REPUBLIC vs. MINERALS COMMISSION AND ANOTHER; EX PARTE BADU [1999-2000] 2 GLR 73

CASES REFERRED TO

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

(2) Amoabimaa v Badu (1957) 2 WALR 214.

(3) McFoy v United Africa Co Ltd [1962] AC 152; [1961] 3 WLR 1405; [1961] 3 All ER 1169, PC.

(4) Boyefio v NTHC Properties Ltd [1997-98] 1 GLR 768, SC; [1996-97] SCGLR 531.

PRELIMINARY OBJECTION by the applicant to the hearing by the High Court, Sekondi of arguments of counsel for the respondent-contemnors seeking to set aside a bench warrant issued by the court against the contemnors on the ground, inter alia, that the decision of a single justice of the Supreme Court granting the ex parte application for bail by the contemnors, was null and void. The facts are sufficiently set out in the ruling.

Bright-Gaisie for the applicant.

Dzakuma for the respondent-contemnors.

Sampson J. On 16 November 1999 the respondents herein were found guilty of contempt of court and were committed to a term of imprisonment each for three months without hard labour. The contemnors were further committed to a fine of ¢5 million or in default three months’ imprisonment without hard labour; the sentences were to run consecutively.

On that same day, Mr Johnny Francois, the incumbent chief executive of the Minerals Commission and representative of the commission, was granted bail in his own recognisance to appear in the court on 30 November 1999 to fulfil the order of the court dated 21 May 1999 by payment into court of an amount of ¢12, 925,475.29. On the adjourned date, 30 November as aforesaid, Mr Johnny Francois, the contemnor or the representative of the commission-contemnor or both was absent in court with an apology via a medical report dated 29 November 1999, signed by Dr Emmanuel Tsegah of the Holy Heights Clinic, Accra, granting excuse duty to him for three days only.

[p.75] of [1999-2000] 2 GLR 73

On the strength of the medical report, the matter was adjourned to Thursday, 9 December for hearing at the instance of counsel for the parties herein. At the next adjourned date, ie 9 December, Mr Johnny Francois failed to appear in court and Mr Dzakuma, counsel for the contemnors, told the court: “I apologise for the absence of the contemnors in court today. I do not know why they are not in court today. I was in Cape Coast all day yesterday. So I did not get in touch with them personally. I do not have instructions regarding their absence in court today.”

And without more, Mr Sekyi Hughes, learned counsel for the applicant, applied to the court for a bench warrant to issue for the arrest of Mr Johnny Francois to be brought to court. Counsel’s oral application for a bench warrant was granted by the court and the court thereby ordered a bench warrant to issue for the arrest of the contemnor, Francois, to be brought to court on 16 December 1999.

On the next adjourned date, ie 16 December, the court’s attention was drawn by counsel for the contemnors to an order of the Supreme Court as follows:

“In the Supreme Court of Ghana.

Certificate of the order of the Supreme Court.

Civil Motion No 62/99 The Republic v The High Court, Sekondi;

Ex parte John Francois … Applicant This application came on for hearing on 10 December 1999 before Ampiah JSC in the presence of Fui S Tsikata, with Miss Doe Tsikata, Ekua Hayfron-Benjamin and Mike Dzakuma for the applicant. I HEREBY CERTIFY that an order was made as follows:

After reading the motion paper and the supporting affidavit, and hearing submissions from counsel, I think it is just and proper that the application be granted. Accordingly I grant the application and make the following orders:

[p.76] of [1999-2000] 2 GLR 73

(1) The High Court, Sekondi whether by itself or through its agents is restrained from executing or attempting to execute the bench warrant issued for the arrest of the applicant, John Francois, on or about 9 December 1999, or in any other manner committing or attempting to commit the applicant to jail pending the hearing and final determination by this court of the certiorari application filed in this court.

(2) That further proceedings in suit No 67/99 be stayed until further order of this court.

(3) The applicant is granted bail in his own recognisance court on the date fixed for hearing of the certiorari application and until such time that the application is finally determined.”

After counsel for the contemnors had directed this court’s attention to go the order, supra, by Ampiah JSC, Mr Bright Gaisie, counsel for NanaYaw Badu, the applicant in suit No 67/99, raised a preliminary objection to the effect that the contemnors have been committed by this court for contempt of court and have not purged their contempt. Counsel submitted that the general rule was that a party in contempt could not be heard until he had purged his contempt but the contemnors including the Mr Johnny Francois have not purged their contempt. He further submitted that counsel for Mr John Francois has said that the Supreme Court had made a certain order, but he (counsel) and his client, Nana Yaw Badu, had not seen it. Counsel referred to the Supreme Court Rules, 1996 (CI 16), r 73 which deals with the exercise of powers of a single justice of the Supreme Court. Rule 73 states:

“73. An application made pursuant to article 134 of the Constitution in respect of any cause or matter, civil or criminal shall be by motion on notice and shall be served any party who has an interest in the cause or matter.”

(The emphasis is mine.) By virtue of rule 73 of CI 16, Ampiah JSC sitting as a single justice of the Supreme Court has no power to hear and determine the application for bail on an ex parte application.

The contemnor’s application for bail ought to have been on notice and copies thereof served on Nana Yaw Badu the interested party. Mr Gaisie therefore contended that the contemnor’s ex parte application before Ampiah JSC for bail was

[p.77] of [1999-2000] 2 GLR 73 irregular and a nullity and so were the Supreme Court’s order granting bail to Johnny Francois, and all the other consequential orders supra.

Article 134(b) of the Constitution, 1992 states:

“134. A single Justice of the Supreme Court may exercise power vested in the Supreme Court not involving the decision of the cause or matter before the Supreme Court, except that—. . .

(b) in civil matters, any order, direction or decision made or given under this article may be varied, discharged or reversed by the Supreme Court, constituted by three Justices of the Supreme Court.”

Article 134(b) of the Constitution, 1992 brings into focus a presupposition that an order, direction or decision made or given by a single justice of the Supreme Court should be regular and not an order direction or decision which is void and therefore a nullity. And since I do find the order or orders made by Ampiah JSC, and with all due deference to the learned judge, a nullity by virtue of rule 73 of CI 16, I have the power derivable from the inherent jurisdiction of the court to set it aside.

In Mosi v Bagyina [1963] 1 GLR 337, SC, the Supreme Court, constituted by van Lare, Mills-Odoi and Akufo-Addo JJSC held, as stated in the headnote, that:

“(4) 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 of 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, either suo motu or on the application of the party affected. No judicial discretion arises here. The power of the court or a judge to set aside any such judgment or order is derived from the inherent jurisdiction of the court to set aside its own void orders and it is irrespective of any expressed power of review vested in the court or judge; and the constitution of the court is for this purpose immaterial. Further, there is no time limit in which the party affected by void order or judgment may apply to have it set aside”

[p.78] of [1999-2000] 2 GLR 73

(The emphasis is mine.) In Amoabimaa v Badu (1957) 2 WALR 214 at 216, WACA the court ruled per Coussey P that:

“A judgment or order obtained by some step not warranted by the rules or capable of being sanctioned is wholly void and may be set aside . . . It seems to us that the order complained of is a nullity and that the respondents who are affected by it are entitled ex debito justitiae to have set it aside.”

In Macfoy v United Africa Co Ltd [1961] 3 All ER 1169 at 1172-1173, PC Lord Denning, delivering the advice of the Privy Council, affirming the decision of the West Court of Appeal, said: “The defendant here sought to say therefore that the delivery of the statement of claim in the long vacation was a nullity and not a mere irregularity. This is the same as saying that it was void and not merely voidable. The distinction between the two has been repeatedly drawn. If the act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set is aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. So will this judgment collapse if the statement of claim was a nullity.”

(The emphasis is mine.) In Boyefio v NTHC Properties Ltd [1996-97] SCGLR 531 at 533, the Supreme Court held, inter alia, as stated in the headnote: “The law was clear that where an enactment had prescribed a special procedure by which something was to be done, it was that procedure alone that was to be followed.”

The contemnor herein having failed to follow the procedure specifically outlined under rule 73 of CI 16 and proceeding by an ex parte application for bail instead of on notice, as aforesaid, renders his application irregular and therefore null and void. Therefore, I would sustain the preliminary objection by counsel for Nana Yaw Badu and set aside the applicant’s ex parte application for bail as being irregular and a nullity. Consequently, (1) I set aside all the orders (supra) made by Ampiah JSC; and (2) further, I hereby order that the sheriff of this court or the agents of the court or both shall proceed to execute the bench warrant issued

[p.79] of [1999-2000] 2 GLR 73 on or about 9 December 1999 for the arrest of John or Johnny Francois, the contemnor herein. I make no order as to costs.

Preliminary objection upheld.

LSNA