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Review - Judicial review
- Certiorari - Order of contempt
of court - Wether or not the
orders made by the learned trial
judge was beyond the authorized
sanctions - Wether the orders
made were without jurisdiction -
HEADNOTES
We have before us a notice
of motion that seeks an order of
judicial review in the nature of
certiorari in respect of the
order of the High Court presided
over by Owusu Gyamfi J that
allowed in favor of the
interested party an application
for attachment for contempt of
the bodies of the applicants
herein. Before us in these
proceedings, several grounds
were urged in support of the
instant application the court
below had no jurisdiction to
utilize the process of a motion
for contempt of court to grant
an order of ejection or recovery
of possession of the property in
question against the applicants
herein when the substantive
matrimonial cause between the
1st applicant herein and the
interested party herein is still
pending before another court of
co -ordinate jurisdiction.The
court below had no power to use
the process of contempt of court
to make a substantive order of
ejection against the applicants
herein in respect of the
premises owned by the 1st
applicant herein.
The reliefs of ejection
from the premises and an order
for the applicants herein to
remove all their belongings from
the residential property in
question sought by the
interested party in her
application for contempt (which
were granted by OwusuGyamfi J)
were substantially the same as
reliefs 2, 3, and 4 sought by
the same interested party in an
earlier application for interim
relief in the court duly
constituted for the hearing of
the matrimonial cause presided
over by Merley Wood J, and,
which had been dismissed.
HELD :-
As the question of the guilt of
the applicants was properly
within the jurisdiction of the
court and the parties have by
the manner in which they have
presented their cases to us
deprived us from considering
whether the objections raised
before us were properly before
the court below, we are unable
to accede to the application in
relation to that determination
and the sentence of fine imposed
on the applicants.For these
reasons, the application is
acceded to in part only
STATUTES REFERRED TO IN JUDGMENT
High Court (Civil
Procedure) Rules 2004, CI 47
1992 Constitution
CASES REFERRED TO IN JUDGMENT
Republic v High
Court, Kumasi, Accra Ex-parte
Abubakari (No 2) [1998-99] SCGLR
904
Re Davies (1888) 21
QBD 236
BOOKS REFERRED TO IN JUDGMENT
Halsbury’s Laws of England
(Fourth Edition) Volume 10
paragraph 87
DELIVERING THE LEADING JUDGMENT
GBADEGBE JSC:
COUNSEL
GODFRED YEBOAH DAME ESQ. WITH HIM
HARUNA MAMAH AND ALEX OSEI
MANTEY FOR THE APPLICANTS.
EKOW
DADSON ESQ. WITH HIM DAVID
AMETEFE THE INTERESTED PARTY.
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RULING
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GBADEGBE
JSC:
We have before us a notice of
motion that seeks an order of
judicial review in the nature of
certiorari in respect of the
order of the High Court presided
over by Owusu Gyamfi J that
allowed in favor of the
interested party an application
for attachment for contempt of
the bodies of the applicants
herein. Before us in these
proceedings, several grounds
were urged in support of the
instant application as follows:
1. That the court below
had no jurisdiction to utilize
the process of a motion for
contempt of court to grant an
order of ejection or recovery of
possession of the property in
question against the applicants
herein when the substantive
matrimonial cause between the
1st applicant herein and the
interested party herein is still
pending before another court of
co -ordinate jurisdiction.
2. The court below had
no power to use the process of
contempt of court to make a
substantive order of ejection
against the applicants herein in
respect of the premises owned by
the 1st applicant herein.
3. The reliefs of
ejection from the premises and
an order for the applicants
herein to remove all their
belongings from the residential
property in question sought by
the interested party in her
application for contempt (which
were granted by OwusuGyamfi J)
were substantially the same as
reliefs 2, 3, and 4 sought by
the same interested party in an
earlier application for interim
relief in the court duly
constituted for the hearing of
the matrimonial cause presided
over by Merley Wood J, and,
which had been dismissed. The
court thus had no jurisdiction
to grant the order of ejection.
4. The court below had
no jurisdiction to either
prejudice the hearing of the
substantive matrimonial cause,
viz. Suit No. BDMC 3146/2013 -
CATHERINE PANYIN QUAYSON V
EUGENE KWAKU QUAYSON currently
pending before Merley Wood J or
prejudice the rights of the 1st
applicant herein to the property
in question pending the hearing
of the substantive matrimonial
cause by another court of
coordinate jurisdiction.
5. The proceedings of
the court below in the contempt
application were void as same
were in violation of Article 157
of the Constitution of the
Republic.
We have carefully considered the
processes before us in the
application herein and had
regard to the submissions urged
on us in open court and have
come to the conclusion that of
the several grounds raised in
support of the application, the
only ground of substance is that
formulated and numbered as 2,
which touches and concerns the
absence of jurisdiction in the
court below and accordingly we
shall in our ruling limit
ourselves to the consideration
of that ground only. We,
however, wish to observe of the
formulation and in particular
the utilization of the word
“power" in reference to the
authority to decide, which is
exercisable in relation to
disputed questions of fact and
or law and is properly described
as jurisdiction as distinct from
the authority conferred on other
bodies and o persons such as
agents of the executive or
designated public officers.
Having said so, we further
observe about the other grounds
that as the only document before
us which was certified by the
court below is the ruling on
which this application is
grounded, we are in a difficulty
as to the competency of grounds
1, 3, and 4 which are derived
from matters which strictly
speaking do not come within the
designation of the record for
the purposes of certiorari. It
is trite learning that the
record includes documents
initiating the action such as
the pleadings and or charge
sheet and the ruling and or
judgment or conviction. Where
the order sought to be quashed
relates to an interlocutory
decision, then by analogy the
record might include in addition
to the processes initiating the
action, the notice of motion and
or objection and the ruling
founded thereon. See:
Republic v High Court, Kumasi,
Accra Ex-parte Abubakari (No 2)
[1998-99] SCGLR 904 at 916. As
it is, we are not certain in our
minds if the matters referred to
in the other grounds such as the
pending matrimonial cause before
Merley Wood J, were part of the
materials before Owusu Gyamfi J
which resulted in his decision
the subject matter of this
application. Although, the
decision on which this
application turns referred to
the pendency of a matrimonial
cause between the parties, it is
not sufficient for the purpose
of satisfying us that the
processes in that action were
actually part of the documents
before the learned trial judge
in the contempt application; the
applicant is required to satisfy
us in accordance with the
settled practice that it is
indeed, part of the record on
which the instant application is
based.
We also note that to make any
process and or document come
within the designation of the
record for the purpose of this
application, the same should
have been part of the processes
filed in the matter on which the
ruling sought to be quashed is
based and additionally exhibited
to the proceedings and certified
by the court below as a
certified true copy. It is
important to bear in mind that
the jurisdiction of judicial
review exercisable by us by way
of supervision is in its nature
limited to the matters which
were the subject matter of
proceedings resulting in either
a judgment, ruling and or order
and we should always endeavor
not to go outside the record
else we would ourselves be
straying into areas outside our
jurisdiction
In our view, none of the grounds
numbered as 1, 3 and 4 either by
themselves or cumulatively
considered with the others
disclose a point that goes to
either jurisdiction , error of
law or bias such as to be a
good ground for certiorari. In
regard to ground 5, we say
straightaway that we are unable
to comprehend its relevance to
the issues which turn on the
instant application for our
determination as contempt
proceedings though arising from
pending causes or matters are
independent and need not be
placed necessarily before the
judge trying the cause or matter
in which the contumacious
conduct is alleged to have
occurred.
Now, since the application on
which the ruling is based was
for an order of contempt of
court, the only orders that the
court was entitled to make is a
fine and or conviction but
unfortunately the learned trial
judge veered into error when he
purported to make order of
ejectment which is a relief that
can only be obtained in civil
proceedings after the
requirements of due process have
been met. We add in line with
the caution of Mathew J in the
case of In Re Davies
(1888) 21 QBD 236 at 239 that:
“Recourse
ought not to be had to process
of contempt in aid of a civil
remedy where there is any other
method of doing justice.”
In the course of these
proceedings, learned counsel for
the interested party sought to
justify the orders on the ground
that the conduct of the
applicants herein was an affront
to the administration of
justice but interesting though
the said submissions are, we are
not persuaded that the court
below acted within its
jurisdiction and we are in
agreement with the applicants
that the orders made by the
learned trial judge beyond the
authorized sanctions were
without jurisdiction and proceed
to sever “the bad from the
good” – by striking out the
offending part of the judgment
by which an order of ejectment
was made by the learned trial
judge. We are of the view think
that the offending part of the
judgment, which was an instance
of absence of jurisdiction, was
not of such nature as to have
destroyed the jurisdiction which
the court below had in the
matter.
In regard to the order for
ejectment which was made without
jurisdiction, reference is made
to the statements contained in
Volume 10 of Halsbury’s Laws of
England (Fourth Edition)
paragraph 87 at page 5 as
follows:
“Criminal contempt of court
is punishable by a fine or by an
order to give security for good
behavior.
Civil
contempt of court is punishable
way of committal or by way of
sequestration. The writ of
sequestration though in its
nature a process for dealing
with contempt is a form of civil
execution and is not applicable
to criminal contempt. The effect
of the writ of sequestration is
to place, for a temporary
period, the property of the
contemnor into the hands of
sequestrators, who manage the
property and receive the rents
and profits. A writ of
sequestration may also issue
with leave of the court.
Civil
contempt may also be punished
with a fine or an injunction may
be granted against the contemnor.”
See: Order 50 of the High
Court (Civil Procedure) Rules
2004, CI 47
As the question of the guilt of
the applicants was properly
within the jurisdiction of the
court and the parties have by
the manner in which they have
presented their cases to us
deprived us from considering
whether the objections raised
before us were properly before
the court below, we are unable
to accede to the application in
relation to that determination
and the sentence of fine imposed
on the applicants.
For these reasons, the
application is acceded to in
part only.
(SGD) N. S. GBADEGBE
JUSTICE
OF THE SUPREME COURT
(SGD) W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD) V.
AKOTO BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
(SGD) J. B. AKAMBA
JUSTICE
OF THE SUPREME COURT
COUNSEL
GODFRED YEBOAH DAME ESQ. WITH HIM
HARUNA MAMAH AND ALEX OSEI
MANTEY FOR THE APPLICANTS.
EKOW
DADSON ESQ. WITH HIM DAVID
AMETEFE THE INTERESTED PARTY.
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