Suit against creation of six new regions dismissed

The High Court in Accra presided over by Justice Kweku Tawiah Ackaah-Boafo has dismissed a Mandamus application which sought to compel the Registrar of the General Jurisdiction Division of the High Court to transmit a letter to the Office of the President to request the record of proceedings of the Justice Brobbey Commission of Inquiry which gave Ghana sixteen Regions.

The application for judicial review (Mandamus) sought to convince the court to compel the Registrar to obtain documents, which the Applicants contended they need to prosecute their case at the Court of Appeal against the report of the Commission of Inquiry.

The applicants in the case are Nana Korkor I, paramount Queen-mother of Lolobi Traditional area, Nana Kofi Adu, Divisional Chief of Akpafu Todzi Traditional Area, Nana Frititi I, Divisional Chief of Lolobi and Nana Aputu Kram I, Divisional Chief of Akpafu Adorkor.

After hearing the parties, the court ruled that the test for Mandamus was not met because the relief sought against the Respondent is not available as a matter of law.

Justice Ackaah-Boafo said, the court is not satisfied that the Applicants have made out a case for the grant of an order of Mandamus to compel the Respondent to act in the manner requested by the Applicants.

In dismissing the application for judicial review, the court awarded a cost GH¢1,500 against the Applicants.

Subject matter

By an Amended Notice of Application filed on September 29, 2020, the Applicants were praying the Court for judicial review of the refusal of the Registrar of the High Court (General Jurisdiction), to transmit to the Office of the President a letter requesting for the record of proceedings of the Commission of Inquiry into the Creation of New Regions” on the grounds set out in the accompanying affidavit.

The applicants premised their application on Order 55 of the High Court Civil Procedure Rules, 2004 C.I. 47 and contended that, the Registrar (Respondent) of the High Court has a public duty imposed on him by law to write to the Office of the President of the Republic to request for the record of proceedings and other documents that formed the basis of the findings of the Commission of Inquiry into the creation of the New Regions to compile a record of appeal to enable them (Applicants) to prosecute their pending appeal in the Court of Appeal.

They also contended that they believe that the findings and the recommendations of the Justice Brobbey Commission as contained in its report dated June 26, 2018 became a judgment of the High Court after six months, and therefore the Registrar of the High Court is seized with the power and responsibility to compile the necessary records to enable the Applicants pursue the appeal filed.

Counsel for the applicants, Mr. Martin Luther Kpebu referred to Order 55 of C.I. 47 as the basis for the application and submitted that there is no doubt that the duty to compile the record of appeal is a public duty and that cannot be performed by any other person but the Registrar, the Respondent herein.

Counsel argued further that, the Applicants have no alternative than to rely on the Registrar to write to the office of the President to request for the record of proceedings.

It was the case of Counsel that, the Registrar has already written the letter and signed it and the only outstanding thing was the transmission of the said letter to the office of the President.

The Applicants Counsel after citing various cases argued that by parity of reasoning, the applicants were entitled to an order of mandamus because the Respondent has a monopoly over the public duty of compiling the record of appeal.

He argued further that, as such, the Registrar has a duty to transmit the letter to the office of the President, which is the custodian of the record of proceedings of the Justice Brobbey Commission, to enable him to compile the record of the appeal”.

According to the Applicants’ Counsel, his clients have no alternative available to them and therefore this Court ought to exercise its discretion in their favor.

Counsel further submitted that it is trite that adverse findings of a Commission of Inquiry become a judgment of the High Court and therefore persons aggrieved by the findings are entitled to appeal to the Court of Appeal to set same aside.

He argued again that the findings of a Commission’s Inquiry being a judgment of the High Court; it is the registrar who has a duty to compile the appeal record.

It was the argument of the Applicants Counsel that they have made a demand but the same was refused by the Respondent and that the demands made first by Seth Kwasi Tawiah Owusu and Counsel were both refused by the registrar.

Counsel referred to Article 190(1) of the 1992 Constitution and stated that since the judicial service is a public service, the Registrar being a member of the judicial service is a public servant and as such, he performs a public duty and has a duty to transmit the letter authored to the office of the President of the Republic.

Counsel submitted that Mandamus is an effective remedy under the circumstance because the “respondent himself informed the applicants’ Counsel that he will only transmit the letter on the orders of the Court. By his own showing, he admits that mandamus is an effective remedy in the circumstances”.

Respondent’s case

Chief State Attorney, Sylvester Kow Williams who referred to the laid down requirements for the grant of Mandamus, signed the statement of the case of the Respondent. Based on the requirements as stated.

The Chief State Attorney in arguing his case against the application raised the three main issues he posited the Court ought to address.

It was the case of the Respondent’s Counsel that, the duties of the High Court Registrar in appeals is as provided in the Court Registrar’s Handbook in Section 6A subsection 3 which provided that: “The registrar shall invite the parties to appear before him on a given date to settle on the documents or processes to be included in the record of appeal.”

He argued that, what the above means is that the documents and processes to be compiled and forwarded to the Court of Appeal must be in possession of the High Court, or that copies must be made available to the Registrar of the High Court for the purposes of settlement of records.

Based on the law, Counsel further submitted that the Respondent, in this case, is only mandated to settle on documents that have been made available to the High Court and so in the absence of such documents; it is the Appellant who is mandated to provide the documents it intends to rely on to the Registrar.

Counsel also submitted that it is not the duty of the Registrar to write letters to the Office of the President to request for documents. Consequently, Counsel submitted that there is no statutory duty imposed on the respondent for which a mandamus must lie.

He argued that there is no statutory duty imposed on the Respondent to perform in respect of this matter and for which he has refused to perform, adding that the Respondent has not failed to perform any statutory duty to justify the grant of Mandamus to compel the performance of the said statutory duty.

Counsel submitted further that “assuming without admitting that there is a statutory duty to be enforced against the Respondent, the order of mandamus if granted would not be effective”.

This is because according to Counsel the documents being sought are not in the possession of the Registrar as the documents are not available in the Court for which the Registrar may request for them to be used by the Applicants.

He argued that, the documents are lodged with a different entity, which is not mandated to release same to the Respondent and that it is not the duty of the Respondent to chase after documents which are not available in the Court for the use of the Applicants in their appeal.

Counsel again submitted that Mandamus would not issue where it appears that it would be futile in its results. Based on all of the above, Counsel prayed the Court to refuse the application.

Source: Starr FM