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Courts – Court of Appeal –
Jurisdiction – Contempt of court
– Respondent appealing against,
and disregarding writ of
possession – Record of
proceedings transmitted to Court
of Appeal – Whether Court of
Appeal has jurisdiction to
commit for contempt – Court of
Appeal Rules 1962 (LI 218) r 21
– High Court (Civil Procedure)
Rules 1954 (LN 140A).
The High Court gave judgment for
the applicant for recovery of
the land in dispute. The
respondents appealed and applied
for stay of execution but were
refused. The applicant then
applied for a writ of possession
and proceeded into execution.
The respondents disregarded the
writ of possession and the
applicant applied to the High
Court for a writ of attachment
against the respondents. The
respondents’ counsel raised the
preliminary objection that since
the record of appeal had been
transmitted to the Court of
Appeal, that court was the
proper forum to entertain the
application. The High Court
upheld the objection and
dismissed the application. The
applicant then applied to the
Court of Appeal.
Held,
the contempt in issue was
violation of a writ of
possession granted by the High
Court. The order for the issue
of the writ and its subsequent
execution could not form part of
the record of appeal before the
Court of Appeal. Rule 21 of the
Court of Appeal Rules 1962 (LI
218) could not therefore clothe
the court with jurisdiction to
entertain the application.
Rather Order 44 of the High
Court (Civil Procedures) Rules
1954 (LN 140A) governed such
applications. Accordingly the
court did not have jurisdiction.
Agyeman II v Hima Dekyi XIII
[1984-86] 2 GLR 385 referred to.
Case referred to:
Agyeman II v Hima Dekyi XIII
[1984-86] GLR 385.
Ampong v Frimpong
[1965] GLR 350, SC.
APPLICATION to the Court of
Appeal to commit the respondents
for contempt of an order or the
High Court.
Oduro
for the applicant.
ADJABENG JA.
This is a motion ex-parte for
the leave of this court “for a
writ of attachment to issue
against the respondents herein
for the violation of the
judgment of the High Court, Cape
Coast dated 15 December 1992.”
It is clear from the affidavit
in support of the application
that judgment was given by the
High Court, Cape Coast, in
favour of the applicant herein
for the reliefs she claimed in
her counterclaim, including the
recovery of the land the subject
matter of the dispute. The
respondents appealed against the
decision to this court. And even
though the respondents applied
for stay of execution of the
judgment, their application was
refused. The applicant therefore
went into execution of the
judgment by applying for and
obtaining a writ of possession
from the High Court and this was
executed on the respondents. It
was when the respondents failed
to respect this writ of
possession issued by the High
Court and executed on them that
the applicant applied to the
same High Court, Cape Coast
which had issued the said writ
of possession, for the issue of
a writ of attachment against the
alleged contemnors for their
alleged contempt of the High
Court order.
When the application came before
the High Court, Cape Coast a
preliminary objection was raised
by the respondents' counsel on
the ground that since the appeal
against the judgment was
presently before this court,
(the Court of Appeal), as the
appeal records had been
transmitted to this court, it
was the Court of Appeal which
was the proper forum to
entertain the application. The
High Court, Cape Coast upheld
this preliminary objection and
therefore dismissed the
applicant's application even
though the applicant's counsel
had argued that that was not the
position, and that rule 21 of LI
218 on which the objection was
based was not applicable in the
circumstances of this case. I
find it worthwhile to quote the
relevant portion of the court's
ruling. It states:
“Mr Ahenkorah then referred to
rule 21 and submits that after
entry of the appeal in the cause
list then every application must
be made at the Court of Appeal
but not here. Mr Oduro, in
reply, referred to Order 42 rule
8 of the High Court (Civil
Procedure) Rules of 1954 (LN
140A) and urged me to conclude
that an attachment is part of an
execution process and so rule 21
of the LI 218 does not apply.
The latter rule refers to every
application. It would be
therefore wrong to say that it
is not applicable to an
application for a writ of
attachment.”
In Ampong v Frempong
[1965] GLR 350 the Supreme Court
stated inter alia at page 353:
“On the receipt of these
documents the court below
becomes functus officio.”
It seems that there is a
misunderstanding here. What rule
21 of LI 218 provides is as
follows:
“21 After an appeal has been
entered and until it has been
finally disposed of, the court
shall be seised of the whole of
the proceedings as between the
parties thereto, and every
application therein shall be
made to the court and not to the
court below, but any application
may be filed in the court below
for transmission to the court.”
The High Court decision of
Agyeman II and others v Hima
Dekyi XIII [1984-86] 2 GLR
385 would seem to give a clearer
explanation of the above rule.
It was there held as follows:
“… according to rule 21 of the
Court of Appeal Rules 1962 (LI
218), the Court of Appeal would
become seised of the whole of
the proceedings 'after an appeal
has been entered, ie entered in
the cause list of the Court of
Appeal and that could not be
done until the record of appeal
had been transmitted by the
registrar of the court below to
the registrar of the Court of
Appeal as required by rule 15(2)
of LI 218. It was only when an
appeal had been so entered as
aforesaid that every application
therein shall be made to the
court and not to the court
below' as provided by rule 21.
In the interim, ie before the
appeal was entered in the cause
list of the Court of Appeal, it
was the court below which had
power in the first instance
to deal with all the interim
applications in the matter
especially applications that
concerned the preservation of
the subject-matter of dispute.”
(The emphasis is mine.)
The application in the above
case was in respect of an order
for interim injunction granted
for the preservation of the
subject-matter of the appeal
pending in the matter. It must
be noted also that in the case
of Ampong v Frempong
(supra) relied upon by the High
Court judge in the present
matter, the application before
the Supreme Court was for an
order of interim injunction for
the preservation of the property
the subject-matter of the appeal
and for the appointment of a
manager and receiver to manage
the property. When therefore the
appeal records had been
transmitted to the Supreme
Court, the court, without any
doubt, rightly held that by rule
2 of LI 218 the said interim
application was properly before
it (the Supreme Court). Is the
position the same in the matter
before us I do not think so.
In the present case, it is clear
that the issue is that of
contempt of an order of the High
Court made subsequent to the
judgment of the said court and
the filing of the appeal against
the said judgment. The
application sought to initiate
contempt proceedings against the
respondents for flouting or
disobeying the writ of
possession issued after the
filing of the notice of appeal
by the High Court.
It is clear, therefore, that the
order for the issue of the writ
of possession and its subsequent
execution on the respondents do
not and cannot form part of the
record of appeal before this
court. How then can rule 21 of
LI 218 clothe this court with
jurisdiction to entertain such a
matter, which does not form part
of the record of appeal before
the court? Indeed, it is order
44 of the High Court (Civil
Procedures) Rules, which
provides for such a matter. I
cannot see anything like that in
the Court of Appeal Rules 1962
(LI 218). I think, therefore,
that we do not have jurisdiction
to entertain the application.
It was for the above reasons
that we, on 6 July 1994, refused
to grant the application.
OFORI-BOATENG JA.
I agree.
LUTTERODT JA.
I also agree.
Application dismissed.
S Kwami Tetteh, Legal
Practitioner |
