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RULING
EDWARD WIREDU, J.S.C.:
On July 14th 1999, this Court,
by a majority decision,
dismissed an application,
brought by the applicant herein,
for the attachment of the 16
Respondents herein for contempt
of court. By the instant
application, the applicant prays
this Court to review its said
decision upon the ground that
the decision has ‘occasioned a
grave miscarriage of justice and
therefore it is in the interest
of justice that the ruling be
reviewed'. According to the
Statement of Case filed on
behalf of the applicant, this
contention is based on two
grounds, namely that: -
1. "the Ruling was given per
incuriam for failure to consider
the case law and statute law
relevant to the application",
and
2. "the applicant's case was not
adequately considered."
The power of this Court to
review its decisions is governed
by Rule 54 of the Supreme Court
Rules, 1996 (C.I.16), which
stipulates the only grounds upon
which we may exercise that
power. These grounds are very
well known to any assiduous
practitioner, however, for ease
of reference we set them out in
full as follows:—
“(a) exceptional circumstances
which have resulted in a
miscarriage of justice;
(b) discovery of new and
important matter or evidence
which, after the exercise of due
diligence, was not within the
applicant's knowledge or could
not be produced by him at the
time when the decision was
given."
In effect, these limited grounds
are no different from those
previously prescribed when the
power of review was not
statutory but, rather, premised
on the inherent jurisdiction of
the Court. It has been held time
and again that the review
process must never be viewed or
used as a devise for a rehearing
of the applicant's case.
Therefore, the case of the
applicant, in support of an
application for review, must
clearly establish factors that
would justify the application
under either of the stipulated
grounds.
It is clear that the application
herein was made under the first
ground and therefore, to
succeed, the applicant must
demonstrate to us the existence
of exceptional factors which
show that the decision of the
majority has manifestly resulted
in a miscarriage of justice.
What constitutes exceptional
circumstances cannot be
comprehensively defined. In
previous decisions, it has been
described as ‘some fundamental
or basic error, which the court
inadvertently committed in the
course of considering its
judgment' (cf. Mechanical Lloyd
Assembly Plant Ltd. V. Nartey,
[1987-88] 2 GLR 598 and Quartey
and Others V. Central Services
Co. Ltd., [1996-1997] SCGLR
398). In addition to such
exceptional circumstance, the
Rule 54 dictates that the
applicant must also demonstrate
that the result of the
exceptional circumstances has
been a miscarriage of justice.
The Revised 4th Edition of
Blacks Law Dictionary defines
'Miscarriage of Justice' to
mean, "Prejudice to the
substantial rights of a party."
This definition we find very
useful.
In sum, therefore, in this
application, it was incumbent on
the applicant to show that his
substantial rights in the matter
that came before this court have
been prejudiced by some
fundamental or basic error made
by the majority. As was aptly
put by this Court in Agyekum v.
Asakum Engineering and
Construction Ltd., [1992] 2 GLR
635: -
“The acid test remained always
the existence of exceptional
circumstances and the likelihood
of a miscarriage of justice that
should provoke the conscience to
look at the matter again.”
For, as was pointed out by
Taylor JSC in Nasali V Addy,
[1987-1988] 2 GLR 286:-
“... all persons who have lost a
case are likely to complain of a
miscarriage of justice, but ...
in the absence of exceptional
circumstances such complaints
are a poor foundation for the
exercise of the review power for
it is only in exceptional
circumstances that the interest
rei publicae ut sit finis litium
principle yields to the greater
interest of justice."
Therefore, whatever factors the
applicant relies on must be such
that the exercise of our power
of review becomes extremely
necessary if irreparable harm to
the applicant is to be averted.
A mere rearguing of his original
application will not suffice.
(See also Fosuhene V. Pomaa
[1987-88] 2 GLR 105)
In support of this application,
the applicant deposed to an
affidavit, which, other than a
bald statement of the
aforementioned ground and
contention, constitutes a mere
rehashing of the original
application. In this ruling,
therefore, we do not intend to
make any further reference to
that affidavit. In this amended
Statement of Case, however,
Counsel for the Applicant sought
to demonstrate to us that there
were indeed factors that
constitute the outcome of the
original application a
miscarriage of justice. In
respect of the first ground upon
which this application was made,
Counsel for the applicant
submitted that:-
a. under articles 126(2) and
129(4) of the Constitution, this
court has the jurisdiction to
commit for contempt of all
courts including itself.
b. in the case of the Republic
V. Kofi Totobi Kwakye et als.
Ex-Parte Abel Adusei CM. 45/94,
unreported Supreme Court ruling
delivered on 26th July 1994,
this Court had held that it had
jurisdiction to entertain
contempt proceedings brought
before it, even if no order of
the court itself had been
interfered with or the conduct
complained of is not against
this court itself.
c. the failure of the court to
consider the foregoing
constitutes an exceptional
circumstance, which has
occasioned miscarriage of
justice.
Regarding the 2nd ground for the
application, Counsel contended
that:—
a. there were various pieces of
evidence against the 16th
respondent which, cumulatively,
showed that he had deliberately
attempted to prejudice, pervert
or interfere with the course of
justice, which evidence the
majority failed to take into
account. These according to
Counsel, included, the order by
Amua-Sekyi J. (as he then was)
that the name of the 16th
respondent be removed from the
National Register of Chiefs; the
evidence that the installation
of the applicant as
Effiduasihene had been
recognised by the government;
the evidence that when the 16th
respondent petitioned the
National House of Chiefs to
re-enter his name in the
National Register, he failed to
disclose that he had a petition
pending before the Judicial
Committee of the Mampong
Traditional Council wherein he
was claiming to be incumbent
chief.
b. there was evidence against
the 1st respondent demonstrating
that, although he had knowledge
of the existence of the order
made by Amua-Sekyi J (as he then
was) and the resultant
incumbency of the Applicant on
the Effiduasi stool, he had,
by-passed the Full House of the
National house of Chiefs and
placed the 16th respondent's
petition directly before the
Research Committee and had,
thereby, conducted himself in
such a manner as to assist and
facilitate the 'illegal'
activities of the 16th
respondent and that amounted to
contempt of the High Court, all
of which the majority of this
Court failed to take into
account.
c. there was also evidence
showing that the Research
Committee, the 14th and the 13th
respondents, was also in
contempt of the High Court,
which the majority did not take
into account. This, according to
Counsel, included the fact that
the Committee chose to ignore
all evidence of the incumbency
of the applicant when it
re-entered the name of the 16th
respondent in the national
register; the affidavit sworn by
the 13th respondent that there
was no record of the incumbency
of the applicant; the admission
by the 14th respondent that he
had re-entered the name of the
16th respondent into the
register.
Counsel, therefore, submitted
that, had the majority
considered these pieces of
evidence, the decision of the
court would have been different.
The application to commit the
respondents for contempt raised
two issues of contempt namely,
whether the respondents were in
contempt of the High Court and
this Court and whether the 16th
respondent was in contempt of
the Mampong Traditional Council.
Acquah, JSC, in his erudite
ruling dismissing the
application, thoroughly reviewed
the affidavit in support of the
application and tested the same
against the particulars of
contempt levelled against each
respondent (which had been
denied by the respondents in
their series of affidavits), the
law on contempt, as well as the
standard of proof required to be
satisfied in proceedings for
contempt of court (which as we
all know is quasi-criminal in
nature). He then made the
following conclusions: —
“The first respondent was then
the president of the NHC, and
the petition of the 16th
respondent was addressed to him
in that capacity. Certainly, he
cannot on his own take a
decision to accept or reject the
prayer contained in that
petition.
The Research Committee of the
NHC, the members of which are
cited in this application as the
2nd to the 12th respondents, is
one of the committees
constituted under section 2(2)
of Act 370. Its functions as
spelt out in paragraph 56 of the
NHC Standing Orders (Revised)
1991, are inter alia, to ‘study
chieftaincy declaration forms
for enstoolments, destoolments
abdications and death of Chiefs
... for entry in the National
register of chiefs.’
The reference of the 16th
respondent's petition to that
Committee was thus the
appropriate thing to do. I do
not see how members of that
committee can be liable for
contempt for doing what they are
expected to do. If their
recommendations turned out to be
inconsistent with a binding
decision of a Court of competent
jurisdiction, those adversely
affected are entitled to apply
to set it aside. Contempt does
not arise in such
circumstances....
It follows that the staff of the
Research Committee who were
present, and are cited as 13th
14th and 15th respondents, can
by no stretch of imagination be
equally held liable for
contempt.
Indeed, on the facts and
circumstances before the Kumasi
High Court when, Amua-Sekyi J,
ordered that the 16th
respondent's name as
Effiduasehene, be deleted from
the National Register of Chiefs,
his Lordship did not order, and
the record does not say so, that
the 16th respondent was
perpetually forbidden from
having his name entered in the
National Register of Chiefs
......”
Atuguba, JSC, in his learned
opinion dismissing the
application, viewed the matter
from the viewpoint of the
willfulness (i.e. mens-rea)
required to found a citation for
contempt and concluded that none
existed in the matter.
In view of the nature of the
application that came before the
Court, none of the pieces of
evidence which Counsel claims
had not been taken into account
by the majority in arriving at
its decision (which claim is not
borne out by the rulings), have
any impact on these conclusions
such as to compel one to hold
that there has been some
fundamental or basic error that
has rendered the outcome a
miscarriage of justice.
Furthermore, we have critically
perused the Constitutional
articles referred to by Counsel
in his Statement of Case, and we
sincerely fail to grasp their
relevance in this matter.
Article 126(2) reads as
follows:—
“The Superior Courts shall be
superior courts of record and
shall have the power to commit
for contempt of themselves and
all such powers as were vested
in a court of record immediately
before the coming into force of
this Constitution.”
Our understanding of this
article is simply that all
Superior Courts, as listed in
clause (1) (a) of the
Constitution, have the power to
commit for contempt. Nothing
more.
And Article 129(4), which
relates to the general
jurisdiction of the Supreme
Court, states that:—
“For the purposes of hearing and
determining a matter within its
jurisdiction and the amendment,
execution or the enforcement of
a judgment or order made on any
matter, and for the purposes of
any other authority expressly or
by necessary implication given
to the Supreme Court, by this
Constitution or any other law,
the Supreme Court shall have all
the powers, authority and
jurisdiction vested is any court
established by this Constitution
or any other law."
Acquah JSC, in his ruling,
raised the issue of the
jurisdiction of this court in
contempt matters when he
considered the question of
whether the 16th Respondent's
petition to the National House
of Chiefs, whilst his own
earlier petition to the Mampong
Traditional Council was still
pending was not calculated to
interfere with or prejudice the
fair hearing of the matter
before the said Traditional
Council. In determining this
issue, he adverted his mind to
section 26(7) of the Chieftaincy
Act 1971 (Act 370) and paragraph
13(5) of the Chieftaincy
((Proceedings and Functions)
Traditional Councils)
Regulations, 1972 (LI 798),
which are founded on the well
established general legal
principle that no inferior court
or tribunal has the power to
commit for contempt. He then
concluded that, since
chieftaincy tribunals, including
that of the National House of
Chiefs, are inferior tribunals:—
“The Court with jurisdiction to
entertain contempt applications
from the Judicial Committees of
the Traditional Councils is thus
the High Court.”
This being so, he further
concluded that this Court cannot
determine, at first instance,
the issue of whether or not the
16th respondent's petition to
the National House of Chiefs
constituted contempt of the
Traditional Council. Atuguba,
JSC, on the question of
jurisdiction, drew attention to
the Practice Direction of this
Court, which requires that,
where a cause or matter can be
determined by a superior court
other than this court, the
jurisdiction of the lower court
must first be invoked.
These conclusions are firmly
grounded in the law as it is and
they cannot be controverted. The
above-quoted provisions of the
Constitution cannot, by any
stretch of the imagination be
so construed as to permit this
Court to take, at first
instance, applications that are
statutorily required to be
heard, at first instance, by the
High Court. To proceed otherwise
would be to dilute the statutory
jurisdiction of other courts and
lay this Court open to a flood
of unnecessary applications that
could have been validly, and
more properly, dealt with in the
first instance by the High
Court.
It, therefore, follows that the
case of the Republic V. Kofi
Totobi Kwakye et als. Ex-Parte
Abel Adusei (supra), relied upon
by Counsel for the applicant,
was also quite irrelevant to the
case that came before this
Court. That was a matter in
which the respondent therein had
issued public statements on a
matter that was then pending
before this Court. There is,
consequently, no basis for the
contention that the majority
decision, challenged herein, was
made per incuriam.
Finally, we have grave doubts as
to the propriety of this
application and whether the
applicant has any locus to bring
the same. The obvious question
is ‘what substantial rights of
the applicant have been
prejudiced by the majority
decision?’ The substantive
dispute between the applicant
and the 16th respondent is not
the issue that came before this
Court. Had the court, indeed,
found the respondents in
contempt of court, how would
that have concluded the extant
dispute? In contempt proceedings
of the genre that came before
us, the substantial interest at
stake is the dignity of the
courts and the integrity of the
administration of justice, and
it is, therefore, a public one.
Once this Court made the
determination that the conduct
of the respondents did not
constitute contempt, the
interests of the public and the
administration of justice had
been adequately served, and the
role of the applicant as a
faithful public servant, for the
purposes of the protection of
the judicial process, ceased.
For the applicant to proceed
further to apply for review is
to personalise the objectives of
the contempt of court process.
In conclusion, the applicant has
failed to demonstrate the
existence of any exceptional
circumstances that have resulted
in a miscarriage of justice,
such as would justify a review
of the decision made by this
Court. The application has no
merits and must, therefore, be
dismissed.
EDWARD WIREDU,
JUSTICE OF THE SUPREME COURT
MRS. BAMFORD-ADDO,
JUSTICE OF THE SUPREME COURT
ADJABENG,
JUSTICE OF THE SUPREME COURT
ACQUAH,
JUSTICE OF THE SUPREME COURT
MS. S. AKUFFO
JUSTICE OF THE SUPREME COURT
AMPIAH, J.S.C.:
On 14th July, 1999, this court
dismissed an application by the
applicant herein for attachment
for contempt against the
respondents herein. The instant
application is for a review of
the Ruling in that application.
This court has power to review
its own decision where, inter
alia, there are,
“exceptional circumstances which
have resulted in a miscarriage
of justice" – vide
Rule 54(a) of the Supreme Court
Rules, 1996 (C.I. 16).
Among the grounds filed in this
application is one which states,
“The ruling was given per
incuriam for failure to consider
the case law and statute law
relevant to the application and
also that of the applicant's
case”.
The court in its ruling of 14th
July, 1999 held inter alia, that
the conduct complained of did
not constitute contempt of
court. What was unclear in the
ruling was whether or not the
Supreme Court has jurisdiction
to commit for contempt acts
alleged to be contemptuous of
other courts or tribunals.
A review application, this court
has observed time and again, is
not one for the repetition of
previous arguments and a revisit
to past scenarios - See Afranie
II v. Quarcoo (1992) 2 GLR 561
at page 365. It is not one for
the re-arguing of issues which
have been put forward earlier in
an appeal and which issues have
been ruled upon. That being so,
I would not attempt to resurrect
my conclusions in my opinion in
the application for attachment.
The maxim, interest reipublice
ut sit finis litium (it concerns
the State that lawsuits be not
protracted) applies. However, in
the particular circumstances of
this matter, I feel it is
necessary to reconsider the
earlier ruling to make certain
this court's jurisdictional
competency in entertaining
applications for contempts of
other courts.
In his Statement of case in the
contempt proceedings, the
applicant alleged that there was
contempt of—
i. the Supreme Court
ii. the High Court, Kumasi and
iii. the Judicial Committee of
the Ashanti Mampong Traditional
Council.
In the case, the Republic v.
Kofi Totobi Quarkyi ex parte
Adusei (Suit No. CM 45/94 dated
26th July, 1994 S. C.
unreported) the Supreme Court
held inter alia that the Supreme
Court has jurisdiction to commit
for contempt conduct found to be
contemptuous of other courts and
tribunals.
And in the case of the Republic
v. Kwaku Owusu alias Kweku Buor
ex parte .................
(Suit No. Ch.A. 2/95 dated 25th
July, 1995 S.C. unreported) this
court committed for contempt
conduct against the Judicial
Committee of the Kumasi
Traditional Council.
That the Supreme Court as a
Superior Court has jurisdiction
to commit for contempt cannot be
disputed. And, the court,
“For the purpose of hearing and
determining a matter within its
jurisdiction and the amendment,
execution or the enforcement of
a judgment or order made on any
matter, and for the purposes of
any other authority, expressly
or by necessary implication
given to the Supreme Court by
this Constitution or any other
law, the Supreme Court shall
have all the powers, authority
and jurisdiction vested in any
court established by this
Constitution or any other
law—vide Article 129(4) of the
Constitution.
Article 129(3) of the
Constitution also provides,
“(3) The Supreme Court may,
while treating its own previous
decisions as normally binding,
depart from a previous decision
when it appears to it right to
do so; and all other courts
shall be bound to follow the
decisions of the Supreme Court
on questions of law”.
My understanding of this
provision of the Constitution is
that the Supreme Court is bound
by its own decisions but it may
depart from any of its decisions
when it appears to it right to
do so. To do so, it is necessary
that the court gives a good
reason for departing from its
own earlier decision. If that
were not so, uncertainties would
be created in our law.
Since the other courts are bound
to follow the decisions of the
Supreme Court, the courts would
be put in a dilemma as to which
decisions of the Supreme Court
they should follow where, the
Supreme Court itself has given
two or more inconsistent
decisions on the same issue
without giving any reasons for
departing from its earlier
decisions.
It is unclear on the Ruling
given by this court on 14th
July, 1999 whether these aspects
of the law were seriously
considered. A decision is said
to have been given per incuriam
where there is failure to
consider a statute or a binding
case law or a fundamental
principle of practice and
procedure relevant to the
decision and which would have
resulted in a different decision
- see Afranie II vs. Quarcoo,
supra.
Besides, since the court held
inter alia that it had no
jurisdiction to entertain the
application, it was wrong for it
to have decided on the merits of
the acts complained of; findings
that are made on these issues
are likely to prejudice the
parties in any subsequent action
they may like to take in the
appropriate forum.
The failure to examine
critically the case law on the
matter and the statutory
provisions applicable, seriously
affected the court in its
evaluation of the evidence
before it and led to an
erroneous conclusion which has
resulted in a miscarriage of
justice. More so, when the
respondents themselves had
admitted the acts complained of
but had pleaded ignorance of the
legal effect of their conduct.
In fact they had taken steps to
correct what they had done
mistakenly or wrongly. Also, it
could not be said that the delay
in disposing of the matter had
been caused by the applicant.
The 16th respondent did raise a
preliminary objection which
necessitated ruling upon before
the substantive application
could be gone into. This
preliminary issue was eventually
disposed of and the 16th
respondent was appropriately
punished. The application could
not be said to be vexatious or
frivolous. The action was
against the National House of
Chief’s Research Committee
through the persons who acted on
its behalf; they could not be
said to have acted fairly. It
was therefore unfair to punish
the applicant by imposing
punitive costs of ¢32 million
against him.
In the particular circumstances
of the case, I think, this is a
proper case for review. I would
grant the application and review
this court's Ruling of 14th
July, 1999 including the costs
awarded.
COUNSEL
Mr. Ahenkorah for Applicant.
Kwame Tetteh for 16th
Respondent.
Nana Agyei Ampofo for
Respondents.
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