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Contempt –
Practice and Procedure -
Discretionary remedy of
certiorari - Contempt of
court - legal vacation -
Authority conferred by the Chief
Justice to sit as a vacation
judge - Whether or not contempt
application is “a substantive
matter standing on its own as a
separate cause or matter –
section 21(3) of the Courts’
Act, 1993 (Act 459).- section
10(1)-(3) of the Courts Act,
1993 (Act 459), as amended by
the Courts (Amendment) Act, 2002
(Act 620), s 7
HEADNOTES
The applicant
until recently, one of the
executors of the will of the
late Samuel Christian Appenteng,
on 18/4/2008 obtained, in a
chain of steps, leave for the
issue of a writ of possession,
in respect of one of the
properties of the estate of the
said testator. However the
purported execution of this writ
was obstructed by the interested
parties herein. The applicant
thereupon obtained on 22/5/2008
an order for forcible entry and
arrest of any person who would
seek to obstruct the same.
Meanwhile the interested parties
had commenced an action on the
16/12/2007 against the
interested parties impeaching
the purported disposal of the
disputed property. After an
initial ex-parte interim
injunction on 16/5/2008, the
interested parties, on 30/5/2008
brought an application on notice
for the same which was adjourned
to 16/10/2008 for Ruling.
Before the Ruling could be
given, the interested parties
claim per paragraph 15 of their
affidavit herein that “the
applicant herein and 4th
Defendant without waiting for
the ruling of the Court on 8th
day of July 2008 entered the
premises threw out the
beneficiaries and forcibly
removed the machines being used
by the said beneficiaries and
thereby destroying the said
machines and used forklift to
remove the machines from the
premises into the pavement and
left the machines to the mercy
of the sun" They therefore on
7/8/2008 filed a motion for
contempt against them. This
contempt motion was heard and
the applicants found guilty of
contempt by the High Court, on
20/10/2008. As the original
proceedings of this case had
been pending in the ordinary
High Court, the applicant
contends that as a judge of the
Commercial Division had no
jurisdiction to hear and
determine the contempt
application and (2) since they
acted on the orders of the High
Court it was wrong in adjudging
them guilty of contempt
HELD
As to the
contention that the judge is
wrong in holding that contempt
has been committed we cannot
find any error on the face of
the Ruling to ground
certiorari.For all the foregoing
reasons we would dismiss this
application.
STATUTES
REFERRED TO IN JUDGMENT
Courts’ Act,
1993 (Act 459).
CASES
REFERRED TO IN JUDGMENT
Republic v.
High Court, Ex parte Yalley
(Gyane & Ottor Interested
Parties) [2007-2008]SC GLR 512
In R v Imer
London Quarter Session; Ex parte
D’souza (1970) AII ER 481,
R v.
Williams; Ex parte Phillips
(1914) IK B608
Wiredu v Mim
Timber Co Ltd. (1963)2 GLR 167
S.C
Republic v.
High Court, Kumasi; Ex parte
Ackaah (1995-1996)I GLR 270 S.C.
Imperial
Chemical Industries plc v.
Colmer (Inspector of Taxes)
(1996)2 AII ER 23 H.L at 29
Republic v.
High Court, Cape Coast; Ex parte
Marwan Kort. (1998-99) SC GLR
833
Soro v Frans
(2005-2006) SC GLR 1003
The Republic
v. High Court Judge (Fast Track
Division) Accra; Ex parte Quaye
& Anor (Yovonoo & Ors Interested
Parties) (2005-2006) SC GLR
660.
Obadzen II v.
Onanka II (1982-83) GLR 46 C.A
Midland Bank
Trust Co Ltd v Green (No. 3)
(1979)2 AII ER 193
Republic v.
Special Tribunal; Ex parte
Forson (1980) GLR 529
Kwakye v.
Attorney-General (1981) GLR 944
S.C
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ATUGUBA,
JSC:-
COUNSEL
SAM OKUDZETO FOR THE APPLICANT.
YAW OPOKU ADJAYE FOR THE
INTERESTED PARTIES/RESPONDENT.
R U L I N G
______________________________________________________________________
ATUGUBA,
JSC:-
Briefly
stated, the facts of this case
are as follows.
The
applicant until recently, one of
the executors of the will of the
late Samuel Christian Appenteng,
on 18/4/2008 obtained, in a
chain of steps, leave for the
issue of a writ of possession,
in respect of one of the
properties of the estate of the
said testator. However the
purported execution of this writ
was obstructed by the interested
parties herein. The applicant
thereupon obtained on 22/5/2008
an order for forcible entry and
arrest of any person who would
seek to obstruct the same.
Meanwhile the interested parties
had commenced an action on the
16/12/2007 against the
interested parties impeaching
the purported disposal of the
disputed property.
After an
initial ex-parte interim
injunction on 16/5/2008, the
interested parties, on 30/5/2008
brought an application on notice
for the same which was adjourned
to 16/10/2008 for Ruling.
Before the Ruling could be
given, the interested parties
claim per paragraph 15 of their
affidavit herein that “the
applicant herein and 4th
Defendant without waiting for
the ruling of the Court on 8th
day of July 2008 entered the
premises threw out the
beneficiaries and forcibly
removed the machines being used
by the said beneficiaries and
thereby destroying the said
machines and used forklift to
remove the machines from the
premises into the pavement and
left the machines to the mercy
of the sun"
They therefore on 7/8/2008 filed
a motion for contempt against
them. This contempt motion was
heard and the applicants found
guilty of contempt by Tanko
Amadu J, a judge of the
Commercial Division of the High
Court, on 20/10/2008.
As the original proceedings of
this case had been pending in
the ordinary High Court, the
applicant contends that (1)
Tanko Amadu J as a judge of the
Commercial Division had no
jurisdiction to hear and
determine the contempt
application and (2) since they
acted on the orders of the High
Court Tanko Amadu J was wrong in
adjudging them guilty of
contempt.
This is a matter which, ex
facie, could have been
disposed of by this court upon
hearing the motion without
adjournment. However the
terrain of the manner in which
the judicial divisions and
judges generally, should operate
in the exercise of their
jurisdiction is one that has
reared its head again strongly
and more and more light
continues to be shed on it.
This court has held in
Republic v. High Court, Ex parte
Yalley (Gyane & Ottor Interested
Parties) [2007-2008]SC GLR
512 that a
contempt
application is “a substantive
matter standing on its own as a
separate cause or matter.”
Were the matter to rest there it
would appear that Tanko Amadu J,
though of the Commercial
Division of the High Court,
could competently deal with the
contempt application herein.
The matter is however
complicated by the fact that
Tanko Amadu J sat on this matter
during the
legal
vacation upon the authority
of the Chief Justice. Exhibit
9a attached to the interested
parties’ affidavit in opposition
reads:
“SCR
33c/Vol.4
OFFICE OF THE JUDICIAL SECRETARY
P. O. BOX 119
Accra, Ghana
9th January, 2009
M. A. F. RIBEIRO & ASSOCIATES
P. O. BOX 1680
78 CASTLE ROAD ADABRAKA
ACCRA
ATTN: MR. Y. OPOKU-ADJAYE
RE: VACATION JUDGES FOR 2008
HIGH COURT
SUIT NO. BL. 259/2007
STEPHEN KWAKU ASIEDU APPENTENG
AND OTHERS
KWABENA APPENTENG AND OTHERS
I acknowledge receipt of your
letter dated 18th
December 2008 on the above
subject matter.
I write to inform you that
His Lordship Justice Issifu
Omoro Tanko Amadu was authorized
to sit as a vacation judge and
also to preside over the Land
Division Accra during the 2008
Legal vacation.
JUSTICE ALEX B POKU-ACHEAMPONG
JUDICIAL SECRETARY
CC: Her Ladyship the Chief
Justice
Second
Deputy Judicial Secretary
Chief
Registrar-General”
In our judicial dispensation the
legal vacation for the superior
courts starts from the 1st
day of August and ends on the 30th
day of September, though in
practice vacation judges are
expected to hold on until the
legal year ceremonies are over.
Specific judges are mandated by
the Chief Justice to sit as
vacation judges. This means
that even though a contempt
application is an originating
process Tanko Amadu J’s
authority to sit over it in this
case stemmed from the
authority
conferred on him by the Chief
Justice during the legal
vacation aforesaid. This would
mean that his said authority to
sit outside his Division covered
the said period of the
vacation. Tanko Amadu J however
ruled on the contempt
application on 20/10/2008 when
the legal vacation was long past
and gone and his period of
authority as a vacation Judge
had lapsed. There is no
evidence that this matter was
thereafter transferred to him in
the Commercial Division. It
would mean therefore that after
the legal vacation the matter
would ordinarily fall within the
authority of the judge of the
court in which the application
had been filed.
Indeed the interested parties
stand firmly only on the
vacation authority of Tanko
Amadu J to sit on the matter, to
justify his said Ruling.
It is not clear from exhibits
KA7 of the applicant and 9a of
the interested parties whether
this matter was pending in the
ordinary High Court or the Lands
Division thereof. But what is
clear is that it was not filed
in the Commercial Division of
the High Court. It cannot be
said that the administrative
identities of the courts are
effaced during the legal
vacation, though authority to
sit may be conferred across
them.
In the circumstances it cannot
be said that Tanko Amadu J was
properly seised of this matter
on 20/10/2008 when he determined
it.
This would seem to be conclusive
of the matter. However this is,
inter alia, an
application for certiorari. It
is well established that this
remedy being discretionary a
suitor for it, even on the
ground of want of jurisdiction,
will not obtain it ex
debito justitiae unless
he can show that he raised
objection to the want of
jurisdiction if he was aware of
it.
We see no difference to this
rule when what is involved in
this case smacks of excess, as
opposed to want, of
jurisdiction.
In R v
Imer London Quarter Session; Ex
parte D’souza (1970) AII ER
481, Lord Parker CJ said at
482 thus: “The remedy by way
of certiorari is, of cause
discretionary, and there is
authority to be found in
R v.
Williams; Ex parte
Phillips (1914) IK B608, to the
effect that, if a party to
litigation applies to this court
for certiorari, certiorari will
not be granted if no objection
to the jurisdiction was taken
before the court below, unless
the party was unaware of the
absence of jurisdiction.”
This is similar to the principle
that if there is absence of a
formal authority to the
institution of proceedings
objection as to them should be
taken at an early stage.
It is a similar line of thought
that informs those who hold the
view that judicial divisions are
meant for the convenience of the
administration of justice but
not to detract from jurisdiction
unless objection is raised. See
Wiredu
v Mim Timber Co Ltd. (1963)2
GLR 167 S.C and Republic v.
High Court, Kumasi; Ex parte
Ackaah (1995-1996)I GLR 270
S.C. However as was aptly
put by Milett Jas quoted by Lord
Nolan in
Imperial Chemical Industries
plc v. Colmer (Inspector of
Taxes) (1996)2 AII ER 23 H.L at
29 ‘In my judgment the
Crown’s submission confuses
the meaning of the statutory
language with its application.
Statutes are not academic
exercises in linguistics. They
have external application,
affecting real people and actual
situations…’ We understand
this statement to mean that in
applying statutes the realistic
facts on the ground must be
borne in mind.
The facts on the ground show
that if the administrative
checks put in place by
legislation such as the Chief
Justice’s power of transfer of
cases between courts and judges
are not enforced chaos, forum
shopping and combustible
disharmony among judges would
ruin or mar the administration
of justice in this country.
Thus in
Republic v. High Court, Cape
Coast; Ex parte Marwan Kort.
(1998-99) SC GLR 833 this
court was called upon to enforce
section
21(3) of the Courts’ Act, 1993
(Act 459).
It is as follows:
“21(3) An appeal under
this section against a
decision of a Community Tribunal
shall, subject to any
transfer directed by the Chief
Justice, be made to the Judge
of the High Court exercising
jurisdiction over the area of
jurisdiction of the Community
Tribunal.”
The facts of the case as stated
in the headnote are, as far as
relevant, as follows:
“The applicant sued the
interested party (hereafter
referred as the respondent) in
the Agona Swedru Community
Tribunal and obtained
judgment for arrears of rent and
an order for ejectment against
him. The respondent first
lodged an appeal in the Agona
Swedru High Court against the
judgment. He then applied for a
stay of execution of the
judgment. However, the
application was dismissed by the
community tribunal.
Subsequently, the respondent
lodged another appeal in the
Cape Coast High Court being a
High Court in the same region as
that of the Agona Swedru High
Court. The respondent
repeated his earlier application
for stay of execution in the
Cape Coast High Court. The
applicant was served with the
motion paper and supporting
affidavit. However, he failed
to respond to same by filing an
affidavit in opposition; he
also failed to attend court
on the date the application was
to be heard.”
Although I had some misgivings
about the wording of the
provision, I did not dissent.
This court held as per holding
(2) of the headnote as follows:
“(2) Except where the Chief
Justice had exercised his power
of transfer to have the
respondent’s appeal transferred
from Agona Swedru High Court to
the Cape Coast High Court under
section 21(3) of the Courts Act,
1993 (Act 459), the Cape
Coast High Court could not be
the proper forum to entertain
the appeal and its accompanying
motion for stay of execution-
emanating from the Agona Swedru
Community Tribunal. The Cape
Coast High Court judge had erred
in assuming jurisdiction in the
matter.”
The mood of the court in the
case was vividly conveyed by
Hayfron-Benjamin JSC as per the
headnote thus:
“Per
Charles Hayfron-Benjamin JSC.
The fact that there are two
High Courts in the same region
does not mean that a prospective
applicant may elect in which
High Court and in what town he
may prefer his appeal… In
my… opinion the prospective
appellant is not put to his
election. His duty is to
file his appeal in the High
Court nearest to the community
tribunal within the region and,
where inconvenient, apply to the
Chief Justice for the transfer
of the appeal to any other high
court. It was not open to
the respondent to elect in which
of the High Courts – Cape Coast
or Agona Swedru – to prefer his
appeal. Agona Swedru High Court
was the venue for his appeal and
the trial judge in the Cape Cost
High Court should have been put
on enquiry as to the propriety
of the appeal and the subsequent
application for stay of
execution before the
court.”(e.s)
A similar vice had to be
contended with in
Soro v
Frans (2005-2006) SC GLR
1003 and again in
The
Republic v. High Court Judge
(Fast Track Division) Accra; Ex
parte Quaye & Anor (Yovonoo &
Ors Interested Parties)
(2005-2006) SC GLR 660. A
more gruesome picture has been
painted in the Ex parte
Yalley case, supra At p.516
Mrs. Georgina Wood C.J
describing the facts of the case
said:
“The facts leading to this
application are quite
straightforward. In September
2006, the applicant caused a
writ of summons to be issued
against the defendants (the
interested parties in the
instant application) in respect
of a plot of land he claimed the
defendants have trespassed on,
and successfully applied for an
order of interim injunction
against them for the statutory
ten day maximum period.
On
1 November 2006, however, the
defendants, the interested
parties initiated contempt
proceedings against the
applicant. …. the contempt
application was placed before
Mrs. Justice Owusu-Arhin,
where, in line with court
management practices, it
continued to be managed by her
court clerk during the period
she was away on leave. Indeed,
when the matter came up in her
absence on 15 November 2006, it
was accordingly adjourned, in
the presence of both parties to
18 January 2007 by the court
clerk.
Soon after this adjournment,
the interested parties, through
their counsel, succeeded in
having the registrar of the
court not only abridge the date
by bringing it forward to 14
December 2006, but without an
order from the Chief Justice,
caused the matter to be
transferred to an entirely
different court and placed
before a new judge.
The new judge ordered a bench
warrant to issue against the
applicant when he failed to
attend court on
14 December 2006. As if not
to be outdone in what we may
describe as a game of charades,
the applicant in turn maneuvered
and made an appearance before
yet an entirely different judge
sitting in another court, who
rescinded the bench warrant.
Subsequently, the judge who
issued the original warrant of
arrest, nonetheless, and on 22
January 2007, made further
orders of arrest against the
applicant.”
In granting the certiorari
application she, at 517
unburdened herself thus:
“The arguments raise a number of
primary and secondary issues.
Basically, it calls for an
interpretation of
section
10(1)-(3) of the Courts Act,
1993 (Act 459), as amended by
the Courts (Amendment) Act, 2002
(Act 620), s 7 and sched.
The broad issue we would have to
resolve is what is the proper
construction to be placed on
this important statutory
provision, in the context of the
word “case” as appears in
section 104?
It
is imperative that we clearly
spell out the parameters of this
law, for reasons that will
become evident in due course.
Indeed, our first quick reaction
is that it is these very chaotic
events which bedeviled the
contempt application, happenings
which, in our view, amount to
nothing more than the parties,
with the active connivance of
their counsel and registrar
having gone forum shopping for
judges of their choice, which
underscores the importance of
these statutory provisions.
Paradoxically, it is these
self-same matters that would
assist us to unravel the true
and proper construction of
section 104 of the Act 459.
Indeed, if we must eliminate the
specter of perceived judicial
manipulation and other negative
acts or conduct that are alleged
to be stalking, as it were, our
judicial corridors, then it is
absolutely critical that all the
principal powers who drive the
system, particularly, judges,
ought strictly to ensure
compliance with the provisions
in section 104 which are clearly
intended to inject order,
transparency, accountability and
sanity into the entire justice
system. We find that the
provisions in section 104 are
intended to promote credibility,
general efficiency and should be
allowed to function as such.”
Against a background such as
this we have no difficulty in
holding that though
certiorari is a
discretionary remedy, the
omission of a party to raise
objection to a proceeding in an
inappropriate forum should
disentitle the applicant to that
remedy where the omission was
wilful and an abuse of the
process of the court. Such is
the case here. The fact that
Tanko Amadu J was exceeding his
authority after the effluxion of
the vacation period did not seem
to have bothered the applicant
until his Ruling turned out to
be adverse to him. Were it to
have been in his favour he would
have celebrated it.
In
Obadzen II v. Onanka II
(1982-83) GLR 46 C.A the
Court of Appeal by a majority of
2-1sustained the trial by the
High Court of a case in which
the procedure by which the High
Court could have taken over and
heard the case, which had been
commenced in a district court,
had not been properly followed;
holding that the important thing
to consider is that the High
Court has an enhanced concurrent
jurisdiction over the subject
matter. If the Court of Appeal
could go that far on an appeal
which is not a discretionary
jurisdiction how much stronger
is the present case which
involves the
discretionary remedy of
certiorari.
In this case the applicant did
not take objection to the
continuance of the matter by
Tanko Amadu J unlike the
applicant in the Ex parte
Quaye case, supra. The
applicant by that failure is
particeps delicti and
it would be an abuse of the
process to allow his
application.
In deciding this case we are not
oblivious of the rule of law
that an unpurged contemnor
should not be heard, at least
with regard to the same matter
before he purges his contempt.
But we agree with Oliver J in
Midland Bank Trust Co Ltd v
Green (No. 3) (1979)2 AII ER
193 that a contemnor can
always take proceedings against
an order made without
jurisdiction. We further
support his view that a court
has discretion to hear or not to
hear a contemnor. Otherwise if
the rule against hearing a
contemnor were an absolute one
it would run counter to the well
established maxim that
actus curiae neminem gravabit.
Again Oliver J’s views accord
with the settled judicial view
that even when proceedings are
rendered final and conclusive by
statute, the courts still can
intervene where they are
infected by want of jurisdiction
except in the face of a total
ouster clause. See
Republic v. Special Tribunal; Ex
parte Forson (1980) GLR 529
and Kwakye v.
Attorney-General (1981) GLR 944
S.C.
As to the contention that the
judge is wrong in holding that
contempt has been committed, we
cannot find any error on the
face of the Ruling to ground
certiorari.
For all the foregoing reasons we
would dismiss this application.
W. A.
ATUGUBA
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME COURT
P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
B. T. ARYEETEY
JUSTICE OF THE SUPREME COURT
N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
COUNSEL:-
SAM OKUDZETO FOR THE APPLICANT.
YAW OPOKU
ADJAYE FOR THE INTERESTED
PARTIES/RESPONDENT |
