Introduction
In any modern constitutional democracy, a key function of the judiciary is to supervise the actions of the executive and other public bodies to ensure they operate within the confines of the law. This principle, known as judicial review, is a cornerstone of the rule of law. Historically rooted in English common law, the prerogative writs are a set of remedies that superior courts use to exercise this supervisory jurisdiction. Ghana, as a common law jurisdiction, has incorporated these remedies into its legal framework, primarily through the powers vested in the High Court and Supreme Court. Article 141 of the 1992 Constitution of Ghana grants the High Court supervisory jurisdiction over all lower courts and any lower adjudicating authority, which it exercises through orders such as certiorari, prohibition, mandamus, and others.
This essay will focus on two of these significant remedies: the order of certiorari and the order of prohibition. For each writ, this essay will provide a briefing that explains its nature and purpose within Ghanaian administrative law. To illustrate their practical application, a prominent Ghanaian case will be analysed for each writ, demonstrating how the courts have utilised these powerful tools to uphold legality and procedural fairness in public administration.
The Prerogative Order of Certiorari
The order of certiorari (Latin for "to be made certain") is a retrospective remedy. It is issued by a superior court, such as the High Court of Ghana, to a lower court, tribunal, or administrative body, commanding that body to transmit the record of its proceedings to the superior court for review. The primary purpose of certiorari is to quash a decision that has already been made, where the decision is found to be defective on certain recognised grounds. It is a corrective, not an appellate, remedy; it is not concerned with the merits of the decision, but with the legality of the process by which the decision was reached.
The grounds upon which certiorari may be granted in Ghana are well-established and include: a want or excess of jurisdiction, a breach of the rules of natural justice, and an error of law on the face of the record (Hagan, 2017). An excess of jurisdiction occurs when a body acts beyond the powers conferred upon it by statute. A breach of the rules of natural justice involves a failure to adhere to the principles of a fair hearing (audi alteram partem) or the rule against bias (nemo judex in causa sua). An error of law on the face of the record occurs where a decision-making body makes a clear and obvious legal mistake that is apparent from the formal record of the proceedings. The case below provides a clear example of the court using certiorari to correct a significant error of law.
Case Brief: Republic v High Court, Accra; Ex parte Commission on Human Rights and Administrative Justice (CHRAJ) (Addo, Interested Party) [2003-2004] 1 SCGLR 312
Facts of the Case: The case arose from investigations by the Commission on Human Rights and Administrative Justice (CHRAJ) into allegations of corruption against various public officials reported in the media. While investigating one official, Mr. Addo, the name of another, Dr. Richard Anane, also emerged in connection with the allegations. CHRAJ sought to extend its investigation to Dr. Anane. Dr. Anane challenged CHRAJ's authority to investigate him, arguing that CHRAJ could not initiate an investigation on its own accord based solely on newspaper reports, but required a formal complaint from an identifiable person. He applied to the High Court for an order of prohibition to prevent CHRAJ from proceeding. The High Court, presided over by Baffoe-Bonnie J (as he then was), agreed with Dr. Anane and granted the order, effectively halting the investigation. CHRAJ, believing the High Court's decision was legally flawed, applied directly to the Supreme Court for an order of certiorari to quash the High Court's ruling.
Issue: The central issue before the Supreme Court was whether the High Court had committed a fundamental error of law on the face of the record by misinterpreting the constitutional and statutory mandate of CHRAJ, thereby justifying the issuance of an order of certiorari to quash its decision.
Decision: The Supreme Court unanimously granted the application for certiorari. It quashed the decision of the High Court that had prohibited CHRAJ from conducting its investigation.
Reasoning of the Court: The Supreme Court, in a leading judgment delivered by Georgina Wood JSC (as she then was), held that the High Court's interpretation of CHRAJ's powers was a patent and fundamental error of law. The Court reasoned that the 1992 Constitution and the CHRAJ Act, 1993 (Act 456) grant CHRAJ a broad mandate to investigate corruption and protect human rights. This mandate was not intended to be passive. The Court found that CHRAJ's functions included the power to initiate investigations on its own motion based on information from any source, including media publications.
To restrict CHRAJ to acting only upon formal complaints from named individuals would, in the Court's view, severely undermine its effectiveness as an anti-corruption body and defeat the purpose for which it was established by the Constitution. The error made by the High Court was not a minor mistake but a "fundamental" one that went to the core of CHRAJ's jurisdiction and functions. The Supreme Court clarified that its supervisory jurisdiction, exercised through certiorari, was available to correct precisely such patent errors of law on the face of the record, especially when they emanated from a misreading of the Constitution. Therefore, the High Court's decision was an illegality that needed to be quashed to allow a constitutionally mandated body to perform its duties.
The Prerogative Order of Prohibition
The order of prohibition is a preventative or prospective remedy. It is an order issued by a superior court to a lower court, tribunal, or administrative body to prevent it from starting or continuing with a matter over which it has no jurisdiction. Whereas certiorari is used to quash a decision already made, prohibition is used to stop a body from acting unlawfully in the first place. Its main function is to confine inferior bodies within the limits of their legal authority (Adjei, 2015).
The grounds for granting prohibition are largely the same as for certiorari, focusing primarily on want or excess of jurisdiction and breach of natural justice. It is invoked when an applicant can demonstrate that a body is about to act, or is in the process of acting, outside its legal powers. The remedy is crucial for preventing wasted time and resources on proceedings that would ultimately be declared void. The following case illustrates the classic use of prohibition to stop a court from hearing a matter where its jurisdiction had been lawfully ousted by agreement.
Case Brief: Republic v High Court, Kumasi; Ex parte Mobil Oil (Ghana) Ltd (Hagan, Interested Party) [2005-2006] SCGLR 312
Facts of the Case: The interested parties were former employees of Mobil Oil (Ghana) Ltd who were laid off following a restructuring exercise. The terms of their employment were governed by a Collective Bargaining Agreement (CBA). The CBA contained a specific grievance procedure for resolving disputes, which stipulated that any dispute relating to employment, including termination, should be settled through negotiation, and if that failed, through final and binding arbitration. Instead of following this procedure, the employees filed a suit in the High Court in Kumasi, claiming damages for wrongful termination. Mobil Oil objected, arguing that the High Court lacked jurisdiction to hear the case because the parties had contractually agreed to use arbitration as their dispute resolution mechanism. Mobil Oil therefore applied to the Supreme Court for an order of prohibition to restrain the High Court from proceeding to hear the case.
Issue: The key issue for the Supreme Court's determination was whether the High Court had jurisdiction to adjudicate the employment dispute when the parties' binding CBA contained a mandatory arbitration clause that had not yet been utilised.
Decision: The Supreme Court granted the order of prohibition, thereby preventing the High Court, Kumasi, from hearing the wrongful termination suit.
Reasoning of the Court: The Supreme Court's reasoning was grounded in the principle of party autonomy and the legal status of arbitration agreements. The Court held that where parties have voluntarily and contractually agreed to a specific method for resolving their disputes, such as arbitration, they are bound by that agreement. The presence of a mandatory arbitration clause in the CBA effectively acted as a condition precedent to any court action.
The court reasoned that the jurisdiction of the High Court had been temporarily ousted by this agreement. The High Court's role was not to hear the dispute at first instance, but potentially to enforce the arbitral award or hear an appeal on very limited grounds after the arbitration process had been concluded. By attempting to hear the substantive case before the agreed arbitration procedure had been exhausted, the High Court was acting in excess of its jurisdiction. Prohibition was therefore the appropriate remedy as it is designed to prevent an inferior court from wrongly assuming jurisdiction it does not possess. The order effectively stopped the unlawful proceedings before a final, but legally void, judgment could be delivered.
Conclusion
The prerogative orders of certiorari and prohibition remain indispensable tools in the enforcement of public law and the maintenance of the rule of law in Ghana. As the cases discussed have shown, they perform distinct but complementary functions. Certiorari, as demonstrated in the Ex parte CHRAJ case, serves a vital corrective function, allowing the Supreme Court to quash decisions of lower courts that are based on a fundamental misinterpretation of the law, thereby ensuring that constitutional bodies can effectively discharge their mandates. By contrast, prohibition, as illustrated by the Ex parte Mobil Oil case, acts as a crucial preventative measure, restraining courts and tribunals from overstepping their jurisdictional boundaries and ensuring that agreed-upon dispute resolution mechanisms are respected. Together, these writs empower Ghana's superior courts to police the boundaries of legality, ensuring that public power is exercised lawfully and fairly.
References
Adjei, D. (2015) Modern Approach to the Law of Interpretation in Ghana. Adwinsa Publications.
Hagan, E. N. (2017) Administrative Law in Ghana. GIMPA Press.
Republic v High Court, Accra; Ex parte Commission on Human Rights and Administrative Justice (CHRAJ) (Addo, Interested Party) [2003-2004] 1 SCGLR 312.
Republic v High Court, Kumasi; Ex parte Mobil Oil (Ghana) Ltd (Hagan, Interested Party) [2005-2006] SCGLR 312.
The 1992 Constitution of the Republic of Ghana.
High Court (Civil Procedure) Rules, 2004 (C.I. 47).
