State proceedings - Certiorari - Error of law on face of record - Complaint that winding up proceedings in High Court ultra vires - Court having jurisdiction to entertain winding up proceedings - Application misconceived - Companies Code 1963 (Act 179) s 246 - Bodies Corporate (Official Liquidations) Act 1963 (Act 180) s 4.

Contempt of court - Offence - Disobedience of court order - Supreme Court remitting counterclaim to High Court for determination - Order permissive, not compulsory - Non-prosecution of counterclaim not contempt of court - Plaintiff to counterclaim not precluded from initiating winding up proceedings in High Court.

Practice and procedure - Remedies - Certiorari and appeal - Whether mutually exclusive.

The High Court ordered the 2nd respondent to deliver up certain equipment to the applicant company. His appeals against the order to the Court of Appeal and the Supreme Court were dismissed, the Supreme Court remitting his counterclaim for trial in the High Court. The 2nd respondent then presented a petition to the High Court to wind up the applicant-company. The 1st respondent objected to the proceedings on the ground that the 2nd respondent had not complied with the order of the Supreme Court that his counterclaim be determined in the High Court and was therefore in contempt of the Supreme Court and could not be heard in the winding up proceedings. The trial judge overruled the objection and ordered that the company be wound up.

The company and two of its directors applied to the Supreme Court for certiorari to quash the winding up order and an order to compel the 2nd respondent to prosecute his counterclaim remitted by the Supreme Court to the High Court for determination. A further order was sought to commit the 2nd respondent for contempt of court in not prosecuting the counterclaim. The grounds of the application were that in so far as the 2nd respondent failed to pursue his counterclaim as ordered by the Supreme Court, he was in contempt of the Supreme Court and as such could not be heard on his petition to wind up the applicant company; secondly the winding up order was ultra vires because the court had wrongfully overruled the applicants’ preliminary objection to the winding up petition in disregard of the direction of the Supreme Court regarding the counterclaim.

Held - (1) The proposition that a superior court could, in the exercise of its supervisory jurisdiction, quash an ultra vires decision is novel and in any case not well founded. An act was ultra vires if it was done in excess of powers conferred by law. On the other hand “jurisdiction” as used in prerogative applications was the power of a court or judge to entertain an action, petition or other proceeding. It was not the case of the applicants that the High Court had no jurisdiction to entertain the petition but that it exceeded its powers in proceeding with the petition when it was brought home to it that the petitioner was in contempt. The basis of the contempt was the failure of the 2nd respondent to prosecute his counterclaim as directed. A counterclaiming defendant was in the same position as a plaintiff and if he made default in the proceedings the plaintiff, defendant to the counterclaim, was entitled to move to dismiss the counterclaim for want of prosecution. Mere failure to take a step in a proceeding, unless the rules said so, could not amount to contempt of court.

Per Hayfron-Benjamin JSC. There is nothing beneficial to a party to charge his adversary with being in contempt of court if such contempt is not brought to the notice of the court by any of the known processes for attaching a party for the contempt. In the present application no such step has been taken.

(2) The general rule, that a party against whom a writ of attachment had issued or an order for committal had been made could not be heard, or take proceedings, in the same cause until he had purged his contempt, did not apply since the winding up petition was an entirely new application, not in the same cause. Hadkinson v Hadkinson [1952] 2 All ER 567, CA distinguished.

Per Bamford-Addo JSC. The 2nd respondent himself filed a counterclaim and could pursue or not pursue it. The order by the Supreme Court was only a direction to continue with his counterclaim not a mandatory order which the 2nd respondent had to comply with or be liable for contempt. He was within his rights when he chose to present a winding up petition to vindicate his rights and the High Court judge could not debar him from doing so. He was never adjudged a contemnor nor was he taking steps in the same cause, so that the High Court did not act ultra vires when it entertained the winding up petition.

(3) Certiorari was a special remedy, and in seeking it the question to be considered was whether or not the inferior tribunal acted within its jurisdiction. If the tribunal acted within jurisdiction and there was no error on the face of the record as to make the decision a nullity, the correctness or otherwise of the decision was a matter for appeal. In this case the respondent High Court had jurisdiction to entertain the winding up petition under the Companies Code 1963 (Act 179) s 246 and the Bodies Corporate (Official Liquidations) Act 1963 (Act 180) s 4. There was no error on the face of the record and the fact that the court may have committed an error of law in overruling a preliminary objection did not deprive it of jurisdiction. Certiorari did not lie and the proper remedy open to the applicant was an appeal if he so wished. Republic v High Court Accra, ex parte Laryea [1989-90] 2 GLR 99, SC, Republic v High Court Kumasi, ex parte Fosuhene [1989-90] 2 GLR 315, Walsall Overseers of the Poor v London & North Western Railway Co (1878) 4 App Cas 30, R v Nat Bell Liquors Ltd [1922] 2 AC 128, R v Northumberland and Compensation Appeal Tribunal, ex parte Shaw [1952] 1 KB 338, R v Paddington and St Marylebone Furnished Houses Rent Tribunal, ex parte Kendal Hotels Ltd [1947] 1 All ER 448, Rep v Accra Special Court, ex parte Akosah [1978] GLR 212, CA, R v Christian (1842) 12 LJ(MC) 26, R v Cheshire Justices, ex parte Heaver (1912) 108 LT 374, R v Murphy (1912) 2 IR 190, R v Nat Bell Liquors Ltd [1922] 2 AC 128, PC, and R v Bolton (1841) 1 Q B 66 applied.

Per Bamford-Addo JSC. Even if a right of appeal was available to the applicant, he could also apply for certiorari as the two remedies were not mutually exclusive. Hoorey v Commissioners of Taxation (1905) 3 CLR 221 cited.

Cases referred to:

Agyekum v Asakum Engineering And Construction Ltd [1989-90] 2 GLR 650, SC.

Darbah v Ampah, dated 12 February 1990, SC.

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

Hoorey v Commissioners of Taxation (1905) 3 CLR 221.

R v Hampstead and St Pancras Furnished Houses Rent Tribunal, ex parte Ascot Lodge Ltd [1947] 2 All ER 12, [1947] KB 973, 176 LT 560, 111 JP 349, 63 TLR 301, 91 Sol Jo 265, 45 LGR 363, DC.

R v Bolton (1841) 1 QB 66, Arn & H 261, 4 Per & Dav 679, 10 LJMC 49, 5 JP 370, 5 JUR 1154.

R v Cheshire Justices, ex parte Heaver (1912) 108 LT 374, 77 JP 33, 39 TLR 23, DC.

R v Christian (1842) 12 LJ (MC) 26.

R v Minister of Health, ex parte Committee of Visitors of the Glamorgan County Mental Hospital [1938] 1 All ER 344; affd [1938] 4 All ER 32, 159 LT 508, sub nom R v Minister of Health and Williams [1939] 1 KB 232, 108 LJKB 27, 102 JP 497, 55 TLR 4, 82 Sol Jo 869, 37 LGR 1, CA.

R v Murphy (1921) 2 IR 190, 55 ILT 98.

R v Nat Bell Liquors Ltd [1922] 2 AC 128, [1922] All ER Rep 335, 91 LJPC 146, 127 LT 437, 38 TLR 541, 27 Cox CC 253, PC.

R v Northumberland and Compensation Appeal Tribunal, ex parte Shaw [1952] 1 KB 338, [1952] 1 All ER 122, 116 JP 54, [1952] 1 TLR 161, 96 Sol Jo 29, 50 LGR 193, 2 P & CR 361, CA.

R v Paddington and St Marylebone Furnished Houses Rent Tribunal ex parte Kendal Hotels Ltd [1947] 1 All ER 448, 176 LT 330, 63 TLR 239.

R v Wandsworth Justices ex parte Read [1942] 1 KB 281, [1942] 1 All ER 56, 111 LJKB 234, 166 LT 118, 106 JP 50, 68 TLR 88, 49 LGR 62, DC.

Republic v Accra Special Court, ex parte Akosah [1978] GLR 212, CA.

Republic v Accra Rent Magistrate, ex parte Ofosu-Amaah [1965] GLR 613.

Republic v High Court Accra, ex parte Laryea [1989-90] 2 GLR 99, SC.

Republic v High Court Kumasi, ex parte Fosuhene [1989-90] 2 GLR 315, SC.

Walsall Overseers of the Poor v London and North Western Railway Co (1878) 4 App Cas 30, [1874-80] All ER Rep Ext 1602, 48 LJMC 65, 39 LT 453, 43 JP 108, 27 WR 189, HL, 3 QBD 457.

Adumua-Bossman for the applicant.

Djabanor for the respondent.

HAYFRON-BENJAMIN JSC. At first blush it would appear that this application raises grave and serious issues of law. The applicants, suing in aid of the exercise of this court’s supervisory power of certiorari have stated no fewer than 14 grounds upon which they consider this court should accede to their prayers in their motion. However, upon a close reading of the grounds it is clear that the applicants have misconceived the laws on the issues which they have so raised. This court in Darbah v Ampah dated 12 February 1990, SC, a similar case in which the applicant wanted to circumvent the appeal process by resort to an application for a prerogative writ, conceded that there were situations in which the court showed anxiety to deal with cases by adopting methods which were faster than the usual processes of normal appeal by resorting to the remedies being sought in that application. This court then stated the two hallowed grounds upon which the supervisory jurisdiction of the court will be invoked namely (i) excess or want of jurisdiction in the court and (ii) error of law appearing on the face of the record. This court in the Darbah case concluded that the application was only a desperate attempt to obtain the help of the Supreme Court to avoid the consequences facing a litigant who had twice lost his appeal and had neglected to observe the rules of court regarding appeals to the Supreme Court.

The situation in the present application is not entirely dissimilar. The matters leading to the present application are clearly set out in the judgment of this court in Agyekum v Asakum Engineering and Construction Ltd [1989-90] 2 GLR 650. This judgment was delivered on the 17th July 1990. It is the contention of the applicants that on that day this court made certain orders consequent upon the delivery of its judgment the chief among which was an order that “the counterclaim of the defendant still stands and is to be tried by the High court”. In this application the applicants contend that the defendant having failed to comply with that order is in contempt of court and therefore cannot be permitted to litigate on any matter in the courts until he has purged his contempt.

At this stage it is proper to identify the parties to this application. The applicants herein are the Asakum Engineering and Construction Ltd and its two directors, Mr George Kofi Asafu-Adjaye and Dr James Bafour Boakye, otherwise known as Asafu-Adjaye. They were the plaintiffs in Civil Appeal No 3/90 which terminated in this court on the 17th July 1990. Mr Maxwell Kwasi Agyeman Agyekum is the 2nd respondent to this application and the defendant in Civil Appeal No 3/90 referred to above.

The applicants’ complaint is that by the order of this court dated the 17th July 1990 the present 2nd respondent, then the defendant, had counterclaimed that he was a shareholder of their company and therefore he was in duty bound to pursue that course before he could embark on any other proceedings before any court. In the circumstances the 2nd respondent on the 6th August 1991 filed a petition for the winding up of the applicant company of which the 2nd respondent claimed he was a shareholder. In a well-reasoned judgment, Kpegah JA, sitting as additional High Court judge on the 23rd December 1991, granted the petition and barred the two applicants “from being directors of or in any way, whether directly or indirectly, be concerned or take part in the running of any company or act as a receiver or liquidator of any company for a period of six years”.

The applicants against whom Kpegah JA had delivered this devastating judgment were unmoved. They did not exercise their undoubted right of appeal. Instead, six months later they, to be precise on the 22nd June 1992, filed the present application seeking two reliefs, namely, (i) certiorari to quash the judgment of Kpegah JA and (ii) an order for committal for contempt against the 2nd respondent. It is interesting to note that on the 8th July 1991 in Suit No 868/84, a year after the judgment of this court referred to, (reported sub nom Agyekum v Asakum Engineering and Construction Ltd [1989-90] 2 GLR 650) Emelia Aryee J sitting in the High Court, Accra granted an order nisi attaching the 2nd and 3rd applicants for contempt. The learned High Court judge wrote:

“... this court hereby grants leave to applicants to apply for attachment of plaintiff-respondent as prayed. Pursuant notice to issue.”

The applicants had been adjudged to be in contempt and were required by law to show cause why the punishment of the court should not be visited upon them. Instead, a year later the applicants demanded that this court should punish the 2nd respondent for contempt of court. This is surely the case of the pot calling the kettle black. Before Kpegah JA the applicants as respondents strenuously tried to prevent the learned judge from embarking on an enquiry into the petition claiming that the petitioner was in contempt and therefore could not be heard by any court. The applicants further claimed that what the learned judge was doing was ultra vires because the learned judge’s action in hearing the petitioner was calculated “to frustrate the order of this (Supreme) court dated the 17th July 1990”. If I understand the present application correctly what the applicants are saying is that by reason of the fact that the respondent had failed or neglected to pursue his counterclaim as ordered by this court he was in contempt of this court. Further that if he was in contempt of court then not until he had purged his contempt he could not be heard on any matter by any court. That in hearing the petition with the knowledge that the petitioner was in contempt of court the learned judge acted ultra vires and therefore his judgment ought to be vacated by means of the application of the prerogative writ. I must confess that this last proposition that a superior court could in the exercise of its supervisory jurisdiction quash an ultra vires decision is novel to me and in any case not well-founded. An act is ultra vires if it is something done in excess of powers conferred by law. On the other hand “jurisdiction” in the sense that it is used in prerogative applications is “the power of a court or judge to entertain an action, petition or other proceeding”.

The applicants are not saying that Kpegah JA had no jurisdiction to entertain the petition but that he exceeded his powers in proceeding with the petition when it was brought home to him that the petitioner was in contempt. The simple question is was the petitioner in contempt of court? It is not necessary to advert to what acts constitute contempt of court. In the present application the applicants consider that the failure of the 2nd respondent to prosecute his counterclaim constitutes a contempt of court. I do not agree. There is nothing beneficial to a party to charge his adversary with being in contempt of court if such contempt is not brought to the notice of the court by any of the known processes for attaching a party for the contempt. In the present application no such step has been taken. Nor is the order really such as can be enforced by attachment for contempt. A counterclaiming defendant is in the same position as a plaintiff and if he makes default in the proceedings the plaintiff, now defendant to the counterclaim, is entitled to move to dismiss the counterclaim for want of prosecution. The applicants would have been in a strong position with respect to their stand in the petition if they had taken this course. But they did not do so. In my respectful view failure to take a step in a proceeding - unless the rules say so - cannot amount to a contempt of court. I agree entirely with Kpegah JA when in his ruling on the petition he wrote:

“No court can force a person to litigate and if he should decline so to do, he is not to be held in contempt of the said court. A court cannot be seen to be instigating litigation. The Supreme Court never made any order in respect of the counterclaim so as to make its non-prosecution amount to contempt of that court.”

The applicants rely on the English case of Hadkinson v Hadkinson [1952] 2 All ER 567 and contend that when a party is in contempt he cannot be heard by the court on any matter. I understand the applicants to mean that in that circumstance Kpegah JA should have stayed the hearing of the petition until the 2nd respondent had purged his contempt by prosecuting his counterclaim. Counsel for the applicants cannot be right in this submission. In volume 9 of Halsbury’s Laws of England 4th ed at page 64 paragraph 106 the learned editors state:

“The general rule is that a party in contempt, that is a party against whom a writ of attachment has been made, cannot be heard or take proceedings in the same cause until he has purged his contempt; ...” (Emphasis mine.)

Hadkinson v Hadkinson would not operate to assist the applicants in their submission because the injunction is limited to applications in the self-same case. Clearly the winding up petition was an entirely new application and even if the 2nd respondent was in contempt, which I say he was not, that contempt would not have been an impediment in his way in the prosecution of his petition which had to be removed before the petition could proceed. In my respectful opinion the applicants have failed to comply even with the basic procedural steps for establishing a contempt of court against the 2nd respondent. That relief therefore fails and is accordingly dismissed.

Even though the applicants placed their application for certiorari before their request for committal, it is obvious that the application for certiorari was predicated on a finding of contempt against the 2nd respondent. That relief having failed it is clear that there were no fetters, if any at all ever existed, on Kpegah JA’s jurisdiction to entertain the winding up petition. If Kpegah JA was clothed with jurisdiction and his judgment was erroneous the remedy open to the aggrieved party was to appeal. None of the grounds for relief either goes to jurisdiction or error of law to warrant the intervention of this court by the exercise of its supervisory jurisdiction. If anything, all the 14 grounds of relief are properly grounds of appeal. Whether the applicants would have been successful as appellants I will not venture an opinion. But I am aware that in the exercise of its supervisory powers this court is not concerned with the evidence as such. However, speaking for myself I am satisfied that Kpegah JA illustrated by reference to ample evidence presented to him that the 2nd respondent was indeed a shareholder. In my respectful opinion the application for certiorari also fails and it is accordingly dismissed.

As a last general observation let me express my utter surprise at the recklessly speculative manner in which this application has been presented. By the applicants’ counsel’s recourse to this process the applicants have lost their right of appeal and are forever stuck with the judgment of Kpegah JA. Learned counsel for the applicants in this application was counsel for the applicant in the Darbah motion and he should not so soon have forgotten Ofori-Boateng JA’s observation when he stated:

“I do not believe the Supreme Court should permit itself to be used in that way - that is to say neither counsel nor parties should seek to circumvent proceedings in the hierarchy of our courts by resort to unmeritorious applications for the issuance of supervisory writs in this court.”

The application is dismissed.

ADADE JSC. I am also of the opinion that there is no merit whatever in this application, and recommend that it be dismissed.

AMUA-SEKYI JSC. I am of the opinion that the application be dismissed.

AIKINS JSC. On 23 December 1991 the High Court, Accra, presided over by Kpegah JA sitting as an Additional High Court judge granted the prayer of the 2nd respondent herein, Maxwell Kwasi Agyeman Agyekum, to the effect that the affairs of Asakum Engineering and Construction Limited be wound up in the said company. The court proceeded to appoint the Registrar-General as the official liquidator, and further restrained the two other directors of the company, George Kofi Asafu-Adjaye and Dr James Bafour Asafu-Adjaye “from being directors of or in any way, whether directly or indirectly, be concerned or take part in the running of any company or act as a receiver or liquidator of any company for a period of six years”. Dissatisfied with the decision of the High Court the applicants have applied for an order of certiorari to bring up and quash the judgment of the High Court, Accra in Suit No Misc 164/91 dated 23 December 1991. They are also seeking an order of committal against the 2nd respondent for his contempt of the High Court, the Court of Appeal and this court, and a consequential order requiring the 2nd respondent to prosecute his counterclaim in Suit No 868/1984 in the High Court, Accra.

I do not think it is necessary in this ruling to give the antecedent history of the case leading to the winding up application before the High Court that has culminated in the application before this court. The applicants have urged various grounds of relief, but I shall concern myself with the following pertinent grounds:

a. The respondent High Court erred in disregarding the applicants’ preliminary objection and entertaining the motion for winding up despite the order of the Supreme Court dated 17th July 1990 in Civil Appeal No 3/90;

b. The respondent High Court ultra vires ignored or otherwise erred in overruling the applicants’ preliminary objection that since 2nd respondent was in contempt of the Court of Appeal and the Supreme Court he could not be heard to move the motion for winding up;

c. The respondent High Court erred in taking the view that the judgment of Miss Lutterodt J delivered on 27 May 1987 and its affirmations by the Court of Appeal (13 April 1989) and the Supreme Court (17 July 1990) were not on the merits;

d. The respondent High Court failed to appreciate that the standard of establishing fraud (i.e. beyond reasonable doubt) had not been attained by the 2nd respondent on his winding up motion;

e. In all the circumstances of the winding up petition, the respondent High Court exercised its discretion in a manner which was highly unjust or unfair to the applicants.

In effect the applicants are applying for an order of certiorari on the ground that the respondent High Court had

(i) acted ultra vires its jurisdiction,

(ii) misconstrued a statute, namely the Companies Code 1963,

(iii) misconceived a point of law, and

(iv) misdirected itself as to the weight of evidence.

Sometimes applicants lose sight of the fact that certiorari is a special remedy, and that in seeking it the question to be considered is whether or not the inferior tribunal acted within its jurisdiction or that the order is bad on its face in the sense that it is apparent on the face of it that the tribunal acted outside its jurisdiction, or decided some question which was not before it; see Walsall Overseers of the Poor v London & North Western Railway Co (1878) 4 App Cas 30 (followed by the Privy Council in R v Nat Bell Liquors Ltd [1922] 2 AC 128), R v Northumberland and Compensation Appeal Tribunal, ex parte Shaw [1952] 1 KB 338 at 352, R v Paddington and St Marylebone Furnished Houses Rent Tribunal ex parte Kendal Hotels Ltd [1947] 1 All ER 448, Rep v Accra Special Court, ex parte Akosah [1978] GLR 212, CA. It is the duty of the court dealing with the application to consider whether or not the order made by the inferior court is good on its face and whether it purported to decide a question which did not fall within its jurisdiction. Since this court has no jurisdiction to act as a court of appeal under the present circumstances, I do not think it would serve any useful purpose to express any opinion whether or not those matters the applicants are complaining about ought not to have been taken into account by the High Court. This court’s duty is simply to see whether the order is or is not valid on its face. In my judgment the High Court order is a perfectly good order on its face, and was made within its jurisdiction. The court was exercising its functions entrusted to it by statute, namely the Companies Code 1963 (Act 179). What we are in fact being asked to say is either that the High Court has misconstrued the statute or misdirected itself one way or the other, or had rejected evidence. If even the High Court came to its decision without proper evidence, that is not a matter in which certiorari can be granted.

Lord Hailsham’s edition of Halsbury’s Laws of England, 2nd ed Vol 9 gives an apt summary of the state of the law on this issue at page 888 paragraph 1493 (which unfortunately is not repeated in the 3rd edition) as follows:

“Where the proceedings are regular upon their face and the magistrate had jurisdiction, the superior court will not grant the writ of certiorari on the ground that the court below has misconceived a point of law. When the court below had jurisdiction to decide a matter, it cannot be deemed to exceed or abuse its jurisdiction, merely because it incidentally misconstrues a statute, or admits illegal evidence or rejects legal evidence, or misdirects itself as to the weight of the evidence, or convicts without evidence. Nor will certiorari be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong in matters of fact, and the court will not hear evidence impeaching the decision on the facts.”

The following decided cases were cited in support: R v Christian (1842) 12 LJ (MC) 26, R v Cheshire Justices, ex parte Heaver (1912) 108 LT 375, R v Murphy (1921) 2 IR 190, R v Nat Bell Liquors Ltd [1922] 2 AC 128 PC and R v Bolton (1841) 1 QB 66.

I now come to deal with the request for an order of committal against the 2nd respondent for his contempt of the High Court, the Court of Appeal and the Supreme Court. It is to be observed that the issue was raised in the High Court, Accra in the winding up proceedings. I note that in paragraph 3 of the applicants’ affidavit in opposition to the petition for winding up it was stated on their behalf by George Kofi Asafu-Adjaye as follows:

“3. I further object in limine that the petitioner is disabled from bringing this petition by reason that he is in contempt of the order of the Court of Appeal dated 30 July 1987 in Civil Motion No. 60/87 contained in the petitioner’s exh “Max13(a).”

And the High Court reacted as follows:

“The other point raised by the application is that the petitioner has to first prosecute his counterclaim and have his status determined before he could bring this petition, and that he cannot be heard because failure to prosecute the counterclaim amounts to contempt of the Supreme Court order. I entirely disagree for a very simple reason. No court can force a person to litigate and if he should decline to do so, he is to be held in contempt of the said court. With respect, I do not understand the law to be so. A court cannot be seen to be instigating litigation. The Supreme Court never made any order in respect of the counterclaim as to make the non-prosecution amount to contempt of that court. The court only stated: ‘The counterclaim of the defendant still stands and is to be tried by the High Court - see ‘exhibit H’.”

In my judgment, since this issue has already been adjudicated upon by the High Court, if the applicants are dissatisfied with its decision the proper remedy open to them is to appeal and not to come to this court by way of certiorari.

It follows therefore that this application fails and is dismissed.

BAMFORD-ADDO JSC. This is a motion for orders of certiorari and committal for contempt supported by affidavit setting out facts of the case. On the 27th May 1987 Miss Lutterodt J (as she then was) gave judgment against the 2nd respondent for delivery up of certain machinery and equipment to the applicant-company. On appeal the Court of Appeal on 13th April 1989 dismissed the appeal and a further appeal to this court was also dismissed on the 17th July 1990. In that judgment this court said:

“The appeal is dismissed ... the counterclaim of the defendant still stands and is to be tried by the High Court.”

In August 1990 the 2nd respondent filed a motion for stay of execution in the High Court before Miss Aryee J which is still pending. He also filed a motion to this court for a review which was also dismissed on 11th March 1991. During the hearing of the said motion both counsel agreed in court to adjourn the hearing to enable them to settle the case amicably out of court and this was granted by Miss Aryee J. Applicant however attempted to go into execution without first reporting to the court that negotiations for settlement had broken down. Consequently the 2nd respondent on 8th July 1991 moved a motion for leave to attach respondent for contempt before the said High Court. The court ruled thus:

“After reading the affidavit of Maxwell Agyeman Agyekum and after hearing Djabanor, counsel for applicant, this court hereby grants leave to the applicants to apply for attachment of plaintiff/respondent as prayed. Pursuant notice to issue.”

This was the state of affairs in the detinue case when on the 11th July 1991 the 2nd respondent herein presented his winding up petition to the High Court presided over by Kpegah JA, sitting as additional High Court Judge. After a number of preliminary objections raised by the applicant had been dismissed, Kpegah JA ordered the winding up of the applicant-company and made certain consequential orders. This is the judgment which the applicant seeks to quash by order of certiorari. He is asking also for consequential orders requiring the the 2nd respondent pursuant to the direction of the Supreme Court dated 17th July 1990 in Civil Appeal No 3/90, to prosecute his counterclaim in the High Court, Accra and an order of committal of the 2nd respondent for his contempt of the High Court, the Court of Appeal and this court in the detinue case. The grounds of this motion are briefly that:

(a) The High Court which heard the winding up petition acted ultra vires when it overruled the applicant’s preliminary objection to the winding up petition, because this court had required in the 17th July 1990 judgment that the 2nd respondent should pursue his counterclaim.

(b) The said High Court acted ultra vires when it ignored, and otherwise impliedly overruled the preliminary objection that since the 2nd respondent was in contempt of the Court of Appeal and this court, he could neither bring the winding up petition nor be heard to move the winding up motion.

Apart from these grounds the applicant listed a number of alleged errors contained in the High Court’s judgment, all of which are really grounds of appeal, not grounds for certiorari. The grounds for certiorari are that an inferior tribunal has acted without or in excess of jurisdiction or breached certain conditions in the administration of justice or that there is error apparent on the face of the record. Where an inferior tribunal has jurisdiction the superior court will not grant an order of certiorari on the ground that it has misconceived a point of law. There are a number of authorities establishing these principles of law. In the case of Republic v Accra Rent Magistrate, ex parte Ofosu-Amaah [1965] GLR 613 it was stated in holding (2) that:

“On the facts, an order of certiorari should not issue since an order will issue mainly where an inferior court has made an order without or in excess of jurisdiction or in disregard of fundamental conditions of the administration of justice. Here, the rent magistrate had not acted without jurisdiction or in excess of jurisdiction and certiorari would not be granted to quash the decision of an inferior tribunal within jurisdiction merely on the ground that the decision was wrong in matters of fact. R v Wandsworth Justices, ex parte Read (1942) KB 281 considered.”

Per Archer J (as he then was) at p 618:

“It is laid down in Halsbury’s Laws of England (3rd ed.) Vol. 11 at p 63 as follows:

“Certiorari will not be granted to quash the decision of an inferior tribunal within its jurisdiction on the ground that the decision is wrong in matters of fact, and the Court will not hear evidence impeaching the decision on the facts.”

This passage authorises me to rule that the order of certiorari should not issue in this case. But is the applicant remediless? I think not ... the applicants’ right is to appeal to the High Court against the rent magistrate’s order as I consider that the facts of the application do not justify the issue of the order of certiorari to quash the rent magistrate’s order.”

See also Republic v High Court Accra, ex parte Laryea [1989-90] 2 GLR 99, SC where it was held that if a tribunal acts within jurisdiction and there is no error on the face of the record as to make the decision a nullity, the correctness or otherwise of the decision is a matter for appeal. See also Republic v High Court Kumasi, ex parte Fosuhene [1989-90] 2 GLR 315 where it was held that the proceedings before the Regional House of Chiefs appeared to have been regularly conducted and in accordance with law and there were no allegations to the contrary. So that error of law if any would not invalidate the judgment or proceedings. The remedy open to an aggrieved party in the circumstances was to appeal and not come by way of certiorari.

In this case the respondent High Court had jurisdiction to entertain the winding up petition under the Companies Code 1963 (Act 179) s 246 and Bodies Corporate (Official Liquidations) Act 1963 (Act 180) s 4. There is no error on the face of the record and the fact that the High Court, according to the applicants, makes an error of law by overruling a preliminary objection, does not thereby deprive the court of jurisdiction and certiorari does not lie. The proper remedy open to the applicants is an appeal, if he so wishes.

According to the applicants the order of this court that the counterclaim of the 2nd respondent be tried at the High Court means that the only proper mode of proving his locus standi as a shareholder in the applicant-company was by pursuing the counter-claim. In other words he was thereby precluded from resorting to any other remedy open to him in law. I do not agree with this proposition. Indeed “there are many weapons in the legal armoury” available to litigants seeking justice and no court can dictate what remedy one has to adopt. The 2nd respondent himself filed a counterclaim and could pursue it or not in accordance with rules of court. The order by the Supreme Court is only a direction to continue with his counterclaim not a mandatory order which he had to comply with or be liable for contempt. It is my view that 2nd respondent was within his rights when he chose to present a winding up petition to vindicate his rights and the High Court judge could not debar him from doing this.

Even if he erred by so holding as submitted by the applicants it is a ground of appeal not of certiorari. This is equally true of the other errors listed in the applicants’ statement of case. See the case of R v Minister of Health, ex parte Committee of Visitors of the Glamorgan County Mental Hospital [1938] 1 All ER 344; affd [1938] 4 All ER 32 at 36 where it was held:

“... the Minister had not acted without jurisdiction, and, although his decision was in effect the construction of the provisions of the Act of 1909, it could not be questioned by the grant of a writ of certiorari.”

Greer LJ referred to the following passage in Halsbury’s Laws of England, Hailsham ed Vol 9 p 888 para 1493:

“Where the proceedings are regular upon their face and the magistrate has jurisdiction the superior court will not grant the writ of certiorari on the ground that the court below has misconceived a point of law. When the court below has jurisdiction to decide a matter, it cannot be deemed to exceed or abuse its jurisdiction, merely because it incidentally misconstrues a statute, or admits illegal evidence, or rejects legal evidence or misdirects itself as to the weight of evidence, or convicts without evidence ...”

See also R v Paddington and St Marylebone Furnished Houses Rent Tribunal, ex parte Kendal Hotels Ltd [1947] 1 All ER 448 at 449, where it was stated that certiorari does not lie to bring up and quash a decision of a tribunal constituted under the Furnished Houses (Rent Control) Act 1946 when the decision is good on its face and not outside the jurisdiction of that tribunal. The case of R v Minister of Health, ex parte Committee of Visitors of the Glamorgan County Mental Hospital [1938] 4 All ER 32 at 36 was cited with approval and Lord Goddard CJ said at 449, 450:

“Those are all matters of appeal. They are not matters in respect of which certiorari will lie, nor are they matters which can be brought before the court on this proceeding merely because the statute gives no right of appeal. We are not concerned with the policy of the statute. We are not concerned with whether it would be a good thing or a bad thing if a right of appeal had been given. We have only to see whether this order is good on the face of it and whether it is an order which is within the jurisdiction of the tribunal to make ... We have only to see whether the order is or is not valid on its face. If it is perfectly a good order on its face we have only then to consider whether it was within the jurisdiction of the tribunal to entertain this matter.”

The other ground that the High Court acted ultra vires because the 2nd respondent was in contempt of this court and other courts and was thus precluded from being heard by Kpegah JA is with respect misconceived.

“The general rule is that a party in contempt, that is a party against whom a writ of attachment has issued or an order for committal has been made, cannot be heard or take proceeding in the same cause until he has purged his contempt, nor while he is in contempt can be heard to appeal from any order made in the cause, but this is subject to exceptions.” (Italics mine.)

See Halsbury’s Laws of England 3rd Edition vol 8 paragraph 73. In Hadkinson v Hadkinson [1952] 2 All ER 567 Denning LJ said:

“This ordinance was much used as a means of enforcing Orders in Chancery, but it was never applied unless and until the contempt has been established by the issue of writ of attachment or an order of committal. As soon as that is done the party became a party in contempt and the court would not hear him.”

Subject to certain exceptions a party in contempt is debarred from being heard or taking steps in the same cause until he has purged his contempt. The 2nd respondent was never an adjudged contemnor nor was he taking steps in the same cause, so that the High Court did not act ultra vires when it entertained the winding up petition. The evidence rather showed that contempt proceedings were pending against the applicant in the detinue case before Miss Aryee J. Despite this, the applicant has come here to charge the 2nd respondent with contempt in the detinue case.

The remaining matter is that I agree with the applicants’ statement that even if a right of appeal is available to the applicant, he can also apply for certiorari and that the two remedies are not mutually exclusive. But then to obtain an order of certiorari in such a case, there must exist grounds for certiorari, where there are no such grounds, appeal, if any, is the remedy and the case of Hoorey v Commissioners of Taxation (1905) 3 CLR 221 at 236 supports this principle. It was held in that case that:

“The High Court of Australia will not always or generally refuse prohibition when aggrieved party has failed to take advantage of an available right of appeal or that prohibition should be refused as an exceptional remedy. On the contrary, if a want or excess of jurisdiction is clearly shown, the fact that the party damnified by the jurisdictional error had another remedy such as an appeal available will in general be immaterial.” (Italics mine.)

I am in complete agreement with the principle of law stated in the above case. The applicant has not shown that the High Court acted without or in excess of jurisdiction, nor that there is an error apparent on the face of the record which makes the decision a nullity. The errors of law alleged against the judgment are appealable errors and do not constitute grounds for certiorari.

In the result the application for orders of certiorari and committal for contempt is dismissed.

Application dismissed.

S Kwami Tetteh, Legal Practitioner.