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Opinions Wed, 4 Dec 2013

The Murmurs of 2012 Election Petition Ruling

There are ongoing judicial murmurs over the accidental slip of Justice Atuguba on the 29 August 2013 presidential election petition verdict readout. JusticeGhana takes a look at the Supreme Court of Ghana, the Slip Rule and the A-4 Summary Debacle of the Court

Asante Fordjour

BRIEFS & MEMOS

From colonial standpoint, the Supreme Court owes its being from the Supreme Court Ordinance (1876) as the apex tribunal for the Gold Coast peoples. [1] As our colonial generations say, in those “old good days”, Appeals from the Supreme Court went to the West African Court of Appeals (WACA) minted in 1866. Ghana backed-off from WACA following self-rule.[2] At the dawn of 24 February 1966 military adventurism, the National Liberation Council (NLC), through the Courts Decree, 1966 (NLCD.84) shredded the Supreme Court and posited judicial power in two-planks of courts- the Superior Court of Judicature and the inferior Courts.[5] Article 102(4) of the 1969 constitution reversed this during the Second Republic.[3] Following the coup d’état of 13 January 1972, the Supreme Court faced yet another hung from National Redemption Council on the premise that the 1969 Constitution had been suspended and so there was no need for a court to “interpret and enforce it”. Its functions were accordingly, bequeathed to the CA. [3] This was again reverted by the 1979 Constitution when the Third Republic was cloned on 24 September 1979. With the 31 December 1981 “holy war” and the proclamation of Provisional National Defence Council (PNDC); is it true that though the court system encountered yes, some hitches on the advent of public tribunals, the image of Supreme Court, had been unblemished? [5]

INTRODUCTION

According to UK’s Civil Procedure Rule (CPR) and Practice Direction (PD) [6], slip rule allows the court to correct clerical mistakes and accidental omissions in judgments and orders at any time on application by a party. In R + V Versicherung AG v Risk Insurance and Reinsurance Solutions SA and others [7], the Queen’s Bench Division (QBD) reaffirmed that the court may at any time correct an accidental slip or omission in a judgment or court order does no more than enable the correction of typographical errors or matters that were genuine slips or mistakes. “It is well established that the rule cannot be used to correct errors of substance, nor in an attempt to add to or detract from the original order made.” The case of Rok Building Limited v Celtic Composting Systems Limited (No.2) [8] reechoed that a Court will not review the correctness of an adjudicator’s decision on enforcement.

COMMENTARY AND ANALYSIS

In the 1930s, Goodhart A L (1891–1978) pointed out that the ratio of a case is in practical terms inseparable from the material facts. He observed that it “is by his choice of material facts that the judge creates law”. By this Goodhart is said to have meant that the court’s decision as to which facts are material or non-material is highly subjective, yet it is this initial decision which determines a higher or lower level of generality for the ratio. This of course, is not the subject of this article. But like many judicial reasoning, Goodhart’s concept has come under sharp judicial knife; particularly in the 1950s. Lord Halsbury (1901); comparably, has this to say: “Every judgement must be read applicable to the particular facts proved, since the generality of the expressions which may be found there are not intended to be the expositions of the whole law but govern and are qualified by the particular facts of the case in which such expressions are to be found.” What, if any, is the difference between Goodhart’s material facts and Halsbury’s particular facts in relation to an A-4 SC summary verdict and the slip-rule?

In Rok- the sub-contractor, applied to enforce an adjudicator’s decision which ordered that Celtic (the Contractor) pay Rok particular sums of money. On receipt of the decision, Celtic argued that the decision was incorrect as there were various clerical errors and an error in the adjudicator’s calculations. Celtic argued that if this had been the case, little or no sums would be due to Rok. Whilst the adjudicator amended the clerical errors, he stated that under the slip rule he was only allowed to clarify any simple mistake or ambiguity. The other issues regarding the adjudicator’s calculations went to the heart of his decision and he could not review the substance of the decision. Celtic failed to honour the adjudicator’s decision and Rok commenced proceedings in the Technology and Construction Court to enforce the adjudicator’s decision. Celtic argued that the adjudicator had failed to apply the slip rule properly so as to allow “natural justice and due process”. They further submitted that the weight of their evidence was so overwhelming that no adjudicator, acting fairly, could have reached the decision that was reached.

The Court held that in the field of adjudication enforcements, the Courts have, time and again, made it clear that, provided that the adjudicator is acting within jurisdiction, the fact that he/she has answered the relevant factual or legal questions incorrectly, even if the error is mathematical, the decision is still enforceable. The Court referred to the decision in the case of Bouygues (UK) Limited v Dahl-Jensen (UK) Limited [9], where the adjudicator’s decision was enforceable despite a simple mathematical error. The Court stated that the Technology and Construction Court and the appellate courts will be very slow to characterise even glaringly obvious errors made by adjudicators, acting within their jurisdiction, as breaches or evidence of breaches of the rules of natural justice to which all adjudicators are subject. “It is not the function of the Court to conduct what is in effect a review of the relative correctness of adjudicator’s decision to determine the extent to which he or she “got it wrong”.

But for most laymen; it is an unimaginable for Supreme Court, to make errors or mistakes in its rulings in an open-court and probably in a matter which Africa and the world, had expressed vested interest and for which its deliberations and final verdict had taken precious months and hours. Having promised the public for the delivery of the judgment on or at about 10am on Wednesday, the 29th day August 2013; the 9-member justices of the Supreme Court, held their viewers and indeed audience for almost three hours only to arrive with a read-out verdict that barely made up to an A-4 sheet and most regrettably, lasted not only more than perhaps 8 minutes but also eventually turned out to have some voidable errors.

So what glued our justices to their seats in their chamber for such a longer while? Was there ever any deadline for the submission of individual final decisions/rulings for cross-referencing, cross-checking or collaborative reasoning among justices during the final write-ups? Did the learned justices sign to attest their agreement to the final transcript of their individual or collective decisions as presented to them by their clerical staff or the registry? This continuous public gossips over the yet to be justified delays in the final ruling characterized by errors might continue to haunt the image of the Court if it remains silent, unconcerned or apologist to the impasse. As in this verdict; the set decision time, might have been obviously, not the stated 29th August? Legally; it is presumed that in a matter heard by more than a single-judge, dates and times are prearranged for the adjudicating judges to have the opportunity to read, collaborate or to dissent on the judicial reasoning of their colleague judges on the issues to be resolved.

But in Rok (ibid), Mr Justice Akenhead made this statement in relation to judicial errors or mistakes: “In respect of the slip rules, the adjudicator had discretion to correct his decision either to remove any error arising from “accidental error or omission” or to “clarify or remove any ambiguity”. The adjudicator does not have [however] a right to correct his decision so as wholly reconsider and re-draft substantive parts of his decision and, in effect, to change his mind on material points of principle.” Justice Akenhead pointed out that Celtic were not without remedy as it could institute arbitration proceedings to seek a final correction. So Rok was entitled to summary judgment in the sums said to be payable by the adjudicator. Clarke Willmott [10] advises that this decision reaffirms the position that a Court will not review the correctness of an adjudicator’s decision on enforcement and that, provided that the adjudicator had not breached the rules of natural justice and the adjudicator had jurisdiction to hear the dispute in question, the Court will enforce an adjudicator’s decision even [if] it is incorrect.

In that case, Justice Akenhead stated that adjudications can provide “rough justice” largely because the decision has to be produced usually within 28 days of the reference and, given what is very often the exchange of very substantial and complex documentary evidence, adjudicators must do the best they can in the relatively short time allowed to them. Indeed; the Supreme Court of Ghana, ought to be applauded for its outstanding case management of the presidential election petition hearing. But can the Court shield or sacrifice its supreme and awesome image as the final court appeal in constitutional matters? Articles 128 to 135 of the 1992 Constitution [Act 459; sections 1-9] bestow on the Supreme Court of Ghana enviable powers and privileges than perhaps, any State institution in the country- it can impose discretionary fines or summarily; summon or command, charge and commit; any one of us, to prison. It is indisputably, the final Court of Appeal in Ghana and has jurisdiction in all civil and criminal matters.

As demonstrated in numerous decided cases in the country, the Supreme Court also wields exclusive original jurisdiction in all matters relating to the enforcement or interpretation of the Constitution and matters relating to Parliament or any other body exceeding its powers, or acting ultra-vires, in the making of enactment. This included the jurisdiction over whether or not an official document may be produced before the courts, especially, where its tender, may compromise the security of the State. The Supreme Court hears appeals from the Court of Appeal, the High Court (in relation to high treason or treason), the Judicial Committee of the National House of Chiefs and exercises supervisory jurisdiction over all courts and adjudicating authorities. Then is the SC’s awesome power as the final appellate court of mercy, irrespective of the court imposing the sanction for any offence or conviction [11].

For this reason, it would have been expected that a court deliberating on matter bordering on clerical, transpositional and administrative errors, should have been cautious in addressing itself properly as far as its final judgement on the petition is concerned. Broadly, it is said that at common law, courts had full power to rehear or review a case until the judgment was drawn up, passed and entered [12], but once entered, the judgment could not be set aside [13]. Thus as a general principle, once a proceeding has been disposed of, and the order or judgment perfected [14], it is then beyond recall by the Court which made or pronounced it [15]. But there are exception to the exercise of the court’s inherent jurisdiction, over accidental slip. In Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [16], Toohey J said:

“In many cases the slip rule or its equivalent is invoked when, through error or oversight, a judgment or order fails to express correctly the intention of the court at the time when the judgment or order was pronounced…But it is clear that this power of correction extends to cases where a matter, through inadvertence, was not dealt with at the hearing. In that case the purpose of correction is to give expression to the intention of the court at the time the judgment or order was pronounced.” In Hatton v Harris [17], it was held that the rule applies irrespective of whether the judgment or order has been entered, and there is no time limit [39 years later] for applying under the slip rule to have a judgment or order corrected. Per Donaldson MR the court, as in R v Cripps [18], Ex parte Muldoon, can act on its own initiative, and the power of the court can be exercised by a judge other than the judge who made the order or who pronounced the judgment. By virtue of Rule 54 of the SC Rules, 1996 (CI 16), the Supreme Court of Ghana has two grounds upon which it may review its previous decision, namely:

(A) a proof of exceptional circumstances resulting in a grave miscarriage of justice [see Re Kwao (Decd); Nartey v Armah[19]; and (b) discovery of a new matter or evidence that has come to light after the decision which with all due diligence had not been within the applicant’s knowledge or could not be produced by him earlier- thus at the time when the decision was made. In Re Krobo Stool (No.2); Nyamekye (No.2) v Opoku[20], the SC held that the list of matters which might constitute exceptional circumstances were not exhaustive or closed; that mere repetition of grounds of appeal which had been dismissed, was no justification for the granting of the review and that an applicant must show the existence of some fundamental and basic error affecting his substantial rights. It is said that the primary purpose of strip rule is akin to rectification, to allow the Court to amend a formal order which by accidental error does not reflect the actual decision of the judge or to make an order which the judge did not make because of the accidental omission by counsel to ask for it [21].

But in Gould v Vaggelas [22] Gibbs CJ stated that the jurisdiction was to be exercised sparingly. The court has discretion to refuse relief where events have occurred which make it inexpedient or inequitable for an order under the slip rule to be made, [23] and in Shaddock the High Court stressed the importance of making an application under the slip rule promptly [24]. An order will not generally be made where the interests of third parties may be affected or a party has changed position in reliance upon the order. The slip rule will generally only have application where the proposed amendment is one upon which no real difference of opinion can exist, [25] and where it is clear beyond doubt that, if the error or omission had been brought to the attention of the judge when the order was made or judgment pronounced, the error or omission would have been immediately rectified.

In Storey & Keers Pty. Ltd. v Johnstone [26] McHugh J.A. accepted the following passage from the speech of Lord Herschell in Hatton v Harris [27] as laying down the test to be satisfied in making an order under the slip rule: “I cannot doubt that the correction would at once have been made' if the matter had been drawn to the attention of the judge who made the decree.” The Court of Appeal adopted the approach of Lord Diplock in Bremer Vulcan Schiffbau und Maschinenfabrik v South India Shipping Corp [28] that any court must have inherent power to do what is necessary “in order to maintain its character as a court of justice”, and that public confidence in the administration of justice made it necessary to reopen a case where significant injustice would otherwise result... It does not apply where the amendment is controversial, nor does it extend to mistakes that are the consequence of a deliberate decision by the parties in the conduct of the litigation [29].

In Taylor v Lawrence [30] it was held that in exceptional circumstances, the CA. in England has an inherent jurisdiction, going beyond the power to correct slips and to set aside fraudulently obtained orders, to reopen an appeal after the judgment has been drawn up, in order to avoid real injustice. It was said that although the outcome of litigation should be final there was a need to temper that principle in exceptional circumstances [31] and that the power is derived from the court’s necessary implicit powers to suppress abuses of its process and control its own practice. It has been emphasized in recent cases that the purpose of the slip rule is confined to accidental errors, and not to enable the Court to have second thoughts. In R v Cripps, Ex parte Muldoon [32] Donaldson M.R said: “…it cannot be overemphasized that the slip rule power can never entitle the trial judge or a court to reconsider a final and regular decision once it has been perfected.” What, then, do you make of Justice Atuguba’s summary errors?

CONCLUSION

Alexander Solzhenitsyn-, the 1974 Nobel Prize recipient in Literature, once observed: “Justice is a conscience, not a personal conscience but conscience of the whole of the humanity. Those who clearly recognize the voice of their own conscience usually recognize also the voice of Justice.” You may indeed disagree with this concept if your conscientiousness, were to be that of narrow and self-seeking.

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References

Available @ http://justiceghana.com/blog/law-justice/the-murmurs-of-2012-election-petition-ruling/

JusticeGhana
Columnist: Fordjour, Asante