COURT, CAPE COAST
DATE: 26 MAY 1967.
BEFORE: ARCHER J.
CASES REFERRED TO
(1) Castro v. Murray (1875) L.R. 10 Exch. 213; 44 L.J.M.C. 70; 32 L.T. 675; 39 J.P. 440; 23 W.R.
596.
(2) Dawkins v. Prince Edward of Saxe Weimar (1876) 1 Q.B.D. 499; 45 L.J.Q.B. 567; 35 L.T. 323; 24W.R. 670.
(3) Willis v. Earl Beauchamp (1886) 11 P.D. 59; 55 L.J.P. 17; 54 L.T. 185; 34 W.R. 357; 2 T.L.R. 270, C.A.
(4) Grepe v. Loam (1887) 37 Ch.D. 168; 57 L.J.Ch. 435; 58 L.T. 100, C.A.
(5) Kinnaird (Lord) v. Field [1905] 2 Ch. 306; 74 L.J.Ch. 554; 93 L.T. 147; 54 W.R. 3, C.A.
(6) Metropolitan Bank Ltd. v. Pooley (1885) 10 App.Cas. 210; 54 L.J.Q.B. 449; 53 L.T. 163; 49 J.P. 756; 33. W.R. 709, H.L.
NATURE OF PROCEEDINGS
APPLICATION for inter alia an order of injunction to restrain the first respondent from performing his duties as the Bishop of the A.M.E. Zion Church on grounds that he was guilty of heresy. The facts are sufficiently stated in the ruling.
COUNSEL
Applicant in person.
Dr. de Graft Johnson for the respondents.
JUDGMENT OF ARCHER J.
On 1 March 1967, the applicant filed a motion on notice praying for certain reliefs. The said motion was dismissed as frivolous in the absence of the applicant. He later applied for the motion to be re-listed as he had sent a telegram asking the court for adjournment before the motion was dismissed. Leave was granted and the motion was re-listed. Meanwhile, on 28 March 1967, the applicant had filed another motion entitled “Amended motion paper to replace the former one filed on 1 March 1967.” When the applicant’s motion was therefore re-listed for hearing on 12 May 1967, he dealt with the amended motion filed on 28 March 1967 and not the original motion filed on 1 March 1967.
In the application filed on 28 March 1967, the applicant prayed for three specific reliefs which briefly were as follows:
(1) An order of injunction restraining the first respondent Bishop Lartey from performing his duties as Bishop of the A.M.E. Zion Church because he is guilty of heresy and also under the Law of Witchcraft Act, 1735 (9 Geo. 2, c. 5), or the law of trial by ordeal and under the laws of the church.[p.382] of [1967] GLR 380
(2) An order of injunction restraining the said bishop from further interfering with the duties, rights and privileges of the applicant as a member, elder or minister of the A.M.E. Zion Church and from continuing to threaten to publish as he did such serious, disgraceful and offensive charges and allegations as exhibit DI herein.
(3) An order enjoining upon the two respondents herein to publish a letter of apology in named newspapers for publishing the said exhibit DI. After having heard the applicant and counsel for the respondents, the applicant suggested that I should deliver my ruling on 25 May 1967 as that date (which is today) would be convenient to him. I shall now proceed to deliver my ruling on the three remedies sought by the applicant.
In the first place the motion paper referred to a suit No. 16/1963 in which the present applicant was the plaintiff and the present respondents were the defendants. In that suit the plaintiff claimed damages for libel published by the defendants. I delivered my judgment on 23 February 1967 and held that the defendants were not liable and dismissed the plaintiff’s claim. Subsequently, the plaintiff applied for review of the said judgment but on 12 May 1967, I decided not to grant the application for review. It seems to me therefore that the order sought by the applicant to enjoin the defendants to publish a letter of apology in respect of the alleged libel is misconceived. As I have already held that the defendants did not libel the plaintiff, no apology by the defendants seems necessary under any sanction from the court. If the defendants themselves on their own volition conscientiously feel that they morally owe the applicant any apology after my judgment, that is a matter entirely for their common sense and individual sensibilities.
As the respondents have rightly main- tained, this court has become functus officio so far as the plaintiff’s claim in suit No. 16/1963 is concerned. The second remedy sought in this application is an injunction restraining the first respondent from interfering with the duties, rights and privileges of the applicant as a member, elder or minister of the A.M.E. Zion Church and also restraining the first respondent from continuing to threaten to publish similar charges and allegations as exhibit DI. When suit No. 16/1963 was heard, the plaintiff claimed only one remedy, that is, damages for £G50,000 and no more. He did not claim any other reliefs and therefore this court cannot after judgment consider reliefs which were not even hinted at during the trial. If the respondents have published another libel against the applicant, he is at liberty to take out a writ so long as the courts are open to the public. In any case, if there has been any
[p.383] of [1967] GLR 380
threat since judgment was delivered, it is an entirely new matter which can be taken care of by a new writ claiming an order of injunction to restrain the respondents from carrying out their threats, if any, to publish any defamatory matter against the applicant.
I must confess that I am at a loss to understand how this court can restrain the respondents from interfering with the applicant’s membership and any office he holds in the A.M.E. Zion Church as a sequel to suit No. 16/1963. During the trial of that suit it came to light that the applicant had previously sued the respondents and the church for wrongful dismissal. I was made to understand that the judgment in that suit was the subject-matter of an appeal pending now in the Court of Appeal. I do not therefore think I can interfere in a matter which is now within the jurisdiction of an appellate court-higher than this court. Moreover if the applicant is being molested by the respondents, he is at liberty to take out a substantive writ to claim the necessary relief restraining the respondents from indulging in any acts of molestation harmful and prejudicial to the tranquillity and well-being of the applicant.Next, I shall deal with the first relief which seeks an order to restrain the first defendant from performing his duties as Bishop of the A.M.E. Zion Church. The grounds are that the bishop is guilty of heresy and has become heretical under the Witchcraft Act 1735, or the law of trial by ordeal and under the laws of the church. What is heresy? One dictionary defines it as a belief contrary to the authorised teaching of one’s natural religious community; an opinion opposed to the moral or conventional belief. There is no established religion in Ghana recognised as the religion of the State. The courts in Ghana apply the laws of the country and not what the Christian Bible teaches. If a bishop commits heresy by preaching contrary to the precepts of Christ or by propounding religious dogmas opposed to the accepted and established canons of the church, there is nothing that a temporal court like the present court can do about it. Only the church authorities can deal with the particular bishop. I therefore rule that whether Bishop Lartey has committed heresy or not, this court has no jurisdiction to entertain the matter. I am not sure whether the English Witchcraft Act, 1735, even applied in Ghana as a statute of general application. If it did there is no doubt that the remnants of that Act have been repealed by the English Parliament by the Fraudulent Mediums Act, 1951 (14 & 15 Geo. 6, c. 33), and it is no longer in force in England. I have no evidence that the bishop practises witchcraft and if he does, I doubt whether this court has power to prevent him from practising this art although the court will not hesitate to deal with him if while practising this secret art,
[p.384] of [1967] GLR 380
he commits any offence known to the criminal law of Ghana or any other enactments in force. Trial by ordeal is governed by sections 315 and 316 of the Criminal Code, 1960 (Act 29), and if the applicant knows of any offence committed by the bishop contrary to these sections, the applicant has an obligation as a dutiful citizen of this country to report the matter to the Inspector-General of Police for investigation. The police authorities will no doubt discharge their duty. I also wish to say that if Bishop has offended any laws of the A.M.E. Zion Church, I think that church has disciplinary bodies to deal with the matter and this court is not competent to take any initiative in the matter.
I have considered the whole motion and I think it is so vexatious and frivolous that I have decided tonaward the respondents costs commensurate with the inconvenience and expense they have been put to since the original motion was filed on 1 March 1967.
Finally, I must say with regret that the latest application by the applicant that I should state a case for the Court of Appeal after I have already refused his application to review my judgment has convinced me that the applicant is determined not only to harass the respondents after my judgment but also to abuse the process of the court. It is a settled principle of law and practice that the process of the court must be used bona fide and properly and must not be abused. The court will prevent the improper use of its machinery from being used as a means of vexation and oppression in the process of litigation: see Castro v. Murray (1875) 10 L.R. Exch. 213, Dawkins v. Prince Edward of Saxe Weimar (1876) 1 Q.B.D. 499 and Willis v. Earl Beauchamp (1886) 11 P.D. 59, C.A. I am aware of course that by virtue of paragraph 85 (1) of the Courts Decree, 1966 (N.L.C.D. 84), the Attorney-General has power to apply to the court for an order to prevent a particular litigant from instituting vexatious legal proceedings without leave of the High Court. This power is similar to and based on section 51 of the Supreme Court of Judicature (Consolidation) Act, 1925 (15 & 16 Geo. 5, c. 49), in England. But apart from this statutory provision, the English High Court has always exercised an inherent jurisdiction at common law to restrain abuse of the process of the court so that when a party to an action has made repeated frivolous applications to the court, the judge has power to make an order prohibiting any further application without leave of the court (see J. S. Grepe v. Loam (1887) 37 Ch.D. 168, C.A. and Kinnaird v. Field [1905] 2 Ch 306, C.A.) Lord Blackburn while delivering his judgment inMetropolitan Bank Ltd. v. Pooley (1885) 10 App.Cas. 210 at pp. 220-221, H.L. said:[p.385] of [1967] GLR 380
“But from early times (I rather think, though I have not looked at it enough to say, from the earliest times) the Court had inherently in its power the right to see that its process was not abused by a proceeding without reasonable grounds, so as to be vexatious and harassing-the Court had the right to protect itself against such an abuse; but that was not done upon demurrer, or upon the record, or upon the verdict of a jury or evidence taken in that way, but it was done by the Court informing its conscience upon affidavits, and by a summary order to stay the action which was brought under such circumstances as to be an abuse of the process of the Court.”
This common law inherent jurisdiction was extended by Order 25, r. 4 of the 1883 English Supreme Court Rules. This Order is re-enacted in the Ghana Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 25, r. 4. But it seems to me that unfortunately that Order is restricted to pleadings by its wording and the word pleading is defined. Fortunately, paragraph 85 (2) of the Courts Decree, 1966 (N.L.C.D. 84), has reduced the inherent jurisdiction of the court into statutory form and I therefore intend to invoke not only the provisions of paragraph 85 (2) of the Courts Decree but also to follow the precedent in the case of Grepe v. Loam (1887) 37 Ch.D. 168, C.A. as the present applicant has made repeated frivolous applications to this court for the purpose of impeaching the judgment delivered on 23 February 1967 between the same parties without paying the costs awarded to the respondents.
Accordingly, it is hereby ordered that Kweku Atta Osam-Pinanko shall not be allowed to make any
further applications in this action, namely, suit No. 16/1963 between the said Osam-Pinanko as plaintiff and Right Rev. S. Dorme Lartey and Reverend R. S. Quayson as defendants to the High Court without the leave of this court being first obtained. And if notice of any such application shall be given without such leave being obtained, the respondents shall not be required to appear upon such application and it shall be dismissed without being heard. This order shall not affect any notice of appeal or grounds of appeal filed by the said applicant in connection with the judgment delivered on 23 February 1967.
Furthermore, in view of the multiplicity of suits between the applicant and the A.M.E. Zion Church and in view of other futile administration proceedings instituted by the applicant in this court in other cases, I hereby order that a copy of this ruling should be forwarded to the Attorney-General to enable him to consider
[p.386] of [1967] GLR 380
whether or not the activities of the present applicant are those envisaged by paragraph 85(1) of the Courts Decree, 1966.
Sixty cedis costs to respondents.
DECISION
Application dismissed.
No more applications by the applicant to be entertained without leave of the court.
S.E.K.
