REPUBLIC VRS BANK OF GHANA (H1/59/2022) [2022] GHACA 119 (23 November 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL DIVISION) ACCRA – GHANA CORAM: MARGARET WELBOURNE JA PRESIDING P. BRIGHT MENSAH JA NOVISI ARYENE JA SUIT NO. H1/59/2022 23RD NOVEMBER 2022 THE REPUBLIC vs BANK OF GHANA … RESPONDENT/APPELLANT EXPARTE: EMMANUEL BABUBOA … APPLICANT/RESPONDENT JUDGMENT BRIGHT MENSAH JA: The applicant/respondent herein did on 23/10/2019, file before the Human Rights Division of the High Court, Accra an originating motion supported by an affidavit and exhibits annexed thereto, as well as statement of case, for judicial review in the nature of Certiorari, seeking the under listed reliefs: 1. A declaration that the decision by the respondents to revoke the licence of TI Microfinance without complying with the mandatory requirements of section 16(3) of Act 930 renders the said decision null and void and of no legal effect. 2. A declaration that the decision by the respondents to revoke the licence of TI Microfinance without complying with section 16(3) of Act 930 contravened articles 23 and 296 of the 1992 Constitution of Ghana and to that extent null and void and of no legal effect. 3. A declaration that by revoking TI Microfinance licence without giving notice to it of the intention to revoke the licence and the the opportunity to be heard, the said revocation by the respon- dents breached the rules of natural justice specifically the audi alteram partem rule hence it is null and void and of no effect. 4. An order of certiorari to quash the decision of the respondents revoking the licence of TI Microfinance. 5. An order directed at the respondents to restore the licence of TI Microfinance. 6. An order of prohibition directed at the respondent and all its officers, workmen, assigns or privies including the appointed receivers from interfering with the lawful activities of TI Micro- finance. 7. Costs including legal fees. The grounds for the application were stated as follows: i) That the purported decision of the respondents to revoke the licence of TI Microfinance is without legal basis and same should be declared null and void and of no effect whatsoever. ii) That the purported decision of the respondents to revoke the licence of TI Microfinance was unlawful, illegal, capricious and abuse of discretion and contrary to the requirement of adminis- trative justice imposed on the respondents under article 23 of the constitution. iii) That in the overall circumstances of this application, it is in the interest of justice that the said decision of the respondent to revoke the licence of TI Microfinance be quashed for being capricious, arbitrary, illegal and violative of the “due process” requirement under article 296 of the 1992 Constitution. iv) That in the overall circumstances it is fit and proper that the res- pondents, their officers, workmen, assigns or privies are prohibited from interfering with the lawful activities of TI Micro- finance. See: pp 1 – 58 of the record of appeal [roa]. It is noted on record that the respondents/appellants herein upon being served with the originating motion of the applicant/respondent did file a notice of preliminary legal objection challenging the propriety of the suit. It is worth observing that the applicant/respondent on 02/03/2020, filed an amended originating motion for judicial review. Though amended, the reliefs and the grounds for the application for the judicial review remained unaltered. Significantly, the respondents/appellants having given notice to challenge the propriety of the suit by the applicant/respondent, subsequently filed an application to set aside the amended originating motion for judicial review. In addition to the motion to set aside the amended originating motion was the written submissions of learned Counsel for the respondent/appellant that can be found at pp 143-149 [roa]. It is material to stress that the application did not find favour with the lower court. The instant appeal has been launched against the Ruling of the High Court, Accra [Human Rights Division] delivered 02/12/2020, dismissing the legal objection the respondent/appellant raised against the competence of the action the applicant/respondent has mounted. The impugned Ruling of the lower court appears on pp 165-167 [roa]. As noted supra, being dissatisfied with the decision of the lower court dismissing the preliminary legal objection to the propriety of the action the applicant/respondent initiated, the respondent/appellant has lodged the instant appeal on two (2) main grounds, namely: 1. The Ruling is against the weight of affidavit evidence. 2. The costs of Ghc15,000.00 awarded in favour of applicant/ respondent is excessive. 3. Further grounds to be filed upon receipt of the record of appeal. See: pp 168-169 [roa]. No further grounds of appeal have been filed so far as the records go. As I proceed with the discourse of the case, the respondent/appellant shall hereinafter be referred to simply as the appellant whilst the applicant/ respondent, the respondent. The case & arguments of the appellant: It is the case of the appellant that the revocation of the licence of TI Microfinance Ltd was taken under S. 123 of the Banks and Specialized Deposit-Taking Institutions Act, 2016 [Act 930]. The Bank of Ghana having revoked the licence of the respondent under S.123 of the Act, it was submitted on behalf of the appellant that the respondent ought to have resorted to arbitration in accordance with S. 141 of Act 930. It is the case of the appellant that in the instant case although the challenge is against the decision of a public institution, statute has specifically prescribed the form for seeking redress. Thus, the respondent is disabled from circumventing the procedure as set out in the Act. Learned Counsel for the appellant in reiterating the point that the respondent seeking to vindicate his rights under Act 930 which Act prescribes the form by which he was proceed to court could not have circumvented the rule, relied on Boyefio v NTHC Properties [1996-97] SCGLR 531 @ 533 in which case, the Supreme Court stated the rule where an enactment had prescribed a special procedure by which something was to be done, it was that procedure alone that was to be followed. Counsel next referred this court to the decision of the Supreme Court in Standard Bank Offshore Trust Co. Ltd v N. I. B Ltd & 2 ors, Civ. App. No. J4/63/2016, 02/06/2017 in which case the apex court speaking with unanimity through Benin JSC, held that where a rule is mandatory by the use of the expression “shall” it should be regarded in view of Section 42 of the Interpretation Act, 2009 [Act 792] and sought by his submissions to put the competence of the action mounted by the respondent in question. Furthermore, Counsel relied on the dictum of Date-Bah JSC stated in R v High Court (Fast Track Division), Accra; Exparte National Lottery Authority (Ghana Lotto Operators Association & ors – Interested Parties) to argue that no judge has authority to grant immunity to a party from the consequences of breaching an Act of Parliament and that judicial oaths judges have administered enjoins them to uphold the law rather than condoning breaches of Acts of Parliament by their orders. Having regard to the circumstances of the present case, Counsel maintained further that the Banks & Specialized Deposit-Taking Institution Act, 2016 [Act 930] has deferred the jurisdiction of the High Court in favour of resorting to an arbitration with specialization in such banking matters. His view is that the revocation of licence and initiation of receivership is by law amenable to arbitration under the Alternative Dispute Resolution Act, 2010 [Act 798]. Additionally, Counsel propounded that no where did the respondent allege that his rights under Chapter 5 of the 1992 Constitution has been breached or is being breached. Accordingly, the mere mention of Articles 23 and 296 did not automatically clothed the same as a human rights violation under the Constitution for which reason had to assume jurisdiction, Counsel maintained. In the result, it was view that that the lower court erred when it held that the plaint of the respondent was to seek an enforcement of his fundamental human rights and the matter was not arbitral. Counsel has thus urged on this court to interfere with the exercise of the judicial discretion of the lower court in dismissing the preliminary objection raised against the application for judicial review in the nature of the order of certiorari the respondent filed. On ground of 2 of appeal ie costs of Ghc15,000.00 the lower court awarded, Counsel complained that it was excessive in relation to the amount of filing fees paid in initiating the process as well as any transportation cost the respondent might have incurred. He thus prays our court to set it aside the award of the costs. In support, Counsel referred us to Order 74 of the High Court [Civil Procedure] Rules, 2004 [CI 47] and also relied on the grounds for awarding costs established in Juxon-Smith v KLM Dutch Airlines [2005- 2006] SCGLR 438. In conclusion, learned Counsel for the appellant urged us to reverse the entire Ruling of the lower court. The case & arguments of the respondent: Learned Counsel for the respondent, in assailing the correctness of the ruling of the lower court stated at page 5 of his written submissions that the trial judge was correct when he intimated that having disposed of the interlocutory application in Suit No. HR/0022/2020, the other suits had a direct bearing on the instant case. In his view, the lower court was right in dismissing the interlocutory application by the appellant. As regards the impropriety of the action put before the lower court, Counsel propounded that when an issue of jurisdiction arose, the court has to have recourse to the plaintiff or the applicant’s claim and not the defendant’s, so as to make a determination if it seised with jurisdiction to deal with the matter. In support, he referred this court to Izenkwe v Nnadozie [1953] 14 WACA 361 @ 363. To Counsel, the issues/complaints raised in the case involve matters of statutory breach and non-compliance with due process requirements imposed on administration and officials under Articles 23 and 296 of the 1992 Constitution. He argues further that there were alleged breaches of the rules of natural justice ie the audi alteram partem rule on the right of the respondent to be heard. To Counsel, these were not matters to be determined through arbitration but rather, fell squarely within the jurisdiction of the High Court. Counsel insisted that the omission by the Bank of Ghana to serve notice on the respondent before the revocation of their licence offended the rules of natural justice albeit Articles 23 and 296 of the 1992 Constitution. The point was canvassed that the administrative duties of the Bank of Ghana fall within the ambit and scope of Article 23. In support, Counsel relied on Francis Owusu Mensah & anr v National Board for Professional Examination (NAPTEX) & ors, Civil Motion No. J5/57/2017 of 09/05/2018 the dictum of Anin Yeboah JSC (as he then was) and Awuni v West Africa Examination Council [2003-2004] 1 SCGLR 471. It is the respondent’s case, therefore, that the judicial review filed pursuant to Article 141 of the Constitution and Order 55 of CI 47 to challenge the decision of the appellant to revoke the licence of TI Microfinance the proper procedure adopted. Arguing further, learned Counsel took issue with the proposition by his learned friend premised on Boyefio v NTHC Properties [1996-97] SCGLR 531 that where a statute has laid down a rule by which a remedy was to be addressed, it was that rule that has to be followed. To him, in the context of the instant case, the principle in Boyefio v NTHC Properties [supra] was inapplicable particularly so, when the issue involves the breaches of the rule of natural justice and matters that are not subject to arbitration under the Alternative Dispute Resolution Act, 2010 [Act 795]. On the premise that the issues raised in the case are not arbitrable, Counsel maintained the High Court was the proper forum to deal with the matter. Accordingly, he urged on this court to dismiss the instant ground of appeal. On the award of costs that appellant complains to be excessive, Counsel submitted that the appellant has not been able to bring itself within the exceptional circumstances stated in the case of Ballmoos v Mensah [1984-86] 1 GLR 724 for the review of the order of the award of costs. In the final analysis, Counsel called for the dismissal of this other ground of appeal. On the merit or otherwise of the instant appeal: We now proceed to discuss the scope and ambit of judicial review and proceeding further, narrow it down to the fundamental perimeters of the prerogative writ of certiorari that has now come to be referred simply as an order for certiorari. Having discussed the perimeters, we shall then apply the principles to the instant appeal and make a determination as to whether there was any merit in the preliminary legal objection the appellant raised before the lower court. The scope of judicial review: To begin with, the power of the High Court to exercise supervisory jurisdiction to issue prerogative writs is provided for in Article 141 of the 1992 Republican Constitution of Ghana. That provision of the law enacts: “141. The High Court shall have supervisory jurisdiction over all lower courts and any lower adjudicating authority, and may in in the exercise of that jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory power.” This provision of the law is re-enacted in S. 16 of the Court’s Act, 1993 [Act 459]. It needs reiterating that the prerogative orders contained in Article 141 of the Constitution have been held to be the mechanism whereby administrative law principles are applied. See: R v High Court, Accra; Exparte CHRAJ [2003-2004] SCGLR 312 @ 324 per Date-Bah JSC. Judicial review is the procedure by which the superior courts are able, in certain cases, to review the legality or otherwise, of decisions and or actions by some state institutions including lower courts and adjudicating bodies which decisions/orders affect the rights of the members of the general public. The law is so wide to cover not only judicial acts but also administrative duties of public institutions. This system of judicial review, therefore, allows the courts to interfere in the machinery of public administration where circumstances warrant it. That is the essence of the dictum of Date-Bah JSC espoused in R v High Court, Accra; Exparte CHRAJ [supra]. Writ of certiorari: scope and ambit It has been said that the writ of certiorari for quashing the offending order or proceedings is directed against a record. But as the record can be brought up only through human agency, it is ordinarily issued to the person or authority whose decision is being reviewed. Certiorari defined: Wade & Forsyth in Administrative Law, 8th ed p. 591 have defined certiorari in the following terms: “……….[it] is used to bring up into the High Court the decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed. That is to say, it is declared completely invalid, so that no one need to respect it. The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers and may be kept within their legal bounds. This is the concern of the Crown, for the sake of orderly administration of justice, but it is a private com- plaint which sets the Crown in motion.” Technical grounds for granting Certiorari: Under common law, the grounds upon which the court proceeds to exercise its supervisory jurisdiction to issue an order of certiorari are: a) want or excess of jurisdiction; b) where there is an error of law on the face of the record; c) failure to comply with the rules of natural justice; and d) The Wednesbury principle. See: R v High Court, Kumasi; Exparte Bank of Ghana & ors (Sefa & Asiedu – Interested Parties) (No. 1); R v High Court, Kumasi; Exparte Bank of Ghana & ors (Gyamfi & ors – Interested Parties)(No.1) (Consolidated) [2013-2014] 1 SCGLR 477. The position of the Indian Supreme Court: The limit of the jurisdiction of the High Court to issue an order of certiorari was considered by the Indian Supreme Court that sat as the Constitution Court in the case of Hari Vishnu Kamath v Ahmad Ishaque 1955-1 S 1104: ((s) AIR 1955 SC 233). In that case, the Constitution Court laid down 4 preconditions for considering an application for an order of Certiorari to issue as follows: 1. Certiorari will be issued for correcting errors of jurisdiction; 2. Certiorari will also be issued when the court or tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice; 3. The court issuing the writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the interior court or tribunal, even if they are erroneous; 4. An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings eg., when it is based on clear ignorance or disregard for the provisions of law. In other words, it is a parent error which can be corrected by certiorari but not a mere wrong decision. Source: www.legalblog.in: Writ of Certiorari: Scope and Ambit: Supreme Court Explains: Posted Wednesday, May 4, 2011. Accessed: 16/07/2014. Supreme Court of Ghana’s position: From case law and literature, our Supreme Court holds the same common law position on certiorari application as espoused by the Supreme Court of India. It is principally that there must be an error, apparent on the face of the record of the adjudicating tribunal or administrative body that the High Court is called upon to quash. However, our Supreme Court has expounded the frontiers of the law further. It is that certiorari is a discretionary remedy therefore it is not always the case that an application for an order of certiorari shall be granted automatically even if the applicant has made a case. In explaining the principle better, the Supreme Court speaking through Date-Bah JSC stated the law in R v Circuit Court, Accra; Exparte Komeley Adams [2013] 1 SCGLR 111 @ 122 as follows: “……………… [A]ccordingly, in relation to the High Court’s supervisory jurisdiction also even an error patent on the face of the record cannot found the invocation of that jurisdiction of the court unless it is fundamental, substantial, material, grave or so serious as to go to the root of the matter. In sum, in addition to jurisdictional errors, only a fundamental non- jurisdictional error of law can be the basis for the exercise of the High Court’s supervisory jurisdiction.” It is deducible therefore, that even if the error complained of is apparent on the face of the record, the error has to be so fundamental, substantial, material and grave that has occasioned or is likely to occasion a gross miscarriage of justice if the impugned order continued to remain on record. The impugned order must therefore go to the root of the matter to warrant the exercise of the discretion of the court to have it quashed. The Ruling of the High Court appealed against: For purposes of clarity, we reproduce here below in extenso, the Ruling of the lower court, the subject of this appeal. The ruling appearing on pp 165-167 [roa] reads as follows: “By court: 1. Interlocutory application for an order to set aside the originating motion in this action is accordingly dismissed. 2. There are three (3) other interlocutory applications pending before this court, in which the same issues have been raised. These cases are: (a) Title: Ideal Financial Holding vrs Bank of Ghana Suit No. HR/0025/2020 The motion to have this action set aside was filed 16th March 2020. (b) Title: The Republic Vrs Bank of Ghana Exparte: Emmanuel Babuboa Suit No. GJ/0111/2020, which is a judicial review application [amended] was filed on 2nd March, 2020 and preliminary legal objection on same grounds as canvassed in this case was filed on 30th January 2020. (c) Title: The Republic Vrs Bank of Ghana Exparte: Joseph Apor Suit No. HR/0002/2020. The Amended Judicial Review Application was filed on 24th September 2020. And the application to have it set aside was filed on 24th June 2020. The same grounds as canvassed in the case, Suit No. HR/0022/2020 were raised. It follows that the decision in this case (HR/0022/2020), has a direct bearing on these cases. The interlocutory application to have the action in these cases set aside are also dismissed. 3(a) Cost of Ghc15,000.00 awarded the applicant herein (Bank of Ghana) and in favour of Respondent/Ideal Finance Holding in the case, Exparte: Babuboa. (b) Cost of Ghc20,000.00 is awarded in the case, Exparte Apor against the applicant herein (Bank of Ghana) and in favour of the respondent herein. © Cost of Ghc3,000.00 has been awarded against Bank of Ghana in HR/0022/2020. 4 This case is adjourned to 22/12/2020 at 9.30am for substantive Application to be moved.” We shall revisit the issue. Certiorari, a discretionary remedy: It is trite learning that judicial review is of a special jurisdiction. On principle, therefore, certiorari is a discretionary remedy and the courts grant it only when it is appropriate to do so. On principle that certiorari is a discretionary remedy, Atuguba JSC in R v High Court Denu; Exparte Agbesi Awusu (Nyonyo Agboada –Interested Party) [2003-2004] 2 SCGLR 907 is credited with that statement of law which runs as follows: “It is well-known that certiorari is a discretionary remedy and therefore it does not necessarily follow that when the technical grounds upon which certiorari principles were established it will be pro tanto granted.” In re-echoing the time-honoured principle that an application for certiorari is a discretionary remedy, the Supreme Court as recent as in the year, 2019 in unanimity speaking through Marful-Sau JSC [now of blessed memory] held in R v High Court, General Jurisdiction (6), Accra; Exparte Attorney General (Exton Cubic Group Ltd – Interested Party) (Civil Motion No. J5/40/2018; 21/07/2019 SC [unreported] in these graphic terms: “It is trite that certiorari is a discretionary remedy and for that matter it ought to be granted for legitimate purpose as in protecting a legal right. Indeed, certiorari is granted or issued to correct a wrong but not to protect wrong or illegalities. A court should there- fore frown on decreeing orders of certiorari to protect non-existent rights or rights vitiated by illegalities………….” See: p. 15 of the manuscript judgment. The test that an action could be set aside at the preliminary stage of the proceedings on account of lack of jurisdiction of the court and or impropriety of service of process, is ordinarily extended to cases where the action is in violation of a statute. The maxim that where a specific mode of action is provided one cannot resort to an alternative then applies. Significantly, whereas the respondent argues in the instant case that the Bank of Ghana ought to have followed the provisions stipulated in S. 16(3) of Act 930 to revoke the licence of TI Microfinance Ltd, the appellant, on the other hand, claims that it followed the due process in revoking the licence in accordance with S. 123 of Act 930. Having regard to the disagreements between the parties as to the right approach the Bank of Ghana ought to have adopted in revoking the licence, issue was joined between the parties. However, the crux of the matter is whether the dispute comes within the contemplation of an alternative remedy to the grant of an order of certiorari and for which case, S. 141 of Act 930 must either apply or that the certiorari application must fail. Alternative remedy open to an applicant: Where an applicant has a remedy other than certiorari open to him/her, this is a factor that may be taken into account in denying the applicant the discretionary remedy of certiorari even if the other preconditions for the grant of the remedy have been established. The facilities existence of an alternative remedy is one of the factors that a court can rely on in the exercise its judgment against the grant of certiorari. See: R v High Court, Accra; Exparte Attorney General (Ohene Agyapong – Interested Party) [2012] 2 SCGLR 1204. The principle was re-emphasized in R v High Court, Accra & anr (Nana Yaa – Interested Party); Exparte Alhaji Abdul Rashid – Civil Motion No. J5/13/2014; 13/02/2014 in which case the Supreme Court reiterated the point that the existence of an alternative remedy is one of the factors that a court can rely on to exercise its judgment against the grant of certiorari. See also: R v High Court, Accra; Exparte Tetteh Apain [2007-2008] SCGLR 72. Having outlined the perimeters of certiorari and the technical grounds upon which a successful application may be made out for its grant, it is appropriate for us at this stage to consider the fundamental issue raised in the instant appeal. The fundamental question: It cannot be over-emphasized that having regard to the affidavit evidence in the case and its peculiar circumstances, the chief question in this appeal turns on whether the learned justice of the lower court rightly exercised his judicial discretion to dismissing the legal objection the appellant raised. It is worth noticing that learned Counsel for the appellant had raised the issue of competency of the action taken before the Human Rights Division of the High Court. It is worth repeating that appearing on p.60 [roa], Counsel had filed notice of preliminary legal objection. He followed it up with the filing of a motion on notice to set aside the amended notice of motion for judicial review the respondent had filed on 02/03/2020. The motion to set aside the amended motion for judicial review was accompanied by a supporting affidavit that sets the grounds on which in the view of the appellant, the lower court must set aside the process the respondent as incompetent. See: pp 131-134 [roa] The grounds of objection were essentially in 2 folds. First, that though the application was in the nature of an application for an order of certiorari, it has been presented as a matter for the enforcement of the 1992 Constitution. Next, that the respondent had not properly invoked the jurisdiction of the court, in that the law ie Act 930 the basis for which the respondent went to court had provided a remedy in terms of S. 141 to resort to an arbitration. In response, the respondent filed their affidavit in opposition. See: pp 137-141 [roa]. It is appropriate at this stage to resort to some averments contained in the affidavit in opposition the respondent filed that are quite germane to our discourse. Appearing on p. 138 [roa] is paragraph 7 that avers: “7. That I am advised by Counsel and verily believe same to be true that the failure by the respondent to comply with Section 16(3) of the Banks and Specialized Deposit-Taking Institutions Act, 2016 [Act 930] did not only breach the procedural due process outlined in the said provision but also breached the rules of natural justice hence by virtue of Articles 23, 33 and 296 of the 1992 Constitution of Ghana, this court is the proper forum to determine the instant matter.” Paragraph 10 of the affidavit is also worth reproducing. It avers as follows: “10. That in further response to paragraph 4 of the affidavit in support, I am advised by Counsel and verily believe same to be true that the instant matter is not arbitrable within the meaning of Section 1 of the Alternative Dispute Resolution Act, 2010 [Act 798] on the basis that the instant matter at bar is that TI Microfinance had its licence revoked without the rules of natural justice specifically audi alteram partem being complied with hence by reason of articles 23, 33, 141 of the 1992 Constitution and Order 55 of CI 47, the proper forum for the determination of this matter is this court and not an arbitration.” Needless to emphasize, we have critically studied all the processes the parties filed in the case. We have also given active consideration to arguments of Counsel contained in their respective written submissions filed. Additionally, we have internalized the judicial authorities Counsel cited in support of their respective submissions. Fundamental infractions in the application: We need to observe from the outset that there are some fundamental infractions contained in the respondent’s application for judicial review that put the competence of the application into serious question. The infractions cannot not escape the eagle eyes of this court. The first infraction is the introduction of a new ground of the application filed without leave of the court. It is noted, the first time the respondent introduced in the application the element of enforceability of Article 33 of the 1992 Constitution when they filed an affidavit in opposition to the appellant’s motion to set aside the amended motion on notice for judicial review. See: pp 137-141 [roa]. Significantly, the new ground premised on enforceability of fundamental human rights contained in Article 33 of the 1992 Constitution was absent both in the main affidavit in support of the application filed 23/10/2019 and which appears on pp 4-9 [roa] and the second affidavit filed 02/03/2020 in support of the amended motion for judicial review as appearing on pp 64-72 [roa]. Put differently, the new ground for enforceability of fundamental human rights was never a ground contained in the affidavits supporting the application shown supra. There is nothing on record to show that the respondent obtained leave of the High Court to introduce the new ground. That mis-step sinned against Order 55 r 5(4) of CI 47 that provides that an applicant shall not rely on any grounds at the hearing not set out in the affidavit in support of the application. The rule in rule 5(4) of Order 55 uses the word “shall” which is imperative and mandatory. Therefore, if the respondent intended to exercise the right of adding a new ground, the rule required that a leave of the court had to be obtained. For, it is trite learning that where a rule is mandatory by the use of the expression “shall” it shall be so regarded in view of S. 42 of the Interpretation Act, 2009 [Act 792]. See: Standard Bank Offshore Trust Co. Ltd v N. I. B Ltd & 2 ors, Civ. Appeal No. J4/63/2016 dated 02/06/2017. Equally, it is material to point out that the amended motion on notice for the application for judicial review also violated Order 55 r 5(5) of CI 47 since there is nothing on record to show that the respondent sought and was granted leave of the court before proceeding to file the amended process. It is arguable that the impugned process i.e. the amended motion on notice for the application for judicial review was filed at the time the appellant has filed no affidavit in opposition to the application. Neither has the respondent filed a statement of case. However, it cannot be disputed that prior to the respondent filing the amended motion on notice for the application for judicial review, the appellant had at the time given notice to raise a preliminary objection to the process the respondent had filed. See: p. 60 [roa]. There is evidence on record to show that prior to the time the amended process was filed, the lower court had extended appellant time to file his processes in opposition to the respondent’s application. Therefore, the respondent was enjoined by law to have obtained leave of the court before filing the amended motion for judicial review. It cannot be lost on the lawyers and the parties in this case that the matter was fought on the nature of an originating motion and that an application for judicial review being a special jurisdiction, the rules of the court must be rigidly complied with. Significantly, the issue, nature and mode of an application to invoke the jurisdiction of the High Court in an originating motion was succinctly answered by Hayfron-Benjamin J [as he then was] in People’s Popular Party v Attorney General [1971] 1 GLR 138 where he stated the rule as follows: “Before considering the issues raised in this application, I shall deal with some matters of procedure and practice. Article 28(4) of the Constitution provides that, ‘The Rules of Court Committee may, by constitutional instrument, make rules of court with respect to the practice and procedure of the superior court of judicature for purposes of this article.’ No such rules have so far been made. It is however a rule of practice that where a statute provides for an application to the court without specifying the form in which it is to be made, and the normal rules of court do not expressly pro- vide for any special procedure, such application may be made by an originating motion. See: Re Meister Lucius and Bruning Ltd [1914] W. N 390. The notice of motion must be intituled in the matter of the Act under which the application is made; it must state clearly the order or relief sought and must further state the grounds of the application.” [emphasis underscored]. Re-stating the rule, the Supreme Court speaking through Brobbey JSC posited in Ghana Commercial Bank Ltd, High Street, Accra v The Commissioner, CHRAJ [2003-2004] SCGLR 91 that when a statute, in that case the Constitution, provides for an application to court without specifying the form in which it is to be made and the normal rules of court do not expressly provide any special procedure, such an application may be made by original motion. The position of the law as stated supra, was endorsed by the much respected Advocate and author, S. Kwami Tetteh Esq., in his invaluable book, Civil Procedure, A Practical Approach wherein the distinguished author states: “Originating motions are authorized under enactment or the Rules of Court ……………….. Originating notice of motion, properly utilized, would dispose of the matter in dispute expeditiously, avoiding the cumbersome procedure for commencing pro- ceedings by writ of summons. The notice of motion must be entitled ‘In the matter of [the Act under which the application is made] and state clearly the grounds of the application and the order or reliefs sought.” On the law, therefore, if the respondent intends to proceed to the Human Rights Division of the High Court on ground of enforceability of breach of fundamental human rights, the application shall expressly state so. It cannot therefore be smuggled into the application without leave of the court as was done in the instant case. The ground for the application for judicial review shall not be left to conjecture. Additionally, the title of the suit must be couched in terms of Article 33 of the 1992 Constitution. In the light of the above discourse, and having regard to the affidavit evidence on record and the infractions pointed out supra, we hold that the lower court erred in law when it adopted those processes the respondent filed and proceeded to rule that the matter before it was one for an enforceability of Article 33 under the 1992 Constitution. That leads us to discussing the other leg of the legal objection to the application. That is to say, the lower court erred in dismissing the contention that the matter was not arbitrable. It has been argued quite strenuously by the respondent that the Bank of Ghana never gave them hearing before the revocation of their licence. Justifying that contention, the respondent averred in paragraphs 14 – 17 of their affidavit in support of their application that the Bank of Ghana had prior to the revocation of their licence though engaged them it never offered them notice required by law. For purpose of clarity, we set out here below in extenso the averments contained in those paragraphs: 14. That on 22nd March 2019, TI Microfinance wrote a letter to the respondent requesting them to move to examine the books of TI Microfinance so as to ensure that the company was complying with the rules and regulations of the respondent in the banking sector and to ensure that the company was going by best practices. Attached is the letter by TI Microfinance to the respondents marked Exhibit EB1. 15. That I repeat paragraph 14 and further depose that the respon- dent acknowledged receipt of Exhibit EB1 and urged TI Micro- finance to implement the strategies it had adopted to improve its fortunes but never brought to the notice of TI Microfinance of its intention to revoke its licence on the basis of insolvency. Attached is the letter the respondent acknowledged receipt of Exhibit EB1 marked Exhibit EB2. 16. That to the utter shock and dismay of the management of TI Microfinance the respondent on the 31st May 2019 revoked the licences of insolvent microfinance companies of which TI Microfinance was part without any written notice from the res- pondent to TI Microfinance of the intention to revoke its licence as it is a mandatory statutory requirement under Section 16(3) of Act 930.” The respondent attached Exhibit EB to their affidavit in support of the application, “Notice of Revocation of licences of insolvent microfinance companies and appointment of Receiver” marked. In Exhibit EB, the Bank of Ghana had given reasons why the licences of the affected companies including TI Microfinance Ltd, were revoked. It was on ground of insolvency, so claimed the Bank of Ghana. Pursuant to the revocation of the licence and the said notice, Mr. Eric Nipah was appointed the Receiver for the specified institutions in line with S. 123(2) of Act 930. See: Exhibit EB as appearing on pp 10-12 of the record of appeal [roa] particularly p.10. It was further explained in the notice Exhibit EB thus: “the revocation of the licences of those institutions was to get rid of insolvent and dormant institutions that have no reasonable prospects of rehabilitation and have denied depositors access to their deposit, thereby constituting a threat to the stability of the financial system. By the revocation of these licences, the Bank of Ghana seeks to protect the stability of the financial system and to protect affected depositors.” Quite ironically, it has not been denied that by the revocation of the licences of the affected institutions in Exhibit EB, the Bank of Ghana sought to protect the stability of the financial system and to protect affected depositors. As encapsulated in the long title of the law, the Banks and Specialized Deposit-taking Institutions Act, 2016 [Act 930] is an Act intended to amend and consolidate the laws relating to deposit-taking; to regulate institutions which carry on deposit-taking business, and to provide for related matters. With the coming into force of Act 930, the Banking Act, 2004 [Act 673] and the Banking (Amendment) Act, 2007 [Act 738) were repealed. The purpose of Act 930 is to bring all deposit-taking institutions under one under law and to enable Bank of Ghana, as the regulator to take prompt and mandatory corrective actions regarding capital adequacy deficiency of all banks and specialized deposit-taking institutions in the industry, and about insolvency of the institutions generally. See for eg., Sections 1, 3 – 10, 12, 16, 28, 29, 123 of Act 930. This principally, is the mischief in the existing law that Act 930 seeks to cure. Reading the statute as a whole, this court cannot fail to recognize that the scope and ambit of Act 930 hinges on the Regulator’s exercise of authority to ensure that at every stage, a bank or special deposit-taking institution operates within the tenor of the law and rules of engagement in the financial sector. Thus, the Regulator has the power in terms of S. 16 of Act 930 to revoke the licence of an institution where circumstances permit it; to oversee distress stages of the institutions as per Ss 102 – 106 of Act 930; and to invoke its mandatory power to revoke the licence of an insolvent institution in accordance with S. 123 of Act 930 when the Regulator makes that determination of insolvency. Now, the anchor sheet on which the respondent relies and premises the action is grounded on S. 16(3) of Act 930 that runs as follows: “(3) Where the Bank of Ghana proposes to revoke the licence of a bank or specialised deposit-taking institution under subsection (1), the Bank of Ghana shall (a) give notice in writing to the bank or specialised deposit- taking institution, (b) specify the proposed action and the grounds on which the action is proposed to be taken, and (c) give the bank or specialised deposit-taking institution an opportunity to make a written representation within thirty days of the service of the notice.” We think that for S. 16(3) to be operational, the conditions precedent in sub-section (1) of S.16 must be present. Those provisions of the law enact: “(1) The Bank of Ghana may revoke a licence issued under Section 12, where (a) the Bank of Ghana is satisfied that an applicant provided false, misleading or inaccurate information in connection with the application for a licence or suppressed material information; (b) the bank or specialized deposit-taking institution fails to commence business within one year from the date the licence was issued; (c) the bank or specialized deposit-taking institution fails to fulfil or comply with the terms and conditions stipulated in the licence; (d) the bank or specialized deposit-taking institution carries on business in a manner which is contrary or detrimental to the interests of depositors or the public; (e) The bank or specialized deposit-taking institution has been convicted by a domestic court or any other court of competent jurisdiction of a crime related to money laundering or terrorist financing or is an affiliate or subsi- diary of a parent or holding company which has been so convicted; (f) in the judgment of the Bank of Ghana, the bank or specialized deposit-taking institution engages in unsafe or unsound practices; or (g) The bank or specialized deposit-taking institution persistently contravenes this Act, the Regulations, directives or orders made under this Act.” Under S. 123 of Act 930, on the other hand, the law stipulates: “123. (1) Where the Bank of Ghana determines that the bank or specialized deposit-taking institution is insolvent or is likely to become insolvent within the next sixty days, the Bank of Ghana shall revoke the licence of that bank or specialized deposit-taking institution. (2) The Bank of Ghana shall appoint a receiver at the effective time of revocation of the licence under subsection (1). (3) The receiver appointed under subsection (2), shall take possession and control of the assets and liabilities of the bank or specialized deposit-taking institution. (4) For the purpose of this section, ‘insolvent’ means the inability of a bank or specialized deposit-taking institution to pay its obligations as they fall due or the circumstance where the value of the liabilities of a bank or specialized deposit-taking institution exceeds the value of its assets. (5) The value of the assets, liabilities and regulatory capital of a bank or specialized deposit-taking institution shall be determined in accordance with valuation standards and procedures prescribed by the Bank of Ghana. (6) In determining the value of the assets and liabilities of a bank or specialized deposit-taking institution for a future date, the anticipated future income and expenses of the bank or specialized deposit-taking institution until that date shall be taken into account. (7) The Bank of Ghana shall immediately notify the institution responsible for deposit protection of a decision made under this section.” Now, when S. 16 of Act 930 is read in conjunction with S. 123, it reveals that different conditions apply in the event that the Bank of Ghana exercises its power to revoke the licence of a bank or a specialized deposit-taking institution deemed to be in default. That is to say that when the regulator proceeds to exercises its power under S.16 of Act 930, the law requires the regulator, Bank of Ghana to give notice to the defaulting company before revocation. But this form of notice or hearing that the respondent has variously touted as the application of the audi partem alterem rule is not absolute as that provision of the law is subject to sub-section 7 of S.16 of Act 930 which states: “(7) Despite subsections (3) and (4) under this section, the Bank of Ghana may in cases of emergency, or in the public interest revoke the licence of a bank or specialized deposit- taking institution without notice.” The expression of the word “without notice” in subsection 7 means what it is. It is that in the event of an emergency or where it is in the public interest, the Regulator is vested with that power to revoke the licence without notice to the institution so affected. Therefore, the fact that a particular formal procedural was not adopted did not in itself imply that the rule of natural justice has not been applied. See: R v Ghana Railway Corporation; Exparte: Appiah & anr [1981] GLR 752. See also: Lagudah v Ghana Commercialk Bank [2005-06] SCGLR 388. It is material to state that under S. 123 of Act 930, notification of the revocation is only required when the licence has been mandatorily revoked and the Bank of Ghana has appointed a receiver to take charge of, and manage the assets and liabilities of the affected institution just as it was done in the instant case as per the notice, Exhibit EB. It means that once the Regulator makes a determination as to the insolvency of an institution the audi alteram partem rule does not apply. The law does not require or provide that notice must be given before the mandatory revocation is applied. Per the tenor of S. 123, it is presumed and the law is construed to mean that prior to making the determination of the insolvency of the defaulting bank or a specialized deposit-taking institution, the Bank of Ghana would have engaged the affected institution. And there is ample evidence on record in our present case, as provided for by the respondent themselves, that such engagements were made between the Bank of Ghana and TI Microfinance Ltd. See: Exhibits EB1, EB2 and EB3 appearing on pp 28-31 [roa]. In the light of the above analysis, it is plainly obvious that Sections 16 and 123 deal with distinct situations and instances. In our respectful opinion, therefore, these 2 sections cannot be applied interchangeably. Now, having regard to the affidavit evidence on record and reading S. 16 of Act 930 in conjunction with S. 123, we hold the respectful view that the Bank of Ghana validly exercised its powers under S. 123 of Act 930 to mandatorily revoke the licence of the respondent. Having not proceeded under S. 16 of Act 930 did not invalidate the action the central bank took. It is now a matter of public notoriety that pursuant to the Receiver’s appointment in May, 2019 by the Bank of Ghana per Exhibit EB, the Receiver [Mr Eric Nipah] has mounted some civil actions/claims in the courts to trace and recover as well as to gather in the assets of some of the defunct banks and institutions to be able to pay off depositors whose monies were/are with the defunct companies. Currently, the cases are ongoing at the High Court. Being matters of public notoriety, this court is vested with power in terms of S. 9(2) of the Evidence Act, 1975 [NRCD 323] to take judicial notice of the pending cases in the courts. This obviously is a clog on the powers of the lower court and a lawful impediment against the grant and issuance of an order of certiorari. It is our respectful and candid opinion, therefore, that it shall be inappropriate to grant the order of certiorari the respondent seeks in the instant case. As stated elsewhere in this judgment, there is a patent dispute between the parties occasioned by their disagreements as to how the issue of the revocation of the licence was to be resolved. In that respect, the law ie Act 930, S, 141 has made adequate provision as to the rule of procedure that must be followed in resolving any dispute between the parties. The law stipulates that in the event of a dispute concerning revocation of licence, the matter shall be referred to an arbitration under the Alternative Dispute Resolution Act, [Act 798]. In the circumstance, we hold that the alternative remedy of arbitration as provided in S. 141 of Act 930 is apt and shall apply to this case. That provision of the law stipulates: “141. Where a person is aggrieved with a decision of the Bank of Ghana in respect of a) matters under Sections 107 to 122 or Sections 123 to 139; b) withdrawal of the registration of a financial holding company; c) matters which involve the revocation of a licence of a bank or a specialized deposit-taking institution; or d) an action under Sections 102 to 106 and where the Bank of Ghana determines that there is a serious risk to the financial stability or of material loss to that bank or specialized deposit-taking institution or financial holding company and that person desires redress of such grievances, that person shall resort to arbitration under the rules of the Alternative Dispute Resolution Centre established under the rules of the Alternative Dispute Resolution Act, 2010 (Act 798). By this provision of the law, a party aggrieved with the decision of Bank of Ghana and desires to seek legal redress shall resort to arbitration. For, the Arbitrator is vested with the power under the Alternative Dispute Resolution Act, [Act 798] commonly referred to as “the ADR Act” to make the appropriate orders including award of damages if he so finds that the respondent was entitled to it, which orders the High Court has power to enforce them. The provision of the law uses the word “shall” and that makes the resort to arbitration mandatory. In the said arbitration, the issue shall be whether or not the licence was properly revoked which may result in the award of damages in favour of the affected institution if the case was proved to the satisfaction of the Arbitrator. The issue shall not be, as it were, for enforceability of Article 33 of the 1992 Constitution. It bears stressing that in referring the matter to arbitration, the jurisdiction of the High Court is not completely ousted if we were to hold that the applicant [the respondent herein] properly invoked the supervisory jurisdiction per Article 141 of the 1992 Constitution and Order 55 of the High Court [Civil Procedure] Rules, 2004 [CI 47]. The referral by the court to arbitration is only meant to suspend the consideration and determination in that forum. For, on the authorities, ouster clauses in documents and statutes do not oust the entire jurisdiction of the courts. Rather, it suspends or postpones the original as well as the supervisory jurisdiction of the High Court. As a rule of procedure, after the Arbitrator has dealt with the matter, the case comes back to the court in the final analysis for enforcement of the awards of the Arbitrator. Therefore, the order of the court to refer the matter to arbitration bears no brand of invalidity upon its forehead. In the light of this legal proposition, we roundly disagree with the view that the instant case is non-arbitral as canvassed by the respondent. This is because as sufficiently explained supra, the respondent never made enforceability of Article 33 of the Constitution a ground for judicial review. The Arbitrator has the power to determine all issues the case raises except the enforceability of fundamental human rights under Article 33. Since the law, Act 930 has provided a remedy for an aggrieved person or entity to resort to arbitration, the applicant is enjoined by law to submit himself to arbitration. For, after all, it is the duty of the courts to uphold Acts of Parliament. It has been said that the courts are the servants of the legislature in terms of construing laws passed by Parliament. The appeal therefore succeeds in its entirety on this ground alone. 2nd ground of appeal - Excessive costs awarded: The appellant argues that the costs of Ghc15,000.00 the lower court awarded against the dismissal of the preliminary objection is quite excessive. The settled law is that the award of costs is at the discretion of the court. There is no binding precedence in the exercise of judicial discretion as it is so done on the basis of the circumstance of each case. However, in awarding costs the courts take certain factors into account particularly those outlined in Order 74 of the High Court [Civil Procedure] Rules, 2004 [CI 47]. The law therefore is that the appellate court would not interfere with the exercise of the trial court’s discretion save in exceptional circumstances. The exceptional circumstances may include but not limited to judicial discretion exercised on wrong or inadequate materials if shown that the court proceeded on misapprehension of facts or that that the court either gave weight to irrelevant or unproved matters or omitted to take relevant matters into account. See: Ballmoos v Mensah [1984-86] 1 GLR 724. The award of Ghc15,000. for dismissing a preliminary legal point raised in the circumstances of this case, is with all due respect to the learned trial judge, quite excessive. In any event, once the appeal is allowed in its entirety, we hereby set aside the award of the costs by the lower court. Conclusion: In summary, the application for an order for certiorari in the instant case fails and is hereby dismissed on the following grounds: 1. the application was procedurally flawed on account of the infractions stated supra; 2. an application for judicial review is of a special jurisdiction and is not pro tanto granted even where the technical grounds have been established. With the appointment of the Receiver in May 2019 who is now in charge of the management of the affected institutions listed in Exhibit EB, it shall be inappropriate to issue an order of certiorari; and 3. there is an alternative remedy under Act 930. The respondent is en- joined to submit himself to arbitration. Consequently, the appeal is allowed in its entirety. The ruling of the lower court is set aside together with its consequential orders. We make no order as to costs I agree I also agree sgd P. BRIGHT MENSAH (JUSTICE OF APPEAL) sgd MARGARET WELBOURNE (JUSTICE OF APPEAL) sgd NOVISI ARYENE (JUSTICE OF APPEAL) COUNSEL PATRICK JUSTICE ENNIM FOR RESPONDENT/APPELLANT GIDEON ABOTSI FOR APPLICANT/RESPONDENT 38