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2. MAMA JIMA AFODA
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RULING
KPEGAH, J.S.C.:
In the case of RUSSEL VRS. EAST
ANGLIAN RAILWAY CO. (1850) 42
E.R. 201 Truro, L.C. at page 206
delivered himself thus:
"I have looked with care through
the very numerous authorities
that have been cited, but it is
not necessary for me to go
through them. The result appears
to be this, that it is an
established rule of this Court
that it is not open to any
party to question the orders of
this Court, or any process
issued under the authority of
this Court, by disobedience. I
know of no act which this Court
may do, which may not be
questioned in a proper forum,
and on a proper application; but
I am of the opinion that it is
not competent for anyone to
interfere with the possession of
a receiver, or to disobey an
injunction or any other order of
the Court, on the ground that
such orders were improvidently
made. Parties must take a proper
course to question their
validity, but while they exist
they must be obeyed. I consider
the rule to be of such
importance to the interest of
and safety of the public, and to
the due administration of
justice, that it ought, on all
occasions, to be inflexibly
maintained. I do not see how the
Court can expect its officers to
do their duty, if they do it
under the peril of resistance,
and of that resistance being
justified on grounds tending to
the impeachment of the order
under which they are acting".
The above dictum is given
prominence in this ruling not
only because of its relevance
but also because it adequately
expresses our views on the
applicable law in the instant
case. The facts in RUSSEL VRS
EAST ANGLIAN RAILWAY CO. (supra)
are that property in possession
of a receiver and manager
appointed by the Court in a suit
was seized by the Sheriff under
a writ of fi-fa. The order
appointing the receiver ought
not to have been made in the
first case. Contempt proceedings
were initiated against the
Sheriff for disturbing the
possession of the receiver and
manager. It was contended on
behalf of the Sheriff that where
the order for the appointment of
a receiver ought not to have
been made, the Court should not,
in the exercise of its
discretion, commit the Sheriff
for interfering with the
possession of the receiver. This
argument prompted the Lord
Chancellor to deliver the above
quoted dictum.
The facts of the instant case
are that the Applicants
(hereinafter referred to as the
Defendants) had judgment entered
against them in the Circuit
Court on the 21st of October,
1999. The Court ordered them to
give up possession of a house to
the Interested Parties in these
proceedings (hereinafter
referred to as the Plaintiffs).
The Defendants, dissatisfied
with the judgment and
consequential orders, filed an
appeal to the Court of Appeal on
the 28th day of October, 1999
and then followed this with an
application for stay of
execution pending an appeal.
This application was filed on
29th October, 1999. Meanwhile,
the Plaintiffs, also on the same
day, applied ex-parte, for a
writ of possession to enable
them recover possession of the
house as decreed in the
judgment. Pursuant to the writ
for recovery of possession, the
Deputy Sheriff effected the
ejectment of the Defendants. But
believing, to use their own
words, that "the exercise was
unlawful as having been carried
out when the motion for stay of
execution pending appeal... had
not been heard" the Defendants
adopted self-help and reinstated
themselves in the house from
which they had earlier been
ejected by the Deputy Sheriff.
The Plaintiff then cited the
Defendants in the High Court for
contempt.
The High Court found the
Defendants guilty but adjourned
to two weeks for sentence.
Though it is not clear from the
record, we feel this adjournment
could have been intended to give
the Defendants a chance to purge
themselves. However they rather
chose to apply to this Court for
an order of certiorari and
prohibition to first quash the
ruling of the High Court dated
10th July, 2000 convicting them
of contempt and secondly to
prohibit the said Court from
proceeding to sentence them. The
ground urged on behalf of this
application was that there was
an error of law apparent on the
face of the record. The error
cited was that the writ of
recovery of possession ought not
to have been made in view of the
pendency of the motion for stay
of execution pending appeal.
This Court, after reading the
relevant papers filed in
accordance with our Rules, and
listening to both Counsel in
Court, summarily dismissed the
application for certiorari and
prohibition. The present ruling
relates to an application for a
review of our previous decision.
The grounds canvassed now are
not different from those urged
upon us in the original motion.
The issue then, and now, is
whether a party to a suit, or a
person to whom an order of a
court of competent jurisdiction
is directed can justify his
disobedience on grounds that the
order or process is null and
void, or erroneous, or
improvidently made?
In our decision of 14th
November, 2000, we answered this
question in the negative. The
same legal arguments are being
made to us to induce a review of
our original decision. We would
have adopted a similar approach
and summarily dismiss the
present application for a review
but for what we consider to be
the need for this Court to speak
loudly and clearly on this issue
for parties and their lawyers
alike to take note.
Those who are prone to giving an
affirmative answer to the legal
questions whether the invalidity
of an order, or a process can be
a justification for its
disobedience or not, often base
their position on certain dicta
in MCFOY VRS. U.A.C. (1962) A.C.
152 and MOSI VRS. BAGYINA (1963)
1 G.L.R. 337.
In the former case, Lord Denning
said of void orders:
"If an act is void, then it is
in law a nullity. It is not only
bad, but incurably bad. There is
no need for an order of the
Court to set it aside. It is
automatically null and void
without more ado, though it is
sometimes convenient to have the
Court declare it to be so. And
any proceeding which is founded
on it is also bad and incurably
bad. You cannot put something on
nothing and expect it to stay
there. It will collapse".
Although Lord Denning could be
taken to have been categorical
on stating that when an order or
a process is void "there is no
need for an order of the Court
to set it aside", he
nevertheless had an inhibition
or diffidence that in certain
circumstances it would be
"convenient to have the Court
declare it to be so".
Unfortunately, he did not
indicate those circumstances;
neither did he indicate those
situations when it would be
inconvenient or hazardous to a
party not to have it set aside.
Or was he thinking only about
the effect of the said order or
judgment in a subsequent
litigation between the same
parties or their privies? We do
not see anything in the dictum
of Lord Denning which suggests
to, or positively encourages, a
party to disobey an order
considered or perceived by him
to be void, or erroneous and
justify the said disobedience on
that ground; nor do we find
anything to suggest that an
irregular or void process can be
resisted on that ground or
impeached through disobedience.
And in the MOSI VRS. BAGYINA
case, Akufo-Addo, J.S.C. (as he
then was) said of void decisions
at page 342:
"The law, as I have always
understood it, is where a Court
or a judge gives judgment or
makes an order which it has no
jurisdiction to give or make or
which is irregular because it is
not warranted by any enactment
or rule of procedure, such a
judgment or order is void, and
the Court has an inherent
jurisdiction, either suo motu or
on the application of the party
affected, to set aside the
judgment or the order."
After reviewing some cases he
delivered himself at page 347 as
follows:
"(1) where a judgment or order
is void either because it is
given or made without
jurisdiction or because it is
not warranted by any law or rule
or procedure, the party affected
is entitled ex debito justitiae
to have it set aside, and the
Court or judge is under a legal
obligation to set it aside. No
judicial discretion arises
here...
(2) There is no time limit in
which the party affected by a
void order or judgment may apply
to have it set aside."
Again, there is nothing in these
dicta of Akufo-Addo in the MOSI
VRS. BAGYINA case which
recommends or encourages
disobedience of an order which
is void. Although it is true to
say that it is clear from the
two authorities, MOSI VRS.
BAGYINA (supra) and MCFOY VRS.
U.A.C. (supra) that if a
tribunal wrongly assumes
jurisdiction, the party who
apparently obtains an order from
it, in reality gets nothing, the
whole proceeding being CORAM NON
JUDICE, it is worthy to note
that these authorities also
emphasise the need to have the
order, which is described as
"incurably bad", set aside.
Sowah, C.J. in case of KUMNIPAH
VRS. AYIREBI (1987 - 88) 1
G.L.R. 265 at page 270 observed:
"It has often been said that
when an act is a nullity there
is no need for a Court to
declare it to be so or set it
aside. That may well be so, but
when a judgment appears to be
regular on the face of it and
nothing therein indicates that
it is a nullity, it is in my
view, foolhardiness for a party
to ignore it and do nothing."
In the case of THE REPUBLIC
VRS. BREW (1992) 1 G.L.R. 14 the
relevant principle was stated in
holding three as follows:
"It is an established rule that
an order of a Court of competent
jurisdiction whether considered
erroneous, illegal, indiscrete
or irregular had to be obeyed.
Accordingly, non-compliance with
an order which amounted to
contempt of Court could not be
justified on the ground that the
said order was irregularly made
or bad in law. The proper thing
for the aggrieved party to do
was to question the order in the
proper forum by a proper
application. Accordingly, the
Defendant could not justify her
wilful contempt by her
contention that the order was
erroneous and therefore her
appeal against the interim
injunction had a good chance of
succeeding."
We whole-heartedly endorse the
principle as stated above and
consequently reiterate the law
to be: the fact that an order
of, or a process from, a Court
of Competent jurisdiction is
perceived and considered void or
erroneous should not give a
party who is affected by the
order, or to whom the process is
directed, the slightest
encouragement to disobey it; and
when cited for contempt, only to
turn round to justify the said
disobedience by the fact that
the order ought not to have been
made or the process issued in
the first place. The proper
thing to do is to either obey,
or sue for a declaration to that
effect or apply to have it set
aside. The proponent of the
order then assumes the burden to
justify the order on which he
relies and so prove that the
order or the process was not
improvidently made. As a matter
of public policy it is important
that the authority of the Court
and the sanctity of its process
and orders be maintained at all
times. It is too dangerous to
give to a litigant and his
Counsel the right to decide
which orders or process of the
Court are lawful and therefore
deserving of obedience, and if
not, must be disobeyed. An order
or process of a Court of
competent jurisdiction cannot be
impeached by disobedience. That
way, we would needlessly be
empowering lawyers, in their
various chambers, to have
supervisory jurisdiction over
the Courts. That is an effective
way to undermine, if not
destroy, the administration of
justice. The application for a
review will therefore be
dismissed and it is hereby
dismissed.
ADZOE, J.S.C.:
In concurrence with my brothers,
I wish to add this: I came upon
a statement made by Annan J.A.
in his judgment in the case of
Baah v. Baah (1973) 2 GLR 8. At
page 13 of the report, the
learned judge observed:
"Whatever be the merits or
demerits of that order, and I
make no comment of any
description on that matter, that
order stands and has not been
set aside. It does not on the
face of it appear to be void ab
initio and effect therefore has
to be given to it until it is
set aside or otherwise
vitiated". (The emphasis is
mine).
It reminds me of a similar
statement made by Justice
Stewart of the Alabama Supreme
Court when he delivered the
opinion of the Court in Walker
v. City of Birmingham 388 US
301. He said at page 315
"Without question the state
court that issued the injunction
had, as a court of equity,
jurisdiction over the
petitioners and over the subject
matter of the controversy. And
this is not a case where the
injunction was transparently
invalid or had only a frivolous
pretence to validity". (The
emphasis is mine).
It cannot be denied that these
two opinions appear to suggest
that if an order were "void ab
initio" or if it were
"transparently invalid" it could
be disobeyed with impunity. But
the rule that such an order
cannot be disobeyed is now
firmly established by a long
line of authorities. And I hope
that the veiled impression
created by the statements I have
quoted above that a party could
elect to disobey a court order
or process if he forms the
opinion that the order or
process is void or irregular
must be deemed to have been
effectually eroded by today's
judgment. No litigant has the
right to determine for himself
whether or not a court order is
valid to command his obedience
to it. Compliance with the
orders of the Court is the only
sure route to public order and
peace which we need to sustain a
stable democratic social order.
JUSTICE E.D.K. ADJABENG
JUSTICE OF THE SUPREME COURT
JUSTICE G.K. ACQUAH
JUSTICE OF THE SUPREME COURT
JUSTICE W.A. ATUGUBA
JUSTICE OF THE SUPREME COURT
JUSTICE S.A.B. AKUFFO
JUSTICE OF THE SUPREME COURT
JUSTICE G.L. LAMPTEY
JUSTICE OF THE SUPREME COURT
COUNSEL
Mr. Ahenkorah for the Applicant
Mr. Somuah-Asamoah for the
Respondent.
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