AGYEMAN-RAWLINGS vs. BAAKO JNR AND OTHERS [1997-1998] 2 GLR 491

CASES REFERRED TO

(1) MacCarthy v Agard [1933] 2 KB 417; 102 LJKB 753; 149 LT 595, CA.

(2) Republic v Moffat; Ex parte Allotey [1971] 2 GLR 391.

(3) Clelland v Alexandra [1966] GLR 758.

(4) Ohene v Tanko, Court of Appeal, 8 August 1967, unreported; digested in (1968) CC 51. (5) Tuck, Re; Murch v Loosemore (1906)1 Ch 692;75 LJ Ch 497; 22 TLR 425, CA. (6) Seaward v Paterson [1897] 1l Ch 545; 66 LJU Ch 267; 13 TLR 211, CA.

(7) Avory v Andrews (1882)51 LJU Ch 414; 46 LT 279; 30 WR 569. flnd (8) Hearn v Tenant (1807)14 Ves (2 ed) 136.

(9) Bryant, Re (1876)4 Ch D 98; 35 LT 489; 25 WR 230.

(10) Quaye v Mariamu [1961] GLR 93, SC.

(11) Asiama v Adjabeng [1971] 2 GLR 171. CA.

(12) Asare v Donkor and Serwah II [1962] 2 GLR 176, SC.

(13) Craig v Kanssen [1943]1 All ER 108; [1943] KB 256; 112 LT KB 228, CA.

(14) Mosi v Bagyina [1963]1 GLR 337, SC.

APPEAL from ruling of the High Court, Accra refusing the plaintiff ‘’s application for leave to issue writ of attachment for contempt against the dcldefendants. The facts are sufficiently set out in the judgment of Essilfie -Bondzie JA.

[p.496] of [1997-1998] 2 GLR 491 Hayibor for the applicant.

Akoto Ampaw for respondent.

Essilfie-Bondzie JA. This is an appeal against the ruling of the High Court delivered by His Lordship Mr Justice P K Owusu- Sekyere, sitting at the High Court, Accra on 28 November 1997.

The facts culminating in the instant appeal are that on 30 October 1997, the appellant (hereinafter referred to as the plain tiff) brought a writ of summons against the respondents (herein after referred to as the defendants), seeking:

“(a) Damages against them jointly and severally for the libellous publication in the Guide Vol 5, No 61 of 30 October–5 November 1997, with the banner picture of Nana Konadu Agyeman-Rawlings and containing her picture and the inscription “KONADU AGAiIN (FULL STORY ON TUESDAY)” and in small print “Nana Konadu–more false claims” and also in the Weekend Statesman of Friday, 31

October to 6 November 1997, a story headed “Nkrumah’ ‘s son v Mrs Rawlings.”

(b) Perpetual injunctions restraining the defendants and each of them whether by themselves or by their servants or agents from further printing, publishing or circulating or causing to be circulated of the plaintiff the said or similar statements.

On 3 November 1997, the plaintiff applied by an Ex parte motion, in view of the urgency of the matter and the threatened publication of further libel, for an order of interim injunction to be issued against the defendant. In the affidavit in support of the Ex parte motion, one Grace Quartey-Papafilo of the office of the plaintiff at Accra made the following averments:

“(2) This application arises out of the urgent need to stop campaigns of lies by the defendant-respondents herein aimed at damaging the applicant herein and casting aspersions on her integrity, image and person thereby opening her up for public disgrace, hatred and contempt.

(3) the matters complained of consists in a front page print of the picture of the applicant with the inscription ‘KONADU AGAIN?’ FULL STORY ON TUESDAY’ and underneath ‘Nana Konadu – more false claims’ sold out in the streets and sent on the internet in the 30

[p.497] of [1997-1998] 2 GLR 491

October 5 November 1997, Thursday Edition, Vol 5, No 61.

(4) Today the Weekend Statesman which is also on the world wide internet with large sales in the streets of Ghana in another front page large banner, headed ‘NKRUMAH’S SON V MRS RAWLINGS’ and continued on back page with the same heading in small blockprintblock print ended the piece by stating in the last three paragraphs as follows:

“We believe Gorkeh because we have evidence of the first lady’s propensity to lie about so many things. She has told a number of repugnant lies over the years which the Guide has had occasion to expose;, and so Mrs Rawlings, is somebody who in our opinion lacks credibility.”

It ended by saying that: ‘The Guide has promised to unmask the mendacity of Mrs Rawlings’ further (sic) claims in a subsequent edition. The scene is set for what promises to be fun and games’ (exhibit A and B) attached.

(5) This publication in the Weekend Statesman is believed to refer to what the Guide has promised to do on Tuesday.

(6) It is my ardent belief that if this campaign on the person of the plaintiff-applicant is not stopped by the honour able court till the determination of this action by the plaintiff, irreparable damage would have been caused to the plaintiff which will in its turn lead to unnecessary litigation which will waste the time of the court.”

The Ex parte application for interim injunction was argued before Justice Owusu-Sekyere on Monday, 3 November 1997 and having been satisfied that there was a real threat which ought to be stopped by way of grant of the Ex parte order for an interim injunction, the learned judge granted an order of interim injunction against the second, third and fourth defendants herein, who had been served with the writ of summons. A search conducted by the solicitor for the plaintiff disclosed that the defendants were served with the order the same day, 3 November 1997. The record shows that:

[p.498] of [1997-1998] 2 GLR 491

“Notwithstanding the service of the order on the defendants the second defendant as the publisher of the Guide and its editor disobeyed the order and published in their editorials, further and more libellous matters concerning the plaintiff. A copy of the editorial was exhibited and marked C. It was the plaintiff’ s case that the Guide did not stop at that but together with the Weekend Statesman embarked on a campaign of libel against the plaintiff as shown in exhibit D.”

Believing that the interim injunction order had been disobeyed, the plaintiff brought an application for contempt against the defendants on 24 November 1997. The record of proceedings reveals that on 28 November 1997, arguments were made for and against the motion. After hearing both parties, the learned judge refused the application for contempt. He gave the following ruling:

“I refuse the motion for leave to issue writ of attachment for contempt against the second, third and fourth defendants contemnors in this application because the plaintiff- respon dent has so far not filed a statement of her claim in this libel suit. Even though I granted the Ex parte injunction against the defendant contemnors in order to prevent threatened harm to the plaintiff’s reputation, the statement of her claim to state the nature of the libel which she is alleging to have been published against her has not been filed; even though the defendant-contemnors have entered their notice of appea rance. It will therefore be inequitable at this stage to commit the defendant-contemnors for contempt of this court. There will be no order as to costs.”

It is against this ruling that the appeal has been made to this court on the following grounds:

“(a) The learned High Court judge erred in law by dismissing the application for leave for a writ of attachment fori contempt to issue against the defendants for disobeying his own Ex parte interim injunction order restraining the defendants from publishing any further libellous matters of the plaintiff until the substantive matter is determined, on the grounds that before the contempt proceedings, plaintiff’s counsel had not filed their statement of claim,

[p.499] of [1997-1998] 2 GLR 491

(b) The judge erred in law by saying that the Ex parte order which was against the defendants, their workmen and assigns did not affect the editor of the second defendant.”

Before addressing the merit and demerits of the appeal herein, I will comment on the preliminary point raised in the defendant’s statement of case which attacked the procedure adopted by the plaintiff in applying for contempt. Counsel for the defendants argued that the type of contempt which the plaintiff complained of is governed by the procedure set out in Order 59, r 21 of the High Court (Civil Procedure) Rules, 1954 (LN 140A). That the plain- tiff’ ‘s failure to comply strictly with Order 59, r 21 of LN 140A was therefore fatal to the appeal. Order 59, r 21 (1) and (2) of LN 140A provides:

“21 (1) The procedure in applications for attachment for contempt of court in the cases to which this rule applies shall be the same as in applications for order of mandamus, and rules 2,4, 5 and 6 of this Order shall apply accordingly to applications for attachment, so far as they are applicable;

Provided that the issue of the writ of attachment shall not be ordered by a Judge in Chambers, and the notice of motion shall be personally served unless the Court or a Judge dispenses with such service.

(2) This rule applies to cases where the contempt is committed–

(a) in connection with proceedings to which this Order relates;

(b) in connection with any proceedings in court except where the contempt is committed in facie curiae or consists of disobedience to an order of the court;

(c) in connection with proceedings in an inferior court.”

(The emphasis is mine.) A reading of the application for contempt before the court below shows that the type of contempt which the plaintiff complained of was a contempt by way of disobedience of a court order, not the type of contempt contemplated by Order 59, r 21 of LN 140A. The application was brought under Order 44 of LN 140A and it was for a disobedience of an order of the court. It

[p.500] of [1997-1998] 2 GLR 491 is my view that both Order 44 and Order 59, r 21 deal with attachment for contempt but in different contexts.

A writ of attachment under Order 44 of LN 140A is issued on notice to the person against whom it is issued, called “contemnor” This is supported by an affidavit which must state: (i) the nature of the judgment or order, whether it is for recovery of movable property or payment of money, abstaining from doing an act; and (ii) the date of the order. It is plain from the provisions of Order 59, r 21 and Order 44 (supra) that the procedure adopted by the plaintiff in this application cannot be faulted. Besides, even if the plaintiff chose the wrong procedure, I consider the error a mere technicality which does not defeat the appeal before this court.

The certified true copy of the order of interim injunction which was issued and signed by His Lordship Justice Owusu-Sekyere on 3 November 1997 and marked “A” read:

“IT IS HEREBY ORDERED that the defendants herein by themselves, agents, workmen and assigns be and are hereby restrained from publishing any further libellous matter (sic) against the plaintiff applicant herein until, the final determination of the suit.”

As said, the learned judge refused to grant the application for contempt of court on the ground that the plaintiff failed to file a statement of claim though appearance was entered.

I must remark here that I do not share the learned judge’s reason for the refusal of the application. This is so because in the affidavit in support of the Ex parte motion for contempt which is quoted above, the plaintiff set out clearly the nature of the libel complained of and the reason why it was necessary for the issuance of the interim order to prevent the defendants from publishing any further libellous matter until the suit is finally determined. And it is plain from the certified true copy of the order (exhibit A) that the learned judge himself was satisfied thati there was the need to make the order to stop the defendants, their agents, workmen and assigns from publishing any further libellous matter against the plaintiff before he made the order. Nowhere in the order for interim injunction was the plaintiff required to file a statement of claim to validate the order. Moreover the parties themselves knowing the nature of the libel complained of, never canvassed the needfulness or otherwise of a statement of claim. In

[p.501] of [1997-1998] 2 GLR 491 so far as the order was not conditional it remained a legally binding judicial order which ought to be obeyed.

Be that as it may, it is a common law principle that a judgment of a court of competent jurisdiction, even if it contains errors ofi law or fact is of full binding force until is reversed on appeal or by review: see MaCarthy v Agard [1933] 2 KB 417, CA and Republic v Moffat; Ex parte Allotey [1971] 2 GLR 391. In my view, the High Court erred in the reasons it gave for dismissing the application.

I now proceed to consider the essential matter which is to decide whether the defendants disobeyed the interim order dated 3 November 1997. Reading the order, it is evident that it was made to restrain all the defendants, their agents, workmen and assigns. And as disclosed in the official search report, all the defendants were served with the order dated 3 November 1997 the same day, 3 November 1997 at 4 30 p m. Notwithstanding the clear terms olf the order, the first and second defendants published in an editonria]l matters which were libellous of the plaintiff on the next day, 4 November 1977 as exhibited in the record. That is, the second defendant as the publisher of the Guide and the first defendant, its editor, disobeyed the said order and proceeded to publish in theiri editorial further libellous matters of and concerning the plaintiff. In the said editorial dated 4 November to 10 November 1997 which is exhibited and marked as “C”in the record, the first and second defendants published concerning the plaintiff among other things the following matter:

“Our principal problem with Mrs Rawlings is her chromnic inability or failure to speak the truth and be fair to historical matters. We do not know whether her unabating indulgence in lying about the history of women’s rights and empowerment in Ghana is a mark of sheer ignorance or blatant arrogance or both. Which is which Madam?”

The defence being put up by the first and second defendants is that the publication of the above libellous matter was done before they were served with the order of the court. As already indicated, the order of interim injunction was issued on the 3 November 1997, and the official search conducted by the plaintiff at the registry of the High Court revealed that the defendants were served with the order at about 4 30 pm that same day, 3 November 1997. Although the official search report is very clear, the

[p.502] of [1997-1998] 2 GLR 491 defendants have contended that it was a reporter one Peter Atiemo who was served with the order on 3 November 1997. And that the first defendant had already left his office on 3 November 1997 when the order was effected on Atiemo. The first defendant however failed to state in his affidavit, the time he closed from work for the day on 3 November 1997. Peter Atiemo, the reporter, claimed that he took the court process with the intention of handing the same over to the defendants the next day. He failed to state the usual office hours or closing time of the second defendant company and why he failed to show the court process to the defendants, the day he received the order. It is my view that the defence of the first and second defendants that they became aware of the order of interim injiunction after the publication of the libellous matter cannot be tenable. I consider it an afterthought.

It must be noted that since the bailiff served the process in the premises of the second defendant before the close of work that day, whether service was effected on a reporter or not, it was service on the second defendant. It would be stretching the demand on a bailiff to a ridiculous proportion if he is expected on entering the office of a company to serve a process, to know the names and categories of all the people working for the company. Even if a reporter of the company was the one who received service of the order of interim injunction on 3 November 1997, the day before the publication of the offending matter, that service was duly effected on the second defendant. Besides, the rule of law is that service of a court’s order on the party alleged to have disobeyed it is not very essential, if it is shown that he might have known or knew of the order: see Clelland v Alexandra [1966] GLR 758. In this case I hold that the first and second defendants were duly served with the order on 3 November 1997 before the publication of the offending matter on 4 November 1997; and even if they were not served, I further hold that they knew of the order or might have known of the order before the offensive publication. I would go further to say that even if the first defendant had no knowledge of the pendency of the said order, absence of such knowledge could not avail him if his conduct was in fact in contempt of court. Lack of knowledge of the pendency of the order of interim injunction would only be taken into consideration when passing sentence: see the case of Ohene v Tanko, Court of Appeal, 8 August 1967,; digested in (1968) C C 51

[p.503] of [1997-1998] 2 GLR 491 where Akufo-Addo C J, reading the ruling of the Court of Appeal, said:

“While it is possible that the appellant might not have known of the pendency of the proceedings before the court, such absence of knowledge is actually no defence if the action of the appellant did in fact achieve the result complained of, namely if his action was in fact in contempt of court, although the proved absence of knowledge would afford a mitigating circumstance when it came to assessing punishment.”

It has been urged on the court that since the motion of notice for leave to issue the writ of attachment did not cite the first defendant as respondent to the contempt application, no order for attachment can validly be made against the first defendant. Now, as already shown, the order was made restraining the defendants, their workmen and assigns. As editor of the newspaper, the first defendant is a workman or assign and he is thereby caught by the order. I hold that the first defendant was properly attached for contempt not in his personal capacity, but as editor of the newspaper and therefore a workman of the second defendant.

It was contended by learned counsel for the defendants in his written address that since becoming aware of the court order, the second defendant had done everything it could to retrieve the remaining copies in circulation. Significantly, even though they conceded that copies of the libellous matter was circulated in and outside Accra, they failed to tell the court the way and manner they retrieved such copies.

As indicated already, I find that the editor of the Guide, the first defendant, and the second defendant were served with the order of interim injunction on 3 November 1997 and, notwithstanding the order which was clear in terms, the Guide went ahead and published matters which were libellous of the plaintiff on the next day, 4 November 1997 as existed in the record of proceedings. It was a wilful disobedience of the court order for if the editor of the Guide the first defendant had the intention and will to obey the order he would have stopped the publication of the libellous matter.

Moreover, once the defendants were aware of the pendency of the writ of summons before the High Court their conduct in publishing the libellous matter complained of on 4 November 1997 interfered with the administration of justice. The law is that

[p.504] of [1997-1998] 2 GLR 491 anything done to bring the administration of justice into disrepute or interfere with any pending litigation is contemptuous.

Concerning the third and fourth defendants, they admitted in their affidavit in opposition that they were served with the order of interim injunction which restrained them from publishing any further libellous matter against the plaintiff. It is on record that although the third and fourth defendants were served on the

November 1997, on 16 November 1997 they carried two cartoons of the plaintiff. The second cartoon–—exhibit D–—caricatured the plaintiff as the world’s most junketing couple who would have been shot sixteen years ago for their trips abroad. I consider this hlibellous, insinuating that the plaintiff is someone who was frivo- lous. It also insinuated that the plaintiff was a person dissipating the country’s wealth on frivolous foreign trips.

It must be remembered that the third and fourth defendants published those cartoons which I consider libellous even though they knew not only of the existence of the injunction order but also the pendency of an action taken by the plaintiff against them for a defamation of character. Their conduct satisfies me that they embarked on a campaign of libel against the plaintiff. This conduct was not only calculated to prevent the court from discharging its judicial functions, but also to bring the authority and administration of the law into disrespect.

In the light of the foregoing, it is my judgement that there has been a wilful disobedience to the court’s order of 3 November 1997 and the defendants are found guilty of contempt of court. They are called upon to show cause why this court should not deal with them according to law. The court’s orders are meant to be obeyed; and flagrant and wilful disobedience to such orders by parties to a suit must be viewed with abhorenceabhorrence and adequate punishment meted out to the offenders.

Sapong JSC. I agree with the judgement read by my brother Essilfie-Bondzie JA and I have nothing useful to add.

Benin JA. The plaintiff took an action at the High Court claiming damages for libel and perpetual injunction against the defendants. After the writ had been served on the second, third and fourth defendants, the plaintiff moved the court on an Ex parte application for an order of interim injunction to restrain defendants, either by themselves, agents or assigns from

[p.505] of [1997-1998] 2 GLR 491 publishing any further libellous matter until the suit was deter mined. This application was granted on 3 November 1997 in these terms: “Motion granted in its terms against the second, third and fourth defendants who have been served with the palintiff’s writ of summons.” That same day the order was drawn up in these relevant terms:

“It is hereby ordered that the defendants herein, by themselves, agents, workmen or assigns be and are hereby restrained from publishing any further libellous matter against the plaintiff-applicant herein until the final determination of the suit.”

It was the contention of the plaintiffs that the defendants were served with this order on 3 November 1997, yet that service on them notwithstanding, the defendants went ahead to publish further libellous matter of and concerning the plaintiff. Hence, by a motion on notice filed on 18 November 1997 and brought under Order 44 of the High Court (Civil Procedure) Rules, 1954 (LN 140A), the plaintiff sought leave to issue a writ of attachment for contempt against the defendants. But before then, on 12 November 1997, the defendants had put in an application on notice to set aside the order of interim injunction.

On 28 November 1997, the court heard arguments on the two motions and dismissed them both. In respect of the attachment the court’s reason was that:

“The statement of her claim to state the nature of the libel which she is alleging to have been published against her has not been filed even though the defendant contemnors have entered their notice of appearance. It will therefore be inequitable at this stage to commit the defendant contemnOors for contempt of this court.”

Having given this decision, one obviously expected the court to have granted the application to set aside the order of interim injunction. Yet it did not on the ground that: “In the absence of the pleadings from both sides I am unable to say that the threatened harm to the plaintiff’s reputation by the defendant-applicants herein has abated.” By the latter decision, the court was affirming the validity of the earlier order of interim injunction. If the order [p.506] of [1997-1998] 2 GLR 491 was valid then why should it not be enforced? A clear case of inconsistent and irreconcilable decisions.

The appeal before us was put in by the plaintiff against the decision dismissing the application for attachment. Two grounds were given, namely:

“(a) The learned High Court judge erred in law by dismissing the application for leave for a writ of attachment for contempt to issue against the defendants for disobeying his own Ex parte interim injunction order restraining the defendants from publishing any further libellous matters of the plaintiff until the substantive matter is determined on the grounds that before the contempt proceedings plaintiff’s counsel had not filed their statement of claim.

(b) The judge erred in law by saying that the Ex parte order which was against the defendants, their workmen and assigns did not affect the editor of the second defendant.”

I begin with the last ground of appeal. It is clear from the endorsement on the writ that the first defendant had at all times material to this application not been served with the writ of summons. This fact was acknowledged by counsel for the plaintiff in the course of his submission before the court below on 3 November 1997. The court rightly in my view left out the first defendant in granting the order and the order as drawn up also rightly excluded him. In plaintiff’s application for the attachment too, the first defendant was left out. The notice read:

“Take notice that this Honourable Court will be moved by S Emmanuel Vanderpuye, counsel for and on behalf of the plaintiff-applicant herein, praying this Honourable Court for an order for leave to issue a Writ of Attachment for contempt to attach the second, third and fourth defendant-respondents and their assigns herein on the grounds deposed to in the affidavit hereto attached . . .”

In all these instances, it is clear there was nothing against the first defendant. However in paragraph (6) of the affidavit in support, it was deposed that: “The second defendant as the publisher of the Guide and its editor flagrantly disobeyed the order and proceeded to publish in their editorial, further and more libellous matters of and concermning the plaintiff.” I believe it was in this connection

[p.507] of [1997-1998] 2 GLR 491 that the first defendant, as editor of the Guide newspaper, was also sought to be attached.

It must be pointed out that contempt of court is a serious matter that can affect the liberty of the individual for the simple reason that a person found guilty of contempt could be sent to jail. In other words, it is penal in character. It is for this reason that in every application affecting the liberty of the subject strict compliance with the rules of court is imperative. Thus the process of attachment for contempt must begin with proof of personal service of the order which the person sought to be attached or committed is alleged to have disobeyed, and then it should go on to prove failure to comply with the order. The rule is so strict that even if the person sought to be attached or committed was present during the hearing of the application, service of the notice of motion and of the affidavits and any other relevant papers annexed should be proved by an affidavit of service: see Re Tuck [1906] 1 Ch 692, CA.

In respect of the first defendant, it is not the plaintiff’s case that he was served with any process or material relevant to this application. He is said to have taken part in the publication. This assertion notwithstanding, it must be established that he was aware of the order and did assist the party against whom the order was made to violate it. A person who is not a servant or agent of a party against whom an injunction has been granted may be committed for contempt in assisting such party to disobey the injunction: see Seaward v Peterson [1897] 1 Ch 545, Avory v Andrews (1882) 51 LJU Ch 414; Hearn v Tennant (1807) 14 Ves (2nd ed) 136; and Re Bryant (1876) 4 Ch D 98, which all agree that a person not a party could be attached for contempt for breach of an order of injunction provided that he was present in court when the order was made, or was served with minutes of the order verified and certified by the registrar; in other words, that he was served with the order or was aware of the service of the order on his master or principal as the case may be or the contemnor and yet assisted him to violate the order. It is not just enough to say a person is liable simply because he is the servant or agent or assign of the party against whom an order of injunction was made.

So in respect of the first defendant, the issues to resolve arce whether the order was served on the second defendant and if iit was so served whether the first defendant had notice of the order and yet still assisted the second defendant to violate it, if at all it

[p.508] of [1997-1998] 2 GLR 491 was violated. According to an affidavit filed by the first defendant on 24 November 1997 with the authority and on behalf of the second defendant, they were not served with this order on 3 November 1997 as alleged by the plaintiff. The first defendant said he left the office early that day; it was the next day, 4 November 1997, that he saw a copy of the order. He challenged the bailiff who claimed to have served the order on him on 3 November 1997 and sought leave to cross-examine him. His depositions were supported by one Peter Atiemo, a reporter of the Guide newspaper who deposed that it was he to whom the copies of the order for service on the first and second defendants were given by the bailiff late on 3 November 1997, and that he told the bailiff of the absence of the first defendant from the office and also that no officer of the second defendant was present.

It is to be noted that these depositions were not rejected by any supplementary affidavit deposing to contrary facts, especially from the bailiff to enable the court come to a definite conclusion that they were served. Be that as it may, following these depositions, a vital issue was joined as regards whether or not the first and second defendants were served with the order on 3 November 1997. In respect of the first defendant, personal service was required assuming he was a compellable party. But certainly he was not, for the writ had not been served on him; but if he was served with the order he would still be bound to respect it until it was vacated upon application. As to whether the first defendant was personally served and if so on what date, are both questions of fact to be determined by the trial court. No such findings of fact were made. The same goes for the second defendant too.

In a situation such as this, where no primary findings of fact have been made, what is an appellate court to do? This point came before the Supreme Court in the case of Quaye v Mariamu [1961] 1GLR 93, SC and this is what the court said at 95 of the report, per van Lare JSC who read the judgment of the court: “The sole matter of the complaint in this appeal is that the learned trial judge had not found the primary facts and that the judgment is vague. I think there is great force and substance in this contention. This court can only do justice between the parties if it is satisfied that the foundation has been laid by the trial judge whose duty it is to resolve the primary facts. Once the facts are found an appellate court is in as good a position

[p.509] of [1997-1998] 2 GLR 491 as a trial judge to draw inferences or conclusions from those facts; but it cannot embark on this task unless the facts are resolved. This court has often expressed the opinion that if the question ‘What are the facts found?’ cannot be answered with precision and particularity the judgment ought to be held unsatisfactory and a new trial ordered because the judicial process had not been applied.”

A similar view was expressed by this court in the case of Asiama v Adjabeng [19711] 2 GLR 171. The case of Asare Donkor v Donkor and Serwah II [1962] 2 GLR 171, CA is inapplicable here since there the trial court made findings of fact with which the appellate High Court disagreed, so there was no point going back for trial de novo.

Thus, in my view, so long as the issue of service and date of service on the first and second defendants were not resolved as matters of fact, the trial was unsatisfactory at least in relation to them. But it was said that second defendant was served albeit, through Peter Atiemo. If this is acceptable service, was the first defendant aware of it? Was there a violation of the order by them?

As I earlier mentioned, Peter Atiemo deposed that it was he who was entrusted with the copies for service on the first and second defendants. He said this took place at the office of the Guide newspaper. Is the Guide office the registered office of the second defendant? I ask this question because by section 263 (1) of the Companies Code, 1963 (Act 179) a document for service on a company may be served on it by leaving it at its registered office. If the place of service is not its registered office the service would be ineffectual in law. On the other hand, section 263 (3) of Act 179 permits service to be effected on any director of the company or, in the absence of the directors, on any member of the company where the company has no registered office. Thus assuming that where the service took place is not the registered office of the company in that it has no registered office, it has to be established that Peter Atiemo is a director of the second defendant company or at least that he is a member thereof. These are all matters of fact to be resolved by the trial court. In the absence of such primary findings of fact it is difficult for this court to conclude service of the order was effected on the second defendant. And if there is no service on the second defendant, it

[p.510] of [1997-1998] 2 GLR 491 cannot be said by the plaintiff that the first defendant “an assign” or workman of the second defendant is liable.

In summary, it was not found as a fact that the first and second defendants were served with the order. It was also not found as a fact that the order was served on them on 3 November 1997. It was also not found as a fact that the publication had been circulated before or after the service. Without these findings, one cannot talk of the judicial process having been complied with.

Was there a satisfactory trial at all to begin with? An answer to this question posed will lead me necessarily to the first ground of appeal. I have earlier set out the trial court’s reason for dismissing the application for attachment. To recap, it was for this reason that the plaintiff had not filed a statement of claim setting out the libel complained of. With all due respect to the learned judge, I think he erred in the view he took. The view of the learned judge implies that an application for contempt for breach of a court’s interim order in a libel suit could only be sustained where a statement of claim had been filed. That is clearly in error. Order 3, r 6 (4) of LN 140A entitles a plaintiff to indorse his writ of summons or to accompany same with a statement of claim in certain cases; among the list of cases excluded from this rule are actions for libel. In other words, where a person sues in libel, he is not obliged to accompany the writ with a statement of claim. For that reason he could wait for the defence to enter an appearance before filing his statement of claim within ten days after appearance: reference to order 20, r 1 (b) of LN 140A. So the plaintiff in this case was not obliged by procedure to file a statement of claim before the defendants or any of them had entered an appearance or before the ten days for entry of appearance had elapsed.

In my view therefore, the only question for the court was whether the application Ex parte for the interim injunction was properly made after the issue of the writ but before delivery of a statement of claim. If it was properly made and granted, then infringements of the order as drawn up could not be avoided by the court on account of no statement of claim filed. Order 50, r 8 of LN 140A entitles a plaintiff to put in an application Ex parte for an order of interim injunction any time after the issue of the wnrit. Be that as it may, a statement of claim was not required for this application for the libellous matter being complained of took place after the issue of the writ. And so long as the rules do not require that an action in libel begun by a writ should be accompanied by a

[p.511] of [1997-1998] 2 GLR 491 statement of claim, a court would be wrongly denying a hearing to a plaintiff if it insisted on the filing of a statement of claim before hearing him. Before granting the application for the interim injunction, the learned judge was aware of the lack of a statement of claim. He must have satisfied himself from the writ and affidavit evidence then before him that it was a fit case to grant. The application for attachment which was brought as a result of alleged violations of the order of interim injunction was thus competent before the court and ought to have been heard on its merits, for however erroneous a court order may appear to be it ought to be obeyed until proper steps are taken to vacate it. On the other hand if the party in whose favour it was made seeks to enforce same by penal sanction, the validity of the order could be questioned. These points were duly acknowledged by counsel for the defendants in his written submissions.

I notice that in the submission made by the defence counsel, strenuous efforts were made to justify the trial court’s decision on three grounds, namely:

(i) that the order granting the interim injunction was too wide in its terms and thus a nullity;

(ii) no libellous matter was published of the plaintiff; even if some of the mat’ter complained of are interpreted to be libellous, yet they are not wilful and intentional; and

(iii) that the plaintiff has woefully failed to discharge the burden placed on her to prove beyond a reasonable doubt that second, third and fourth defendant-respondents have been in wilful and intentional breach of the court order and therefore should be attached for contempt.

As I have said already, the trial court did not investigate the complaint of the plaintiff at all against the defendants for reason which I have held was clearly erroneous. Some of the matters to be dealt with are clearly matters of fact concerning which primary findings will have to be made before the court could even decide on the legal issues raised. And as to whether the order was a nullity or otherwise, it is a matter to be canvassed before the courtl which made the order because on the principle set out in the English case of Craig v Kanssen [1943] 1 All ER 108 at 113, CA per Lord Greene MR, the procedure for having such void orders set aside is to go to the court which made the order and not to go on appeal. This was approved by the Supreme Court in Mosi v

[p.512] of [1997-1998] 2 GLR 491

Bagyina [1963] 1 GLR 337 at 342, ScC. The defendants went to the court below to have the order vacated but did not succeed. They did not appeal against that order of refusal at least there is no such indication before us. So they cannot re-open this matter here when there is no appeal before us on that refusal and when no such ground of appeal has been raised in this appeal before us. The first point canvassed by defence counsel is accordingly rejected.

The second point was that there was no publication of any lihbellous matter of and concerning the plaintiff. This point could be discussed in relation to only the third and fourth defendants who admitted having been served with the order on 3 November 1997. The order of the court is not to be interpreted to mean that the defendants should not publish anything at all concerning the plaintiff, but that they should not publish any further libellous matter of and concerning her. Thus the plaintiff assumed the initial burden of producing satisfactory evidence to show that the defendants had published defamatory matter in their newspaper(s) against the plaintiff since the order was served on them. This must be found as a matter of fact. Then when this is done, the defendants would have to show that they were true or substantially true and thus justified which again is a matter of fact, or that the publication complained of is not libellous at all, or that even if libellous was not intentional in the sense of being wilful. These findings of fact will have to be made even if only affidavit evidence is being used.

But having regard to the stand taken by the trial court, it disabled itself from determining these matters. I know an appeal is by way of re-hearing: see rule 8 (1) of the Ccourt of Appeal Rules, 1997 (CI 19). Yet, as the rule suggests quite clearly, this being an appellate court it can only “re-hear” what has been previously heard before a court below. My understanding of this is that the court below should hear the case on its merits and make a pronouncement on merits and then when an appeal comes up here this court would be able to re-hear it. But where there is no hearing on merits, particularly in a case where findings of fact have to be made, there would be no proper hearing for this court to re -hear it. If this court’s jurisdiction which is only appellate is not jealously guarded, it will mean that even where a trial court declines jurisdiction to give judgment in a case upon a late objection raised and on appeal it is held the court below erred, this court would then poroceed to hear the case, make findings of fact

[p.513] of [1997-1998] 2 GLR 491 and pronounce judgment all in the name of an appeal being by way of re-hearing. That, in my humble opinion, would be wrong. The correct position in my view is that where findings of fact have to be made and the trial court did not do so at all because of an erroneous view of law it had taken, the proper course open to this court is to order a re-trial for there would have been no proper application of the judicial process by the court below. And in my view this is precisely what happened in this case.

I am aware of the existence of rule 31 (e) of CI 19 which gives this court full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in this court as a court of first instance. A similar provision existed under rule 31 of the now repealed Court of Appeal Rules, 1962 (LI 218) which was in place before this court decided Asiama v Adjabeng (supra). The court in that case did not deny the right of this court to come to its own conclusion on the facts, but it held that could only be done where primary or material facts in respect of the matters in controversy between the parties have been found by the trial court. I may add that this court is also entitled to form its own opinion and come to a conclusion on the facts where the judgment of the court below is based on the facts before it, both by the pleadings and evidence, if any, led; even if it gave no reasons for its decision, for a decision given on the competing claims even if no reason is assigned will be a decision on merits entitling this court by way of re-hearing to find reasons from the record either to support or to reject the trial court’s decision. But where the decision is not based on the competing facts, this court cannot proceed to make findings of fact. This court can only evaluate evidence to determine whether the facts were properly found.

I will thus allow the appeal but order that this matter should go back to the court below for the application for attachment to be heard on its merit.

Appeal dismissed.

LSN