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THE REPUBLIC v. HIGH COURT, ACCRA,EX PARTE . AYISHETU AFODA   [30/05/01] C.A. 78-2000.

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA-GHANA

_______________________________________

CORAM:    KPEGAH, J.S.C. (PRESIDING)

ADJABENG, J.S.C.

ACQUAH, J.S.C.

ATUGUBA, J.S.C.

AKUFFO, J.S.C.

LAMPTEY, J.S.C.

ADZOE, J.S.C.

THE REPUBLIC

VRS:

HIGH COURT, ACCRA

EX PARTE   1. AYISHETU AFODA

2. MAMA JIMA AFODA

__________________________________________________________________________

 

____

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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