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State proceedings – Certiorari – Application for leave – Application to be made within six months or as prescribed by statute – Court may extend time – Or 59 r 3, High Court (Civil Procedure) Rules 1954 (LN 140A).

State proceedings – Certiorari – Application for leave – Court granting leave out of time – Respondent to apply to vacate order, not to appeal.

State proceedings – Certiorari – Application for leave – Application filed, moved and granted on same day – Procedure irregular but not fatal - Order 59 r 2(3), High Court (Civil Procedure) Rules 1954 (LN 140A).

State proceedings – Certiorari – Application for leave – Objection to application to be raised timeously – Or 59 r 21, High Court (Civil Procedure) Rules 1954 (LN 140A).

Contempt of court – Committal – Application – Whether respondent may object to regularity of application.

The applicant and some members of the royal family filed a petition in the Ashanti Regional House of Chiefs challenging the election the 7th respondent as chief and applied for certiorari to quash the proceedings of the traditional council nominating and electing him. The application was filed, granted, drawn up and signed on the same day and restrained the respondents from installing the 7th respondent. Upon service of the order on them the respondents proceeded to install the 7th respondent. The applicant applied for leave to commit them for contempt. The motion paper did not indicate the rule under which the applicant had applied but the respondents did not raise the point. Rather they pleaded guilty and the 2nd to the 6th respondents were committed to prison for a month each. They appealed to the Court of Appeal.

Counsel for the appellant-respondents argued on appeal that the application for leave was filed out of time and in violation of Order 59 r 21. Counsel for the applicant-respondent submitted that once the order restraining the installation emanated from a superior court it ought to have been obeyed until set aside. Furthermore Order 59 r 1 precluded an order or rule nisi or summons to show in any proceeding under Or 59.

Held: (1) Under Order 59 r 3 leave could not be granted to apply for certiorari unless the application was made not later than six months after the date of the proceeding complained of or within such shorter period as may be prescribed by enactment unless the court extended time. The application was filed out of time. Eku alias Condua III v Acquaah [1961] GLR 285, Danawi & Sons v Dako [1961] GLR 72, SC, State v Asantehene’s Divisional Court B1, ex parte Kusada [1963] 2 GLR 238, SC, Elliott v Thompson 33 LT 337, Republic v National House of Chiefs, ex parte Faibil III [1984-86] 2 GLR 731, CA referred to.

(2) Order 59 r 2(3) provided that an applicant for certiorari should give notice of the application for leave to the registry not later than the day preceding the application and lodge copies of the statement and affidavit in the registry at the same time. Although the rule was defaulted (as the application was heard on the day of filing) the default did not nullify the proceedings. The rule was to enable the registry process the application and afford the judge sufficient time to study the application and prepare for the hearing. The judge had the discretion to rule whether the default obstructed the hearing; the respondent could also waive the default. Republic v Moffat, ex parte Allotey [1971] 2 GLR 391 referred to.

(3) A party affected by an order made in violation of Order 59 rule 2(3) was entitled to apply to the court ex debito justitiae to vacate the order but not to appeal. For it was in the interest of justice that parties should exhaust available remedies at the trial before embarking upon appeal. If the appellants believed that the order granting leave was void they ought to have applied to the court to vacate it in the first instance. State v Asantehene’s Divisional Court B1, ex parte Kusada [1963] 2 GLR 238, SC, Republic v National House of Chiefs, ex parte Faibil III [1984-86] 2 GLR 731, CA, Craig v Kanseen [1948] 1 All ER 108, CA, Forfie v Seifah [1958] 1 All ER 289, PC, Mosi v Bagyina [1963] 1 GLR 337, SC referred to.

(4) The application was made not under order 59 but under Order 44. Granting that it was made wrongfully under Order 59 the respondent was entitled to have it set aside in the court below. No party had a vested right in procedure. A party affected by a wrong procedure ought to move the court timeously to set aside the proceeding. Where such party participated in the proceeding to a conclusion, such party would be deemed to have waived the objection. The respondents ought to have applied under Order 70 r 2 to set aside the application when they were served, before taking a fresh step by filing affidavits in opposition. Dake v Dorwu Practice Note [1971] 2 GLR 75, Tetteyga II v Sappor [1973] 2 GLR 277, CA, Shardey v Adamtey and Shardey v Martey (Consolidated) [1972] 2 GLR 380, CA referred to.

(5) A person in contempt of court could hardly complain of the regularity of the proceeding for committal. The court would refuse to hear a person guilty of contempt until the offence was purged. Hadkinson v Hadkinson [1952] 2 All ER 567, CA, Chuck v Creamer 47 ER 820 referred to.

Cases referred to:

Chuck v Creamer (1846) 2 Ph 113, 1 Coop temp Cott 338, 47 ER 820, 16 LJCh 92, 8 LTOS 309.

Craig v Kanseen [1943] 1 All ER 108, [1943] 1 KB 256, 112 LJKB 228, 168 LT 38, CA.

Dake v Dorwu Practice Note [1971] 2 GLR 75.

Danawi & Sons v Dako [1961] GLR 72, SC.

Eku alias Condua III v Acquaah [1961] GLR 285.

Elliott v Thompson 33 LT 337.

Forfie (Kofi) v Seifah (Kwabena) [1958] 1 All ER 289, [1958] AC 59, [1958] 2 WLR 52, PC.

Hadkinson v Hadkinson [1952] 2 All ER 567, [1952] P 285, [1952] 2 TLR 416, CA.

Mosi v Bagyina [1963] 1 GLR 337, SC.

Republic v Moffat, ex parte Allotey [1971] 2 GLR 399.

Republic v National House of Chiefs [1984-86] 2 GLR 731, CA.

Shardey v Adamtey, Shardey v Martey (Consolidated) [1972] 2 GLR 380, CA.

State v Asantehene’s Divisional Court B1, ex parte Kusada [1963] 2 GLR 238, SC.

Tetteyga II v Sappor [1973] 2 GLR 277, CA.

APPEAL to the Court of Appeal against the committal of the appellants in the High Court.

BENIN JA. This is an appeal from the judgment of the High Court, Kumasi dated 31 May 1994 by which the 2nd, 3rd, 4th, 5th and 6th appellants (hereinafter referred to simply as the “appellants”) were each sentenced to a term of one month’s imprisonment for contempt. The 2nd to the 6th appellants are said to be the kingmakers of the Bekwai paramountcy and are all members of the Bekwai Traditional Council, (hereinafter called the “council”). The 8th respondent who was also sentenced did not appeal. The applicant-respondent (hereinafter simply called the “respondent”) is also said to be the head of family of the Bekwai royal stool.

The brief facts of this case will be recounted as follows: The Bekwai paramount stool became vacant sometime in 1991. On 18 June 1992 a meeting of the council was convened to which the respondent was invited; and according to the respondent, it was at this meeting he got to know it had been summoned to elect a candidate to occupy the vacant stool. In his capacity as the head of the royal family and in the absence of a queenmother, it became his lot to nominate a candidate to fill the vacancy. He called for a postponement because he had not been notified of the agenda but the council went ahead and elected the 7th respondent as the new Omanhene.

Certain matters that ensued after this are not relevant to re-call here except that the respondent and some members of the royal family filed a petition on 10 February 1993, in the Ashanti Regional House of Chiefs challenging the validity of the 7th respondent’s election. Notwithstanding the pendency of that petition, it was the respondent’s contention that the appellants, inter alia, were bent on installing the Omanhene-elect as Omanhene. The respondent therefore instituted prerogative proceedings for an order of certiorari to quash the decisions of the council taken on 18 June 1992. The application ex parte, with an accompanying statement and affidavit was filed on 15 February 1993 at 9.10 a.m. was moved the same day and granted the same day. The order was also drawn up and signed that same day.

It is this part of the order which gave rise to the contempt proceedings: “It is hereby ordered that the respondents are restrained forthwith from installing the 7th respondent (Nana Kwasi Kobi) as Bekwaihene until the final determination of this suit.” The respondent, on 25 February 1993 came back to that very court with a motion on notice praying for an order requiring the respondents to show cause why each of them should not be committed to prison for contempt. The reason being that notwithstanding the court’s restraining order the alleged contemnors went ahead and installed the 7th respondent as Omanhene after they had been served with the order. After an initial opposition all the appellants pleaded guilty to being in contempt of the court. This they did by affidavit filed with the court. As if to avoid any doubt, the court put all of them into the witness stand to confirm on oath that they actually intended to plead guilty and they did just that. The court therefore sentenced them.

They have appealed to this court on several grounds out of which only two were argued namely:

“(i) That the grant of leave to apply for an order of certiorari and the order itself be declared incompetent, null and void and be set aside.

(ii) That the application by motion on notice to show cause why each of them should not be committed to prison for contempt of court be declared incompetent, null and void and be set aside.”

Arguing the first ground, counsel for the appellants made references to Order 59 r 3 and Order 59 r 2(3) of the High Court (Civil Procedure) Rules, 1954 LN 140A. In regard to Order 59 r 3 counsel for the appellants submitted that the order sought to be quashed was taken about eight months within which an application ought to have been brought; no extension of time was sought or granted by the court. The court, counsel submitted, had no jurisdiction and was thus incompetent to hear the application. In respect of Order 59 r 2(3) counsel’s argument was that the application was required to be filed at least a day prior to the hearing but in this case it was filed, moved and granted the same day. This was equally wrong. The appellants were thus entitled to have the orders vacated as of right. He cited these cases in support: State v Asantehene’s Divisional Court B1, ex parte Kusada [1963] 2 GLR 238, SC, Craig v Kanseen [1943] 1 All ER 108, CA.

Counsel for the respondent replied that the appellants could go to the High Court to set aside its orders if they believed they were illegally made in terms of lack of jurisdiction. Thus two issues have to be resolved: (1) whether the court exercised its function or power rightly in the sense that it had jurisdiction, (ii) if the court was wrong, whether an application should in the first instance be made to it to vacate its order(s), or whether the appeal is the appropriate remedy.

“Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any enactment; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the Court or Judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”

Under this provision, a court is duty bound to reject an application ex parte for certiorari which is made outside the period prescribed by an enabling enactment and in the absence of any such enactment after a period of six months.

On the other hand the court has discretion to extend the time in appropriate cases. See the following cases: Eku alias Condua III v Acquaah [1961] GLR 285, Danawi & Sons v Dako [1961] GLR 72, SC, State v Asantehene’s Divisional Court B1, ex parte Kusada supra.

In this case there was no other enactment prescribing time, so the six months period set under Order 59 r 3 would apply. And as decided in Elliott v Thompson 33 LT 337 the six months would run from the date of the order or decision sought to be quashed. In this case the decisions complained of were taken on 18 June 1992 so six months expired on 18 December 1992. But it was not until 15 February 1993, that the application ex parte was filed, and without a valid extension of time it was clearly filed out of time. In the ex parte Kusada case supra, where the applicant did not comply with the rules governing the granting of extension of time, the Supreme Court held that the High Court should not have entertained the application for the writ of certiorari. See also Republic v National House of Chiefs, ex parte Faibill III [1984-86] 2 GLR 731, CA. It is my view therefore that the court below erred when it granted leave on the ex parte application for a writ of certiorari to quash a decision taken over six months earlier without any extension of time granted.

“The applicant shall give notice of the application for leave not later than the preceding day to the Registry and shall at the same time lodge in the said Registry copies of the statement and affidavit.”

Here again this rule was not complied with for the application was fixed for hearing for that very day it was filed. But it seems to me that this particular rule is there to give the registry sufficient time to process the application and to the judge sufficient time to receive and study the application and thus be prepared to meet the argument to be made by one side only and to ensure that all prerequisites are satisfied before deciding to grant it or not. In my view therefore it is not a mandatory rule whose failure to comply with will render proceedings nullity. It is for the judge to decide that lack of sufficient notice has disabled him from hearing the application. And the respondent can readily waive non-compliance with this rule. Abban J was thus right when he held in the case of the Republic v Moffat, ex parte Allotey [1971] 2 GLR 391 at 399 that “non-compliance with the provisions of Order 59 r 2(3) is not a defect which should render the proceedings void.” The court has discretion under this rule whether to proceed in the face of short notice. And in this case where a delay, even for a single day, would destroy or stultify the very basis of the application, the court could not be accused of indiscretion; it was a case where the judge exercised his discretion properly in waiving the one-day’s notice and hearing the application.

At this stage I shall deal with the effect of non-compliance with Order 59 r 3. The authorities cited namely ex parte Kusada supra and ex parte Faibil III supra both say the court should decline to entertain an application where the prerequisite conditions have not been satisfied. I should think that in such a situation the party affected would be entitled to apply to the court which made the order to vacate same. That is precisely what was decided in the case cited by counsel for the appellants, namely Craig v Kanseen supra. The court held that if an order was void the court was to vacate it under its inherent jurisdiction and the person affected is entitled to it as of right. No discretion arose. But the court went on to hold that an appeal against such an order was otiose. In the case of Forfie v Seifah [1958] 1 All ER 289, PC at 290 it was held that “a court had inherent power to set aside a judgment which it had delivered without jurisdiction” and in Mosi v Bagyina [1963] 1 GLR 337, the Supreme Court held at page 347 that the power of the court or a judge to set aside such judgment or order was derived from the inherent jurisdiction of the court to set aside its own void orders and that there was no time limit for the party affected by such a void order or judgment to apply to set it aside. See also Halsbury’s Laws of England, 3rd edition, Vol 30 pages 399-400, paragraph 740.

The position of the law then is that where a person complains of a void order his immediate remedy does not lie in an appeal against the order, but in an application to the court, which made the void order to vacate it ex debito justitiae. It is in the interest of justice that remedies available at the trial level should be fully exhausted before appeals are resorted to. Thus if the appellants believe the order granting leave for the writ of certiorari to issue was void they should go to that court to vacate it in the first instance and for that court to take a decision thereon, which in such circumstances, will be a final decision before coming to this court on appeal from the High Court’s decision or order.

The second ground of appeal also deals with a defect in procedure. Counsel for the appellants referred to the application which initiated the contempt proceedings. His submission was that, that application was contrary to Order 59 r 1. He said the procedure for contempt is set out under r 21 of Order 59. Counsel said the leave granted under this application whereby appellants were found guilty of contempt was totally void and should thus be vacated. Counsel for the respondent submitted that however wrong the court’s order might be it ought to be obeyed. Once an order has issued from a superior court it must be obeyed until it has been set aside. Order 59 r 1 provides:

“No order nisi, rule nisi or summons to show cause shall be made, granted or issued in any proceedings to which this order relates.”

The application initiating the contempt proceedings was filed on 25 February 1993 and it reads in relevant parts as follows:

MOTION ON NOTICE

MOTION ON NOTICE on behalf of the applicant herein praying for an order requiring the respondents to show cause why each of them should not be committed to prison for contempt on the grounds stated in the accompanying affidavit.”

I believe this objection could and should have been raised in the court below before the appellants had taken any further step in the matter. Counsel is here assuming or taking it for granted that the application for contempt was made under Order 59. If that were so then obviously the procedure should have been under r 21. But having regard to the nature of the application (supported by an affidavit only) it appears it was not made under order 59. An application for leave for attachment for contempt can also be made under Order 44 by motion supported by affidavit: see Dake v Dorwu Practice Note (1971) 2 GLR 75, also Tetteyga II v Sappor [1973] 2 GLR 277, CA.

In the instant application no Order was cited on the motion paper and counsel for the appellants also did not ask under what Order the application had been brought to enable him raise any objection, if need be. The application proceeded on the basis that it was regular before the court. It has been held in Shardey v Adamtey and Shardey v Martey (Consolidated) [1972] 2 GLR 380, CA that the citing of rules of court in applications before the court was desirable, but was not so indispensable that failure to do so would rock the very foundation of the administration of justice.

When an application is made and the relevant rule is cited, it enables the court to ascertain whether the application is properly before it and also what powers it has under the rule. It is my view that if the applicant fails to cite the relevant Order or rule in the motion paper, the respondent should find out from him so as to enable him raise any objection if the applicant has proceeded under the wrong Order or rule. If he contests the application on the footing that it is competent before the court he cannot be heard later to complain unless there was no rule of procedure at all to govern the application.

And granting that this application was made under Order 59 and therefore the procedure adopted was wrong, yet it only entitled the appellants to have the proceedings set aside for irregularity. No party in any proceeding has any vested right in procedure, so the party affected by a wrong procedure adopted must move the court, in a reasonable time, to set aside the particular proceeding complained of. If he does not and takes part in the proceedings to a conclusion on merit, then he will be deemed to have waived his right under Order 70 r 2. At any rate the appellant’s recourse was to apply under Order 70 r 2 to set aside the motion paper and supporting affidavit when they were served before filing the affidavits in opposition, which was a fresh step within the meaning of the rule.

Be that as it may a person in contempt of court can hardly complain that the procedure used in bringing him before the court to answer for his contempt was irregular. If he was clearly in contempt of court the court could even refuse to hear him at all until he has purged his contempt. The party will not be allowed to say: “I am not in contempt of court because the procedure adopted in bringing me before this court to purge my contempt was wrong.” Thus in the case of Hadkinson v Hadkinson [1952] 2 All ER 567, CA it was held at page 569 per Romer LJ that anyone who disobeys an order of the court is in contempt and may be punished by committal or attachment or otherwise that no application to the court by such a person will be entertained until he has purged himself of his contempt. The compulsive nature of a court order is illustrated by the case of Chuck v Creamer 47 ER 820 where Lord Cottenham LC said that “a party who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it … it would be most dangerous to hold that the suitors or their solicitors, could themselves judge whether an order was null or valid - whether it was regular or irregular….”

Thus apart from the fact that the application in its form and content could well come under Order 44, and if so competent, nevertheless the appellants having failed to object to it if they considered same irregular under Order 59 and having contested it on merits, would be deemed to have waived their right to object. However if they believed the proceedings were void they could go back to the court to vacate same under its inherent jurisdiction. For these reasons I will dismiss the appeal.