A: Introduction
One
of the most fundamental aspects of any court case – be it civil or criminal –
is service of court processes on the persons involved in the case. The basic
reason is that no one must be condemned by a court without being given an
opportunity to tell their side of the story. The principle of natural justice[1]
requires that every party in litigation must be given the opportunity to be
heard before a court makes its decision or gives its judgment. Where a court
violates this principle and proceeds to take a decision in a case without
affording a party the chance to appear and be heard in their defence, the
affected party can apply to a higher supervisory court for an order of certiorari to quash the impugned decision.
In
March, 2024, the Supreme Court gave judgment in a case - Republic v High Court, Accra (Criminal Law Division 5); ex parte
Benjamin Akuffo Darko (Attorney General & Inspector General of Police
Interested Parties)[2] - in which an applicant (a member of a
group known as “Democracy Hub”) had applied for certiorari to quash a High Court decision. His agitation was that
the High Court made a decision against him even though he was not served with
any hearing notice of the application. There was evidence to support his
assertion that he was not given any notice that the case was coming on for
hearing on the particular day. Surprisingly, the Supreme Court held that the
High Court decision was valid.
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This
article examines the facts of the case that was heard by the Supreme Court. It
also analyses the effect of short service and non-service of court processes on
parties in litigation. The article concludes that in the light of cogent
evidence that showed that the applicant was not served with any hearing notice
to attend the proceedings at which an injunction was issued to restrain him and
others from organizing a public demonstration against the Government, the
Supreme Court was wrong in dismissing his application for certiorari. The decision may struggle to find a place on the
Supreme Court’s list of binding precedents.
B: The Case of Ex parte Akuffo Darko (The Democracy Hub
case)
On
5th March, 2024, the Supreme Court gave its decision in a case titled Republic v High Court, Accra (Criminal Law
Division 5); ex parte Benjamin Akuffo Darko (Attorney General & Inspector
General of Police Interested Parties).[3]
That was the case in which a Democracy Hub member applied for certiorari to quash a High Court’s order
of injunction restraining Democracy Hub from holding a public demonstration.
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i) Background: The
background to the case is as follows: On 9th October, 2023, Democracy Hub, a registered
Civil Society Organisation, informed the Inspector-General of Police (IGP) that
it intended to hold a public demonstration in Accra. Officials of Democracy Hub
and Ghana Police Service held several meetings to agree on a date for the
demonstration that would be convenient to both parties. But they could not
reach any consensus. In the event, Democracy Hub decided to go ahead and hold
their demonstration on their own chosen date without the Police’s input.
When
the Police Service heard of Democracy
Hub’s intended action, the IGP filed an application on notice at the High Court
for injunction to restrain Akuffo Darko (an officer of Democracy Hub and later,
the applicant in the Supreme Court case) and his group from holding any special
event between 1st December, 2023 and 5th January, 2024.
The
IGP’s application for injunction was served on Democracy Hub but they were
short- served (by a day) because they were not given the statutory three (3) clear
days between the date of service and the hearing of the application.[4]
Democracy Hub and its representatives failed to attend court on the date of
hearing. But it later confirmed that they learned from the media later that day
that when the case was called in court on 21st November, 2023, the
Court adjourned the hearing of the motion for injunction to the
following day, that is, 22nd November, 2023. Again, no one from Democracy Hub attended
the court session on 22nd November, 2023. But the court proceeded to
hear the motion and issued an order prohibiting Democracy Hub from holding any
special events between 1st December, 2023 and 5th January,
2024.
Democracy Hub, acting through its office, one Akuffo Darko, applied to the
Supreme Court for an order of certiorari
to quash the High Court’s order made on 22nd November, 2023 on the grounds
of breach of the rules of natural justice. The reasons for the application were
that the adjournment from 21st November, 2023 to 22nd November,
2023 was without notice to him.
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Both the IGP and Attorney-General were served with copies of the application as
well as hearing notices for the hearing before the Supreme Court. But neither of
them filed any processes in response nor attended the hearing.
ii) The Supreme Court’s
Decision: The Supreme Court dismissed Akuffo Darko’s application. It
did not grant the order of certiorari. The
reason was that the short service of the motion slated for 21st November,
2023 was a mere irregularity and not a nullity. Therefore, by failing to attend
the proceedings slated for 21st November, 2023, the applicant
deprived himself of the opportunity to be heard in the proceedings. He could
not, therefore, turn around and accuse the High Court of breaching his rights
to natural justice.
Secondly,
the Supreme Court agreed with the applicant’s contention that adjourning a case
without notice to a party, constitutes a violation of the audi alteram partem rule of natural justice.[5]
But surprisingly, the Court held that
it was the applicant’s duty, as any prudent litigant would do, to have enquired
about the outcome of the proceedings of 21st November, 2023 and advise himself
appropriately. Once the applicant failed to find out that the case had been
adjourned to the next day and, thus, did not attend court, the adjournment of
the proceedings to 22nd November, 2023 did not occasion any breach
of the audi alteram partem rule of
natural justice, such as to affect jurisdiction.
C: Why It Is Difficult to Support the Supreme Court’s Decision
The
Supreme Court’s decision in Ex parte
Akuffo Darko is one that may be tough to support or defend on several
grounds. First of all, on a careful reading of the decision, one realizes -
with all due deference to the Court – that the Court set down an issue that was
moot and expended its energy on justifying it. The issue as set down was this: Does
short service give rise to a mere procedural irregularity, or does it acquire a
jurisdictional character that renders all proceedings founded upon it a nullity?[6]
It is contended that the issue of short service was moot because the High Court
acknowledged it and adjourned the case to the next day. Therefore, the
fundamental issue the Supreme Court had to settle was whether the High Court
had jurisdiction to hear the application for an injunction the very next day,
without making an order for the absent respondent to be served with a hearing
notice, nor granting leave for short notice of one day under the High Court
Rules.[7]
In other words, the main issue for determination was one of non-service, rather
than short-service.
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Secondly,
assuming for the purposes of argument that the issue of short service was
relevant, the position on service of notice to parties in court hearings and
proceedings adopted by the Supreme Court strikes at the heart and soul of
fairness and justice. The Supreme Court quoted with approval the wise counsel
of Amissah, JA in Vasquez v Quashie,[8]
thus:
"A court making a decision in a case where a party does not appear because he has not been notified is doing an
act which is a nullity on the ground
of absence of jurisdiction. A person who is condemned in his absence in proceedings of which he has no
knowledge cannot be limited as
to the time within which he may repudiate the decision."
Relying on Amissah,
JA’s dictum above, the Supreme Court admitted that the applicant was not
notified of the new hearing date of 22nd November. But the Supreme
Court turned around and held that the High Court’s decision of 22nd
November was not a nullity. The decision may, perhaps, only be explained by
oracular intervention. The Supreme Court, in trying to justify its conclusion, placed
the burden of giving notice of the 22nd November hearing on the
absent respondent! This is how the Court delivered its position: “We think it
was incumbent upon the Applicant as any prudent litigant would do, to have enquired
about the outcome of the proceedings of the 21st of November 2023 and advised himself
appropriately.”
It is submitted that the
rules of court, case law and the settled practice of the courts do not lend
support to the Supreme Court’s latest invention in this case. It is a basic
fact in litigation proceedings that it is an applicant in proceedings who must
take steps to bring court processes and proceedings to the attention of a
respondent. It has never been the case that an applicant files a process or
initiate proceedings, attend court hearings and go to sleep. And a respondent
must then buckle his shoes and go searching for information on court
proceedings held without notice to him. Not surprisingly, no serious foray was made to support the
Court’s decision with direct and applicable authorities.[9]
The forensic spring dried up even
before it could well up, to borrow the words of Francois, JA (as he then was)
in Afrifa v Class-Peter.[10]
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To be fair, the Supreme
Court cited the case of Aponsah v Okailey[11] in support of its decision for the reason
that it “presented facts which bear a striking resemblance to those
existing in the instant application.” But as will be demonstrated presently,
that assertion could not be farther from the reality. In fact, in the Aponsah case, it was the plaintiff who
applied for adjournment but failed to attend court. If anything, there is a
striking dissemblance with Ex parte
Akuffo Darko and so, the Aponsah
case did little to bolster the conclusion reached by the Supreme Court.
Now,
to appreciate the full effect of Aponsah v Okailey,[12] and the assertion that it does not support
the Supreme Court’s decision in Ex parte
Akuffo Darko,[13]
a detailed discussion is necessary. What happened in Aponsah
v Okailey[14] was that, Nii Aponsah (the plaintiff)
failed to attend court on the date that had been fixed for the case to be
heard, that was, 2nd May, 1989. He had written a letter for a long adjournment
but the judge rejected the request for adjournment. The judge rather adjourned
the case to the very next day, that is, 3rd May, 1989. On that day, Nii Aponsah
again failed to go to court. The judge struck out the case for want of
prosecution.
Nii
Aponsah later applied for an order to reinstate his case but the judge refused
to grant the order. He filed an appeal to the Court of Appeal. The Court of
Appeal dismissed the appeal. It held that the trial judge had exercised his
discretion judicially when he refused to vacate the order striking out Nii
Aponsah’s case for want of prosecution. In arriving at the above conclusion,
the Court of Appeal reasoned that Nii Aponsah had failed to act with ordinary
prudence when he neglected to check on the fate of his application for
adjournment on 2nd May, 1989, and advise himself appropriately.
It
is contended that what happened in Nii Aponsah’s case (Aponsah v Okailey[15]) is
radically different from what happened in the Democracy Hub case (Ex
parte Akuffo Darko[16]) under discussion. The reason is not
far-fetched. In the Democracy Hub case, unlike Nii Aponsah’s, it was not
Democracy Hub’s application that was short-served. It was rather the IGP’s
application for injunction that had been short-served on Democracy Hub.
Therefore, the burden or responsibility of informing Democracy Hub that the
application had been adjourned to the next day rested on the IGP, and by
extension, the Police Service. After all, it was the IGP’s application that had
been adjourned.
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By
law, since the application was made on notice, the IGP was bound to give
Democracy Hub and its member-respondents notice of the return date for the
hearing of the motion.[17]
The need to give notice before the hearing of the application is to afford the
intended respondent ample opportunity to file a response by way of affidavit in
opposition or raise a legal objection to the application at the hearing. Thus,
since Democracy Hub and company were short-served for the 21st November
proceedings, and were not served at all for the 22nd November
hearing, they could not by any stretch of language be said to have waived their
right to be heard, as the Supreme Court asserted.
D: Practical Steps to Be Taken When There Is Short-service of Court Processes
When
a person is served with court documents requiring court attendance, but the
period of notice is too short (that is, there is short service), it is not
prudent for the person to just ignore the processes and refuse to attend court.
The person must endeavour to inform the court of the reason for his absence. In
that regard, it is advisable to write a letter to the Registrar of the Court
concerned, informing her of the short service. If the party will be unable to
prepare and attend court for the hearing because of the short service, she must
state so in the letter. Most importantly, she must request for an adjournment
and suggest a convenient date to which the hearing could be adjourned.
Such
course of action serves several purposes. First of all, it informs the court
the reason why the party is absent from court on the hearing day. Secondly, once
the letter suggests a possible date of adjournment, if the court and the other
party agree to go by it, there may be no need to issue and serve hearing notice
on the absentee. But if the court and the other party find the suggested date
inconvenient and fix a different date, the other party will be duty bound to
serve a hearing notice on the absentee, whether the court orders it or not.
Thirdly,
writing formally to inform the court of the reason for the absence shows due
courtesy and deference to the court. It is also attuned to the best traditions
of the legal profession. Parties and lawyers (as officers of the court) ought
to demonstrate utmost respect for the courts and court processes. Refusing to
attend court on grounds of short service may be permissible under law but it is
not in accord with the settled practice of the courts. Failing to inform the
court of one’s absence and the reasons thereof will cut no ice with many a
judge.
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E: Police Permission/Concurrence For Demonstration: Did Archer, CJ & Co. Speak in Vain?
Before
ending this piece, there is one issue that sticks out like a sore thumb in the
fall out of the Democracy Hub case. It is the benignly unconstitutional power
the Police Service continue to arrogate to themselves to determine when and how citizens can
exercise their fundamental right of assembly, including organizing or
participating in demonstrations and public protests. The question regarding the
need for citizens to seek Police permission before embarking on demonstrations
in this Fourth Republic was put to rest over 32 years ago.
It
was in the case of New Patriotic Party v Inspector-General of
Police,[18] a case widely considered as the locus classicus on the subject. This was the case in which the New
Patriotic Party sued the IGP for a declaration that the requirement of police
permits for meetings and processions in public places was unconstitutional. The
Supreme Court granted the declaration and the need for police permits was held
to be against the fundamental human rights of citizens. Chief Justice Archer,
speaking about the law[19]
which introduced police permits for
meetings and processions in public places, declared in his famously rich
language as follows:
“It
seems incongruous that legislation that was originally meant to control asafo
companies, yam festivals, fetishes, a century ago, should be allowed to develop
into hideous and ugly tumours on the near immaculate face of our present
Constitution, 1992. Those who introduced police permits in this country do not
require police permits in their own country to hold public meetings and
processions. Why should we require them?”
After
32 years of having unequivocally rejected the law that restrained citizens from
enjoying their right and freedom to assemble, it is difficult for one to
sanction the recent phenomenon where the
Police Service - almost as a matter of routine - apply for injunction orders
whenever citizens inform them of their plans to hold public demonstrations. As
it happened in Ex parte Akuffo Darko,[20] the
courts mostly grant such applications, effectively clothing the Police Service
with the very power that the Supreme Court graciously stripped off them in New Patriotic Party v Inspector-General of
Police.[21] This is more so the situation where the
intended public protest appears likely to have an effect on the fortunes of a
ruling Government.
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The
Supreme Court’s recent decision in Ex parte Akuffo Darko[22] - justifying an injunction order made against
the organizers of a public protest without their notice or participation in the
proceedings - represents a new low in the gradual erosion of citizens’ rights
under the Fourth Republic. It is not surprising that the Supreme Court in Ex parte Akuffo Darko[23] failed to make any reference to New Patriotic Party v Inspector-General of
Police[24]
at all.
In 1993, the New Patriotic Party (NPP), as a
political party in opposition, was the plaintiff in New Patriotic Party v Inspector-General of Police[25] and won the case. The Supreme Court
declared the Public Order Act of 1961 unconstitutional. In 2024, the NPP was the
party in power and the Supreme Court declared that an injunction order obtained
by the IGP to restrain an impending public protest without organisers’ notice
or participation was valid. Surely, the category of ironies is never closed.
F: Conclusion
If
any party had to suffer for the shortcomings of the High Court in Ex
parte Akuffo Darko,[26]
it was the IGP (and by extension, the Police Service), not Democracy Hub. The
IGP was the applicant who failed to notify the respondents of the new date for
hearing. The one-day adjournment itself left a lot to be desired.
In
the light of the foregoing discussion, one does not need to be a soothsayer to
predict that this decision - Ex parte Akuffo Darko[27] - may
not stand up to scrutiny as a viable precedent. If by any stroke of luck the
decision stands, its life would be wholly undeserved. The Supreme Court
itself may be wary to follow it. Lower courts may avoid it like a cancerous
tumour.
[1]
The principle known as the audi alteram partem rule
[2]
Civil Motion No. J5/18/2024 ruling dated 5th March, 2024, SC (Coram: Amadu, Kulendi, Barbara Ackah-Yensu, Gaewu
& Darko Asare, JJ.SC), simply referred to as Ex parte Akuffo Darko
[3]
Civil Motion No. J5/18/2024 ruling dated 5th March, 2024, SC (Coram: Amadu, Kulendi, Barbara Ackah-Yensu, Gaewu
& Darko Asare, JJ.SC), simply referred to as Ex parte Akuffo Darko
[4]
Order 19 rule 2 (1) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47)
[5]
See: Vasquez v Quashie
[1968] GLR 62
[6]
Source: P. 9 of the case report as published by GHALII available at https://ghalii.org/akn/gh-hr-accra/judgment/ghasc/2024/2/eng@2024-03-05
(accessed on 6th January, 2026)
[7]
Under Order 19 rule 2 (2) of the High Court (Civil Procedure) Rules, 2004 (C.I.
47), the High Court could have granted leave to the IGP (the applicant) to
short serve Democracy Hub to appear for the hearing the next day. However,
there is no indication on record that such leave was sought or granted at all
[8]
[1968] GLR 62 at 65
[9]
Indeed, the cases cited rather support the applicant’s argument that the motion
for injunction heard on 22nd November, 2023 without notice to the
applicant was a nullity. The cases include In re Kumi (Dec’d); Kumi v Nartey [2007-2008] SCGLR 623; Republic
v High Court, Accra; ex parte Salloum (Senyo Coker interested party) [2011] 1 SCGLR 574; Republic v High Court, Accra; ex parte Allgate Co Ltd (Amalgamated Bank
Ltd Interested Party) [2007-2008] 2 SCGLR 1041; Boakye v Tutuyehene [2007-2008] 2 SCGLR 970. Yet a greater number
of the cases cited are also clearly distinguishable. These include Republic v High Court (Human Rights
Division), Accra; ex parte
Josephine Akita (Mancell-Egala and Attorney-General,
Interested Parties) [2010]
SCGLR 374 where the applicant was held to have deliberately absented herself
from court which constituted a waiver of her right to be heard. See also: Republic v High Court (Fast Track Division);
ex parte State Housing Co. Ltd. (No. 2) [2009] SCGLR 189
[10]
Afrifa v Class-Peter [1975] 1
GLR 359 at 361, CA
[11]
[1992-93] GBR 86, CA
[12]
[1992-93] GBR 86, CA
[13]
Civil Motion No. J5/18/2024 ruling dated 5th March, 2024, SC (Coram: Amadu, Kulendi, Barbara Ackah-Yensu, Gaewu
& Darko Asare, JJ.SC), simply referred to as Ex parte Akuffo Darko
[14]
[1992-93] GBR 86, CA
[15]
[1992-93] GBR 86, CA
[16]
Civil Motion No. J5/18/2024 ruling dated 5th March, 2024, SC (Coram: Amadu, Kulendi, Barbara Ackah-Yensu, Gaewu
& Darko Asare, JJ.SC), simply referred to as Ex parte Akuffo Darko
[17]
Order 19 rules 1 (3) & (4) and 2 (1) of the High Court (Civil Procedure)
Rules, 2004 (C.I. 47),
[18]
[1993-94] 2 GLR 459, SC (Coram: Archer CJ, Francois, Amua-Sekyi, Aikins, Edward
Wiredu, Bamford-Addo & Charles Hayfron-Benjamin, JJSC)
[19]
That is, Public Order Act, 1961 (Act 58)
[20]
Civil Motion No. J5/18/2024 ruling dated 5th March, 2024, SC (Coram: Amadu, Kulendi, Barbara Ackah-Yensu, Gaewu
& Darko Asare, JJ.SC), simply referred to as Ex parte Akuffo Darko
[21]
[1993-94] 2 GLR 459, SC (Coram: Archer CJ, Francois, Amua-Sekyi, Aikins, Edward
Wiredu, Bamford-Addo & Charles Hayfron-Benjamin, JJSC)
[22]
Civil Motion No. J5/18/2024 ruling dated 5th March, 2024, SC (Coram: Amadu, Kulendi, Barbara Ackah-Yensu, Gaewu
& Darko Asare, JJ.SC), simply referred to as Ex parte Akuffo Darko
[23]
Civil Motion No. J5/18/2024 ruling dated 5th March, 2024, SC (Coram: Amadu, Kulendi, Barbara Ackah-Yensu, Gaewu
& Darko Asare, JJ.SC), simply referred to as Ex parte Akuffo Darko
[24]
[1993-94] 2 GLR 459, SC (Coram: Archer CJ, Francois, Amua-Sekyi, Aikins, Edward
Wiredu, Bamford-Addo & Charles Hayfron-Benjamin, JJSC)
[25]
[1993-94] 2 GLR 459, SC (Coram: Archer CJ, Francois, Amua-Sekyi, Aikins, Edward
Wiredu, Bamford-Addo & Charles Hayfron-Benjamin, JJSC)
[26]
Civil Motion No. J5/18/2024 ruling dated 5th March, 2024, SC (Coram: Amadu, Kulendi, Barbara Ackah-Yensu, Gaewu
& Darko Asare, JJ.SC), simply referred to as Ex parte Akuffo Darko
[27]
Civil Motion No. J5/18/2024 ruling dated 5th March, 2024, SC (Coram: Amadu, Kulendi, Barbara Ackah-Yensu, Gaewu
& Darko Asare, JJ.SC), simply referred to as Ex parte Akuffo Darko
