REPUBLIC v. MOFFAT AND OTHERS; EX PARTE ALLOTEY [1971] 2 GLR 391

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 16 JULY 1971

BEFORE: ABBAN J.

CASES REFERRED TO

(1) Narh v. Dombo, Court of Appeal, 23 March 1970, unreported; digested in (1970) C.C. 64.

(2) United Telephone Co. v. Dale (1884) 25 Ch.D. 778; 53 L.J.Ch. 295; 50 L.T. 85; 32 W.R. 428.

(3) Balogun v. Edusei (1958) 3 W.A.L.R. 547.

(4) Re Onny Contemnor; Ohene v. Tanko, Court of Appeal, 18 August 1967, unreported; digested in (1968) C.C. 51.

(5) R. v. The General Commissioner for the Purposes of the Income Tax Acts for the District of Kensington; Ex parte Princess Edmond de Polignac [1917] K.B. 486, C.A.

(6) C.F.A.O. v. Zacca [1971] 1 G.L.R. 161.

(7) Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C.

(8) Nyarko v. Akowuah (1954) 14 W.A.C.A. 426.

(9) Timitimi v. Amabebe (1953) 14 W.A.C.A. 374.

(10) Barnes v. Wiresi XIV [1971] 1 G.L.R. 98, C.A.

(11) Ahenkora v. Ofe (1957) 3 W.A.L.R. 145, C.A.

NATURE OF PROCEEDINGS

APPLICATION under L.N. 140A, Order 59, r. 21 calling on the respondents to show cause why they should not be attached for contempt of court.

COUNSEL

Joe -Reindorf (Harold Darko and R. D. Amofa with him) for the applicant.

H. P. Swaniker (Jonathan Arthur, J. Allotei Cofie and F. Swaniker with him) for the respondents. [p.394] of [1971] 2 GLR 391

JUDGMENT OF ABBAN J.

This application was brought under Order 59, r. 21 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), calling upon the respondents to show cause why they should not be attached for contempt. The rule reads as follows:

“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 an 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.”

From the affidavits filed in this application, the following material facts are not in dispute. The parties, that is, the applicant and the four respondents, belong to the same family and they are elders of the Sempe stool, Accra. On the death of one Nii Tetteh Kpeshie II (the occupant of the said stool) the present applicant, who had been the acting mankralo of Sempe, was asked to act as Sempe manche, pending the installation of a new manche. There seemed to have been peace and unity in the family until the time came for the election of the new manche to occupy the vacant stool. From that time onwards, the family split into two factions. One faction was led by the applicant, S. P. Allotey, and the other group by the first respondent, Nii Kpakpo Moffat. The applicant and his group supported one Charles D. A. L. Pappoe as their candidate to occupy the Sempe stool, while the first respondent and his group supported the candidature of one James Allotey.

With the assistance of certain members of the Ga Traditional Council, the Chief Executive for Greater Accra made attempts to settle the dispute and to bring the two groups together so that they could agree on one of the two rival candidates to occupy the said stool. An ad hoc committee was appointed consisting, mainly, of members of the said traditional council. This ad hoc committee inquired into the dispute, but it appears the recommendations made by the committee were not acceptable to the applicant and his group. Because, according to the applicant, the said committee did not do its work in accordance with the principles of natural justice. The applicant therefore requested the authorities to appoint an impartial [p.395] of [1971] 2 GLR 391

Committee to rehear the case, in that so far as the applicant was concerned, the question as to which of the two candidates should be installed Sempe manche was still to be decided.

The committee which the applicant asked the authorities to appoint had not yet been appointed. But in the meantime, the applicant realised that the respondents were making feverish preparations to outdoor their candidate, James Allotey, as the Sempe manche. Consequently, on 23 April 1971 the applicant filed an ex parte motion under Order 59, r. 2 (1) and (2) of the Supreme [High] Court (Civil Procedure) Rules, 1954, asking for leave to apply for an order of prohibition against the four respondents and to restrain them from outdooring the said James Allotey. The applicant’s main ground was that the intended outdooring, if carried out, would prejudice any future constitutional settlement, and that until a properly constituted committee or body resolved the dispute as to which of the two candidates was the proper person to be the Sempe manche, the respondents should be prohibited from carrying out the intended outdooring ceremony.

The court heard and granted the ex parte motion on the very day it was filed, and this was on 23 April 1971. The applicant then filed a motion in pursuance of the said order and under Order 59, r. 4. The first, second and third respondents were served with the said motion in the evening of 23 April 1971. The return date for the hearing of the motion as indicated on the motion paper was Thursday, 6 May 1971. The fourth respondent could not be served with the motion until 28 April 1971. However, on 24 April 1971, that is, the day after the first, second and the third respondents had been served with the notice of the motion, the respondents carried out the outdooring ceremony, the very act the applicant was seeking to prevent. The applicant, believing that the respondents’ conduct constituted contempt of court, brought the present application for attachment.

In arguing the application, learned counsel for the applicant contended that even though the fourth respondent, Codjoe, was served with notice of the motion after the outdooring ceremony had taken place he was aware, at the material time the ceremony took place, that the motion for writ of prohibition was pending before this court. Learned counsel therefore submitted that all the four respondents, having knowledge of the pendency of the said motion, should not have taken any step which was likely to frustrate the work of the court. Counsel contended that the respondents, on the contrary, ignored the said motion and contemptuously went ahead and did the very act in respect of which the motion for prohibition was brought; thus preventing the court from inquiring into the matter. Learned counsel therefore submitted that the conduct of the respondents had clearly obstructed the work of the court and that the respondents deserve nothing short of imprisonment which alone, in the circumstances, can purge their contemptuous behaviour.

In his reply, learned counsel for the respondents raised a number of defences showing why the respondents cannot be attached for contempt.

[p.396] of [1971] 2 GLR 391

He first contended that the mere fact that the applicant was granted leave by this court to apply for the order of prohibition could not by itself operate as a stay so as to prevent the respondents from outdooring the said James Allotey; and that if the applicant had wanted a stay he should have, when applying for leave, asked for an interim order for stay. And so long as the court never indicated that the order should operate as a stay, as provided under Order 59, r. 2 (4), the respondents could carry on the outdooring ceremony.

I agree with learned counsel for the respondents that the order granting leave did not direct that the order should also operate as a stay. But I think this line of argument seems to take a very simple view of the matter and it ignores the circumstances under which conduct can be held to have constituted the offence of contempt of court. It is well established that any conduct which tends to bring the authority and administration of the law into disrespect or to interfere with any pending litigation is a contempt of court. So that once the respondents had become aware of the pendency of the motion before the High Court, and which motion gave them notice in clear terms of the court’s intention to inquire into the matter and to decide whether or not they should be prohibited from outdooring the said James Allotey, any conduct on their part which was likely to prejudice a fair hearing of that motion or was likely to interfere with the due administration of justice, would amount to a contempt of court, absence of an interim order for stay notwithstanding. In Narh v. Dombo, Court of Appeal, 23 March 1970, unreported; digested in (1970) C.C. 64, this particular argument of learned counsel for the respondents was advanced by the Attorney-General who appeared for the appellants in that case, and it was rejected by the Court of Appeal as being “too extravagant for any comment.” In reading the majority judgment, Azu Crabbe Ag.C.J. (as he then was) said:

“Next, the Attorney-General submitted that the mere filing of the writ by the respondent after the deportation order had been made, could not by itself have the effect of stopping the government from carrying out the deportation order. He argued that the respondent, apart from filing the writ, should have further filed an application for an injunction restraining the minister from carrying out the order, or she could have filed an application for habeas corpus. With respect, I cannot accede to this argument. I do not think that it is open to a party in a litigation who has been held for contempt of court, to say in his defence: ‘Yes I did the act, but the other party did not restrain me, and so I am not guilty.’ This sort of argument is too extravagant for any comment. As I have already said, the test is, whether in the particular circumstances of this case, the conduct of the appellants was one likely to prejudice a fair trial or interfere with the due administration of justice. If this test is satisfied, then, in my judgment, it is immaterial whether or not an application for an injunction was made.”

It was also argued, with great vehemence, on behalf of the fourth respondent, Codjoe, that since he was served with the notice of the motion

[p.397] of [1971] 2 GLR 391 on 28 April 1971 when the outdooring ceremony complained of had already taken place, he could not be said to have ignored the said motion. He could only be said to have become aware of the pendency of the said motion after the motion had been served on him. The records, indeed, show that Codjoe was served some days after the outdooring ceremony had taken place. But, from the affidavits filed, I am convinced that all the four respondents took an important part in the outdooring ceremony of James Allotey, and that Codjoe, before taking such part, knew perfectly well that leave had been granted to the applicant to apply for an order of prohibition; and he also knew that the motion in pursuance of that leave, had been filed in this court. Codjoe therefore was aware, at the material time, that the applicant intended to prohibit him and the other respondents from outdooring James Allotey. The fact that service of the notice of the motion was not effected on him until some days after the said outdooring is not a valid defence. He had knowledge of the pendency of the motion before he took part and he cannot in the circumstances, escape liability. In United Telephone Co. v. Dale (1884) 25 Ch.D. 778, Pearson J. at p. 787 said: “The Court would be to a great extent incapable of doing its duty to itself, as well as to her Majesty’s subjects, if it were to say, that, with perfectly accurate knowledge of the order of the Court, a defendant is at liberty to defy the Court’s authority, and then come to the Court and say, ‘You cannot visit me for that breach of your order, because the order has not been served upon me.’ What is the necessity for serving an order upon a defendant, if he knows perfectly well without that service what it is which he is bound to obey.” It may be observed that this dictum of Pearson J. was referred to with respectful approval in the case of Balogun v. Edusei (1958) 3 W.A.L.R. 547. In that case, it was held inter alia, that since the respondents knew that the court had made an order for service on them, the actual service of the said order was not necessary before there could be a committal for contempt.

I would go further and say that even if Codjoe had no knowledge of the pendency of the said motion, absence of such knowledge could not be a defence, if his conduct was in fact in contempt of court. Lack of knowledge of the pendency of the said motion could only be taken into consideration when passing sentence. See the case of Re Onny (Contemnor); Ohene v. Tanko, Court of Appeal, 18 August 1967, unreported; digested in (1968) C.C. 51, 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 circumstances when it came to assessing punishment.” [p.398] of [1971] 2 GLR 391

On this very point, I should also mention the case of Narh v. Dombo (supra) and the observations made in that case by Azu Crabbe Ag.C.J. (as he then was) in the course of his judgment. The learned judge said: “Proceeding in this case became pending as soon as the writ was issued on 24 November 1969, and as long as any proceedings in it could be taken: See Oswald on Contempt (3rd ed.) (1910), p. 97. If therefore during the pendency of the suit the appellants did an act which would have the effect of interfering in any way with the trial of that case, they would be in contempt of court, and it would be of no avail to them to show that they were not served personally with the writ. For neither lack of knowledge of the pending suit, nor lack of an intention to commit contempt is a defence: R. v. Oldham Press Ltd.; Ex parte Attorney-General [1957] 1 Q.B. 73; R. v. Griffiths; Ex parte Attorney-General [1957] 2 Q.B. 192. As Donovan L.J. said in Attorney-General v. Butterworth [1963] 1 Q.B. 696 at p. 726: ‘I conceive the position, however, to be this Reg. v. Oldhams Press Ltd., Ex parte Attorney-General makes it clear that an intention to interfere with the proper administration of justice is not an essential ingredient of the offence of contempt of court. It is enough if the action complained of is inherently likely so to interfere’.”

Another defence, raised on behalf of the respondents, was that of misrepresentation. Learned counsel for the respondents referred, extensively, to the facts deposed to by the applicant in his affidavits filed, not only in support of the present application, but also in support of the ex parte motion for leave and argued that those facts were all false to the knowledge of the applicant. Counsel contended that since the applicant’s said affidavits were not candid and did not fairly state the facts but that they misled the court as to the true facts, the court should, for its own protection and to prevent an abuse of its process, refuse the application for attachment. Learned counsel relied on the case of R. v. The General Commissioner for the Purposes of the Income Tax Acts for the District of Kensington; Ex parte Princess Edmond de Polignac [1917] K.B. 486, C.A. Learned counsel further submitted that the falsity of these affidavits makes the application for attachment for contempt frivolous and vexatious and that the application ought to be dismissed. In this connection learned counsel cited the case of C.F.A.O. v. Zacca [1971] 1 G.L.R. 161 at p. 165, and he also referred to paragraph 85 (2) (b) and (d) of the Courts Decree, 1966 (N.L.C.D. 84).

I have carefully examined the various affidavits filed by the applicant and those filed by the respondents in the whole proceedings, and I do not find myself able to accept the submissions of learned counsel on this question of misrepresentation. Thus the cases cited by counsel do not apply in this case. I am of the view that the facts as presented by the applicant herein were not and are not false. The parties only differed in matters of detail. But the fact still remains that the events as set out by the applicant in his affidavits cannot in any way amount to misrepresentation.

[p.399] of [1971] 2 GLR 391

The next contention of learned counsel for the respondents is that the order granting leave to the applicant to apply for the writ of prohibition was irregularly obtained. Because the ex parte motion was heard and granted on the very day on which the said motion was filed. Learned counsel submitted that this is contrary to Order 59, r. 2 (3) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), which provides that notice of such ex parte motion should be given to the registry not “later than the preceding day.” Counsel therefore contended that the ex parte motion for leave could only have been heard on any date other than the date on which it was filed. I think this defence is not open to the respondents. The respondents with knowledge of the alleged irregularity, on 5 May 1971 filed an affidavit opposing the motion for the order of prohibition. It seems to me that the filing of the said affidavit, in those circumstances, amounted to taking a step within Order 70, r. 2. It was not until 14 May 1971 that the respondents, probably after a second thought, filed an application to discharge the order granting leave to the applicant. The respondents can therefore be properly held to have waived any irregularity. In any case, I am of the opinion that non-compliance with the provisions of Order 59, r. 2 (3) is not a defect which should render the proceedings void; and I am not prepared to exercise my discretion under Order 70, r. 1 in favour of the respondents.

Learned counsel for the respondents also contended that the application for the order of prohibition against the respondents was misconceived. That may be so. But it cannot be a defence in the present application. This argument could have been advanced by the respondents, if the respondents had exercised patience and come to court for the hearing of the said application. My view is that whether the said application for an order of prohibition was misconceived or was ill grounded, it was pending before the court for hearing and determination, and it was the duty of the respondents to come to court and to put forward their reasons why the order nisi, granting leave to the applicant, should not be made absolute. I would be laying down a very dangerous precedent if I were to hold that a party, when served with application for an order of prohibition from the High Court, can disregard or ignore the said application and treat the court with contempt, if he believes that the said application is misconceived. It was further submitted by the learned counsel for the respondents that the applicant’s conduct in filing a supplemental affidavit in the prohibition proceedings, after he had become aware of the said contempt committed by the respondents, was tantamount to a waiver of the respondents’ contempt. With respect to learned counsel, the contempt complained of in the present application arose from the fact that the respondents have not only interfered with the court’s jurisdiction and authority, but also with the due administration of justice. Consequently, there cannot be any waiver inter partes.

I shall now pass on to what I consider to be the most formidable legal defence put forward by the learned counsel for the respondents. Learned counsel contended that the High Court in the first place had no jurisdiction to entertain the application for an order of prohibition.

[p.400] of [1971] 2 GLR 391

Because the matters contained in that application, and in respect of which the order was being sought, touched on questions or issues relating to the election and the installation of a chief. Counsel argued that articles 113 and 114 of the Constitution, 1969, which provided for the jurisdiction of the High Court never extended the said jurisdiction to cover chieftaincy affairs; and in any case, the High Court has been specifically barred by paragraph 66 of the Courts Decree, 1966 (N.L.C.D. 84), from hearing “any civil cause or matter” involving the election and installation of chiefs. Counsel contended that since this court had no jurisdiction to entertain the applicant’s ex parte motion, the order granting leave to the applicant to apply for the writ of prohibition and the proceedings thereafter were all null and void and of no legal effect. On this basis, learned counsel submitted that in law there were no pending proceedings which the respondents could be said to have disregarded or interfered with: And, in the circumstances, the respondents’ conduct of outdooring James Allotey cannot be said to be contemptuous. In support of this contention learned counsel cited certain passages in the case of Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C. He also relied on other well-known authorities, notable amongst them were Nyarko v. Akowua (1954) 14 W.A.C.A. 426; Timitimi v. Amabebe (1953) 14 W.A.C.A. 374 and Barnes v. Wiresi XIV [1971] 1 G.L.R. 98, C.A.

I should point out that the facts involved in the cases cited by learned counsel are completely different from the facts available in the present application. In all those cases the judgments or orders which engaged the attention of the appellate court were those of inferior courts or tribunals, such as the native court. Even in Mosi v. Bagyina, the order of the High Court which granted leave to the respondent in that case to issue out the writ of possession against the appellant (and which order was later declared void by the Supreme Court) was in pursuance of an execution of a judgment of a native court. It is also important to note that unlike the orders or judgments of the inferior courts, the orders or judgments emanating from the Superior Court of Judicature cannot be presumed to be void until the contrary is proved. So that any person who wilfully disregards or disobeys such orders does so at the risk of being brought up for contempt. It should be borne in mind that where a party genuinely feels that an order of the Superior Court of Judicature was made without jurisdiction, it is safer for the party affected to take immediate steps to have the offending order discharged or set aside, than to allow it to stand, and then treat it with contempt. In Mosi v Bagyina, (referred to supra) Akufo-Addo J.S.C. (as he then was) reading the judgment of the court, reviewed several authorities and at p. 347 he said:

“From the cases referred to herein the law may be summarised thus: (1) Where a judgment or an order is void either because it is given or made without jurisdiction or because it is not warranted by any law or rule or procedure, the party affected is entitled ex debito justitiae to have it set aside, and the court or a judge is under a legal obligation to set it aside. No judicial discretion arises here.”

[p.401] of [1971] 2 GLR 391

It, therefore, seems to me that if the respondents thought that the order nisi granting leave to the applicant to apply for the order of prohibition was made without jurisdiction, their remedy rather lay in applying to the court to have the said order and the proceedings subsequent thereto set aside, and not in interfering with the proceedings which in fact were pending before the court. In any case, I do not think the High Court has no jurisdiction to entertain an application for an order of prohibition simply because the matter involved therein related to the election and the installation of a chief. The Courts Decree, 1966 (N.L.C.D. 84), para. 66 referred to by counsel reads as follows:

“Notwithstanding anything to the contrary contained in this or any other enactment, the High, Circuit and District Courts shall not have jurisdiction to entertain either as of first instance or on appeal any civil cause or matter instituted for—

(a) the trial or any question relating to the election, installation, deposition or abdication of any Chief whatsoever;

(b) the recovery or delivery of stool or skin property in connection with any such election, installation, deposition or abdication; or

(c) the trial of any question touching the political or constitutional relations subsisting according to customary law between such Chiefs.”

There is no doubt that these provisions of paragraph 66 of N.L.C.D. 84 completely oust the jurisdiction of the High Court in chieftaincy matters. But, with the greatest respect to learned counsel for the respondents, the general supervisory jurisdiction of the High Court over tribunals or persons charged with the duty of deciding such chieftaincy matters has not been taken away by this Decree; and the prerogative writ of prohibition is one of the methods by which the High Court can exercise such supervisory jurisdiction. Indeed, article 114 of the Constitution clearly gives the High Court supervisory powers. The High Court by entertaining the application for an order of prohibition did not mean that the court was going to try the issue as to who was the proper person to exercise the customary right of nominating or electing the Sempe manche. The court’s primary concern in dealing with such applications is limited to finding out whether those responsible for exercising that customary or statutory right have not abused their powers: see Ahenkora v. Ofe (1957) 3 W.A.L.R. 145, C.A.

In Ahenkora’s case it was argued, inter alia, that the provisions of section 88 of the Courts Ordinance, Cap. 4 (1951 Rev.), which are equivalent to the provisions of paragraph 66 of N.L.C.D. 84 ousted the jurisdiction of the Supreme (High) Court at the first instance or on appeal in any civil cause or matter relating to constitutional issues involving chiefs; and that the Supreme (High) Court was, effectively, precluded from entertaining any application for the issue of the prerogative writ of certiorari. The Court of Appeal in its considered judgment rejected this argument and held as reported in the headnote as follows at p. 146:

[p.402] of [1971] 2 GLR 391

“The Supreme Court is possessed of a jurisdiction that is neither a civil nor a criminal jurisdiction but is a tertium quid which is … a jurisdiction of a supervisory character exercisable over both civil and criminal matters and thus ‘neither one nor the other but lying outside and beyond both’, or … a jurisdiction distinct from criminal and civil jurisdictions and being ‘a general superintendence over the due observance of the law by officials and others,’ and which may be described as a quasi-criminal jurisdiction exercised at “first instance” “or on appeal” but in the nature of a review’.”

I am therefore of the view that there is nothing in paragraph 66 of the Courts Decree, 1966 (N.L.C.D. 84), which excludes the jurisdiction of the general superintendence of the High Court exercisable by means of prerogative writs. In the circumstances, I hold that this court had jurisdiction to entertain the said ex parte motion and that the order made in respect thereof as well as the subsequent proceedings were not null and void.

It is worthy to note that the respondents, in their affidavit opposing this application, also contended that they did not intend to defy the authority of the court and that they acted bona fide. In answer to this contention, I think it is sufficient to say that lack of intention to commit contempt is no defence, and I am satisfied beyond every reasonable doubt that all the respondents are guilty of contempt of court. Their conduct did not only prevent the court from discharging its judicial function but also brought the authority and the administration of the law into disrespect; and they have been unable to show cause why they should not be attached for contempt. Learned counsel did his best for the respondents, but the odds were heavily against them. Nevertheless, I do greatly appreciate counsel’s brilliant performance, which was indicative of the industry he seemed to have put into the preparation of the whole case. I now come to the question of sentence. The first respondent Nii Kpakpo Moffat, at the very first opportunity, rendered his “profound apology” to the court by paragraph (28) of his affidavit filed on 15 May 1971. He repeated the said apology in paragraph (30) of his subsequent affidavit filed on 2 July 1971. In my view these apologies should be sufficient to purge his contempt. He is therefore cautioned and discharged.

In the case of Nee Annan, Percy Annan and Codjoe, I have been unable to discover any offer of apology in any of the affidavits they filed in these proceedings. Learned counsel for the respondents in his closing remarks offered unqualified apology on their behalf. But I think it would have been better if the apology had come from the respondents themselves, as in the case of Moffat. However, even though I consider their behaviour rather deplorable, it seems to me that prison sentences will be too harsh under the circumstances, and that token fines will be adequate to purge their contempt. Each of the three respondents is therefore fined N¢25. 00, in default, three months’ imprisonment with hard labour. They are given two days within which to pay the fines.

[p.403] of [1971] 2 GLR 391

I have taken this liberal and lenient view towards the respondents, mainly because of their ages and because of the fact that all the contesting parties herein are members of the same family. It is my hope (I hope not a vain hope) that they will not commit any such offence again, and that they will endeavour to find an amicable solution to their enstoolment dispute in order that peace and unity may, once again, return to the family. The applicant is awarded costs of N¢100. 00.

DECISION

All respondents adjudged in contempt.

Apology of first respondent accepted by court.

Remaining respondents fined N¢25.00 each or in default three months’ imprisonment. S.A.B.