award costs, any party aggrieved by the award or failure or refusal of the Court to award costs to the party may, within fourteen days after the date of such award or failure or refusal, apply to the Court to review its decision.

(2) Where the Court assesses the amount of any costs, any party aggrieved by the assessment on the ground that

• the amount assessed in favour of that party is inadequate; or
• the amount assessed against that party is excessive,

may, within fourteen days after the date of such assessment apply to the Court to review its decision.

Under the revoked Order 42 of C.I. 47, an aggrieved person could apply for review against a judgment or an order of the court. ‘Judgment’ is defined under article 295 of the Constitution to “include a decision, an order or a decree of a court”^[14]. From the provision above, costs is undoubtedly an order or a decision of a court. If the underpinning reasoning behind the revocation of Order 42 of C.I. 47 as gathered from the decided authorities is that the Rules Committee cannot confer jurisdiction on the courts to enable them review their decisions; then it is a hard nut to crack that a jurisdiction conferred on the Courts by the Rules of Courts to allow them to review their decisions on costs has been left untouched.

The parallel review jurisdiction that was conferred on the Court of Appeal under Rule 34 of C.I. 19 deserves mention here. Under that Rule, the scope of the review jurisdiction was very narrow and purely circumscribed. Review was allowed only in exceptional cases. Yet, it was deemed unlawful and had to be revoked^[15]. That approach of revoking the review powers of the Court in exceptional cases presupposes that any iota of review jurisdiction conferred by the Rules Committee on a court (other than one inherently vested in the Court) in any form or colour is, in my view, premised on no legal foundation.   

It is settled law that the award of costs is discretionary[16] and its review may be derived from the Courts’ inherent powers and settled practices. While the Rules Committee may expediently regulate the award of costs[17], can it also be affirmatively asserted that it has the mandate to confer review jurisdiction of costs in some Courts?

It needs emphasizing the point that no power has been vested in the District Court under C.I. 59 to review costs awarded in a matter. It is mind-boggling that the Circuit Court which is also a lower court and cannot exercise a jurisdiction unless it has expressly been conferred on it by a substantive statute is being allowed by the rules to review costs; while its counterpart, the District Court, is denied of the same. In Republic v. Circuit Tribunal, Accra, Ex Parte Adas^[18], it was held that: 

“An inferior court such as the Circuit Tribunal has no jurisdiction except that expressly conferred by statute”^[19]. 

In the absence of a substantive legislation, what could have been the legal basis for the Rules of Court Committee to exclusively vest review jurisdiction as regards costs in the High Court and the Circuit Courts under Order 74 Rule (12) of C.I. 47?

F. THE POWER OF REVIEW IN A PRESIDENTIAL ELECTION PETITION

In the case under review, the Supreme Court stated that since C.I. 47 was promulgated pursuant to the mandate prescribed by Articles 33 (2) and 157 (2) of the Constitution, the work of the Rules Committee must strictly be confined to the two enabling provisions of the Constitution. After copiously reproducing the provisions, their Lordships emphasized that the mandate of the Rules of Court Committee in the promulgation of C.I. 47 was limited to making rules to regulate the practice and procedures of the court and not to make substantive legislation bordering on the jurisdiction of the Court.

However, under the Supreme Court (Amendment) Rules, 2012 (C.I. 74), Rule 71B headed ‘No review’, provides that the review procedure contained in Rule 55[20] of the Supreme Court Rules does not apply to Presidential election petitions. In effect, what the Rule seeks to do, is to oust the Supreme Court’s review jurisdiction in presidential election petitions.                                                                                                                            

Curiously, it can be gleaned from the preamble of C.I. 74 that the mandate of the Rules Committee to enact the rule was derived from clause (4) of article 33, clause 4 of article 64 and clause 2 of article 157 of the 1992 Constitution. For ease of reference, I reproduce them here for their full effect.

 

Clause (4) of Article 33 provides:

“(4) 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”.

Clause (3) of Article 64 reads:

“(3) The Rules of Court Committee shall, by constitutional instrument, make rules of court for the practice and procedure for petitions to the Supreme Court challenging the election of a President”.

Clause (2) of Article 157 states:

“(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”.

Just like C.I. 47 in the case under review, nowhere in the enabling constitutional provisions is the Rules Committee mandated to enact rules bearing on the Court’s jurisdiction.  It may be observed that under Article 133 (1) of the Constitution, the Supreme Court may review any of its decisions (without exception), subject however to conditions prescribed by the Rules of Court. The article provides as follows: 

“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”.

It bears emphasis that, the conditions to be prescribed by the rules of court as provided in the constitutional provision may only relate to the procedure and practice in filing for the review, such as stating the days within which a review application may be filed and the manner in which it should be, but not to choose cases for which it would confer the review jurisdiction and those it would not. Thus, the mandate conferred on the Rules Committee to prescribe conditions for the exercise of the review jurisdiction by the Supreme Court, in my humble opinion, does not empower it to curtail or shorten the jurisdiction at any instance. Regardless, the preamble of C.I. 74 does not even make any reference to Article 133 (1) of the Constitution as its enabling provision to be employed as a basis to rationalize the Rule. 

CONCLUSION 

In view of the authoritative pronouncements by the Supreme Court that the Rules of Court Committee lacks the mandate to confer jurisdiction on a court, it is imperative that the various rules that appear to confer jurisdiction on the Courts or deny them of same are immediately identified and ‘rested’. Admittedly, it will be difficult for trial judges and magistrates to take the initiative since they do not have the power to determine the constitutionality or otherwise of enactments. 

The Rules of Court Committee is thus, urged to take up the responsibility by revoking the various rules that have conferred or interfered with the jurisdiction of the Courts in the same manner it responded positively to the Supreme Court concerns with Order 42 of C.I. 47. Until that day comes, these rules will obviously continue to disturb the peace of mind of trial judges over how to treat them in the absence of an express declaration by the Apex Court of their unconstitutionality. 

Suffice to say, it is not within my power to use an article such as this to declare any rule of the land null and void. The Ivorians say, ‘the man who swallows a complete coconut must have confidence in his anus’. Unfortunately, I have not the best of assurance from my ‘back door orifice’ to take a gamble of such epic magnitude. I therefore resist, vehemently, the temptation to commit the sacrilegious act of perfidy that might portend the semblance of ‘judicial treason’. I cannot do more than to sign a note of caution to trial judges in particular, to be wary of the rules that had purportedly vested in them delusive jurisdiction, in order not to be caught up in the web of ‘procedural nemo dat quandary’ before ‘the elders of the land’ one day.

[1] 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 2023, S.C. (Unreported).

[2] See 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).

[3] See the Court of Appeal (Amendment) Rules, 2020 (C.I. 132).

[4] See the District Court (Amendment) Rules, 2020 (C.I. 134).

[5] See Jamaila Yakubu v. Abdul Azizi Ishak; Suit No. H1/18/2022, delivered on 31 March 2022, S.C. (Unreported); Eric Akwetey Siaw v. Tetteh Siaw-Sappore; Suit No. H1/97/2014, delivered on 16 June 2016 & The Republic v. General

Legal Council, Ex Parte Nii Kpakpo Samoa Addo & Another; Suit No. CR/229/107, delivered on 18 December 2017. 

[6] Section 66 of Act 63 provides: “If a person appointed executor by will takes possession of and administers or otherwise deals with any property of the deceased and does not apply for probate within one month after the death, or after the termination of any suit or dispute respecting probate or administration, he may, independently of any other liability, be punished for contempt of court”.

[7] Article 133 (1) of the 1992 Constitution & See also section 6 of the Courts Act, 1993 (Act 459).

[8] 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). ⁸ See Order 2 of C.I. 133.

[9] Mosi v. Bagyina [1963] 1 GLR 337.

[10] Dankwa & Others v. Anglogold Ashanti Ltd; J4/22/2018, delivered on 14 February 2019.

[11] The Republic v. Wassa Fiase Traditional Council & Another, Ex Parte Abusuapanyin Kofi Nyamekye and Others [2015] 90 GMJ 1, SC.

[12] Aninwaa Yeboah v. Ampadu & Others [2010-2012] 1 GLR 1 at p. 12.

[13] C.I. 47).

[14] See also order 82 rule 3 of C.I. 47 which has similar provision save the inclusion of the word ‘decision’.

[15] See the Court of Appeal (Amendment) Rules, 2020 (Act 132).

[16]  African Auto Ltd v. Tema Oil [2012] 39 MLRG 1 at 10; Guardian Assurance Co. Ltd v. Agbematu (1972) 2 GLR 337 &    Agbemabiese v. Dzisam & Others [1973] 1 GLR 291.

[17] See section 80 (2) (f) of the Courts Act, 1993 (Act 459).

[18] Republic v. Circuit Tribunal, Accra, Ex parte Adas (1997-98) GLR 933.

[19] See also the cases of Essah v. Sofo (1972) 2 GLR 301; Dolphyne v. Speedline Stevedoring Co. Ltd (1997-98) 1 GLR 786, S.C. & Republic v. Kpeke District Magistrate (1977) CC 102.

[20] It may however appear that the most appropriate provision on the review of the Court’s decision in C.I. 16 is Rule 54. Rule 55 deals with the time within which to file the review.