Division: HIGH COURT, SUNYANI
Date: 25 FEBRUARY 1975
Before: MENSA BOISON J
CASE REFERRED TO
Scott v. Scott [1913] A.C. 417; 82 L.J.P. 74; 109 L.T. 1; 29 T.L.R. 520, H.L., reversing [1912] P. 241; 107 L.T. 21; 28 T.L.R. 526, C.A.
[p.357] of [1975] 1 GLR 356
NATURE OF PROCEEDINGS
APPLICATION for bail pending appeal from a judgment of the District Court Grade II, Kenyasi, committing the applicant to prison for contempt. The facts are sufficiently stated in the ruling.
COUNSEL
P. A. Bonner for the applicant.
No appearance by or on behalf of respondent.
JUDGMENT OF MENSA BOISON J
This is an application to admit the judgment debtor to “bail” pending a civil appeal at the High Court, Sunyani. The applicant as a judgment debtor appeared before the District Court Grade II, Kenyasi, on 28 January 1975, on a summons to show cause why he should not be committed for the non-payment of a judgment debt. The amount of the debt is not given in the applicant’s affidavit in support of the application, but the result of that day’s proceedings was that the applicant was committed to prison for two mouths by the district court. And against the commitment the applicant has given notice of appeal.
In my view the application for “bail” can only be entertained if an appeal against the order of commitment lies to this court. The power of the district court to commit a judgment debtor to prison is provided by the Courts Ordinance, Cap. 4 (1951 Rev.), Sched. II, Order 46, r. 1 as follows:
“Notwithstanding anything in these rules, when an application is made for the execution of a decree for the payment of money by the arrest and imprisonment of a judgment debtor, the Court shall issue a summons calling upon him to appear before the Court on a day to be specified in the summons and show cause why he should not be committed to prison.”
The committal to prison under that order in effect is to punish the party in disobedience of a decree, being the judgment ordering the payment of money as debt. The disobedience is established if the court is satisfied that the conduct of the debtor may comprehensively be said to amount to “a wilful refusal or neglect to pay or having incurred the debt recklessly without expectation of paying or by fraud.” The particular matters to establish against the debtor are set out in Order 46, r. 12 of Cap. 4, Sched. II.
In my opinion the disobedience savours of contempt and it is moved at the instance of a party to the suit, and not at the instance of the court itself. The contempt, however, being punishment as a means of enforcing the decree or order in a civil suit will in my opinion be a non-criminal contempt. The principle of law as to the nature of non criminal contempt was stated by Fletcher Moulton L.J. in his dissenting judgment in Scott v. Scott [1912] P. 241 at p. 268, C.A. and which was approved by Lord Atkinson in the House of Lords on appeal in [1913] A.C. 417 at p. 462 as a true and sound principle of law:
“It is only the Legislature that can render criminal an act which is not so by the common law of the land. An order of the Court in a civil action or suit creates an obligation upon the parties to whom it applies, the breach of which can be and in general will be punished
[p.358] of [1975] 1 GLR 356
by the Court, and in proper cases such punishment may include imprisonment. But it does no more. It does not make such disobedience a criminal act, and therefore it is that the Court of Appeal has consistently and without any exception held that orders punishing persons for disobedience to an order of the Court are subject to appeal.”
According to counsel the application for bail pending hearing of the appeal was by virtue of section 96 of the Criminal Procedure Code, 1960 (Act 30). According to him that is the enabling provision because the imprisonment of necessity arises from a criminal offence, and in any case this court in its supervisory jurisdiction can entertain the application. It is enough to say that the provision for bail under the Criminal Procedure Code 1960, namely, section 96 is limited to criminal offences, as clearly shown by the tenor of the provisions. Further it seems to me the supervisory jurisdiction of the High Court is exercisable by way of applications for prerogative orders, which is not the case here.
Now the correct position appears to be this. By the Courts Act, 1971 (Act 372), s.14 (1) (e) the High Court has an appellate jurisdiction from any decision of a district court. Further by Order. 46, r. 13 of Cap. 4, Sched. II, it is provided that:
“While any of the matters mentioned in rule 12 are being considered the Court may, in its discretion, order the judgment debtor to be detained in person, or release him on his furnishing security to the satisfaction of the Court, for his appearance when required by the Court.”
In exercising its appellate jurisdiction the High Court in effect, is to give a decision which the district court ought properly to have given. Consequently it seems to me this court may invoke any of the provisions under Order 46 of Cap. 4, Sched. II which the district court was competent to apply.
On the foregoing reasoning, I think the proper procedure would be for the applicant debtor to apply by virtue of Order 46, r. 13 of Cap. 4, Sched. II for his release from prison on his furnishing security while he questions the propriety of the committal order at the High Court. I am clearly of the opinion that an applicant committed to prison for debt by a district court is completely out of court if he moved the High Court for bail under section 96 of the Criminal Procedure Code, 1960, pending the hearing of his appeal from the order of committal.
The judgment creditor upon the word of counsel for the applicant was duly served with the notice of bail. Neither he nor his counsel appeared, consequently no objection was taken on the form of the application. I am prepared in the special circumstances of this case to waive the irregularity. I propose to apply the provision of Order 46, r. 13 of Cap. 4, Sched. II and order the release of the applicant from prison on his furnishing reasonable security, pending the hearing of his appeal. Application granted.
DECISION
Application granted.
S. O.
