Introduction
The inherent power of the court to exercise its procedural jurisdiction to avoid injustice and ensure efficiency in litigation has long been recognized as a fundamental element of the administration of justice.
Jurisdiction can be defined as that power which the Superior Court has to decide the matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision
Inherent Jurisdiction is a creator of English Common Law. Its origins can be traced back to 1840. Baron Alderson’s decision in Cocker v. Tempest in 1840 is often cited as the originating point for the emergence of the doctrine. He commented “the power of each court over its own processes is unlimited; it is a power incident to all courts, inferior as well as superior; were it not so, the court would be obliged to sit still and see its own process abused for the purpose of injustice”.
The inherent jurisdiction of the court is a virile and viable doctrine, and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of due process of law, to prevent vexation or oppression, to do justice between the parties and to secure a fair trial between them.
Inherent Jurisdiction and Inherent Power.
There are four general categories for the use of the courts’ inherent jurisdiction. These include;
- To ensure convenience and fairness in legal proceedings;
- To prevent steps being taken that would render judicial proceedings inefficacious;
- To prevent abuses of process;
- To act in aid of superior courts and in aid or control of inferior courts or tribunals
As indicated earlier, the exercise of inherent jurisdiction is a broad doctrine allowing a court to control its own process and to control the procedures before it.
The power emanates not from any particular statute or legislation, but rather from inherent powers vested in a court to control the proceedings brought before it.
The concept of inherent jurisdiction can be divided into inherent Jurisdiction and inherent powers
Bremer Vulkan Schiffbau und Maschinenfabrik vrs. South India Shipping Corporation Ltd, Lord Diplockdescribed the court's inherent jurisdiction as a general power to control its own procedure so as to prevent it being used to achieve injustice.
Inherent jurisdiction appears to apply to an almost limitless set of circumstances. There are four general categories for use of the court's inherent jurisdiction to ensure convenience and fairness in legal proceedings to prevent steps being taken that would render judicial proceedings inefficacious to prevent abuses of process to act in aid of superior courts and in aid or control of inferior courts and tribunals.
It is pertinent to note that the subordinate court of England exercise inherent jurisdiction.
Baron Alderson made clear in 1841 in Cocker v Tempest (1841) 7 M & W 502, 503–4 (Court of Exchequer “The power of each Court over its own process is unlimited; it is a power incident to all Courts, inferior as well as superior; were it not so, the Court would be obliged to sit still and see its own process abused for the purpose of injustice”.
It should be noted that inherent power and inherent jurisdiction thought related are distinct. Thus mostly the word inherent jurisdiction is used to describe both inherent powers and inherent jurisdiction
In New Zealand, this was made clear in Watson v Clarke1 NZLR 715, 720 (NZHC), namely that there is an:
“…..important distinction between “inherent power” and “inherent jurisdiction”. The latter connotes an original and universal jurisdiction not derived from any other source, whereas the former connotes an implied power such as the power to prevent abuse of process, which is necessary for the due administration of justice under powers already conferred”.
Liang posits a similar distinction: whereas “inherent jurisdiction” indicates some sort of substantive authority based on the original and unlimited jurisdiction superior courts received from the sovereign, “inherent powers”, were instead a type of procedural authority incidental to a court’s statutory authority.
A clear example of the functional difference between inherent Jurisdiction and inherent powers is whilst Ontario’s Superior Court of Justice enjoys a jurisdiction to engage in judicial review via their inherent jurisdiction, the Federal Court of Canada – a statutory creation – only enjoys a similar jurisdiction because it was granted to it by legislation thus Federal Courts Act 1985 (RSC), section 18(1).
The family court in the UK exercise inherent jurisdiction to do among others to ensure that a child who is a subject of proceedings is protected and properly taken care.
The family court in exercising its inherent jurisdiction may make any order or determine any issues in respect of a child unless limited by a case law or statute.
However, it must be acknowledged that despite any conceptual separation, “inherent jurisdiction” and “inherent powers” share a common denominator: they each lack statutory authority. Just as inherent jurisdiction is by definition the residual jurisdiction of a court not yet codified by statute, “inherent powers arise from common law independently of the statutes which create the jurisdiction of the court.
The Ghanaian Position
The position of the Ghana law is that a Lower court has no more power than the Legislation creating it.
Thus, the Jurisdiction of the Lower Court in Ghana is limited to the provisions of the Courts Act 1993 (Act 459).
It appears that even in Ghana the word inherent jurisdiction and inherent powers are used interchangeable even though it appears it is limited to the Superior court.
In the case of Republic Vrs. High Court, (General Jurisdiction), Accra; Ex parte: Magna International Transport Ltd. (Ghana Telecommunications Co. Ltd Interested Party) (J5/66A/2017) [2018] GHASC 53 (07 November 2018), in stating the inherent power of the court to stay its proceedings the supreme court stated as follows;
“It is a well settled principle that every court has an inherent jurisdiction to stay proceedings for stated reasons which include, but not limited to, abuse of process. Indeed, in matters on appeal, especially interlocutory, the courts have always exercised an inherent jurisdiction to stay proceedings pending appeal, lest all their efforts should become fruitless, a waste of time and resources. The inherent jurisdiction of the Courts is derived from the common law, which is part of the laws of Ghana by virtue of article 11(1)(e) of the Constitution, 1992. The court’s inherent power to stay proceedings has become so entrenched in the law as to assume the status of indispensability unless clearly ousted by statute.”
Conclusion
It must be acknowledged that despite any conceptual separation, “inherent jurisdiction” and “inherent powers” share a common denominator. They each lack statutory authority.
There is therefore the need for the inferior courts to be clothed with inherent powers even if limited to ensure smoothness in the administration of justice.
Some courts are deemed by statute as superior courts, but this is only an indicator of their place on the judicial hierarchy: it does not grant them an inherent jurisdiction, which depends on a non-statutory origin. Inherent jurisdiction is, however, separate to and different from inherent powers, which all courts possess, regardless of their origins, simply by virtue of their function as a court.
