HOME  JUDGEMENT OF THE COURT OF APPEAL

RULING

WOOD (MRS), JA.

The parties in these proceedings are the parties in a suit pending before the Tema High Court, Civil Division presided over by Mrs. Felicity Amoah J. On the 22nd of January 1999, she found the applicant “guilty” of contempt for having disobeyed an interim order made in the course of the pending civil cause. She made the following pronouncement with  regard to sentence”:

“I find the respondent guilty and for his contemptuous act he is sentenced to a fine of ¢3 million or in default 3 months imprisonment. ¢2 million of the fine when paid should be given to the applicant as compensation.

The respondent is to pay the fine within 10 days. He is therefore admitted to ball in the sum of ¢3 million with one surety to be justified. I award cost of ¢200,000.00 against respondent.”

Within four days of the order, the applicant, in the exercise of his legitimate rights has appealed against the ruling, the finding that he was in contempt of court and the sentence. He quickly followed it up with a motion for stay of execution pending appeal, which unfortunately the trial court found unmeritorious and consequently dismissed. He is therefore, by this present motion applying for that interim relief, which was, denied him by the court below. The main grounds upon which the appeal was filed and on which also this motion was argued before us, in an attempt to demonstrate that theirs is no frivolous appeal, but one with a very high success rate are the following:—

“(1) That the ruling was an error in law as the applicant was wrongly found guilty for a criminal contempt when the act complained of was, properly speaking in the nature of a civil contempt.

(2) The sentence which was imposed was harsh excessive and oppressive, having regard to the circumstances of the case, particularly when the evidence did not show that the respondent suffered any loss as a result of his alleged continuous acts.”

However, what appeared to be a straightforward, simple and innocuous application raised an interesting procedural issue. The argument raised by the other side in opposition to the application as it stood; is this, since the contemptuous act for which he was found “guilty” and “sentenced” to a fine of or in default a term of imprisonment is in the nature of a quasi criminal offence, having suffered a conviction, the proper course open to the applicant was to appeal to the Criminal Division of the Court of Appeal and follow same up with an application for bail pending appeal, if he were desirous of having the sentence suspended. This argument did not come as a surprise. The respondent had clearly in his affidavit in opposition raised it as the only point of objection to the prayer sought. He deposed as follows by the par.7

“That I am advised and verily believe same to be true that contempt of court is of quasi criminal offence and having been convicted by the trial court, the only recourse to the applicant is to appeal against the decision and apply for bail pending appeal....”

In response to these arguments, applicant counsel has argued that:

(1) Firstly, since the trial judge never formally convicted the applicant we are not in these proceedings dealing with a quasi criminal matter and in respect of which they ought to follow the procedure laid down in criminal appeals.

(2) In any case, should we come to the conclusion that she did, she was clearly in error as the acts they are alleged to have committed would not amount to a criminal contempt, at all but a civil contempt in which case she has not fallen into any procedural error.

But I do not think the solution to the issue raised by respondent counsel lies in the approach advocated by applicant counsel in the second limb of his arguments, that is his response to the respondent counsel's sole submission. I think we should resist any temptation to draw firm conclusions of either law or facts on points, which ought properly to be argued at the appeal hearing. To draw firm the conclusions that he has invited us to, namely, that the trial judge fell into error in wrongly convicting applicant for a pure civil contempt would amount to a determination of and consequently to a prejudgment of the appeal.

Certainly, we cannot at this state pronounce on the soundness or other wise of the judge's decision. A cardinal principle of law is that an appellate court, hearing interlocutory applications during the pendency of a substantive appeal, ought to be extremely careful not to prejudge the appeal. It ought therefore to guard against making definitive findings on questions or issues which properly could be made at the hearing of the substantive appeal and when the court would be in receipt of the full record of appeal. On this point, I would like to refer to the Supreme Court decision in Mensah vs. Ghana Football Association 1989-90 1 GLR. 1. The court of appeal on hearing an interlocutory application for stay of execution proceeded to make a definitive pronouncement on the question of the locus of the parties. On the issue of whether or not the court had erred in making that finding the Supreme Court unanimously held that:

“The statements on the capacity of the parties could properly be made by the court of appeal at the conclusion of the hearing in proceedings where the court had the record of appeal before it and not when it was dealing with an interlocutory matter such as stay of execution”.

His Lordship, Mr. Justice Taylor on his part has this to say

“A decision on locus standi (by the court of appeal) completely disposes of the case and renders the appeal pending otiose. It therefore becomes necessary for any court dealing with it to be extremely careful not to prejudge the appeal without having all the facts in the record of appeal. An application for stay is not ...... concerned as such with a definitive decision the merits of the case”.

It follows that the proper stage at which we could pronounce in the manner suggested by applicant counsel, namely that the court fell into error when it found the applicant guilty of a criminal contempt, is at the close of the hearing of the substantive appeal.

How then do we resolve the issue raised? I am not attracted by the argument that judging from the face of the orders made the court “convicted” the applicant for criminal contempt. The court made no such express order, neither did it indicate in some other way that applicant was being held for criminal contempt. I think it safer to presume on the face of the order, that notwithstanding the use of such words as “guilty” of the contempt and “sentence” the latter in particular merely indicated the punishment that was to go with the contempt. Certainly a civil contempt also is capable of attracting a sentence of a fine. It may well be that when the full record of appeal is before this court, a more definitive and reliable finding on the issue and which is contrary to the above, might be made. But for the moment judging from the record the fact that the court awarded costs of ¢200,000 against respondent is also a sufficient point to the fact that the court was exercising a civil, not a criminal jurisdiction. In the result, the argument that an appeal from this order ought to lie to the criminal division does not hold, for the position of the law is that “failure to obey an order made in civil proceedings is not a crime”. Consequently, an appeal from the order punishing the contempt is not a “criminal cause or matter”. I am persuaded to arrive at this conclusion, by a passage from a learned author’s exposition of “Contempt” in his textbook.

The passage is taken from the very useful, well known and reliable text book “The Supreme Court Annual Practice 1995 Edition Volume 1. Writing under the heading “Contempt”, the distinguished author writes.

“It is necessary to distinguish between civil contempt and criminal contempt. Civil Contempt is committed where a person disobeys an order made in civil proceedings. Process for writ contempt is designed to enforce obedience to the order and punish the disobedience.” Failure to obey an order made in civil proceedings is not a crime and an appeal from the order punishing the civil contempt is not a “criminal cause or matter”.

It follows that:- The applicant was therefore right in appealing to the Civil Division of this court.

The next pertinent question is whether or not the proper application ought not to have been for bail pending appeal. I have no doubt that with respect to the costs of ¢200,000.00 the application is proper in all respects. And we would have no difficulty in granting the application for the applicant has demonstrated that he has serious legal issues to raise on appeal. And if the order were not stayed and he succeeded, he would rather suffer irreparable damage. He deposed to this all-important fact by the paragraph 11 of his accompanying affidavit and yet that deposition has not been answered even in a most cursory manner by the respondent. May be, respondent counsel thought the sole ground he raised in opposition was sufficiently strong enough to dislodge the application.

I however, agree with respondent counsel's submissions with regard to the sentence. As rightly argued a stay of execution as understood in civil proceedings is against orders or decrees which can successfully be executed by means of any of the modes provided for under the High Court rules. So for example where a judgement decrees payment of money either by way of damages, debts or cost one may use any of the processes to enforce payment. A victorious party may therefore employ any of the following

(1) writ of fieri facias order 43 or

(2) Garnishee order 45 or

(3) Summons to show cause order 69

And, where the judgment decrees delivery of property other than land the proper mode would be

(1) writ of sequestration order 43 or

(2) writ of attachment order 44

(3) writ of delivery order 48

and so on and so forth.

Clearly, none of the modes provided for can be used to enforce the punishment imposed by the court below and consequently a stay of execution in the strict sense would not be the proper order to make.

And so, would this court be justified in granting the proper interim order?. I would answer this question in the positive seeing that the substance of the application is to have the order held in abeyance during the pendency of the appeal. That which will justify our intervention in this manner is not only the fact that we have an inherent jurisdiction to do justice to the parties but also the fact that the applicant by his motion prayed additionally for such orders as the honourable court may deem fit on the grounds presented to us per the accompanying affidavit.

What then should be the proper order to make in the circumstance of this case. We think the suspension of all the orders of the court is appropriate. That is to say, we would suspend the enforcement of the others order complained.

While it is true we cannot point to any specific rule, under CI. 19 based primarily on our inherent jurisdiction to do justice to the parties, we could conveniently also raise the rule 7 of CI. 19 in our defence, in this entire exercise. The rule stipulates:

“Where no provision is expressly made by these rules regarding the practice and procedure which shall apply to any cause or matter before the court, the court shall prescribe such practice and procedure as in the opinion of the court the justice of the cause or matter requires.”

G. T. WOOD (MRS.)

JUSTICE OF APPEAL.

BROBBEY JA.

I agree with the opinion expressed in the ruling of the President of this panel and have nothing to add to all that she has just read.

S. A. BROBBEY

JUSTICE OF APPEAL

ARYEETEY JA.

I agree

B. T. ARYEETEY

JUSTICE OF APPEAL