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R U L I N G
ATUGUBA, JSC.:
The facts of this case have been
related by my learned sister and
brother Rose Owusu and
Baffoe-Bonnie JJSC respectively.
I would not repeat them except
where necessary. The legal
issues that arose in this case
are:
(a) whether the trial High Court
was right to issue a bench
warrant for the arrest of the
applicants, the directors and
officers of the first applicant
company, who failed to appear in
court pursuant to service of
committal process on the
company;
(b) whether the continuance with
the said committal process in
the wake of and whilst the
application for stay of
execution of proceedings was
pending, was lawful; and
(c) whether the said committal
process was lawful since the
third, fourth and fifth
applicants had not been served
with the application for
committal.
The application for stay of
execution pending appeal
Before dealing with the issue of
application for stay of
execution pending appeal, I
shall first deal with the
contention that the committal
proceedings contravened rule
27(3)(b) of the Court of
Appeal Rules, 1997 (CI 19). In
my view, the order that fell to
be enforced against the
applicants was the one made by
Marful-Sau JA dated 24 July
2008. The subsequent ruling of
Kwofie J dated 20 August 2008
runs thus:
"By court: Counsel for
the defendant-applicant says the
order of interim injunction made
by Marful-Sau JA is not clear,
ie that it was unambiguous. It
was an order restraining the
defendant company from
interfering with or disrupting
the plaintiff's business or
operating in the plaintiff's
territory or in any way
undermining the plaintiff's
business until an arbitrator
determines an application for
interim injunction to be brought
before him. Until the
application for injunction is
repeated before the arbitrator
and the arbitrator rules on the
application, the order of
injunction shall remain in
force. There is nothing
ambiguous about the order.
The defendant should comply with
that order. The application for
review is refused." (The
emphasis is mine).
It is thus clear that Kwofie J
merely declared the meaning of
Marful-Sau JA's said order. It
is in this light that the
statement made by Kwofie J,
namely: "The defendant should
comply with that order. The
application for review is
refused," is to be
understood. The duty to comply
with Marful-Sau JA's order would
be the same even without Kwofie
J's addendum that "The
defendant should comply with
the order."
In the context of Kwofie J's
ruling, that statement merely
echoed his legal view as to the
legal effect of Marful-Sau JA's
order rather than a new order to
that effect. That being so, the
application for stay of
execution based on Kwofie J's
said ruling, was farcical and
could not be the basis of an
application under rule 27(3)(a)
and (b) of the Court of
Appeal Rules, 1997 (CI 19). It
is trite law that an application
for stay of execution cannot be
based on a judgment that is not
executable. Nor, as was held in
Sasu v Amua-Sekyi
[1987-88] 1 GLR 506, CA can an
application for stay of
execution be founded upon an
appeal to the Supreme Court
which was filed without
obtaining the requisite
statutory leave to appeal. So
also was it held in Khoury
v Mitchual [1989-90]
2 GLR 256, SC that where a
person's application for leave
to appeal to the Supreme Court
was first made out of time to
the Court of Appeal, it could
not be the foundation for a
"repeat" application to the
Supreme Court for special leave
to appeal. Clearly in such
circumstances the entertainment
and grant of any application for
stay of
execution would be a nullity:
see Republic v High
Court, Kumasi; Ex parte Khoury
[1991] 2 GLR 393, SC. I
therefore hold that in this case
the incidence of the appeal from
Kwofie J's said ruling and
pursuant application for stay of
execution was as regards the
latter, an illusory and
irrelevant exercise.
The issuance of the bench
warrant
It is said that the company
itself was served in this case
with notice of the application
for committal for contempt of
court; and that even if the
directors were not served, such
service, was unnecessary either
because such service was
dispensed with by the court or
that they were bound to appear
pursuant to the service on the
company itself. Arguments as to
those matters were founded on
differences between the
provisions of Orders 50 and 43
of the High Court (Civil
Procedure) Rules, 2004 (CI 47).
If a court has jurisdiction over
a matter, I do not think the
erroneous citation of the
relevant rule matters: see
Shardey v Adamtey;
Shardey v Martey
(Consolidated) [1972] 2 GLR
380, CA.
In this case the application was
for committal for contempt in
execution of a judgment or order
against a corporate body. In
those circumstances, Order 50 is
a general provision as opposed
to Order 43. It is the latter
that specifically relates to the
enforcement of judgment or order
to do or abstain from doing an
act and therefore governs the
application in this case upon
the principle of the
construction that verba
generalia specialibus non
derogant. As the applicant
chose enforcement by means of
committal, the relevant
provision is, particularly, on
the facts of this case, Order
43, rr 5(1)(b)(cc)
and 7(1) and (2). It is plain
that under these rules, without
service on the relevant
directors or officers, as in
this case, committal, cannot
lie. That being so, service of
the committal application on the
company as opposed to the
directors or officers was a
misdirected step. The company,
indeed, ought to be struck out
from this application. I say
this not oblivious of the fact
that the word "may" is used in
rule 5(1)(b)(cc)
of Order 43 relating to
committal in execution of a
judgment or order against a
body corporate.
It was for these reasons that I
agreed with the decision of this
court on 14 January 2009 that
the application for certiorari
be granted.
I would hereby direct the court
below to strike out the first
applicant company from the
committal application. I would
further prohibit that court from
continuing with the application
for committal unless the
directors of the company, ie the
third, fourth and fifth
applicants, have been served
with the committal application
and any other necessary process.
W. A. ATUGUBA
(JUSTICE OF THE SUPREME COURT)
OWUSU (MS), J.S.C.:
Was invited by the President of
the court to first deliver her
opinion.
On 14 January 2009, this court
unanimously granted the instant
application for an order of
certiorari and indicated
that we shall give our reasons
later. I therefore proceed to
give my reasons.
This is an application to invoke
the supervisory jurisdiction of
this court under article 132 of
the 1992 Constitution for an
order for directions,
prohibition and certiorari
directed at the High Court,
(Commercial Division) Accra,
presided over by Kwofie J for
the purpose of moving into this
court the order of that court
dated 18 September 2008 for same
to be quashed on the grounds of:
(i)
want of jurisdiction to
order bench warrant to issue for
the attachment of the applicants
in the purported execution of an
order of injunction contrary to
rule 27(3) of the Court of
Appeal Rules, 1997 (CI 19);
(ii)
violation of rules of
natural justice in purporting to
hear an application for contempt
against the applicants which was
not served on the applicants;
and
(iii)
disregard of the rules of
court that rendered null and
void the order for bench warrant
to issue.
The events leading to the filing
of the instant application are
as follows: The first applicant
is a limited liability company,
a provider of mobile cellular
telephone services in Ghana. By
a dealership agreement entered
into by the company and
Superphone Co Ltd, the
interested party herein, the
interested party was appointed
by the first applicant, Millicom
Ghana Ltd, a distributor of the
first applicant's phone cards in
a defined territory. Copy of
the said agreement was attached
to the affidavit in support of
the applications as HCN 1. By a
letter dated 15 January 2008, a
copy of which was attached to
the affidavit in support and
marked HCN 2, the said agreement
was terminated by the first
applicant.
Following the termination, the
interested party instituted an
action in the High Court
(Commercial Division) Accra,
claiming the following reliefs
against the first applicant:
"(a) a declaration that the
notice of intention to terminate
the dealership agreement
between it and the defendant
company does not amount to a
termination of the said
agreement and as such the
dealership agreement dated 16
November 2007 between the
parties is valid and binding on
them;
(b) further declaration that
clause 8.3(b) of the agreement
aforesaid which gives the
defendant the right to terminate
the said agreement forthwith on
grounds of 'territory invasion'
is vague, unreasonable and
unconscionable and as such
inapplicable by virtue of the
provisions of clause 10.4 of the
said agreement;
© a further declaration that
the conduct of the defendant in
allowing a rival dealer to
operate within the plaintiff's
territory is tantamount to an
undue interference in and a
disruption of the plaintiff's
business;
(d) a further declaration that
the conduct of the defendant in
discriminating against it in
favour of Lebanese owned
companies smacks of racial
discrimination and such is
entitled to protection under the
Protection Against Unfair
Competition Act, 2000 (Act 589);
(e) an order of this honourable
court directing and mandating
the defendant to specifically
comply with the terms of the
agreement dated 16 November
2007; and
(f) an order of injunction
restraining the defendant, its
servants, agents, other dealers
and assigns from interfering
with, disrupting, allowing other
dealers or agents to operate in
or in any way undermining the
plaintiff's business."
Accompanying the writ of summons
and the statement of claim was a
motion on notice for an order of
interlocutory injunction under
Order 25, r (1) of the High
Court (Civil Procedure Rules),
2004 (CI 47).
The writ of summons, statement
of claim and the motion having
been served on the defendant,
the defendant applied for stay
of proceedings pending
arbitration in terms of the
dealership agreement.
On 24 July 2008, the motion for
injunction and the one for stay
of proceedings came before the
High Court (Commercial Division)
Accra presided over by
Marful-Sau JA. The application
for stay was granted and the
parties ordered to refer the
dispute for arbitration pursuant
to clause 3:1:2 of the
dealership agreement. However,
the motion for interlocutory
injunction was granted on terms.
The defendant was restrained
from interfering with or
disrupting or operating in the
plaintiff's territory or in any
way undermine the plaintiff's
business. The injunction was to
be repeated before the
arbitrator for a determination
and the said determination shall
vacate the order for injunction
granted by the High Court
without prejudice to the rights
of any of the parties.
By a letter dated 1 August 2008,
counsel for the plaintiff drew
the defendant's attention to the
order of the court and attached
a copy of it to the letter. On
24 July 2008, when the
applications were heard, both
parties, ie the plaintiff and
the defendant were absent in
court.
On 20 August 2008, an
application for review of the
order of Marful-Sau JA dated 24
July 2008 was refused by Kwofie
J who ordered the defendant
company to comply with it. On
25 September 2008, the defendant
filed an application for stay of
execution pending appeal against
the ruling and order of Kwofie J
given on 20 August 2008, having
on the same day appealed against
the ruling. The notice of
appeal was filed on 28 August
2008.
Meanwhile, the plaintiff had, on
8 August 2008, filed a motion on
notice for an order of committal
for contempt against each of the
five respondents in that
application, namely Millicom
Ghana Ltd, Percy Grundy, G
Townley, T Insa and R Rodero all
of Millicom Ghana Ltd. The
third, fourth and fifth
respondents are directors of the
first respondent’s company and
the second is the chief
operating officer of the
company.
On 18 September 2008, the
application for stay of
execution was moved by counsel
for the defendant but same was
dismissed. When the application
for stay was dismissed, that
same day, counsel for the
plaintiff, the interested party
in the instant application,
sought to move the motion for
committal. At that time, counsel
for the respondents in that
application, pointed out to the
court that the respondents have
not been served. However,
counsel for the applicant,
seeking the committal order,
then said one of the
respondents, ie the first
respondent company, Millicom
Ghana Ltd, had then been served,
so he would proceed against the
company.
In spite of counsel's insistence
on personal service on the
alleged contemnors, counsel for
the applicant persisted in his
moves to go on with the
application for the committal
order against the first
respondent company because, at
least, the company had been
served. He did, however, not
indicate how and on whom service
was effected on behalf of the
company. When the court drew
counsel's attention to the fact
that the first respondent was
not in court, because there was
nobody representing the company
in court, counsel for the
plaintiff informed the court
that, the company was
represented in the person of
Helen De Cardi Nelson. Who is
this Helen De Cardi Nelson? In
an affidavit in support of the
present application for an order
of certiorari, she
describes herself as "an
in-house lawyer" for the first
respondent company.
In this application, even though
it is indicated that the motion
for committal was brought under
Order 50 of the High Court
(Civil Procedure) Rules, 2004
(CI 47), counsel for the
applicants has argued it as if
same has been brought under
Order 43. Under the said Order
50, r 1(4), subject to sub-rule
(5), "the notice of motion
together with a copy of the
affidavit in support of the
application shall be served
personally on the person sought
to be served." (The
emphasis is mine). This in
effect means that proceedings in
an application for contempt
cannot commence until the court
satisfies itself that the
respondent to the application
has so been personally served.
Order 50 is silent on whom
service of the motion together
with the affidavit should be
served where the person sought
to be committed is a corporate
body.
However, section 263(1) and (3)
of the Companies Act, 1963 (Act
179), provides that:
"(1) A document may be served on
a company by leaving it at, or
sending it by post to, the
registered office of the
company, or the latest office
registered by the Registrar as
the registered address of the
company.
(3) Where a company does not
have a registered office,
service on a director of the
company or, if the company does
not have a director or if a
director cannot be traced in the
Republic, on a member of the
company, shall be deemed good
and effectual service on the
company."
In the case of Barclays Bank
of Ghana Ltd v Ghana
Cable Co Ltd [1998-99] SCGLR
1 the court (per Acquah JSC) (as
he then was), and Charles
Hayfron-Benjamin JSC concurring
(both of blessed memory) held
(as stated in holding (1) of the
headnote) that:
"A court has generally no
jurisdiction to proceed against
a party who has not been
served. Accordingly when a
defendant complains that he has
not been served with a writ of
summons or any process which
requires his personal service,
the court is duty bound to
examine the complaint thoroughly
and make a definitive finding
irrespective of whether there is
proof of service or entry of
appearance on behalf of that
defendant."
Consequently, notwithstanding
the presence of Helen De Cardi
Nelson in court, when counsel
for the first respondent in that
application insisted that the
respondents had not been served,
the trial judge should have
satisfied himself that the
company has been properly
served, as required by section
26(1) and (3) of the Companies
Act, 1963 (Act 179), especially
where there was no proof of such
service of the motion for the
order of committal. In the
absence of such proof, the court
was not seised with jurisdiction
and therefore incompetent to sit
on the application and for this
reason, certiorari will
issue to quash the order for
bench warrant to issue against
the directors of the company.
Assuming (which is denied) that
the first respondent company was
served, it is against the same
directors or any of them that
the applicant for committal
order can proceed. Where
therefore, these directors or
any member of the company have
not been served, there cannot be
proper service on the company.
Article 132 of the 1992
Constitution provides that:
"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."
The law is settled that the
supervisory jurisdiction of the
court under article 132 of the
Constitution is exercised only
in those manifestly plain
obvious and clear cases where
there are patent and obvious
errors of law on the face of the
record which error must go to
the jurisdiction of the court so
as to make the decision of the
court a nullity. This
proposition of law has been
stated clearly in the decided
cases like Republic v
High Court, Accra; Ex parte
Industrialization Fund for
Developing Countries
[2003-2004] 1 SCGLR 348;
Republic v High Court,
Accra; Ex parte Commission on
Human Rights and Administrative
Justice (Addo Interested Party)
[2003-2004] 1 SCGLR 312 and
Republic v Court of
Appeal, Ex parte; Tsatsu Tsikata
[2005-2006] SCGLR 612. In
the Tsatsu Tsikata case,
her Ladyship Georgina Wood JSC
(as she then was) reading the
lead ruling of the court (as
stated at page 619 of the
Report) said:
"The clear thinking of this
court is that, our supervisory
jurisdiction under article 132
of the 1992 Constitution, should
be exercised only in those
manifestly plain and obvious
cases, where there are patent
errors of law on the face of the
record, which errors either go
to jurisdiction or are so
plain as to make the impugned
decision a complete nullity. It
stands to reason than, that the
errors(s) of law alleged must be
fundamental, substantial,
material, grave or so serious
as to go to the root of the
matter. (The emphasis is
mine).
The first ground on which the
application for certiorari
is based, is that the bench
warrant issued for the arrest of
the directors of the company was
void because when the order was
made, the trial court did not
have the power, competence or
jurisdiction to make it. I would
uphold the first ground and
grant the application.
Counsel for the applicants also
referred to rule 27(3)(b)
of the Court of Appeal Rules,
1997 (CI 19), which stipulates
that:
"There shall be a stay of
execution of the judgment or
decision, or of proceedings
under the judgment or decision
appealed
(b) for a period of seven
days immediately following the
determination by the Court below
of an application under sub-rule
(1)(a) where the
application is refused by the
Court below."
When the application for stay
was refused, counsel submitted
further that the trial High
Court should have stayed its
hands for the period of seven
days in compliance of rule
27(3)(b) of CI 19 before
proceeding to hear the committal
proceedings. It therefore lacked
jurisdiction when it purported
to hear the application for
committal and consequently
issued the order for bench
warrant. Rule 23(3)(b)
of CI 19 is clear in its
terms: Where the statutory
seven days' period had not
elapsed, again, the court was
not seised with jurisdiction to
entertain the committal
proceedings and, for that
reason, the order issued for
bench warrant is void and the
court in exercise of its
supervisory jurisdiction ought
to bring same into this court
for the purpose of quashing it.
The errors of law complained of
(as indicated above) are so
manifestly plain, fundamental,
material, grave and so serious
that they go to the root of the
matter. The application for
certiorari is hereby
granted. The orders for the
bench warrant to issue is to be
brought into this court for the
purpose of quashing same and
same is hereby quashed.
In the absence of proof of
service of the order of
committal on the applicants in
the instant application, the
trial court is also prohibited
from going on with hearing of
the committal proceedings.
R. C. OWUSU (MS)
(JUSTICE OF THE SUPREME COURT)
BAFFOE-BONNIE, J.S.C.:
I shall also proceed to give my
reasons in support of the
unanimous decision of this court
given on 14 January 2009,
granting the application for an
order of certiorari.
The facts
The facts in this case are
fairly simple and
straightforward. The grounds for
the application were:
(i) want of jurisdiction to
order bench warrant to issue for
the attachment of
the applicants in the purported
execution of an order of
injunction contrary to rule
27(3)(b) of the Court of
Appeal Rules, 1997 (CI 19);
(ii) violation of natural
justice in purporting to hear an
application for contempt
against the applicants which was
not served on the applicants;
and
(iii) disregard of the rules
of court that rendered null and
void the order for bench warrant
to issue.
The interested party in this
application for certiorari,
Superphone Co Ltd, issued a writ
against the first applicant
herein, Millicom Ghana Ltd,
claiming, inter alia:
"(1) a declaration that the
notice of intention to terminate
the dealership agreement between
it and the defendant does not
amount to a termination of the
said agreement and as such the
dealership agreement dated 16
November 2007 between the
parties is valid and binding on
them.”
Following an application filed
by the interested party for an
interlocutory injunction, the
trial High Court (per Marful-Sau
JA sitting as Additional Judge
of the High Court) ruled as
follows:
“… There is also an application
for interlocutory injunction to
restrain the defendant from
interfering with or disrupting
or allowing other dealers or
agents to operate in the
plaintiff’s territory or in
anyway undermining the
plaintiff’s business. I think
the ends of justice would be
served if the application is
granted on terms. The defendant
is accordingly restrained from
interfering with or disrupting
or operating in the
plaintiffs territory
or in any way undermining the
plaintiff's business.”
Construing this order as a
directive to the first applicant
herein to resume the trading
activities with it, the
plaintiff company requested for
the supply of trading materials
but the first applicant refused
saying the order did not compel
it to resume trading with the
interested party. Feeling that
the refusal to resume trading
activities with it constituted a
breach of and an affront to the
orders of the court, the
interested party applied to
enforce the injunction order by
committal for contempt of court
of all the applicants herein.
The first applicant therefore
applied to the High Court for a
review and clarification of the
order of injunction. This
application was dismissed on 20
August 2008. The High Court
differently constituted (per
Kwofie J) ruled as follows: “…
There is nothing ambiguous about
the order. The defendant should
comply with that order. The
application for review is
refused.” However, on 28 August
2008, the first applicant
appealed to the Court of Appeal
against the grant of the
injunction order and applied for
stay of execution at the High
Court. The application for stay
of execution was moved and
dismissed on 18 September 2008.
Immediately after the dismissal
of the application for stay of
execution pending appeal, the
interested party sought to move
its application for contempt
which had been pending for some
time but which had been held in
abeyance because of the motion
for stay of execution. Counsel
for the applicants herein,
intimated to the court that
apart from the first applicant
on whom some form of service had
been affected, none of the
applicants had been served and
so the contempt proceedings
could not go on. Even though the
court conceded that the third,
fourth and fifth applicants
herein had not been served and
therefore the contempt
proceedings against them could
not go on, counsel for the
interested party was permitted
to proceed against the first
applicant company. On 18
September 2008, the court after
hearing counsel directed that
since the directors of the
company were not in court, bench
warrant was to issue against
them.
Determination of the application
for committal for contempt of
court
In this application, the
applicants are praying this
court for an order of
directions, prohibition and an
order of certiorari
directed at the High Court
(Commercial Division) Accra
presided over Kwofie J, to move
into this court for the purpose
of being quashed the order of
the court dated 18 September
2008.
The applicants’ case in simple
terms is that when the trial
High Court Judge dismissed the
application for stay of
execution, they had the right to
either appeal against the
dismissal or repeat the
application before the Court of
Appeal before which the appeal
against the original order was
pending in terms of rule 27 of
the Court of Appeal Rules, 1997
(CI 19). Pursuant to this,
therefore, the court was obliged
by law to hold its hands for a
statutory period of seven days.
During this period, the court
could not hear the application
for contempt and therefore could
not have legally arrested
somebody for failing to appear
in court for contempt
proceedings which could not have
been heard anyway. The issuing
of bench warrant within that
seven-day statutory stay period
was done without jurisdiction.
Further, it is on record that
immediately after the dismissal
of the application for stay of
execution, the applicants filed
a repeat application before the
Court of Appeal praying for stay
of execution of the orders of
the trial High Court Judge. That
being so, pursuant to rule
27(3)(b) of CI 19, the
attempt to hear the contempt
proceedings which necessitated
the issuance of the bench
warrant was wrongful.
Touching on the issuance of the
bench warrant itself, the
applicants submitted that none
of the applicants had been
served at the time the
interested party herein sought
to move his application for
contempt and so attempting to go
on was a violation of the
audi alteram partem rule of
natural justice and therefore
the order was amenable to be
quashed by certiorari.
Counsel for the interested
party, on the other hand, has
submitted that the application
before the court is
unmeritorious and incompetent
and so same should be dismissed.
Counsel argued that the bench
warrant issued by the trial High
Court was regular and that the
said court was acting within its
powers when it ordered that a
bench warrant be issued for the
arrest of the directors of the
company who had absented
themselves from court
notwithstanding the service of
the application for contempt on
the first applicant company.
Was the issuance of the bench
warrant warranted in the
circumstances of this case?
Without seeking to embellish my
answer in any legal niceties,
and for reasons which I shall
give presently, I am of the view
that the answer should be in the
negative.
It is a natural sequence in
civil trials that once a person
feels aggrieved by any decision
of a trial court, be it
interlocutory or final, he has
the right to appeal to a higher
body by filing a notice of
appeal. It is provided by the
all the Rules of Court, namely,
the High Court (Civil Procedure)
Rules, 2004 (CI 47), the Court
of Appeal Rules, 1997 (CI 19),
and the Supreme Court Rules,
1996 (CI 16), that an appeal in
itself does not operate as a
stay of execution. However, the
same rules provide that when an
application for stay of
execution is pending for
hearing, it stops execution
until the same is heard and
dismissed. The relevant
provision in CI 19, r 27(2)
states that:
"(2) Where an application [for
stay of execution] is pending
for determination under sub-rule
(1), the proceedings for
execution of the judgment or
decision to which the
application relates shall be
stayed.”
In fact the trial High Court
Judge recognized the power
behind this rule that is why
even though the contempt
application had, indeed, been
filed earlier, ie on 8 August
2008, he decided to wait and
dispose of the motion for stay
of execution which had been
filed on 28 August 2008 before
tackling the contempt
application. The sequence of
events on 18 September 2008 in
the court room attests to this:
The first applicant company
herein moved its application for
stay execution; same was opposed
and the court dismissed it. Then
counsel for the interested party
herein said: “My Lord I wish to
move the application for
contempt which has been pending
for some time. My Lord the
application was filed as far
back as 8 August 2008…” This was
another way of saying: “My Lord
now that we have disposed of the
motion for stay of execution, I
wish to move my contempt
application which has been
pending for so long.”
Counsel for the interested
party, who felt he had
disentangled himself from the
restraining hands of rule 27(2)
of CI 19, then forcefully
pressed forward his desire to
move his application for
contempt. What counsel did not
advert his mind to was rule
27(3)(a) and (b)
of CI 19 which grants seven
days' automatic stay between the
giving of a judgment of the
court and its enforcement unless
the court otherwise directs.
Rule 27(3)(a) and (b)
reads:
"27(3) There shall be a stay of
execution of the judgment or
decision, or of proceedings
under the judgment or decision
appealed
(a) for a period of seven
days immediately following the
giving of the judgment or
decision; and
(b) for a period of seven
days immediately following the
determination by the Court below
of an application under sub-rule
(1)(a) where the
application is refused by the
Court below."
The rationale behind rule 27(3)(a)
and (b) of CI 19 is
to ensure that an aggrieved
party is given some time to file
any processes to stop execution.
And, indeed, in this case
immediately after the decision,
the first applicant company
herein did file a repeat
application before the Court of
Appeal. But unfortunately the
interested party could not or
did not wait for the seven days'
statutory stay and put rather
into motion a process to enforce
the decision of the trial court.
This process was the contempt
proceedings! Clearly the process
to attach the applicants was
premature. This is because the
decision was being appealed
against and they had at least
seven days within which to file
application for stay (which they
indeed did file later). Why the
interested party, who had all
this while held his hands to
await the outcome of the stay of
execution, could not wait for
the statutory seven-day stay of
execution period may never be
known. Suffice it to say, in his
haste to move his application,
he sought to confer jurisdiction
on the High Court which said
jurisdiction the High Court
wrongly assumed. And therefore
in the absence of jurisdiction,
the orders of the High Court
could be impugned and are
amenable to be quashed by an
order of certiorari.
Another beef of the applicants
herein is the actual issuance of
the bench warrant for the arrest
of the directors of the company
when none of them had been
served with the application for
contempt. This was brought to
the attention of the court.
Here there is the need for a
little explanation. The first
applicant herein is a limited
liability company while the
third, fourth and fifth
applicants are directors of the
applicant company. The first
applicant company, according to
the interested party, had been
served with the motion for an
order of committal for contempt.
How and on whom service was
effected on behalf of the
company is not borne out by any
of the processes filed in this
court. The other respondents in
that application, who happen to
be the directors of the company
had not been served. On the day
of these proceedings, the first
applicant company, was
represented in court by Helen De
Cardi Nelson, the in-house
lawyer. When counsel for the
interested party sought to move
the application for contempt,
his attention was drawn to the
fact that the other respondents
had not been served. He
submitted that since the first
applicant herein had been
served, he could proceed against
it. It was then that he
submitted that since the first
company had been served, its
directors should be arrested on
bench warrant. The court
obliged. So in effect, even
though counsel for the
interested party conceded that
in the absence of formal service
of the application on the
directors, who were themselves
respondents in the application
for contempt, the court could
not proceed against them, he
still got the court to issue the
bench warrant to arrest the
self-same directors because they
were not in court to represent
the first applicant company
which counsel claimed had been
served.
It seems to me that the issue
here is not merely a breach of
rules of natural justice as
counsel for the applicants
herein seem to think. Citing the
case of Barclays Bank of
Ghana Ltd v Ghana Cable
Co Ltd [1998-99] SC GLR 1,
counsel submitted that
proceeding against a party to
judicial proceedings who had not
been served must be deplored. He
said a court has generally no
jurisdiction to proceed against
a party who has not been served.
This court therefore has power
to quash any proceeding by an
order of certiorari if
satisfied that the proceeding
was conducted without notice to
the aggrieved party.
This is well said and represents
this court’s view on proceedings
taken without proper notice. But
in the peculiar circumstances of
this case, I think counsel is
mixing issues or being generous.
The bench warrant issued against
the directors was not against
them as respondents (in their
personal capacities) to elicit
just the comment that they had
not been served. The court
issued the bench warrant for the
arrest of the directors for
failing to come to court to
represent the first applicant
company which the interested
party claimed had been served.
That is why to me it is not just
a matter of proceeding against
somebody who has not been
served.
The questions to ask are: what
is a bench warrant? When is a
bench warrant issued and was the
issuance of bench warrant in
this case proper? In Blacks
Law Dictionary (7th edition
by Bryan A Garner) a bench
warrant is defined as:
"A warrant issued directly by a
judge to a law-enforcement
officer, especially for the
arrest of a person who has been
held in contempt, has been
indicted, has disobeyed a
subpoena, or has failed to
appear for a hearing or trial.”
So a person must in the normal
course of events have refused or
failed to attend court on
request before a bench warrant
is issued to compel him to do
so. In this case, the first
applicant company was
represented in court by its
in-house lawyer Helen De Cardi
Nelson. It must be remembered
that on that day, there were
other businesses to do with
respect to the case apart from
the application for contempt.
Indeed, there was no indication
that the application for
contempt was going to be moved.
So the company was actually
represented in court. The court
therefore could not say that
first applicant was not in court
so it was issuing bench
warrant. And I know of no rule
of law that says that when a
company is a party in a case no
other officer of the company,
not even one as high as in-house
lawyer, can represent the
company in court except the
directors of the company.
After hearing the motion for
stay of execution, if the court
felt that it still wanted to
proceed with the application for
contempt against the first
applicant company and therefore
required the presence of the
directors instead of the
in-house lawyer, there were two
options open to it: (a) if the
trial judge was minded to
proceed against the directors,
then it had to adjourn the case
to ensure that the directors of
the company were served to come
to court to represent the
company: see Order 43, rr 5(1)(b)(cc)
and 7(3)(a); or, (b) to treat
the company as represented by
its in-house lawyer and go ahead
to deal with it (after all in
contempt against companies, not
being a human person, there can
only be a fine and not
incarceration). To have issued
a bench warrant at this early
stage to compel persons who had
not wilfully failed to come to
court, was premature and
wrongful.
Has the supervisory jurisdiction
of this court been properly
invoked and will certiorari
lie to quash the bench
warrant? Counsel for the
interested party herein has
urged forcefully on this court
that granting that the issuance
of the bench warrant was wrong,
the High Court was acting within
the full ambit of the law and
therefore was not amenable to
the supervisory jurisdiction of
this court. Citing a legion of
cases including Republic
v Accra Circuit Court; Ex
parte Appiah [1982-83] GLR
129; Republic v High
Court Accra; Ex parte Soku
[1996-97] SCGLR 525 and
Republic v High Court
Accra; Ex parte
Industrialization Fund for
Developing Countries
[2003-2004] 1 SCGLR 348, counsel
concluded thus;
“Granting that the trial High
Court erred at all (which we
vehemently deny) it is not such
an error as would take the said
court outside its jurisdiction
and hence make it amenable to
the supervisory jurisdiction of
your Lordships. After all the
affected parties could have
applied to the said court to
rescind the bench warrant in
order to seek certain reliefs
therefrom or in the alternative
it could have appealed to the
Court of Appeal.
(The emphasis is mine).
I think ingenious as this line
of reasoning may be, it is all
wrong in relation to the present
case. The fact is that this
court has laid it down in a
number of cases including those
cited by counsel that one of the
basis of invoking the
supervisory jurisdiction of this
court is the wrongful assumption
of jurisdiction or excess of
jurisdiction.
It is true that the trial High
Court had jurisdiction to deal
with the application for stay of
execution and, for that matter,
the application for committal
order for contempt of court.
But the Rules of Court
specifically indicate when the
jurisdiction can be assumed.
Rule 27(3a) and (b)
of the Court of Appeal Rules,
1997 (CI 19), specifically
states that following a
decision, there is an automatic
statutory stay of execution. If
therefore a court purports to
act within the said seven-day
period, it will be deemed to
have acted without jurisdiction,
as in this case. In the light
of the foregoing, it is my view
that at the time of issuance of
the bench warrant the trial
court was not vested with
jurisdiction to go on with the
application for contempt and
therefore the issuance of the
bench warrant was done without
jurisdiction.
It is for these reasons that
this court at the hearing of the
instant application on 14
January 2009 was of the view
that the supervisory
jurisdiction of this court has
been properly invoked. The
application succeeds and is
granted as prayed.
The proceedings of the trial
High Court given on 18 September
2008, ordering the issuance of
bench warrant against the
directors of the first
applicant company should be
brought up before this court for
the purpose of being quashed and
same is quashed accordingly. The
learned High Court Judge is also
hereby prohibited from going
ahead with the committal
proceedings without proof of
proper service on the
respondents to the application.
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
ANSAH, J.S.C.:
I agree with the reasons given
in the opinions delivered by my
learned brothers Atuguba and
Baffoe-Bonnie JJSC and my
learned sister Rose Owusu JSC.
I have nothing useful to add.
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH, J.S.C.:
I also agree with the reasons
given in the opinions delivered
by my learned brothers Atuguba
and Baffoe-Bonnie JJSC and my
learned sister, Rose Owusu JSC.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
COUNSEL:
NARTEY TETTEH FOR THE
APPLICANTS.
ENOH-AMAH ANDOH FOR THE
INTERESTED PARTY. |
