HOME  JUDGEMENT OF THE COURT OF APPEAL

GBADEGBE, JA

This is an appeal from the ruling of the High Court, Accra which refused an application for the prerogative writs of certiorari and mandamus at the instance of the appellant. In the Court below the applicant (to whom I shall in these proceedings for convenience hereinafter refer as the appellant) moved for an order of certiorari to quash the ruling of the Circuit Court refusing leave to amend his pleadings and additionally sought mandamus to compel the learned trial judge to apply the rules of Court in respect of the application for leave to amend. I must say, however, that after the appellant was granted leave under order 59 rules 2 of the applicable rules of Court to issue the application on notice he purported to seek reliefs other than those in respect of which leave was granted to him. In my view, the additional reliefs lacked legitimacy and as such I shall not refer to them in this judgment. In doing so I take refuge under Order 59 rule 5 of the rules of the High Court LN 140A.The circumstances leading to the instant proceedings before us have been fully stated in the judgment of the Court below and I shall therefore not detain the precious time of this Court regarding the examination of the facts but proceed to a consideration of the appeal.

Several grounds of appeal have been filed and argued in the statements submitted to us by learned counsel for the appellant. These grounds raise only issues of law. In my opinion, a close scrutiny of these grounds shows that they allege distinct errors of law against the decision of the Court below. As it seems to me, the question which we have to decide in these proceedings is whether the conclusion which the learned trial judge came to on the application was right? Since the pivot of the application in the Court below was error of law by the trial Circuit Court in not allowing the amendment, for certiorari to lie, it was incumbent upon the appellant to show from the "record" on which his application was based that the refusal to allow the amendment had the effect of a denial of justice. If the said situation exists then in my view the relief of mandamus which only becomes relevant after the appellant had satisfied the condition regarding certiorari may be considered. See-(1) General Medical Council v Spackman [1943] AC 627. I must at this point pause and say that the statement that I have just made should not be misconstrued to mean that in all cases where error of law is urged as a ground of certiorari there should be a showing that there has been a denial of Justice. On the contrary what it seeks to say is that where the allegation is based on a refusal to grant leave to amend then the applicant must show that its effect was to deny him justice. In any other case, in which the basis of the application is error of law on the face of the record then the applicant is required to show that the error of law is one which went to the jurisdiction of the Court or was so obvious as to make the decision a nullity. See-(1) Republic v High Court, Sekondi Ex parte Abuna II and Others [1992] 1 GLR 532. But, to succeed the record on which reliance is placed must disclose the error which is alleged apparently on the face of the record hence the use of the term "error of law on the face of the record" and it is not permissible where as in the case in the Court below the ground on which the relief was sought was error of law and not absence or lack of jurisdiction to prove the error by resort to affidavit evidence.

See-(1) Rex v Nat Bell Liquors Ltd. [1922] 2 AC128 at 144 wherein the Court in its delivery per Sumner LJ observed as follows:

"It may well be that error as to the law of evidence,

like any other error of law, might if it is apparent on

the record, is ground for quashing the order made below,

but none of the objections taken here show that

the magistrate acted under any misapprehension of the law."

At pages 155-156 of the same decision it was stated as follows:

"…that the key of the question is the amount of

material stated or to be stated on the record returned

and returned to the superior Court. If the justices state

more than they are bound to state, it may be used

against them, and out of their own mouths they stand

to be condemned, but there is no suggestion that,

apart from questions of jurisdiction, a party may

state further matters to the Court, either by

new affidavits or by producing anything that is not

part of the record."

The practice as to what constitutes the "record" is a strict one which ensures that the inferior Court has not exceeded its jurisdiction and for that matter ensures that the superior Court does not interfere with what has been done with that jurisdiction by the inferior Court by keeping itself within its own jurisdiction of supervision and not review. What this means is that the Court which is exercising the power of supervision should strictly ensure that its determination is limited to that which was the basis of the decision in respect of which the application has been brought. Seen this way as indeed the effect of the authorities show the determination of what the record is becomes fundamental in a case which turns on error of law.

In my view therefore where as in the case which is before us the appellant was unable to make available a record which might persuade the judge before whom the application was pending for determination that the refusal to allow him leave to amend his pleadings in order to afford him the opportunity of fairly putting his case across amounted to a denial of justice then he had by his own act of omission put the matter clearly out of the control of the judge in which case he cannot be heard complaining about the refusal to grant the prerogative applications. In the proceedings before us instead of the record speaking for itself the appellant rather sought by means of affidavits which were extraneous to the record in the matter to show that by not allowing the proposed amendment he was being denied justice. I think that this is a course of procedure, which as said earlier on in this delivery he cannot be allowed to pursue. In my opinion therefore going strictly by what should have been the record in the application the matter was one which was not appropriate for the grant of either of the prerogative writs which were sought.

I am of the opinion that perhaps the appellant thought that he could have unlimited regard to affidavit evidence in the matter but that is where he went astray. A close scrutiny of what in the instant case might constitute the record for the purpose of the application shows that it might include the evidence so far led in the action before the application to amend was argued, the proceedings based on the proposal to amend, the pleadings filed in the action and the ruling of the Court in the matter. By evidence, I include exhibits which were lawfully received in the course of the hearing. I think that these are the legitimate materials which could be relied on for the purpose of the application but in the case of the instant case, I see a clear departure from the settled practice by the resort to matters which strictly speaking do not form part of the record such as to say of it that the “record” speaks of the objections raised by the appellant in which case having by itself so spoken the reliefs sought may be granted. I am surprised to observe after a careful reading of exhibit D3, the motion whose refusal has provoked the proceedings herein that it was so casual and although it made reference to the statutory declaration on which so much of this case has turned it was not exhibited to the application for leave to amend, which was filed in the trial Court and so also was the case regarding the evidence earlier on led in the matter in respect of which the amendment was sought in order as was deposed to in paragraph 15 of the supporting affidavit “to enable the pleading to be brought in line with the evidence already given concerning my root of title…” Curious also to note of the said application is that it was not a certified copy which was made as part of the “record” in respect of which the apparent error of law was alleged. I think that where the proceedings are originated by a prerogative application as was the case in the Court below, it is incumbent on the applicant to place before the Court which is to exercise its jurisdiction of supervision certified copies of the processes in respect of which the decision the subject matter of the application is made; for that jurisdiction is different from an appeal or review in which case the Court below as a matersic of practice is responsible for the preparation of the record. Of the requirement as to the record, the House of Lords in its judgment per Lord Sumner in the case of Rex v Nat Bell Liquors Ltd [1922] 2AC 128 observed at page 156 as follows:

"That the superior Court should be bound by

the record is inherent in the nature of the

case. Its jurisdiction is to see that

the inferior Court has not exceeded its own,

and for that very reason it is bound not to

interfere in what has been done within that

jurisdiction, for in so doing it would in itself,

in turn transgress the limits within which its

own jurisdiction of supervision not of review,

is confined. That supervision goes to two

points; one is the area of the inferior

jurisdiction and the qualifications and

conditions of its exercise; the other is the

observance of the law in the course of its exercise."

I may remark also that in the said circumstance the Court’s power of supervision which was invoked did not have all the relevant material forming part of the "record" and where they were available some of them did not strictly comply with the practice as to their been shown by way of certification to have been part of the materials considered by the trial Court before falling into the path of error of law in order to afford the supervising Court the opportunity of determining the rightness or otherwise of the exercise of the jurisdiction of the inferior Court in respect of which its supervisory jurisdiction was invoked. Examining the exhibits on which much reliance was placed to impeach the ruling the subject-matter of these proceedings, there is no indication that they were either tendered as part of the proceedings in the action or made use of as part of the processes on which the application for the prerogative writs with which we are in this appeal concerned. In any of these instances the exhibits must bear on their face an indication that they were admitted in evidence and numbered as such and also where they were only part of processes filed in the course of the hearing of an application be certified as true copies by the Court in which it was so filed. In such a scheme of affairs, I must confess that the learned trial judge was unduly indulgent to the appellants. I think that the appellant had placed before the Court materials which did not constitute legal evidence for the purposes of his application but since in the Court below nothing turned on this procedural requirement and the matter was dealt with on the merits, I would next proceed to consider the appeal on its merits, By way of comment, however, I hope that our judges will in future not relax their power of superintendence which is so essential to the due administration of justice in order to ensure that cases which come before us are conducted by the parties in accordance with the existing practice and procedure and by so doing give meaning and content to the rules which regulate the conduct of proceedings in our Courts.

My Lords, I now turn to the appeal on the merits. Regarding this, I am of the view that the point for determination is an extremely short one which as earlier on said relates to the exercise of the discretion by the learned trial judge in the Court below in refusing the application which was moved before him by the appellants for the reliefs of certiorari and mandamus. In respect of this, we have had considerable arguments from learned counsel for the appellant to the effect that the decision of the Court below was wrong. To these arguments it was answered on behalf of the 2nd respondent that the decision in respect of which these proceedings arise was right. In my thinking notwithstanding such detailed arguments some of which take us back to the basic principles regulating the grant of in particular of certiorari, I hope I shall not be thought disrespectful to these arguments if I find it possible to express my opinion on the instant contest in comparatively fewer words. Careful examination of the appeal herein on the merits in terms of our task as stated earlier on in the course of this judgment compels me to come to the conclusion that the learned trial judge came to the right conclusion on the materials placed before him and that the appellant’s contention to the contrary is not well-founded. I express no opinion on what my decision would have been if all the materials which properly speaking constitutes the "record" had been placed before him. I think that the learned trial judge fully and carefully expounded the law in a manner which has left a great impression on me and I am not persuaded by the arguments submitted to us by learned counsel for the appellant to come to a different view of the matter than he came to. Since I am in agreement with the decision of the Court below, there is little need for me to go beyond his delivery on an area of the law on which there is no conflict of judicial authority and as such I desire not to say anything further as far as the appeal herein goes on the merits. I think that to do so would be a mere repetition of the law as expounded by the learned trial judge and serve no useful purpose.

For these reasons, I am of the opinion that Afreh JA (as he then was) came to the right conclusion in refusing the application for certiorari and mandamus in the Court below, and I would accordingly dismiss the appeal.

N.S. GBADEGBE

JUSTICE OF THE APPEAL

I agree

A. ESSILFIE-BONDZIE

JUSTICE OF THE APPEAL

I also agree

ANIN YEBOAH

JUSTICE OF THE APPEAL

COUNSEL

THE REPUBLIC v. GEORGINA ASARE EX-PARTE SAMUEL KOFI ASARE AND REV. AUGUSTINE ANNOR-YEBOAH [18/05/00]

IN THE SUPERIOR COURT OF JUDICATURE

THE COURT OF APPEAL

ACCRA

______________________________

Coram:   Essilfie-Bondzie, J.A.

Twumasi, J.A.

Ansah, J.A.

18TH MAY, 2000.

THE REPUBLIC

vrs.

GEORGINA ASARE Ex-Parte

1.   SAMUEL KOFI ASARE

2.   REV. AUGUSTINE ANNOR-YEBOAH

_____________________________________________________________________

JUDGMENT

TWUMASI, J.A.:

The appellant appeals to this court against her conviction and sentence by the High Court, Accra on the 22nd February, 1999 upon a charge of contempt of court which had been preferred against her by the respondents. The relevant facts of the case could be well gathered from the introductory part of the judgment of the court and other materials on the record. All the parties are members of the Christ Apostolic Church International of Ghana with the headquarters at Osu, Accra. For some time prior to the institution of the proceedings before the court, simmering discontent had gathered ominous momentum among some of the members of the church against the leadership. The fact that some members of the church resolved to seek redress in the corridors of the court was clear proof that matters had drawn close to explosive degree and most probably all avenues for harmonious settlement of these differences had been exhausted to no avail. In the aftermath of the institution of legal action before the High Court, it became necessary for the court to issue interim injunction order. The order was obviously made to avert direct confrontation between the leadership of the church and some of the malcontents who had grievances against the leadership. The injunction order was made against thirty-two named persons, presumably all being members of the church whom the respondents perceived and suspected to be a threat to peace in the church. They were ordered not to attend or get near the ground of a national congregation scheduled to take place at a place called Indafa Park, Accra from the 9th to the 13th April, 1998. Such was the determination of the learned trial judge to leave no stone unturned in ensuring the efficacy of the order for injunction, that he set a limit within a radius or distance of 200 metres to the congregation grounds beyond which the affected persons could not go and directed that transgressors would be punished for contempt. The charge against the appellant was that she not only went beyond the prescribed distance but also went to stand on a rostrum and hurled insults at the respondents turning an otherwise peaceful meeting to the brink of chaos and pandemonium. These and other acts which constituted contempt of court were catalogued in an affidavit filed by the respondents in support of their motion citing the appellant for contempt. The appellant denied the specific charges in an affidavit filed on the 27th, April 1998 at the registry of the court. Nowhere in the affidavit did the appellant admit even by any necessary implication any of the allegations made against her. The affidavit was a total denial. The learned trial judge purporting to base himself on Order 59 rule 26 of the High Court (Civil Procedure) Rules 1954 (LN.4 140A) opined that it was competent to make a decision in a summary manner and that there was no need for him to call evidence to resolve anything. He predictably proceeded to pronounce judgment of conviction against the appellant. Against this Counsel for the appellant filed and argued three grounds of appeal which were in the following terms:—

(1) The judgment is against the weight of the evidence.

(2) The judge misdirected himself as to the applicable law for trial of the case.

(3) The judge demonstrated prejudice against the appellant.

I prefer for my personal convenience, to commence from the third ground upwards.  Issues of bias, important as they are, often crop up in the administration of justice and they underscore the reality of the human factor in everyday life. The degree of sensitivity to allegations of bias or, most accurately, the likelihood of bias varies from one judge to another. It has been the avowed desire of the judiciary to engender public confidence in the administration of justice. The courts would therefore rely on parties and their Counsel

to raise objections to the qualification of a judge when the need arises and, provided there is substance in the objection, the judge would then take down the reasons or the evidence in support of the objection and make a ruling on it. Thus in Adzaku vrs. Gabuku (1974) 1

GLR 198 an objection was raised against a magistrate on the ground that he had rained insults on the party objecting at the trial. The objection was overruled and judgment was given against the objectioner in the case. He appealed to the High court and lost. In another case Republic vrs. Akwapim Traditional Council, Ex-Parte Nyarko III, (1975) 2 GLR 362, an objection was raised against a chief on a panel at the judicial committee of the council in respect of a chieftaincy matter. The objection was overruled but in an application for certiorari, the High Court made an order disqualifying the chief on the ground that a real likelihood of bias had been established.

In the famous case Attorney-General vrs. Salla, Supreme Court dated 17 April, 1970 unreported (digested in 1970 SC 54, witnesses were called by the then Supreme Court of the Second Republic to decide upon an objection raised by the then Attorney-General against one of the judges, namely the Hon. Mr. Justice F.K. Apaloo (Justice of Appeal as she then was and later Chief Justice of Ghana and Kenya of blessed memory) on grounds of bias. The objection failed after a full trial of the issue. It is, therefore, terribly important that, in all cases objections on grounds of bias should be made timeously and not ex post facto by an appeal process. On the necessity to make timeous objection, the Supreme Court recently in Agyekum vrs. Asakum Engineering and Construction Ltd. (1992) 2 GLR 635 SC, added its juristic imprimatur to this legal requirement, although their Lordships held (see holding 1) that where the objection was made “ex post facto”, that is after the matter had been concluded, the applicant had a heavy burden of demonstrating that the bias beclouded the decision. In the instant case, Counsel for the appellant failed to raise any objection at the court below against the trial judge. It is my view that to do justice to the trial judge, there would be the need to call evidence and give the trial judge an opportunity to respond to the accusation. In my view the appellant has not satisfied this court with the requisite evidence to support bias apart from allegations that the trial judge shouted at the appellant in court. I concede the fact that some judges are temperamental, others are not, but this cannot be construed as evidence of bias. This ground of appeal therefore fails.

Arguing ground two (2), Counsel submitted that contempt of court was a quasi-criminal offense and therefore the learned trial judge erred by not treating the acts of which the appellant was accused as such and applying the procedure appertaining to the trial of criminal cases. He particularly criticised the learned judge of failing to accede to the request of the appellant to call a witness in her defence. He also, among others, submitted that the learned judge erred by not taking evidence from the respondents to satisfy himself that the guilt of the appellant had been proved beyond reasonable doubt.  I wish to examine this ground of appeal by citing a few decided cases to illustrate the true nature of contempt of court. In Republic vrs. Liberty Press Ltd. and Others (1968) GLR 123 Akufo-Addo C.J. (as he then was) imposed a fine of N¢100 (new cedis) on each of the contemnors in that case whom the court found guilty of committing contempt of court. The contemnors had published a material which was thought to be in contempt of the administration of justice. They made certain statements on a case then pending before the Court of Appeal. In another case, Republic vrs. Moffat Ex-parte Attorney (1972) 2 GLR 391 where the contemnors flouted an order of the court Abban J. (as he then was, now Chief Justice of Ghana) imposed upon them a fine of N¢100.00 or in default three months imprisonment with hard labour.

From these decided cases it is safe to formulate a principle that contempt of court essentially partakes of a criminal charge and therefore a person accused of the offence can be convicted only upon proof beyond reasonable doubt that he or she committed the act complained of: see Republic vrs. Bekoe and others Ex-parte Adjei (1982-83) GLR 91 and Kangah vrs. Kyere (1979) GLR 458 (holding one) and the recent decision of the Supreme Court in the Republic vrs. High Court, Accra Ex-parte Seth Laryea Mensah (1999) 2 GQLJ p.4. This implies that where a person denies specific charges of contempt, the applicants must prove beyond reasonable doubt that the contemnor in fact committed the act. What then is the procedure in contempt case? In Republic vrs. Liberty Press Ltd. supra Akufo CJ. held (see holding (2)) that:

“The common law position had always been that the procedures by summary trial and indictment were alternative procedures depending on the character of the contempt ex facie curia. Where the contempt was clear and unambiguous the procedure for trial had been always by summary trial, whereas in a case in which the contempt was not all that clear and certain, indictment had been the appropriate procedure…”

Our Criminal Code 1960 Act 29 provides in section 8 thereof that:

“(8) No person shall be liable to punishment by the common law for any act”

but section 10 of the Code provides a saving for contempt of court. That section provides that

“(10) Nothing in this code shall affect the power of a court to punish a person for contempt of court”

The procedure for punishment under our Criminal Code is set out in the Criminal Procedure Code 1960 (Act 30). The court is required to take evidence from the prosecution and base conviction upon it. Order 59 rule 26 of the High Court (Civil Procedure) Rules 1954 (LN 140A) which deals with civil contempt provides that:

“(26) On the hearing of any motion or summons to which this Order relates, the Court or a Judge may direct any issue of fact in dispute to be tried in the same manner as other issues of fact are tried”

An issue of fact both in civil and criminal procedure arises where an allegation made by one party against another is specifically denied as in the instant case. The procedure in both civil and criminal law requires the court or a judge to call evidence, first from the plaintiff or the prosecution and, if the court or a judge is satisfied that a prima facie proof has been made, it shall then call upon the defendant or the accused to answer to the allegation or charge. The defendant is entitled as of right to call witnesses to support his or her case. In the instant case, the affidavits filed by the respondents and the appellant raised crucial issues of fact namely:

(i) whether the appellant entered the prohibited place as per the injunction order;

(ii) whether, if she did she rained insults on the respondents

In paragraphs 12, 13 and 14 of her affidavit in opposition, the appellant made the following statements:

12.  That my friend Tawiah in whose company I went to the convention grounds is my witness that we got there close to 1 p.m. after I had gone to her residence at the Korle-Bu Police Station barracks to call her to go with me and we had walked past the very Police Inspector who later arrested, detained and imprisoned me on the instigation of Rev. Annor Yeboah and Annor Yeboah on our way to the convention grounds.

13.  That my friend Tawiah is my witness that we did not get to the convention grounds proper before the plain-clothed policeman came to invite me to the police station and I was accompanied by my friend Tawiah.

14.  That the plain-clothed policeman and my friend are witnesses to the fact that my friend and I were standing by a fridge owner who was selling water at the outskirts of the convention ground and I was in fact drinking from a rubber bag when the policeman spoke to me.

In the face of these material facts alleged by the appellant, the learned trial judge refused counsel’s application to call witness for the appellant. It is patent that this refusal amounted to a serious denial of justice. The refusal constituted a naked violation of the mandatory constitutional requirements of this country as articulated in article nineteen (19) of the Constitution, 1992 where the law requires that:

19 (1) A person charged with a criminal offence shall be given a fair trial….

(2) (e) be given adequate time and facilities for the preparation of his defence;

(f) be permitted to defend himself….

All these requirements are embedded in our civil and criminal procedure even before the advent of the Constitution 1992 and no judge can pretend not to be conversant with them. It is my view that the appellant’s affidavit, even taken on its face value, raised serious doubts in the case made against her and, a fortiori, could not stand the acid test of proof beyond reasonable doubt. As Mr. Justice Black stated in the United States case of Thompson vrs. Louisville 362 US 199 1960 and I quote:

“Just as” conviction upon a charge not made would be sheer denial of due process, “so it is a violation of due process to convict and punish a man without evidence of his guilt”.

I am not satisfied that the guilt of the appellant was proved as required under our law which is of cognate concept with the criminal law of the United States which we in Ghana adopted by our Constitution 1992.

In the English case of Re Bramblevale Ltd. (1969) 3 All E.R. 1062 at 1063 the great Lord Denning of blessed memory stated the legal position loud and clear and I quote

“A contempt of court is an offence of criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond reasonable doubt”.

In my judgment where, as in the instant case, the learned trial judge refused to permit the defence plea to call material witnesses, that is, witnesses whose evidence could have tilted the scales of justice one way or the other, it could not be said that the case against the appellant had been satisfactorily proved. In other words, there was no proof beyond reasonable doubt. Some judges in Ghana perceive contempt trial as one in which nothing else than affidavits are required. Thus in the case of Interim Committee vrs. Interim Committee (1984-86) 2 GLR 181 at 186 Asare-Kwapong J stated as follows:

“From the affidavits filed by both parties and the arguments put forth before me, it is incumbent upon the court to determine whether or not the order I made on 13 April, 1984 has been breached by the two respondents. As I said earlier on, the respondents affidavit is a general denial of the specific instances given by the plaintiff committee as amounting to the breach of the order. There was virtually no affidavit in opposition filed to deny the specific instances filed by the plaintiff committee. Trial of this nature is by affidavits, no evidence is required, except in very rare cases and so he who is called upon to answer specific charges must do so on affidavit”.

The question which the learned judge Asare-Kwapong J did not answer was: Suppose a defendant by his affidavit denies the allegations specifically how would the court resolve the issues of fact raised on the affidavits? We may resolve this by drawing analogy with the procedure under Order l4 of the High Court (Civil Procedure) Rules 1954 (LN 140A).

Is it not the practice that where the defendant files an affidavit denying the plaintiff’s claim for summary judgment, the duty of the Court or a Judge is to take evidence to resolve the issue of fact raised on the affidavits? The answer is Yes ! (see State Construction Corporation vrs. Boakye (1976) 1 GL.R 126).

It must be stressed here and now that the only sure and time-tested means in the hands of a Court or a Judge is the benefit of observation of the credibility of a witness in the witness stand. Such evidence unlike an affidavit is tested by cross-examination and the credibility of the witness can be measured by an objective criterion, rather than the idiosyncrasy and prejudice of the judge. Unlike the trial judge in the instant case, Kwapong J, although he laid down a principle which was potentially dangerous, he amelicrated his stand by a caveat that in some cases the court must take evidence. It seems to me that the instant case fell within the category of cases where evidence should be taken. Inasmuch as the learned judge failed to do so, he erred and his judgment cannot stand. It is not necessary for me to deal with the last ground of appeal. I would without hesitation quash the conviction and sentence of the appellant for contempt.

TWUMASI, J.A.

I agree.

ANSAH J.A.

I also agree.