HIGH COURT, KOFORIDUA
31 JULY 1970
BEFORE: QUASHIE-SAM J
CASES REFERRED TO
(1) Dombo v. Narh, Court of Appeal, unreported; digested in (1970) C.C. 68, C.A.
(2) Antwi v. Amponsah [1961] G.L.R. (Part II) 751.
NATURE OF PROCEEDINGS
APPLICATION for an order to attach the plaintiff and the deputy sheriff of the district court for contempt of court. The facts are fully set out in the judgment.
COUNSEL
A. Tham for the plaintiff.
Okyere-Darkoh for the defendant
JUDGMENT OF QUASHIE-SAM J.
This is an application for an order attaching the plaintiff-respondent and the deputy sheriff, District Court Grade I, Koforidua, for contempt.
The short statement of the facts in support of the application is that the plaintiff-respondent (whom I will refer to simply as the plaintiff for the purposes of this judgment) sued the defendant-appellant, the applicant in these proceedings, (whom I will refer to as the defendant in this judgment) in the District Court Grade I, Koforidua, and obtained judgment for ejectment against the defendant on 16 April 1970. The judgment ordered the defendant to vacate the premises by 30 April 1970. The defendant on the following day, 17 April 1970, lodged an appeal against the ejectment order while the appeal was pending, the plaintiff wrote applying for and obtained a writ of possession from the said district court which was executed on 1 May 1970 and the plaintiff was put into possession of the premises from which the defendant was ejected pursuant to the said judgment.
It is the contention of the defendant that by virtue of the provisions of High Court (Civil Procedure) (Amendment) Rule, 1969 (L.I.619), his appeal operated automatically as a stay of execution of the judgment given against him and that the writ of possession ought not to have been issued in favour of the plaintiff unless the plaintiff obtained an order of the court permitting her to go into execution. Therefore, contends the defendant, the plaintiff who applied for the writ of possession without leave and the deputy sheriff who caused the writ to be executed are both in contempt. The facts are not denied.
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But on behalf of the plaintiff counsel contends that since the plaintiff applied for the writ of possession and it was issued and signed by the magistrate, the plaintiff was entitled to be put into possession purely on the strength of that writ, and that there is nothing in her conduct constituting contempt.
On behalf of the deputy sheriff, counsel submits that there is no contempt committed since the deputy sheriff was bound to execute the writ of possession once it had been issued and was signed by the magistrate. Counsel concedes that, provided an appeal had been filed, L.I. 619 operates to stay execution until the court makes an order to go into execution. Counsel argues that normally the manner of obtaining such an order is by motion but that in the present circumstances, the application by the plaintiff for the issue of a writ of possession and her obtaining such a writ must be deemed an order of the court granting leave to the plaintiff to go into execution. Counsel finally submits that on the facts there might have been an irregularity but certainly no contempt committed and that the defendant’s proceedings for contempt are misconceived.
The case of the defendant, as put by counsel, is that the application for the writ of possession was
premature and counsel who applied for that writ should have preceded it with an application for leave to go into execution by virtue of the provisions of L.I. 619 which read as follows:
“An appeal shall operate as a stay of execution or of proceedings under the judgment or decision appealed from except so far as the Court below or the Court may otherwise order”.
L.I. 619 is itself an amendment of Order 58, r. 7 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), and reading L.I. 619 with the old Order 58, r.7 the only change in the rule is that an appeal now operates as a stay of execution whereas before the enactment of L.I. 619 it was not necessary for any party who wanted to go into execution to apply to the court for leave to do so, except in special cases. Such a party could take out any of the writs in execution of a judgment in his favour, for example a writ of fi.fa., writ of possession or a summons to show cause. So that any other party who wanted to prevent execution had to file an application to the court for stay of execution. This application must be on notice in order to afford any party an opportunity to contest or argue the merits of the application for stay of execution.
Now by L.I. 619 the rule has been reversed in favour of the prospective appellant, and as soon as the party against whom a judgment or decision is given appeals, his rights become vested to suspend the judgment or decision appealed from. So that any party who wishes to go into execution pursuant to such a judgment or decision must first apply to the court for an order to do so and the court has a discretion to exercise in granting or refusing leave to go into execution. Such an application must, likewise, be made on notice to enable the party against whom execution is intended to contest the merits of it. It cannot be made ex parte because by virtue of the rights created by L.I. 619, the person against whom execution is
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intended is directly interested. It follows that a mere application addressed to the registry for the issue of a writ in execution of a judgment or decision against which an appeal is pending, to the exclusion of the appellant, is not the type of application envisaged under L.I. 619. Consequently, the mere signature by a judicial officer on judicial form 20, which is the writ of possession form, cannot operate, or be deemed to operate, as an order of the court to go into execution to the prejudice of, and unknown to, the appellant. This is the essence of the defendant’s complaint in that by ejecting him without due regard to express provisions of L.I. 619 while his appeal is pending, the plaintiff on whose behalf the writ of possession was issued and the deputy sheriff who caused execution are both guilty of contempt.
The question then is does the conduct of the plaintiff, in applying for a writ of possession without first seeking an order of the court to go into execution, amount to contempt of court, and does the deputy sheriff’s act in executing the writ thus obtained make him guilty of contempt of court?
In the case of Dombo v. Narh, Court of Appeal, unreported; digested in (1970) C.C. 68 the Court of Appeal in its judgment made the following statement of the law:
“in determining whether any action amounts to contempt of court, the test is: Has the act complained of interfered or tended to interfere with the due administration of justice? If it has, it is a contempt, if not, it is not contempt. In Toledo Newspaper Co. v. United States (1918) 27 U.S. 402, it was observed: ‘. . . that in determining the obstruction of the administration of justice, it is not the actual obstruction resulting from an act, but the character of the act done and its direct tendency to prevent and obstruct the discharge of judicial duty’.”
Again in the case of Antwi v. Amponsah [1961] G.L.R. (Part II) 751 at p. 754, the principle is observed in the following statement of the law: “For an act to be contempt of court it must be calculated to bring a court or judge into contempt, or to lower his authority, or to interfere with the due course of justice, or the lawful process of the court; see Halsbury’s Laws of England, (3rd ed.), Vol. 8, p. 7 and R. v. Gray [1900] 2 Q.B. 36 at p. 40. Bowen, L.J. in the case of Helmore v. Smith (1887) 35 Ch.D. 449 at p. 455, C.A. laid down the test to be applied; he said: ‘The object of the discipline enforced by the Court in case of contempt of Court is not to vindicate the dignity of the Court or the person of the Judge, but to prevent undue interference with the administration of justice. The question, therefore, here is whether there has been interference with the administration of justice’.”
Ollennu J. (as he then was) summed up these principles in Antwi v. Amponsah (supra) at p. 754 in these words which I am strongly persuaded to adopt. He said:
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“I interpret the principle laid down in that case to mean that improper conduct by itself is not enough to constitute contempt. The act or conduct must be of such a nature as would unduly interfere with the administration of justice, i.e. prevent the court from, or make it impossible for it to exercise jurisdiction in a case, or if it exercises the jurisdiction it leads to miscarriage of justice.”
This instant case must be examined in the light of these principles. The question then is does the conduct of the plaintiff, in applying for the writ of possession without first seeking and obtaining an order of the court to go into execution, amount to contempt of court, and does the deputy sheriff’s act in executing or causing execution of the writ thus obtained make him guilty of contempt? The answer to the first part of this question must be answered in the negative. On the principles recounted above, it is obvious that the mere omission by the plaintiff to obtain leave before the issuance of the writ of possession is no conduct which will prevent the court from, or make it impossible for it to exercise jurisdiction in the matter of the pending appeal, nor can I foresee the exercise of jurisdiction in the appeal leading to miscarriage of justice. The plaintiff therefore cannot be guilty of contempt in the circumstances of this case.
As regards the second part of the question it is pertinent to observe here that the registrar of the district court is the same person as the deputy sheriff of that court. In his capacity as registrar, he received the letter of the plaintiff’s solicitor applying for the writ of possession. He admits, by his affidavit, that the defendant had then filed an appeal which was pending, but he directed acceptance of the application, caused the writ of possession to be issued and signed by the district magistrate, without observing the enjoinment in L.I. 619 and in his other capacity as the deputy sheriff caused the writ to be executed. If the district registrar and the deputy sheriff were two different persons, different considerations might apply to the circumstances of this case, but since the district registrar is the same person as the deputy sheriff, the matter must be looked at from that set-up. Thus he knew and ignored the provisions of L.I 619, and, without the plaintiff first obtaining leave, he caused the writ to be executed. Is this contempt of court ? To answer this question it is necessary to answer another first. Suppose the plaintiff had applied for and the court had granted leave to go into execution, what will the defendant complain of, as far as the execution is concerned? Nothing. It follows that the real complaint of the defendant is the fact that the writ of possession was irregularly obtained, and I so find. This must also be examined in the light of the principles. Does the character of this irregularity on the part of the deputy sheriff show a direct tendency to prevent and obstruct the discharge of judicial duty? Here again the answer must be in the negative for, however irregular or reprehensible the conduct of the deputy sheriff may be, it is not contempt of court, if it does not prevent the court from, or make it impossible for it to exercise jurisdiction in the pending appeal, nor can I foresee the exercise of jurisdiction leading to miscarriage of justice.
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For these reasons the application fails and it is dismissed accordingly. I will make no order as to costs.
DECISION
Application dismissed.
- A. Y.
