15 Aug The Republic v. High Court (Commercial Division), Accra, Ex-parte: Yvonne Amponsah Brobbey (Gladys Nkrumah – Interested Party), Civil Motion No. J5/82/2022 delivered on 1st February 2023 (Supreme Court)
“Order 66 (3) of C.I. 47 being a creature borne out of the constitutionally circumscribed powers granted by the Rules of Court Committee, is incompetent to create a novel offence of intermeddling and the sanctions attached thereto”
Gladys Nkrumah, (“Interested Party”), filed an application under Order 66 Rule 3 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) praying for an order to punish Yvonne Amponsah (the “Applicant”) for intermeddling in the estate of Richard Nkrumah (“deceased”), the father of the Applicant.
The Applicant filed a preliminary legal objection contending that intermeddling with the estate of the deceased person is a criminal offence and cannot be prosecuted by private citizens in civil proceedings. The Applicant further argued that the Rules of Court Committee (the “Committee”) that drafted C.I. 47 acted in excess of its jurisdiction by creating a criminal offence under Order 66 Rule 3. The High Court, therefore, lacked jurisdiction to hear the application of the Interested Party to punish for intermeddling.
The Trial Court dismissed the objection. The Applicant dissatisfied, invoked the supervisory jurisdiction of the Supreme Court for an order of certiorari to quash the ruling of the High Court (Commercial Division).
The Supreme Court stated that per Articles 33(2) and 157(2) of the 1992 Constitution, the mandate of the Committee is limited to making rules to regulate the practice and procedures of the Court. It was explained that such rules must strictly be confined to rules of practice and procedure as opposed to substantive legislation vesting jurisdiction in courts. Therefore, any rule promulgated pursuant to Articles 157(2) and 33(4) of the Constitution that goes beyond the scope of rules of practice or procedure is ultra vires the Constitution.
The Supreme Court held that Order 66 Rule 3 of C.I.47 on the face of it creates the offence of intermeddling and prescribes punishment of imprisonment. The Court further stated that criminal offences and the jurisdiction to try or enter into an inquiry of the same may only be created by substantive legislation and/or the Constitution. Consequently, Order 66 (3) of C.I. 47 cannot constitute a valid basis for the conduct of an inquiry into an offence of intermeddling and therefore occasions a nullity.
The Court indicated that section 17 of the Intestate Succession Law, 1985 (PNDCL 111) ought to be deemed as the offence creating law in matters of intermeddling and that the default procedure for the trial of the offence is the procedure prescribed in the Criminal & Other Offences (Procedure) Act, 1960 (Act 30) under section 1(2). The honorable Court further cited Article 88(3) of the 1992 Constitution of the Republic of Ghana and held that it is only the Attorney General or a person acting lawfully under the Attorney General’s instruction who can initiate criminal prosecutions of criminal offences including the offence of intermeddling. Thus, the Rules of Court Committee could not have been legitimately added to the list of persons to initiate and conduct criminal prosecutions.
Consequently, the Supreme Court quashed the ruling of the Trial Court in which it held that it had jurisdiction to entertain and enter into an inquiry of an alleged offence of intermeddling pursuant to Order 66 rule 3 of C.I 47 on grounds that it was a clear error of law.
Insight: Order 66 (3) of C.I. 47 cannot constitute a valid basis for the conduct of an inquiry into an offence of intermeddling. In other words, the offence of intermeddling cannot be prosecuted by civil proceedings under Order 66 of C.I. 47. Section 17 of Intestate Succession Law, 1985 (PNDCL 111) ought to be deemed as the offence creating law in matters of intermeddling and the procedure for the trial of the offence is the procedure prescribed in the Criminal & Other Offenses (Procedure) Act, 1960 (Act 30) under section 1(2).
CHRISTIAN KONADU ODAME
Trainee Legal Associate