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R U L I N G
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ATUGUBA, J.S.C.:
This is an application for
committal, for contempt of this
court, allegedly committed by
the respondent, Dr. Kwame
Duffour. The grounds for the
application are mainly contained
in paragraphs 2, 4 and 5 of the
applicant’s supporting
affidavit. They are as follows:
“2. That on 7th
June 2006, this Honourable Court
gave a unanimous judgment in
Civil Appeal, No. J4/25/2005
entitled:
Nicholas Bernard
Asare -
Plaintiff/Applicant/Respondent
Vrs
1.
Dupaul Wood Treatment Co.
(Ghana) Ltd
2.
Dr. Kwame Duffour
-
Defendants/Respondents/Applicants
3.
X
X X
4. That in its said
judgment (page 26) this Court,
after a very careful and
exhaustive examination of the
evidence made 3 declarations,
namely:
1.
a declaration
that the respondent is a
shareholder and a member of the
first appellant and holds 50% of
its issued share capital;
2.
a declaration
that the new regulations adopted
on 1st May 1980 were
never registered with the
Registrar General’s Department
and are therefore void and of no
effect;
3.
a declaration that the
purported removal of the
respondent as a director was
unlawful and so void.
5. That this Honourable
Court further confirmed two
(2) other orders made by the
Court of Appeal i.e.
1.
“That the applicant’s name be
entered in the Register of
Members of the first Respondent
Company (ie. The Appellant
company before this court)
pursuant to section 35 of the
Companies Code 1963 (Act 179).
2.
That the Applicant be paid all
the directors’ fees and
allowances which were
discontinued as a result of his
purported removal as a director
of the company”.
There is no doubt that this
court has power to commit for
contempt to itself. That is a
power possessed at common law by
a superior court, see
Asumadu-Sakyi II v. Owusu
(1981) GLR 398 C.A. That
power ahs been retained by
article 126(2) of the 1992
Constitution which provides as
follows:-
“The Superior Courts shall be
superior courts of record
and shall have the power to
commit for contempt to
themselves and all such
powers as were vested in a court
of record immediately before the
coming into force of this
Constitution”.
The question that arises on this
application is whether this
court has jurisdiction to
entertain the same.
The Declaratory
Reliefs.
First the
declaratory reliefs.
Declaratory orders declare the
rights of the parties but do not
order anything to be done by
them. They are therefore not
enforceable. It has been held
by this court that where the
declarations are made by a
customary tribunal they are
enforceable inasmuch as at
customary law decisions are
rendered in declaratory terms.
This would have required closer
scrutiny, but is in this case
nihil ad rem (irrelevant)
since the declarations in this
case did not emanate from a
customary tribunal. It has been
held in Dzotepe v. Hahormene
III (1984-86) 1 GLR 289 C.A.
that unless an order for
recovery of possession of land
has been granted by a court that
remedy is not open to a
successful party in a land
suit. Indeed in Conca
Engineering v. Moses
(1984-86) 2 GLR 319 C.A. the
remedy of recovery of possession
was denied a plaintiff, who
succeeded in his claim for
declaration of title, because
his counsel were indolent in not
seeking that relief. The court
left him as to a subsequent
action for that relief. All
this would not have been so if
declarations were enforceable
reliefs. See Republic v.
High Court, Accra; Ex parte
Laryea Mensah (1998-99) SCGLR
160. That is not to say that
a person cannot be guilty of
contempt in all circumstances
which do not involve an
enforceable relief. Atuguba,
J.S.C. adverted to this in
In re Effiduase Stool Affairs
(No. 2); Republic v.
Numapau, President of National
House of Chiefs, Ex parte Ameyaw
II (No. 2) (1998-99) SCGLR
639 at 673. We may give an
example, if a person were to say
of a declaratory judgment that
it has been made by a stupid or
useless judge or court, this
could be contempt of
scandalizing the court see
Republic v. Mensah Bonsu and
Ors; Ex parte Attorney-General
(1995-96) 1 GLR 377 S.C.
The application in this case
charges disobedience to the
judgment of this court. Thus in
paragraph 13 of the applicant’s
supporting affidavit he deposes
as follows:- “13. That
almost 18 months have elapsed
since this Honourable Court gave
its judgment of 7th
June, 2006 but the respondent
has not complied with any part
of that judgment.” e.s.
But the applicant himself admits
in respect of the question of
enforceability of declaratory
reliefs in paragraph 14 of his
supporting affidavit, thus “14.
That I am advised by counsel and
verily believe the same to be
true that the two orders made
by the Court of Appeal and
confirmed by this Honourable
court, not being declarations,
are executable”. We
therefore hold that in so far as
this application relates to
disobedience to merely
declaratory reliefs no contempt
is made out. There is also the
charge of contempt with regard
to the institution of a fresh
suit in the High Court, claiming
substantially the same reliefs
on the same facts as were
determined by this court on the
7th day of June,
2006. We have anxiously
considered the same.
The applicant aforesaid,
contends in respect of this step
by the respondent, that it is a
design to belittle the authority
of this court. In In re
Effiduase Stool Affairs (No. 2),
Republic v. Numapau, President
of the National House of Chiefs
and Ors; Ex parte Ameyaw II (No.
2) (1998-99) SCGLR 639 at
667-668 Acquah, J.S.C. (as he
then was) held in respect of the
entertainment of a petition to
the research committee of the
National House of Chiefs, as
follows: “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 same aside. Contempt
does not arise in such
circumstances. Otherwise,
whenever a body entertains a
matter which had previously been
determined by a competent
judicial authority, that body
would be held to be in contempt
of that judicial authority. But
this is not the legal position.
The doctrines of per incuriam
and res judicata are
meant to protect previous
binding decisions of courts. It
follows that the staff of the
research committee who were
present and are cited as the
thirteenth, fourteenth and
fifteenth respondents can, by no
stretch of imagination, be
equally held liable in
contempt”. Upon reflection we
accept this legal position.
After all, it is trite law that
the parties to a case can choose
to do what they like with a
judgment by agreement between
them, see Okantey v. Kwaddey
(1975) 1 GLR 193 C.A. and
Ansah-Ado v. Addo (1972) 2
GLR 400 C.A. We therefore also
dismiss this charge of contempt.
Contempt jurisdiction in respect
of orders confirmed on appeal.
The other sets of
reliefs, though enforceable,,
were not orders of this court
but orders of the Court of
Appeal which were merely
confirmed by this court. It has
sometimes been held in this
court that such confirmed orders
are enforceable by the
confirming court. We think
that, with the greatest respect,
the better view is that such
confirmed orders remain the
orders of the court that made
them and are to be enforced by
the latter, see MOSI v. BAGYINA
(1963) 1 GLR 337 S.C. Indeed
the nature of an appeal lends
support to this view. An appeal
is a plea to a higher court to
correct the decision of a lower
court which is contended to be
wrong, see A/S Norway Cement
Export Ltd v. Addison (1974)
2 GLR 177 C.A. (Full Bench). If
therefore the appellate court
does not interfere with the
decision below one would have
thought that the decision in
question remains wholly that of
the lower court. This is
fortified by the principle that
if a lower court’s judgment is
confirmed on appeal the judgment
of the lower court is effective
as from the date it was given by
such lower court, see in re a
Debtor (1953) 1 WLR 1050. There
is further fortification for
this view in the several
decisions of this court that
where an appellate court
dismisses an appeal without
making any executable orders by
itself there cannot be an
application for stay of
execution pending an appeal from
such a judgment. See Mensah
v. Ghana Football Association
(1989-90) 1GLR 1 S.C., NIB
Landmark Ltd. v. Lakiani
(2001-2002) SCGLR 318.
There are isolated decisions and
dicta of this court tending to
the contrary, but with the
greatest respect, there is a
heavy body of authorities in
support of the view that orders
which have been merely confirmed
on appeal cannot be the subject
of an application for stay of
execution pending an appeal from
such judgments.
In In Re Effiduase Stool
Affairs (No. 2) Republic v.
Numapau, President of the
National House of Chiefs, Ex
parte Ameyaw II (No. 2)
(1998-99) SCGLR 639 Acquah,
J.S.C. (as he then was)
impliedly held that contempt of
a High Court order is punishable
in this court, whereas a
contempt of orders of the
traditional councils and Houses
of Chiefs is punishable only by
the High Court by virtue of
section 36(7) of the Chieftaincy
Act, 1971 (Act 370) and
regulation 13(5) of the
Chieftaincy (Proceedings and
Functions) (Traditional
Councils) Regulations, 1972
(L.I. 798). With the greatest
respect, we do not agree with
the first part of this holding.
However if the basis for the
same is statutory, then it would
be article 126(2) of the 1992
Constitution, which has been set
out supra.
It will be seen that this
provision confers the powers to
commit for contempt on the
superior courts severally and
not jointly and severally.
In any case if under this
provision this court has
jurisdiction to punish for
contempt of the High Court, it
is difficult to see why it
should not have jurisdiction
over contempt in respect of the
Chieftaincy tribunals merely
because ordinary legislation in
the Chieftaincy Act 1971 (Act
370) or the Regulations, 1972,,
(L.I. 798) gives jurisdiction in
such matters only to the High
Court.
Charles Hayfron-Benjamin and
Ampiah JJ.S.C. in the Numapau
case supra, relied on articles
126(2) and 129(4) to hold that
this court has jurisdiction over
contempt cases emanating from
the High Court and the
Chieftaincy tribunals, inter
alia. With the greatest respect
we have already dealt with
article 126(2) supra. We would
however add that contempt from
inferior courts generally could
be dealt with by the High Court
which has always been a superior
court of general jurisdiction
and therefore also possesses
that power by virtue of the
second part of article 126(2),
namely, “…. and all
such powers as were vested in a
court of record immediately
before the coming into force of
this Constitution”. e.s.
Even if it is said that the
superior courts held their
powers of dealing with contempt
of court jointly as one superior
court of judicature, that cannot
now be so since under the 1992
Constitution the superior courts
being separate courts cannot
hold any powers jointly as one
superior court of judicature.
The superior courts of record
under the 1992 Constitution can
however continue under the
second part of article 126(2) to
have such powers, which vested
in a superior court immediately
before it came into force as the
inherent jurisdiction to correct
accidental slips in its
judgments or orders or to
clarify the same, etc. Such
powers inhere in any superior
court qua superior court and do
not depend upon any joint
tenure.
With regard to article 129(4) it
provides thus: “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 in
any court established by
this Constitution or any other
law”. It is plain that this
provision confers the powers,
authority and jurisdiction of
other courts in aid of the
exercise of this court’s own
jurisdiction with regard to any
matter. As explained by
Atuguba, J.S.C. in Edusel
(No. 2) v. Attorney-General
(1998-1999) SCGLR 753 at
798-799, article 129(4) is
auxiliary to the Supreme Court
but is not the fons et origo
of jurisdiction over a matter
over which it otherwise has no
jurisdiction. To take one or
two examples, in the exercise of
its supervisory or appellate
jurisdiction over a case
concerning chieftaincy maters,
this court may, particularly
with regard to appeals, deem it
necessary to make consequential
orders concerning chieftaincy
matters which it would otherwise
not have jurisdiction to make.
But this provision cannot by
itself clothe this court with
original jurisdiction over
chieftaincy matters.
In any event the settled
Practice Direction of this
court, see (1981) GLR 1, would
disentitle the applicant from
coming to this court first
without prior resort to the
Court of Appeal whose orders
this court affirmed, even if
this court had concurrent
jurisdiction (which we deny),
over this part of the
application.
We need not say anything that
would tend to prejudice any
subsequent application to the
appropriate court, as far as the
second part of this application
is concerned.
For all the foregoing reasons we
dismiss this application.
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
DR. S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME COURT
S. O. B. ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT
S. K. ASIAMAH
JUSTICE OF THE SUPREME COURT
COUNSEL:
Mr. Kwame Gyan for Applicant
Thadeus Sory for Respondent.
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