SUPREME COURT, ACCRA
CIVIL MOTION J5/37/2025
DATE: 12 MARCH, 2025
CORAM: PWAMANG JSC (PRESIDING), PROF. MENSA-BONSU (MRS.) JSC, GAEWU JSC, KWOFIE JSC, ADJEI-FRIMPONG JSC
RULING
MAJORITY OPINION
ADJEI-FRIMPONG JSC:
BACKGROUND
On December 7, 2024, the people of Akwatia in the Eastern Region went to the polls to elect, what is of relevance to the instant proceedings, a member of Parliament for the constituency in the general elections. The applicant was a candidate in the elections representing the New Patriotic Party (N.P.P). The 1st Interested Party contested on the ticket of the National Democratic Congress (N.D.C.)
At the close of polls and on counting and collation of results, the Applicant was declared winner by the 2nd Interested Party, the Electoral Commission (E.C.). The EC has since gazetted the results of the constituency parliamentary elections even though in this application, the issue of when this was actually done is in some controversy.
Following the declaration of the results however, the 1st Interested Party on 31st December filed a petition in the High Court Koforidua seeking to challenge the results on grounds of alleged irregularities and misconducts, that to him, affected the final outcome of the elections. The petition sought the following reliefs:
(a) A declaration that the purported declaration of the winner of the parliamentary election held at Tesano Police Training School in Accra on Thursday, the 12th December, 2024 is void and of no legal effect
(b) An order cancelling the results of the said declaration by agents of the zid Respondent
(c) A declaration that the 1st Respondent was not validly elected as Member of Parliament.
(d) A declaration that upon the cancellation of all unlawful votes and upon proper collation the Petitioner is the validly elected member of parliament for the Akwatia Constituency.
(e) Costs and any order Just and fair in the eyes of the law.
On the back of the petition, the 1st Interested Party the same day filed an application ex parte for an interlocutory injunction restraining the Respondents therein from essentially, doing anything to hold the applicant out as a duly elected Member of Parliament. In particular, the Applicant was to be restrained from being called, admitted, registered, sworn in or gazetted as Member of Parliament for that constituency.
Senyo Amedahe J on the 2nd January 2025, granted the ex parte application for a limited period of ten (10) days. The next day 3rn January 2025, the applicant caused an application to be filed in that Court to set aside the ex parte order and the petition that founded it. The basis of the application was that at the time of the petition and the subsequent order, the results of the parliamentary elections had not been gazetted and by law, no valid petition could have been filed to invoke the jurisdiction of the High Court. This position did not find favour with the learned Judge. Rather, he accepted a submission made on behalf of the 1st Interested Party that, there had been a media publication by which the E.C declared that the results of all, except two (Dome Kwabenya and Ablekumah North) of the 276 Constituencies had been gazetted. Persuaded by this submission, the judge dismissed the application to set aside the petition and the order of injunction.
Subsequent events in that court resulted in a contempt application being mounted against the Applicant on 13th January 2025. Meanwhile on the 8th January 2025, the Applicant invoked the supervisory jurisdiction of this Court seeking orders in the nature of certiorari and probation to have the proceedings and orders in the High Court quashed and the learned Judge prohibited from proceeding with the matter. At the material time, a further application had been filed in the High Court challenging its jurisdiction to entertain the petition and the various processes brought upon it. It was whilst the application before this Court and others before the High Court were pending that the contempt application was determined against the Applicant for which he was convicted on 19th February 2025 and a warrant issued for his arrest.
In this application seeking to invoke the supervisory jurisdiction of this Court pursuant to article 132 of the Constitution and Order 61 of the Rules of this Court (C.I 16) (as amended), the applicant seeks the following reliefs:
i. A declaration that the Petition filed by the 1st Interested Party on 31st December, 2024 in the absence of the Gazette Notification of the Parliamentary Election Results to which the election relates is incompetent as a same did not properly invoke the jurisdiction of the High Court and that any Order founded on same is void and of no effect.
ii. A declaration that the Contempt Proceedings and the Ruling dated 1gth February, 2025 founded on the premature election petition filed on 31st December, 2024 is void and of no effect
iii. An order of Certiorari by this Honourable Court quashing, the Ruling of His Lordship Justice Emmanuel Senyo Amedahe sitting at the High court 3, Accra Koforidua dated 19h February, 2025 the petition filed on 31st December, 2024 and the Interim injunction Order dated 2nd January, 2025, and the Ruling dated @II January 2025 made pursuant to the said premature Election Petition, filed on 31st December 2024.
iv. An order quashing the Ruling delivered on the Contempt Application and the Execution of the Bench Warrant issued by the court dated 19h February, 2025 by His Lordship Justice Emmanuel Senyo Amedahe.
v. An order of prohibition against His Lordship Justice Senyo Amedahe from proceeding to sentence the applicant, Hon. Ernest Yaw Kumi pending the hearing of the instant suit
vi. Any other Order(s) as the Court deem fit”
The above reliefs are being sought on the following grounds:
1. “That the learned High Court Judge committed jurisdictional error of law apparent on the face of the record when he assumed jurisdiction in Parliamentary Election Petition at Akwatia Constituency at the time when the Electoral Commission had not published the Gazette Notification of the results to which the Election relates in the Gazette.
2. The learned High Court Judge breached the rules of natural justice when he proceeded to hear and determine the Contempt application despite the pendency of Applicant’s Motion to set aside the said Contempt for want of jurisdiction.
3. The learned High Court Judge was biased and highly prejudicial against the Applicant when he, among others, refused to grant Counsel for the Applicant audience on the basis that Counsel had not filed ”Appearance” in the Contempt ”
At the hearing of this application on 26th February 2025, this Court suo motu raised the issue of the right of the Applicant to be heard on same, given his conviction of contempt by the High Court which was not purged and for which warrant was pending for his arrest. The parties were directed by the Court to file submissions to address the Court on the issue.
From the record, only the Applicant filed a submission. Whereas Learned Counsel for the 1st interested Party chose to leave the matter in the hands of the Court to make a determination, Counsel for E.C. took the position that, if indeed the Applicant was not heard on the contempt application in the High Court, then he was entitled to be heard in this Court.
DETERMINATION.
The general rule is that a contemnor is not entitled to be heard until he has purged the contempt. This rule is however not an inflexible one. The contemporary judicial attitude suggests that the courts have discretion in making the decision. This appears a universal proposition. The esteemed editors of HALSBURY’S LAWS OF ENGLAND have expressed the position as follows:
“The general rule is that a party in contempt cannot be heard or take proceedings in the same cause until he has purged his contempt; nor while he is in contempt can he be heard to appeal from any order made in the cause. This is, however, subject to exceptions. Thus, a party in contempt may apply to purge the contempt, or appeal with a view to setting aside the order on which his contempt is founded, and in some cases he may be entitled to defend himself when some application is subsequently made against him. A plaintiff in contempt has been allowed to prosecute his action when the defendant had not applied to stay proceedings, and the proceedings will not be struck out. Even in cases where the rule is prima facie applicable, the court appears to retain a discretion whether or not to hear the party in contempt and may in its discretion refuse to hear a party only on those occasions when his contempt impedes the course of justice and there is no other effective way of enforcing his obedience. In an appropriate case, the court may decide to hear submissions from the contemnor de bene esse. “Vol 9(1), 4th ed., Reissue, para 511, p. 321.
In the same sense, writing on the topic “The court’s discretion not to hear a contemnor until the contempt is purged” the authors of ARLIDGE, EADY & SMITH ON CONTEMPT have stated:
“An effective sanction (deriving from canon law) was the practice that one who was in contempt might not be heard further in the same litigation, for his own benefit unless and until he had purged his contempt In the words of Lord Brougham, “it is a general rule of all Courts, that no party shall be allowed to take active proceedings, if in contempt’ This was clearly a practice primarily coercive in nature rather than punitive. It was by no means universally applied. There have always been recognized so called 11exceptions” so that for example a contemnor might be heard on an application to purge the contempt; or for the purpose of setting aside the order breach of which had put him in contempt, or of appealing against a relevant order for lack of jurisdiction; also, he was not precluded from defending himself in the action itself… “5th ed., Sweet & Maxwell, para 12-73, page 1054.
In HADKINSON VRS HADKINSON [1952] P. 285 Denning L.J. espoused at 298:
”It is a strong thing for a court to refuse to hear a party to a cause and it is only to be justified by grave considerations of public policy. It is a step which a court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing compliance…Applying this principle I am of the opinion that the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard, but if his disobedience is such that, so long as it continues, it impedes the course of justice in the cause, by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make, then the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed ”
It was in the case of X LTD. VRS MORGAN-GRAMPIAN [1991]1 AC 1 at 46-47 where the House of Lords prescribed that the question whether a contemnor may be heard be approached on the basis of a discretion to be exercised flexibly, according to the circumstances, rather than on the basis of a rule. In that case where the Court of Appeal had refused to hear a contemnor even though the court’s authority to make the order was being challenged, the House held that the Court of Appeal on the facts of the case erred in not granting the contemnor a hearing. Lord Bridge of Harwich in his speech referred to the above passage of Denning LJ in the HADKINSON’s case and opined:
”I cannot help thinking that the more flexible treatment of the jurisdiction as one of discretion to be exercised in accordance with the principle stated by Denning L.J. better accords with contemporary judicial attitudes to the importance of ensuring procedural justice than confining its exercise within the limits of a strict rule subject to defined exceptions. But in practice in most cases the two different approaches are likely to the lead to the same conclusion…”
This Court has had occasion to consider the issue as an exception to a general rule rather than by way of discretion even though as determined on authority, the two approaches are likely to lead to the same conclusion. In REPUBLIC VRS HIGH COURT, KUMASI; EX PARTE KODUA (PARAGON INVESTMENT LTD INTERESTED PARTY) [2015-2016]2 SCGLR 1349 at 1358, AKOTO-BAMFO JSC delivered herself as follows:
“Generally, it is the position of the law that a person in contempt cannot be heard until he has purged his contempt. The argument is that, having shown no respect for the orders of the court, it would not be proper for the court to exercise a discretion in his favour. Dankwa v Amartey [1994-95]2 GBR 848, C.A. Many exceptions to this rule have been admitted thereby gradually enlarging the rights of a contemnor to be heard. Thus, a person who contests the regularity of the process or service by which he is in contempt, can be heard in the absence of a purge. In Gordon v Gordon (1904) Probate Division 163 it was held that the principle that a person in contempt cannot be heard, prima facie, applied to voluntary applications, i.e., when the party comes to the court asking for something but not when he is challenging the order that it was made without jurisdiction or in cases in which all that the contemnor is seeking is to be heard in matters of defence. “
Also, in the case of IN RE: APENTENG (DECO) THE REPUBLIC VRS HIGH COURT, ACCRA (COMMERCIAL DIVISION); EX PARTE APENTENG (APENTENG, INTERESTED PARTY) [2010] SCGLR 327 where a contemnor had sought to quash his conviction by the High Court raising its jurisdictional challenges, this Court refused the order of certiorari due to the conduct of the applicant in participating in the impugned proceedings. However, on the question whether a contemnor was entitled to be heard in that application, ATUGUBA JSC who delivered the decision of the Court agreed with the position of OLIVER J in MIDLAND BANK TRUST CO. LTD VRS GREEN (NO.3) (1979)2 ALL ER 193 and pronounced at page 339-340 of the report:
”In deciding the instant case, we are not oblivious of the rule of law, namely, that a contemnor, who has not purged his contempt, should not be heard, at least with regard to the same matter before he purges his contempt But we agree with Oliver l in Midland Bank Trust Co Ltd v Green (No.3) [1979]2 All ER 193 that a contemnor can always take proceedings against an order made against him without jurisdiction. We further support the view that a court has discretion to hear or not to hear a contemnor. Otherwise, if the rule against hearing a contemnor were an absolute one, it would run counter to the well-established maxim actus curiae neminem gravabit.”
From the authorities considered, it seems well settled that the general rule that a person in contempt of court cannot be heard until the contempt was purged as derived from ancient canon law has outlived any inflexible application granted it was ever absolute and universal. The rule is now exposed to manifold exceptions and made subject to the discretion of the courts. The exercise of the discretion depends on varied factors including the nature and purpose of the proceeding by which further hearing is sought, the nature of the disobedience that resulted in the contempt and whether its persistence will fatally impede the course of justice. The court may also consider the conduct of the contemnor or any other party and indeed the overall circumstances of the case.
In the instant application, we are clear in our minds that the Applicant seeks to attack the very jurisdiction of the High Court to entertain the election petition and all subsequent proceedings brought upon it including the contempt proceedings. For what we find most significant, the jurisdiction of this Court in the instant application was invoked before the commencement of the contempt proceedings in that Court. As recounted, as of 8th January 2025, the jurisdiction of this Court had been invoked seeking to impugn the election petition itself and subsequent processes in the High Court on grounds including lack of jurisdiction. Indeed, it is obvious the High Court had notice of the application in this Court at the time it entertained and proceeded with the contempt application. At the same time there were processes before the High Court itself challenging its jurisdiction to entertain the entirety of the action before it. We are convinced that this is a proper case that falls squarely within the exceptions to the rule, and which merits positive exercise of this Court’s discretion. The Applicant stands to suffer grave injustice if he was denied a hearing in this Court. We hold that the Applicant is entitled to be heard in spite of the conviction of contempt and the absence of a purge.
(SGD,) R. ADJEI-FRIMPONG
(JUSTICE OF THE SUPREME COURT)
(SGD.) PROF. H. J. A. N. MENSA – BONSU (MRS.)
(JUSTICE OF THE SUPREME COURT)
(SGD.) E. Y. GAEWU
(JUSTICE OF THE SUPREME COURT)
(SGD.) H. KWOFIE
(JUSTICE OF THE SUPREME COURT)
DISSENTING OPINION
PWAMANG JSC:
My Lords, on 12th March, 2025, I decided that, until the applicant herein has purged himself of contempt of the High Court, he is not entitled to be heard on his applications in the same cause in this Court.
On 8th January, 2025 the applicant filed this Motion on Notice praying for, among other reliefs, certiorari to quash an order of interim injunction made by the High Court sitting at Koforidua on 2nd January, 2025 and a ruling dated 6th January, 2025 by the same High Court refusing to set aside the said order. The full reasons for the decision were reserved and I hereby now provide them.
On 26th February, 2025 when this application came on for hearing, I pointed out that the court had taken judicial notice of the fact that the applicant had by then been convicted for contempt of court for disobeying the very order of interim injunction he is here seeking to quash. From the record before the court, the disobedience of the order occurred on 6th January, 2025 when the applicant, contrary to the order of injunction against him, deliberately and openly took the oath to be sworn in as a Member of Parliament. It was two days after the disobedience of the order that the applicant filed this application.
The law considers contempt of court a grievous offence as it hits at the very foundation of law and order in society. All orders of court are to be rigidly observed and the law does not tolerate any disobedience of a court order with the excuse that the order is void or invalid. In rendering the unanimous judgment of the Supreme Court in Republic v High Court, Accra; Ex parte Afoda [2001M2002] 1 GLR 416, Kpegah, JSC opened his judgment with the following words at pp417-418;
”In the case of Russel v East Anglian Railway Co (1850) 42 ER 201, Truro LC at 206 delivered himself thus:
‘I have looked with care through the very numerous authorities that have been cited, but it is not necessary for me to go through them. The result appears to be this, that it is an established rule of this Court that it is not open to any party to question the orders of this Court, or any process issued under the authority of this Court, by disobedience. I know of no ad which this Court may do, which may not be questioned in a proper form, and on a proper application; but I am of the opinion that it is not competent for anyone to interfere with the possession of a receiver, or to disobey an injunction or any other order of the Court, on the ground that such orders were improvidently made. Parties must take a proper course to question their validity, but while they exist, they must be obeyed. I consider the rule to be of such importance to the interests and safety of the public, and to the due administration of justice, that it ought, on all occasions, to be inflexibly maintained. I do not see how the Court can expect its officers to do their duty, if they do it under the peril of resistance, and, of that resistance being justified on grounds tending to the impeachment of the order under which they are acting. ”
On account of the importance courts attach to unqualified respect of court orders and the administration of justice in general, a person who commits contempt of court is generally denied hearing in any court, unless he first purges himself of the contempt.
In the case of Republic v High Court; Ex parte Asakum Engineering and Construction Ltd [1993-94) 2 GLR 643, at p 651, the Supreme Court adopted the following position of English Law on the subject;
‘In Halsbury’s Law of England (3rd ed), Vol B, p 42, para 73 the learned editors” state:
“The general rule is that a party in contempt, that is a party against whom a writ of attachment has issued or an order for committal has been made cannot be heard or take proceedings in the same cause until he has purged his contempt.”
However, in Chuck v Cremer [1846) 1 Coop. temp Cottenham 205, it was held that, in general, a party in contempt cannot take proceedings in the same cause for his benefit. An exception has been made to cover situations where a person in contempt is being proceeded against and the law then permits him to be heard in defence of himself. But this right of self-defence is also qualified and the Supreme Court in the case of Republic v High Court, Kumasi; Ex parte Hansen Kwadwo Koduah & Anor [2015-2016) 2 SCGLR 1349 at p 1358 noted as follows;
‘In Gordon V Gordon 1904 Probate Division 163, it was held that the principle that a person in contempt cannot be heard, prima facie applied to voluntary applications i.e., when the party comes to the Court asking for something but not when he is challenging the order that it was made without Jurisdiction or in cases in which all that he is seeking is to be heard in respect of matters of defence. It must be pointed out however, that it is not in all matters of defence that the contemnor is entitled to an audience; where the allegation, for instance, is that the court has exercised its Jurisdiction wrongly, and then he ought not to be heard. Where, for instance, it is suggested, as in the instant application, that the order may have been made without Jurisdiction, and it is apparent on its face; the court will ordinarily entertain the objection to the order…”[Emphasis supplied]
From the authorities, the exception to hear a contemnor on a challenge to the jurisdiction of the court to make the order he is held to have violated is limited to cases where the order complained of was prima facie made without jurisdiction and that must be apparent on the face of the order or the proceedings. A contemnor who does not act in good faith in a purported challenge of an order he has violated will not be accorded a hearing in the same cause.
Therefore, the question to be addressed here is; has the applicant brought himself within the exceptions stated above? Stated in another way, does the application, on its face, show prima facie that the High Court, Koforidua had no jurisdiction to grant the order of interim injunction being complained of?
My Lords, Ex parte orders of interim injunction are permissible under Or 25 Rule 1(7),(8) & (9) of the High Court (Civil Procedure) Rules, 2004 (C.I.47) so the judge was clearly within his jurisdiction in making the order. When the applicant exercised his undoubted right to apply to set aside the order, he was heard, and a reasoned ruling delivered by the Judge. It is not every challenge of an order by a convicted contemnor that guarantees him a hearing. If that were so contemnors will file frivolous challenges to orders and insist on a hearing. That will defeat the sanction of denial of hearing which is meant to dissuade persons from disregarding orders they consider invalid or void which is a recipe for chaos and anarchy in society.
The attitude of Ghanaian courts is exemplified by the decisions referred to by the applicant himself in the cases of Ababio v Gyeabour III; CA27 /6/1991 unreported judgment of the Court of Appeal dated 27th June, 1991 and Dankwa v Amartey [1994-95] 2 GBR 848; CA. In those cases, a party who was in contempt and made application to the court without purging himself of the contempt was denied hearing. The reliance by counsel on the conclusion the Supreme Court came to in Ex parte Hansen Kwadwo Kodua (supra) does not advance the case of the applicant because in the case at bar, the trial judge’s jurisdiction has not been impeached on the face of the proceedings.
The applicant has also filed before the court an application for certiorari to quash his conviction for contempt and a bench warrant issued by the High Court Koforidua in its decision dated 19th February, 2025. He prayed that he ought to be heard on that application too for the same legal arguments he made in relation to the 8th January, 2025 application.
That application is Suit No J5/37/2025 filed on 24th February, 2025 and the main grounds stated in the motion paper are that, at the time the interested party filed his election petition on 31st December 2024, the parliamentary election results of Akwatia Constituency had not yet been gazetted so the court committed a jurisdictional error by entertaining the petition.
Another ground is that the court heard the application for his committal for contempt at a time when there was a pending application in the Supreme Court to set aside that contempt application. He also stated that the trial High Court Judge was biased against him in that he refused to hear his Counsel on the day of the ruling in application for committal for contempt.
The question again is whether, on the face of the applicant’s processes, the judge acted without jurisdiction. To begin with, the Electoral Commission has deposed to an affidavit to say that they gazetted the election results of the Akwatia Constituency on 24th December, 2024. That, prima facie, shows that the trial judge did not commit the error he has been accused of and that the condition precedent for him to have jurisdiction had indeed been in existence.
Secondly, since the applicant has not alleged that the Supreme Court or any court made an order for the trial judge to stay proceedings, then the applications alleged to have been filed in the Supreme Court could not deny the High Court Judge jurisdiction to hear and determine the contempt application. See Republic v Fast Track High Court, Accra; Ex parte Daniel [2003-2004] SCGLR 364.
The ruling convicting the applicant for contempt has been exhibited by the applicant himself as Exhibit “N” and at p 15, the trial Judge narrates the services made on the applicant and his failure to attend court to be heard. He stated as follows;
“It must be noted that the Respondent was made aware of the hearing of this case but chose to stay away, therefore he cannot come back today or on any other day to say that he was not given a fair hearing. He did not enter appearance and filed no process or affidavit in opposition, despite the service made on him during every step taken in this matter including a hearing notice served on him to appear in Court today.”
It is clear that the allegation that the trial judge refused to hear the applicant out of bias against him was not made in good faith. A party who has been afforded all the opportunities to be heard but chooses to stay way has waived the right to be heard and cannot run to a higher court to complain. In Ghana Consolidated Diamonds Ltd v Tantuo & Ors [2001-2002] 2 GLR 150 at p 164 Benin, JA (as he then was) stated the clear position of the law as follows at p 164;
“ A party who is aware of the hearing or trial of a case but who chooses to stay away out of his own decision cannot be heard to complain if judgment goes against him that he was not given a hearing. He could only appeal on the merits of the judgment delivered. On a more relevant note, the Supreme Court has held in the case of Baiden v Solomon [1963] 1 GLR 488 at 495, SC per Crabbe JSC (as he then was) that ‘ .. It is not open to a party, except on very strong grounds, to refuse to take further part in a hearing after an adverse interlocutory ruling has been made against him … “”
It would appear from the record that after the applicant’s application to set aside the order of interim injunction was dismissed and also his motion for the judge to recuse himself was also refused; he chose not to participate in the proceedings on the contempt application. Consequently, he cannot come to the Supreme Court to complain that he was not heard in the High Court and request that the Supreme Court should accord him a hearing.
It is plain from the record before the Court that the trial judge conducted the proceedings meticulously in accordance with law and gave reasoned rulings for all his decisions. The applicant decided not to appear and be heard on the application for contempt in the High Court, a Superior Court of Judicature, so he must be told in the face that he cannot choose in which court he wants to speak. Yes, the applicant filed processes hoping to prevent the hearing and determination of the contempt application but no court which was treated with disdain will permit itself to be diverted from a determination of the contempt to itself first.
Article 125(2) of the Constitution, 1992 has maintain the jurisdiction of the High Court to commit for contempt to itself so the questioning of the jurisdiction of the court by the applicant was a mere ruse. Similarly, the claim that the election results were not gazetted as at 24th December, 2024 was determined by the judge in his reasoned ruling of 6th January, 2025 yet the applicant repeated the same ground to challenge the jurisdiction of the court. No court will allow its processes to be abused in that fashion. The trial judge discharged his judicial duties in accordance with the dictates of the law.
It is for all of the above reasons that I formed the opinion that this applicant, like the contemnors in Ababio v Gyeabour III (supra) and Dankwa v Amartey (supra) does not merit a hearing on the applications he has filed in this court until he purges himself of the contempt.
(SGD.) G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
