Abstract:
This paper explores the principles and practice of judicial review of administrative action within the Ghanaian legal framework. Judicial review serves as a critical mechanism for ensuring that administrative bodies operate within the bounds of legality, fairness and reasonableness. This study delves into the historical development and contemporary application of judicial review in Ghana, with a particular focus on the landmark cases of Ex Parte Ernest Thompson and Ex Parte Hoda Holdings Limited. It also examines the relevant procedural rules governing how administrative actions may be lawfully challenged.
The primary aim is to evaluate the competing perspectives on whether litigants can legitimately invoke the supervisory jurisdiction of the High Court and Supreme Court to challenge the decisions of administrative bodies and officials—a practice that has become increasingly common in recent years. The paper further analyses the recent shift in judicial attitudes regarding the procedure for contesting administrative decisions, drawing critical insights from the two pivotal cases under consideration.
Through a detailed analysis of landmark cases the paper highlights the evolving nature of administrative oversight in Ghana in light of two competing views.
Overview of Judicial Review of Administrative Action in Ghana
Judicial review of administrative action, as a common law remedy, is a process through which courts examine the decisions and actions of administrative agencies to ensure they comply with the law and adhere to principles of fairness and reasonableness.[1] In this regard, courts are empowered to assess whether the administrative action was authorised by law or whether the body under scrutiny had the legal power to take the action in question, and even if it had that power, whether same was exercised within the limits of the law.[2] Accordingly, the court is essentially called upon to determine whether the body in question acted intra vires or ultra vires.[3] It must be emphasised, however, that the remedy of judicial review applies to only public institutions mandated by statute to perform public functions.[4] That notwithstanding, it has been held that a private body that performs public functions may be amenable to judicial review provided the public function duty was not conferred on the body by contract or some agreement by the parties.[5]
Against this background, the mechanism of judicial review ensures that there is fairness in administrative proceedings, including fair hearing and impartiality of the administrative action taken. Through this process, the Court evaluates whether an administrative action taken was reasonable and procedurally compliant with the appropriate procedural safeguards imposed by law. Other assessments as to whether an administrative action taken was proportionate to its overall objectives and not overly excessive is also considered by the Court. It is important to, however, mention from the outset that judicial review of administrative action does not mandate the courts to substitute its judgment for that of the administrative authority. It is merely a remedy to check the propriety of the administrative action taken, to determine whether such action was legally and procedurally proper.
In Ghana, the High Court is the designated forum to oversee actions for judicial review of administrative actions and to enforce compliance. This remedy has been frequently explored by persons in Ghana satisfactorily; yet the invocation of the proper jurisdiction of the High Court to judicially review administrative action has always presented a double-barrelled paradox. This paper attempts, rather desperately, to untie this Gordian Knot.
First View: Supervisory Jurisdiction of the High Court as distinct from its Judicial Review Jurisdiction of Administrative Action under Common Law
Under this view, proponents observe that the supervisory jurisdiction exercised by the High Court under Article 141 of the Constitution, 1992[6] is the NOT the appropriate jurisdiction for persons to judicially review administrative action. Indeed, in the case of Republic v High Court, Denu; Ex parte Kumapley (Dzelu IV Interested Party)[7] the court opined that:
…the common law supervisory jurisdiction developed by the English High Court has been expanded and stretched to cover a motley array of public bodies judicial or administrative. Our article 141 is more modest. That power is to be exercised only over lower courts and other adjudicating authorities. Any other body is clearly outside its said jurisdiction.
This view was further buttressed in In Re Oguaa Paramount Stool; Garbrah & Others v Central Regional House of Chiefs & Haizel[8] where the Court insisted that
‘[t]he use of the expression “lower courts and other adjudicating authorities” in Article 141 limits authorities covered by article 141 to those with the power to make judicial decisions.’
Second View: Equating the High Court’s Supervisory Jurisdiction with its Judicial Review of Administrative Action under Common Law
Under this view, proponents observe that the supervisory jurisdiction exercised by the High Court under Article 141 of the Constitution, 1992[9] is the appropriate jurisdiction for persons to judicially review administrative actions. Indeed, in the case of Republic v High Court, Accra; Ex parte CHRAJ (Addo Interested Party)[10]the court opined that ‘Article 141 merely confirms the pre-existing judicial review common law power and “lower” as used in 141 does not make any difference to availability of redress in the High Court in respect of the administrative and quasi-judicial actions of CHRAJ. In other words, the courts view, in essence, was that whether or not CHRAJ is an adjudicating body, is irrelevant to the High Court’s exercise of judicial review over it. This view is supported by the cases of Tema Development Corporation & Musa v Atta Baffour[11]; Aboagye v GCB[12];Awuni v WAEC.[13]To add to this view, the case of Republic v Committee of Inquiry into Nungua Traditional Affairs; Ex parte Odai IV[14] acknowledged that the provisions in Article 141[15] are merely declaratory of the common law position on judicial review as developed in England and other common law countries including Ghana but are not intended to rid the High Court of its supervisory jurisdiction over administrative bodies. A key apprehension of the proponents of this view is that if the provision of Article 141[16] is not given a purposive interpretation, it will result in inundating the Supreme Court with all kinds of applications under Article 132 of the Constitution, 1992[17] by administrative bodies. The venerable jurist Dr Date-Bah’s judgment in Republic v Fast Track High Court, Accra; Ex parte CHRAJ (Richard Anane Interested Party)[18]seems to settle the uncertainty in favor of this view.
The Supreme Court's Contemporary Stance on the High Court’s Judicial Review Jurisdiction over Administrative Actions
4.1. The Ex parte Ernest Thompson Opinion
In 2022 the learned Supreme Court Justice Pwamang JSC in the case of Republic v SSNIT and AG Ex parte Ernest Thompson[19]in his concurring opinion, reasoned in favour of the first view discussed earlier. The learned Justice reasoned thus:
…That notwithstanding, our constitutional texts in stating the range of the supervisory jurisdiction of the High Court stopped at lower courts and adjudicating authorities. Consequently, under article 141, the High Court's supervisory powers do not extend to administrative bodies. See Republic v High Court, Denu Ex parte Kumapley (Dzelu IV Interested Party) [2002-2004] SCGLR 719. Nonetheless, since the High Court at common law exercised jurisdiction of judicial review over administrative bodies as explained earlier, to the extent that the common law is part of the laws of Ghana (article 11) and the powers the Superior Courts had before the coming into force of the Constitution, 1992 were continued by article 126(2) of the Constitution, the High Court retains its power of judicial review over administrative bodies which it had at common law. See Republic v High Court, Accra; Ex parte CHRAJ (Addo Interested Party [2003-2004] SCGLR 312. The above distinction is necessary to appreciate that the High Court in fact applies two separate jurisdictions when acting under article 141 and when it is exercising judicial review over an administrative body.” This opinion of the learned justice is premised strongly on the key fact that the grounds for which a person may successfully invoke the High Court’s supervisory jurisdiction are; want or excess of jurisdiction, breach of the rules of natural justice and error of law apparent on the face of the record.[20] However, the grounds for which a person may successfully invoke the High Court’s judicial review jurisdiction over administrative action are; illegality, irrationality and procedural impropriety.[21]
The learned Judge had this to say in drawing a distinction between these two actions thus;
Therefore, it seems to me that, the framework of our law in this area of Administrative Law is as follows; the supervisory jurisdiction of the High Court ought to be invoked only where the complaint is against a lower court or lower adjudicating authority, e.g. a judicial committee of house of chiefs. That will enable the case to be determined on the principles that have been stated in the several cases in relation to inferior courts and tribunals. The judicial review jurisdiction should be distinctly invoked in a case where the grievance is against an administrative body. The court would then focus on the grounds for judicial control of administrative action i.e. illegality, irrationality and procedural impropriety, without limiting itself to the principles developed in cases about inferior courts and tribunals which are technical and narrow.
4.2 The Ex parte Hoda Holdings Limited Opinion
In the 2024 decision of the Supreme Court of Ghana in The Republic v Bank of Ghana Ex parte Hoda Holdings Limited,[22]the learned Chief Justice, Sackey Torkornoo CJ, at paragraph 65 of the judgement addressed this brewing controversy in the following words:
Though not raised in controversy, we see that in twinning the supervisory jurisdiction over lower courts and tribunals with the jurisdiction to conduct judicial review over administrative orders in describing the source of jurisdiction over the matters in controversy in this application, the courts below have unconsciously presented the proposition that the two jurisdictions of the high court are the same. They are not, though the considerations made in the two jurisdictions are almost identical.” The learned Chief Justice at paragraph 68 canvassed the view that, “Supervisory jurisdiction is exercised over lower courts and lower adjudicating bodies and pursuant to article 141 and section 16 of Act 459, while the jurisdiction to judicially review administrative decisions is invoked pursuant to the fundamental right to administrative justice under article 23, as well as common law. This jurisdiction is exercised under section 15 (1) (a) and (b) of Act 459 and not section 16 of Act 459. It may also be invoked pursuant to article 33(1) of the Constitution, as settled in Awuni v. WAEC, op cit, or by writ as was the case in TDC v Atta Baffuor op cit. To the extent that the supervisory jurisdiction over lower courts and adjudicating bodies are specifically provided for under article 141 and section 16 of the Courts Act, and administrative justice is specifically provided for in article 23, it is practically appropriate for jurists to retain clarity concerning these identical jurisdictions when articulating the jurisdiction invoked by an action under consideration.
It can safely be argued from an assessment of the two opinions of the Supreme Court, in the cases discussed above, that the High Court’s jurisdiction to judicially review administrative action can be invoked in one of two ways and they are:
- The Common Law option preserved by articles 11 and 126(2) of the Constitution, 1992, which may be pursued under Order 55 of C.I. 47.[23]or
- The Human Rights Enforcement option provided for under article 33(1) of the Constitution, 1992[24] of a denial of administrative justice guaranteed under article 23 of the Constitution, 1992 which may be pursued under Order 67 of C.I. 47[25] relying on Section 15 of Act 459.[26]
The High Court’s Human Rights Enforcement Jurisdiction as a Forum for Judicial Review of Administrative Action: A Remedy Hidden in Plain Sight?
The human rights enforcement mechanism outlined in Article 33 of the 1992 Constitution offers a suitable remedy for judicial review of administrative action. This mechanism is vested in the High Court’s original jurisdiction, enabling it to address violations of an individual's right to administrative justice as guaranteed under Article 23 of the Constitution. Indeed, the Chief Justice in the Ex parte Hoda Holdings Limited observed that:
This is why this judgment was commenced with a statement of article 23 as the relevant constitutional provision for judicial review of administrative acts and decisions, and section 15 (1) (b) of Act 459 as the relevant provision conferring jurisdiction on the high court to deal with administrative justice.
Justice Pwamang on his part in Ex parte Ernest Thompson opined that:
Then, parties whose complaint is against administrative bodies and administrative officials but who rely on grounds that are broader than the settled grounds of illegality, irrationality and procedural impropriety, could base their case on article 23. That would empower the court to take a more liberal view of the complaint and may give directions and orders not limited to the remedies in Order 55 rule 2(1). Keeping these jurisdictional boundaries separate and distinct in the presentation of suits challenging administrative action in the High Court would, hopefully, guide judges in our jurisdiction away from constantly confining their analysis within technical rules and principles of the common law evolved for inferior courts but which have been found unsuitable for controlling administrative bodies and officials wherefore more liberal alternatives have been developed both by judicial pronouncements and statute.
Accordingly, this human rights enforcement mechanism of a denial of administrative justice as enunciated in the cases appear to be an alternative remedy and if at all, preferable as same is comparatively expeditious. Indeed, the former Chief Justice Sophia Akuffo, JSC (as she then was) in Awuni v WAEC[27] in discussing the ambit of article 23 said at p. 514 as follows;
Where a body or officer has an administrative function to perform, the activity must be conducted with, and reflect the qualities of, fairness, reasonableness and legal compliance. I will not venture to give a comprehensive definition of what is fair and reasonable, since these qualities are dictated by the circumstances in which the administrative function is performed. At the very least however, it includes probity, transparency, objectivity, opportunity to be heard, legal competence and absence of bias and ill-will.
In the same case, Justice Kpegah, JSC emphasised that human rights cases warrant liberal consideration and must be determined expeditiously. This is reflected in the streamlined procedure set out in Order 67 of C.I. 47, which facilitates faster adjudication compared to the more complex process under Order 55 of C.I. 47, typically used for invoking the High Court’s judicial review jurisdiction of administrative action under common law.
Uncertainty Settled?
It stands to reason that the High Court’s supervisory jurisdiction under Article 141 of the 1992 Constitution is somewhat limited and may be insufficient for an individual seeking to remedy defects in administrative action. As discussed, the first view—treating the supervisory jurisdiction of the High Court as distinct from its judicial review jurisdiction over administrative action—appears to be the most advocated and preferred perspective in contemporary legal practice. This distinction is critical, as invoking the supervisory jurisdiction, which is intended for authorities with judicial decision-making powers, may risk the denial of the unique remedies available under judicial review. This is particularly important because of the different grounds attendant to the invocation of the two jurisdictions. Therefore, to substitute one for the other is bound to create difficulty for a litigant, especially, in formulating the grounds under which he/she seeks to invoke the Court’s jurisdiction.
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[1] Hillaire Barnett, Constitutional & Administrative Law (4th Edn. Cavendish Publishing Limited 2002) 95.
[2] Ibid.
[3] Ibid.
[4] , R v City Panel on Takeovers and Mergers ex parte Datafin plc (1987) QB 815; O’Reilly v Mackman (1983) 2 AC 237.
[5]Republic v. Vice Chancellor, Kwame Nkrumah University of Science and Technology Ex parte Enekwa [2008]DLSC2465.
[6] The High Court shall have supervisory jurisdiction over all lower courts and any lower adjudicating authority; and may, in the exercise of that jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory powers
[7] [2003-2004] 2 SCGLR 719.
[8] [2005-2006] SCGLR 193.
[9] The High Court shall have supervisory jurisdiction over all lower courts and any lower adjudicating authority; and may, in the exercise of that jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory powers
[10] [2003-2004] SCGLR 312.
[11] [2005-2006]. SCGLR 121.
[12] (2001-2002) SCGLR 797.
[13] [2003-. 2004] 1SCGLR 471.
[14] [1996-97] SCGLR 401.
[15] Constitution of Ghana, 1992
[16] Ibid
[17] The Supreme Court shall have supervisory jurisdiction over all courts and over any adjudicating authority and may, in the exercise of that supervisory jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory power.
[18] [2007-8] SCGLR 340.
[19] Civil Appeal J4/51/2021 unreported on 15th June 2022
[20]Republic v James Town Circuit Court Ex parte Annor [1978] 453.
[21]Republic v High Court, Accra; Ex parte Chraj (supra) and Tema Development Corp v Atta Barfour & Anor [2005-2006] SCGLR 121.
[22]Civil Appeal J4/62/2023 unreported on 26th June 2024.
[23] High Court (Civil Procedure) Rules, 2004
[24] Article 33 of the Constitution provides that: “Where a person alleges that a provision of this Constitution on the fundamental human rights and freedoms has been or is being or is likely to be contravened in relation to him, then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress.”
[25] Ibid
[26] Courts Act, 1993 (Act 459) as amended
[27] [2003-2004] SCGLR 471