REPUBLIC vs. NYAN; EX PARTE DUNCAN [1999-2000] 1 GLR 477

CASES REFERRED TO

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

(2) Omane v Poku [1973] 2 GLR 66, CA.

(3) Real Estate Developers Ltd v Fosu [1984-86] 2 GLR 334.

(4) Wusu v Donkor [1982-83] GLR 616.

NATURE OF PROCEEDINGS

APPEAL by the appellant to the Court of Appeal from-his conviction and sentence for contempt of court by the High Court, Cape Coast on an application by the respondent. The facts are sufficiently stated in the judgment of Forster JA.

COUNSEL

E VA Adjetey for the appellant.

Kwesi Cab-Addae for the respondent.

JUDGMENT FORSTER JA.

On 22 March 1959 an appeal from the judgment of the Cape Coast Municipal Court was filed at the Lands Court of the Central Judicial Division. The case was titled: Aba Donkoh & Or v Joseph Adzinyina Duncan. In a consent judgment, the parties agreed

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that H/No B82/2 Intsin St, Cape Coast was jointly owned by the families of both parties. It was agreed further by the parties that the family of the plaintiff-respondent should occupy the ground floor of the building while the family of the-defendant-appellant occupy the top floor of the house, and that the second defendant-appellant, Aabah, was to have the use of room No 4 during her lifetime, with a reversion to the family of the plaintiff. Each family was to bear payment of rates in respect of the portions of the house, given to them in the judgment. And in the event of the house falling into ruins, the land was to go to the family of the plaintiff.

On 3 October 1995, pursuant to leave granted by the High Court, Cape Coast, the respondent filed an application praying the court for an order to attach the appellant who was alleged to have flouted the orders in the consent judgment. It was the complaint of the respondent that the appellant had in spite of the terms of the judgment, broken the lock placed on the door to one of the rooms on the ground floor and given the room to a brother to live in. Again, in August 1995 the appellant forcibly ejected a tenant of the respondent from a room on the ground floor and gave the room to his relation called Adjoa Ano to occupy. By these acts of the appellant, the respondent claimed that he had committed contempt of court. The appellant in this appeal is a grandson of the defendant-appellant in the 1959 appeal at the Lands Court, Cape Coast.

On 30 July 1997 the appellant was found guilty of contempt by the High Court, Cape Coast and was ordered to pay ¢15,000 as compensation to the respondent for the lock he broke and was also bounded in the sum of ¢500,000 for a period of 24 months. It is against this conviction and sentence that he appealed to the Court of Appeal. In complaince with the rules, counsel for the parties duly filed their written submissions.

Mr. Eva Adjetey, counsel for the appellant, canvassed several grounds in his written submission. First, he submitted that the application for the order of contempt was irregular inasmuch as it was merely captioned: “Motion on notice.” He contended that the proper formulation of the application ought to have been. “Motion on notice for an order of committal or to issue writ of attachment for contempt of court.” He pointed out that the trial judge failed to consider this issue in her judgment.

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Counsel not in the least persuades me. After becoming aware of this “irregularity”, the appellant took no steps to have the motion struck out, but rather reacted to it by filing an affidavit in opposing in which the merits of the respondent’s averments in his affidavit in support of his motion were seriously disputed or challenged. Having so consoned the alleged irregularity, the appellant cannot now be heard to urge this court to declare the notice as void.

Again, the issue that must be considered in whether having regard to the incomplete or truncated title of the notice, the appellant could not have been apprised of the nature or purpose of the notice. The notice itself expressly stated as follows:

“PLEASE TAKE NOTICE that this Honourable Court will be moved by Kwasi Cab-Addae, Esq, Counsel for and on behalf of the applicant herein praying for an order attaching the respondent for contempt of Court.”

It is thus clearly shown that the object of the notice was to enable the applicant to move the court for an order of attachment of the respondent for contempt of court. If irregularly captioned, the omission cannot be said to be fatal. It is such irregularities as to form that are saved from or cured of invalidity by Order 70, r 1 of the High Court Civil Procedure) Rules, 1954 (LN 140A). The effect of the rule is to save an irregularity from being declared null and void. The provisions of Order 70 r, 1 of LN 140A are as follows:

“1. Non-complaince with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the Court or Judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or Judge shall think fit.”

In Mosi v Bagyina [1963] 1 GLR 337, SC, commenting on the application of Order 70, r 1 of LN 140A, the court said per Akufo-Addo JSC (as he then was) at 346:

“Order 70, it should be noted, is headed, ‘Effect of non-compliance,’ and the provisions thereof are applicable only to a case of irregularity, often called ‘a mere irregularity’ arising

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out of failure on the part of a party to comply with some specific rule as opposed to an irregularity in the court doing something which has no warrant in law or in the rules of procedure. The former irregularity which does not render void any proceedings based thereon, but which is merely voidable, is capable of being waived, and setting aside any order arising out of such irregularity is a matter for the court’s discretion”

Again in Omane v Poku [1973] 2 GLR 66 at 71, CA where a party had failed to take summons for directions the Court of Appeal discussed the application of Order 70 of LN 140A. Apaloo JA (as he then was) delivering the unanimous judgment of the court said:

“In Armar v Armar, Court of Appeal, 21 April 1969, unreported; digested in (1969) CC 73 this court laid down some guidelines as to when Order 70 applies and when it does not.

In substance it held that Order 70 applies to all defects in procedure unless it can be said that the defect is fundamental to the proceedings. A fundamental defect will make the proceedings a nullity. The court should not readily treat a defect as fundamental and so a nullity, and should be anxious to bring the matter within the umbrella of Order 70 when justice can be done as a matter of discretion.”

The court then held that failure to take out summons for directions was an irregularity and not a fundamental defect and that Order 70 (1) of LN 140A cured that omission. See also Real Estate Developers Ltd v Fosua [1984-86] 2 GLR 334; and Wusu v Donkor [1982-83] GLR 616.

I do not think that in the instant case the mere omission to complete the heading of the application by the addition of “ . . . for an order of committal or to issue writ of attachment for contempt of court” was so fundamental as to amount to a nullity. The defect was certainly not fundamental as to have in any way prejudiced the case of the appellant who also had by his conduct condoned therein.

Counsel also contended that the conduct of the respondent’s family led the appellant to believe that they had abandoned their interest in the property. The conduct alleged was that the respondent and his family had failed to pay house rates and had also stood by as

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the appellant protected the house from the threat of the auctioneer’s hammer. Like the trial judge, I shall also dismiss this submission as plainly irrelevant. It offered no justification for the trespassory acts of the appellant. As the judge rightly observed, the respondent could have requested the municipal council to issue separate demand notices for the house rates.

In his further submission, counsel contended that the 1959 consent judgment in the Lands Court was not enforceable on the ground that it was statute-barred by the provision of section 5(2) of the Limitation Decree, 1972 (NRCD 54). That subsection provides that: “(2) An action shall not be brought upon a judgment after the expiration of twelve years from the date on which the judgment became enforceable.”

I do not think that the construction of section 5 (2) of NRCD 54, as urged on us by counsel is correct. Enforcement of a judgment is taking benefit of the reliefs granted to the successful party. This i,,, execution of the judgment. What then constitutes enforcement of a judgment in this case in respect of landed property? Order 42, r 5 of LN 140A provides: “5. A judgment for the recovery or for the delivery of the possession of land may be enforced by writ of possession.” And I think that enforcement of a judgment by a writ of possession or for that matter by any of the prescribed modes under Order 42 of LN 140A, is the successful party going into execution to obtain the fruits of his victory. What was at stake in the contempt action was not the enforcement of the 1959 judgment. The successful party and his family had for some 40 years after that judgment remained in possession of the ground floor of the house in conformity with the terms of the consent judgment, until the appellant interfered with their rights. The contempt action had nothing to do with enforcement of the judgment, which had already been effected.

It seems to me that section 5 of NRCD 54 applies to judgments which have not been enforced under the appropriate provisions of Order 42 of LN 140A. For instance, if a judgment decrees payment of money to a successful party, the appropriate process under Order 42, r 3 of LN 140A in this postulate, is for the successful party to enforce that judgment by attachment and sale of the property of the judgment debtor. Should the party fail to proceed to execution within twelve years from the date of that judgment, then in terms of section 5(2) of NRCD 54, no action, including execution, should be

[p.484] of [1999-2000] 1 GLR 477 brought to enforce it. I think section 5(2) of NRCE 54 does not apply to this contempt proceedings, since the action is not a process taken to enforce either or both judgments—the 1955 Cape Coast Municipal Court’s judgment and the 1959 consent judgment of the Lands Court, Cape Coast.

Indeed, I find the interpretation canvassed by counsel to be most offensive to the due administration of justice and an affront to the fundamental principle of res judicata that estops relitigation of actions already determined by a court of competent jurisdiction. To heed the submission of counsel would completely negate the time-honoured maxim: interest rei publicae ut sits finis litium—that no person shall be twice vexed for the same cause. The effect of the contention would be that there will be no end to litigation; there would be no finality of judgments. And a losing party in an action need. only wait for twelve years after the judgment to resume his acts which had previously been declared unlawful by a court. Thus, after twelve years an action already adjudicated upon to finality, would again be litigated between the same parties or their privies. And actions successfully concluded by the court, might yet go on for centuries and from generation to generation, punctuated only by successive twelve years lulls. Judgments of the court would be rendered worthless the course of justice perverted, and the anchor of the entire administration of justice evolved for the maintenance of law and order would very soon begin to drag. I find the submission of counsel most unacceptable.

Counsel again submitted that the evidence of the 1958 judgment was inadmissible. He argued that the relief claimed by the plaintiffs (whose privies are the families of the respondent in the instant appeal) was only in respect of five rooms, yet the municipal court granted them title to the whole house. I think after 40 years since the delivery of that judgment, this court cannot and would not sit on appeal from that judgment or review the decision of that court.

It is for these reasons that on 28 January 1999, we dismissed the appeal and affirmed the judgment of the High Court.

JUDGMENT OF OFORI-BOATENG JA.

I agree

JUDGMENT OF FARKYE JA.

I also a

DECISION

Appeal dismissed

SA