The presentation of the various constitutional instruments in February 2019 for the newly constituted regions was met with a lot pomp and pageantry. With much joy, the chiefs in each of the new regions cladded in their traditional wear came for the Constitutional Instruments establishing their respective regions. It was synonymous with the outdooring of a new baby. For those whose towns were named as the regional capitals, they had immeasurable joy when their towns were announced.
It is important to mention that; the creation of new regions was cited in the various manifestos of political parties during the run up to the 2016 elections. The formal process leading to the creation of the new regions can be said to have commenced when the President Nana Addo Danquah Akuffo Addo setup a Commission of Inquiry referred to as the Creation of New Regions Instrument 2017 (C.I. 105). The Commission presided over by the Justice S.A. Brobbey presented its report to the President on the 26th day of June 2018. The Electoral Commission caused a referendum to be conducted on the 27th day of December 2018 and majority of Ghanaians in the selected regions voted massively for the creation of these new regions. It is important to mention that prior to the conduct of the referendum the Supreme Court dismissed an action that was brought to challenge the constitutionality of the who exercise.
With all the discussions on the new regions, one important issue that has eluded almost all or majority of stakeholders is the absence of High courts in majority of the newly created regions. Although other lower courts in these areas are important, the presence of a High Court will ensure that all cases are dealt with it whiles the absence will exclude people from the justice system. Is in this regard that one has to assess the impact of the absence of a High Court in the newly created regions of Ghana
II. THE UNIQUE PLACE OF THE HIGH COURT
It has often been said that the High Court is the most important court in terms of its place in our justice system. This is due to the sheer extent of its jurisdiction in respect to the cases it has the power at first instance to adjudicate over.
The 1992 Constitution establishes and makes the High Court the only court with jurisdiction in all civil and criminal matters except for the exclusive jurisdiction of the Supreme Court in relation to the enforcement or interpretation of the Constitution, deciding whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law, and adjudication of disputes in presidential elections as well as cause or matters affecting Chieftaincy.
In view of the wide jurisdiction of the High Court and volume of cases that its jurisdiction carries, each region prior to the creation of new regions in the country had a High Court. Some of these High Courts have several divisions focusing on specific subject matters to enhance effective and quick access to justice.
III. REGIONAL DISTRIBUTION OF HIGH COURTS IN GHANA
It has been stated that “the rationale for the creation of multiple High Courts within one region was to let the parties litigate in the High Court nearest to them and thereby save them time, energy and expenses.” It is in this light that multiple High Courts have been created.
The Judicial Service Annual Report for 2017-2018 which captures the statistics of the judiciary reveals the number of High Courts in the country as well as the names of the justice and current location.
The underneath table shows the current population of our High Courts and the number of the justices in each of the 10 regions.
REGION NO. OF HIGH COURTS NO. OF JUSTICES
ASHANTI REGION 15 12
BRONG AHAFO REGION 6 4
CENTRAL REGION 8 5
EASTERN REGION 9 6
GREATER ACCRA REGION 48 43
NORTHERN REGION 4 3
UPPER EAST REGION 2 2
UPPER WEST REGION 1 1
VOLTA REGION 6 4
WESTERN REGION 7 7
TOTAL 108 87
[Source: Judicial Service Annual Report for 2017-2018 pages 43, 60-74]
This list is inclusive of 3 high courts in the prisons that sits on cases. This was started under the Justice For All Program by the Chief Justice, which sought to make justice available for inmates, expedite cases and reduce the excessive backlog of cases pending.
A review of this table clearly shows the deficit of High Court justices in Ghana. Thus although there are 108 High Courts in Ghana we have only 87 justices. There are courts which do not have designated justices. It further reveals the bias of court infrastructure in favor of the Greater Accra Region even though Ashanti Region is the most populous. The situation is further exacerbated as the report reveals that 5 of these justices are on administrative leave, with 2 on secondment and 1 on study leave. In effect there are only 79 justices currently sitting in our courts although there are 108 courts available.
The underneath table reveals the current distribution table for High Courts and High Court justices in Ghana upon creation of the 6 new regions:
REGION NUMBER OF HIGH COURT NUMBER OF JUSTICES
AHAFO REGION 0 0
ASHANTI REGION 15 12
BONO REGION 6 4
BONO EAST REGION 0 0
CENTRAL REGION 8 5
EASTERN REGION 9 6
GREATER ACCRA REGION 48 43
NORTHERN REGION 4 3
NORTH EAST REGION 0 0
OTI REGION 0 0
SAVANNA REGION 0 0
UPPER EAST REGION 2 2
UPPER WEST REGION 1 1
VOLTA REGION 6 4
WESTERN REGION 6 6
WESTERN NORTH REGION 1 1
TOTAL 108 87
It is important to highlight that, Brong Ahafo Region is now referred as Bono Region and it’s the region that one could site Sunyani and Wenchi which are the towns where High Courts are located.
From the above table, with regards to the newly created regions, only the Western North Region has 1 High Court whiles the other new regions have no High Courts.
With these statistics, it is important for one to highlight the effect of the absence of a High Court on the justice system in the region and country.
IV. CIVIL JURISDICTION OF THE HIGH COURT
The High Court has jurisdiction in all civil cases as constitutionally empowered, save those expressly taken away by law. By civil jurisdiction we are basically referring to all cases that are not criminal. By Law, the High Courts can handle all cases handled by the lower courts but the lower courts can only handle matters expressly given to it by law.
These lower courts are geographically limited in jurisdiction: the jurisdiction of the District Courts is limited by the districts in which they are situated while the Circuit Courts are limited to the area of jurisdiction determined by the Chief Justice, which practically, usually covers a few districts. Additionally, they are greatly limited by the scope of cases they are empowered to adjudicate. Their jurisdictions over claims under contract and in tort, or in respect of immovable property are limited by the quantum claimed and value of immovable property involved in the case.
Moreover, their jurisdiction is further limited by being completely ousted in certain kinds of cases which are exclusively reserved for the High Court.
The High Court’s jurisdiction has been prescribed in terms of substantive jurisdiction and procedural jurisdiction.
The High Court under its substantive jurisdiction is clothed with exclusive original jurisdiction in matters including those related to infants; persons of unsound mind and maritime matters.It also has exclusive original jurisdiction in Parliamentary election petitions. In all these matters, no other court has the power to entertain an action at first instance in the absence of the High Court.
The enforcement of Fundamental Human Rights and Freedom under the Constitution is conferred on the High Court when a breach or likely breach affects or potentially affects individual or specific persons.
The High Court also has appellate jurisdiction in all civil matters originating from the District Court.
The effect of the absence of a High Court means that there will be no court within the region to handle matters in the region that relates to:
– Persons of unsound mind and maritime matters.
– Parliamentary election petitions.
– Personal actions in any action arising under a contract or tort for the recovery of any sum where the sum exceedGH50,000
– Actions relating to ownership, possession or occupation of land where the land value exceed GH50,000
– Enforcement of Fundamental Human Rights and Freedom.
It is important to also mention that the courts have held that there is only One High Court in Ghana sitting in various regions. Thus, the High Court in Kumasi is the same High Court in Upper West and can preside over a matter in the Ahafo Region and the decision it renders shall be held as valid.
This position notwithstanding the rules governing commencement of actions have set out issues concerning venue where civil actions in the Regions must be conducted and failure to comply with same, the Courts will order the case to be transferred to the appropriate region. This is what is described as the procedural jurisdiction of the High Court.
The Law says that where the cause or matter relates to immovable property or any interest in it or for any damage to an immovable property such as land or building the case must be filed in the Region in which the immovable property or any part of it is situated. Thus, all land cases must be filed in the Region that the land is located. For instance, A land dispute in Oti Region where the value is more than GH50, 000 must be filed in a high court situated in the region.
Furthermore, where the cause or matter that relates to movable property distrained or seized for any cause, the action must be filed in the Region in which the distraint or seizure takes place. Thus if someone unlawfully seizes your car in the Savannah Region and you want to bring a suit, you must file same in Savannah Region.
Also, where a cause or matter is against a public officer to recover penalty or forfeiture it shall be commenced in the Region where the cause of action arises. In situations where a cause or matter for specific performance of a contract or in respect of breach of contract, it shall be commenced in the Region in which the contract ought to have been performed or in which the defendant resides or carries on business. For all other causes or matters to be filed in the High Court it shall be commenced in the Region in which the defendant resides or carries on business or if there are two or more defendants resident in different Regions the cause or matter may be commenced in any of the Regions.
If a party fails to comply with these rules, a party can raise an objection for the case to be transferred to the region for which the case ought to have been filed. In PAS TIMBER CO. LTD. v. AMANING AND ANOTHER [1987-88] 1 GLR 341Following a running down accident which occurred in the Eastern Region, the plaintiffs brought an action in the High Court, Accra against (P) the first defendant, a limited liability company with its registered office in Sekondi, and Y, the second defendant, a man resident at Akim Asene in the Eastern Region. The 1st Defendant applied to have the action dismissed on the ground that it should have been commenced in Sekondi or Koforidua. The trial judge dismissed the application but the Court of Appeal overturned the decision and held that by law the action ought to have been commenced either in the High Court, Koforidua where Y. resided or in Sekondi where P. did its business. Since the cause of action arose in the Eastern Region, it was obvious that the High Court, Accra was not the proper and convenient forum where the action ought to have been brought.
Even in the same region the courts have held that the action should be brought to the High Court that is proximate as provided in the above stated rules. In VOLDEN AND OTHERS v GHANA GOLDFIELDS LTD [1999-2000] 1 GLR 462 the court ordered for a case to be transferred from the High Court, Sekondi, to High Court, Tarkwa. The court observed:
“…although no provision in the High Court (Civil Procedure) (Amendment) Rules, 1977 (LI 1107) governed the situation where there was more than one High Court in a region with jurisdiction to hear a matter, and a defendant against whom an action had been brought in one High Court applied to that court to transfer the suit to the other, it was within the discretion of that High Court to determine the application. The test to be applied in each case was whether the defendant would suffer injustice if the action was heard in the court where he did not reside or carry on business. On the facts, it would be more expeditious, proper and convenient to have the suit heard at the High Court, Tarkwa since on the balance of hardship more hardship would be caused to the defendant than the plaintiffs, if the suit was heard in the High Court, Sekondi. Accordingly, a report would be made to the Chief Justice to exercise his power of transfer accordingly.”
The implications of these decisions is that if, for instance, a party files a case involving dispute of a land sited in Dambai in the Hohoe High Court and Defendant raises an objection to the venue, the court can order for the case to be transferred to the Region where the land is located. In this case, the Oti Region where there is no High Court. Thus, the Plaintiff is left with no forum to pursue his grievance. Thus the creation of these new regions without direction on matters of justice have denied the person a right to justice, which the constitution confirms as the person for whom justice emanates from.
V. CRIMINAL JURISDICTION OF THE HIGH COURT
The criminal jurisdiction of the High Court includes all criminal offenses. It has concurrent jurisdiction in cases triable summarily, save that the District Court is conferred with jurisdiction in cases triable summarily and punishable by a term of imprisonment not exceeding 2 years or a fine not exceeding 500 penalty units or both.
The High Court retains an exclusive original jurisdiction in First Degree Felonies, Indictable Offences, offences punishable by death of life imprisonment, and the offences of treason and high treason which are tried by the High Court constituted into a special court of three Justices.
Additionally, the High Court has appellate jurisdiction in all criminal trials originating from all the lower courts.
The jurisdiction of the High Court is so essential that the District Court, even within its very limited criminal jurisdiction, is still required to report all its decisions to the High Court on a monthly basis, and a Justice of the High Court has the power to modify or vary any such decision it deems fit.
The absence of a High Court means when someone commits murder, rape or defilement in the region he must be prosecuted in a Region other than the one where the offence occurred. The absence of a High Court in the said region means the state and witnesses have to incur huge cost to travel for trial to be conducted.
VI. SUPERVISORY JURISDICTION OF THE HIGH COURT
The High Court has supervisory jurisdiction over all lower courts and lower adjudicatory bodies in ensuring they do not exceed the exercise of their powers and comply with legal procedures.
Thus, in situations where a lower court breaches the rules of natural justice the High Court will be in a position to quash the decision. The absence of High Court in the region means no High Court can supervise them.
VII. THE WAY FORWARD
Considering the existing law, absence of a High Court poses a potentially big challenge to accessing justice and justice delivery in no uncertain terms. The goal of rules of court is aimed at achieving, speedy and effective justice; avoiding delays and unnecessary expense; Ensuring that as far as possible, all matters in dispute between parties may be completely, effectively and finally determined; and avoiding multiplicity of suits in order to achieve these aims, there needs to be a High Court in every region.
The social effects with the creation of new regions may include an influx of people into the capitals and business areas, with a consequential increase in commerce and want of lands for residential as well as commercial and industrial purposes. This will have a potentially direct legal and judicial implication as a result of increase civil disputes arising from business contractual issues, issues of conveyance of land for the various purposes, which will require resolution by the courts of which the High Court would play a major role. Thus, in the absence of High Courts to deal with these issues in those regions, there is likely to be chaos as far as these matters are concerned.
Ultimately, the rapid urbanisation and quick population growth that will occur in these newly created regions will potentially result in an increase in crime. There is no question that this would hamper access to justice in the absence of a judicial practice direction or executive intervention on how this vacuum should be filled.
The writer recommends the following steps:
1. In the interim the Chief Justice should issue a Practice Directive designating the registry of the lower courts in the new Regions to serve as a High Court and send judges to sit. This step is not a novelty as same has been done for the Court of Appeal. All the justices of the Court of Appeal are accommodated in the Greater Accra Region but registries have been created in the other regions and they are sent there to sit when the hearing dates are fixed. It is in this regard that parties who appeal against the decision of the High Court in for instance Upper West Region can file an appeal before the Court of Appeal Registry in Tamale and not in Accra as previously done.
2. Since in Law, the High Court in Tamale is deemed as the same court in Accra, the Chief Justice can also issue a Practice Direction indicating that the former High Courts which use to cover that geographical land mass of the new region should continuously serve as the High Court of the New Regions until the necessary infrastructure is put in place in the New Regions. Thus people from the Savannah Region and North East Region should continue file their cases in the Northern Region whiles parties from Oti Region should continue file their cases in the Volta Region.
3. The Chief Justice can also adopt the approach that the office adopted in setting up courts in some selected prisons in the country for them to handle cases regarding inmates who could not have access to justice.
4. The Directive of the Chief Justice should also confirm that cases that ought to have commenced in the new regions but has already commenced in the old regions should go on as if same had been filed in the new region.
5. In the long term, the Executive Arm of Government has the duty to make provisions for courts, and especially High Courts in these new regions through the local governments in those regions whose duty it is to ensure access to courts.
The absence of a High Court in any region posses a serious threat to access to justice by the people of Ghana from whom justice emanates. The Judiciary headed by the Chief Justice are administering this justice for and on behalf of the people of Ghana.
In this regard the silence of the Chief Justice in addressing these patent lacunae is most worrying and does not ensure effective justice. It is the fervent hope of the writer that the 1st three recommendations can be done by a simple issuance of an administrative letter to members of the Judicial Service signed by the Judicial Secretary. For any person in doubt may refresh their memory with the case of TSIKATA V. ATTORNEY GENERAL where the Supreme Court upheld the legality of setting up the Fast Track Division of the High Court.
In all of this, it is the poor and vulnerable who will be mostly affected by the absence of courts in the new regions. In the erudite and succinct words of Justice N. A. AMEGATCHER in
“…justice delivery system is the last hope of the citizenry in a democracy. When everything else fails them, the justice delivery system should not fail them. It is, therefore, important that rules put in place for the justice system to thrive and serve the citizenry without fear or favour are respected by all, Ghanaians and foreigners alike.”
Article 140(1) of the Constitution, 1992; section 15(1)(a) of the Courts Act, 1993 (Act 459)
Article 130(1) of the Constitution, 1992
 Article 64(1) of the Constitution, 1992
VOLDEN AND OTHERS v GHANA GOLDFIELDS LTD [1999-2000] 1 GLR 462
s. 40(2) & 47(1) of Act 459
ss. 42(1) & 47(1) of Act 459
ss. 18, 19 and 20 of Act 459
Article 99 of the Constitution, 1992.
 Articles 33& 140(2) of the Constitution, 1992
s.15(1)(c) of Act 459
 ss. 18, 19 and 20 of Act 459
 Article 99 of the Constitution, 1992.
ss.15(1)(a) & 43 of Act 459
 s.48(1)(a) of Act 459
Article 140(1) of the Constitution, 1992; s.15(1)(b) & (c) of Act 459
s.52 of Act 459
Article 141 of the Constitution, 1992; s.16 of Act 459
 s.10(3)(g) of the Local Government Act, 1993, Act 462
 ATUGUBA & ASSOCIATES VRS SCIPION CAPITAL (UK) LTD . & HOLMAN FENWICK WILLIAN LLP [CIVIL APPEAL NO. J4/04/2019 3RD APRIL, 2019]