REPUBLIC vs. NUMAPAU AND OTHERS; EX PARTE AMEYAW II [1999-2000] 2 GLR 629

CASES REFERRED TO

(1) Effiduase Stool Affairs (No 2, In re); Republic v Numapau President of the National House of Chiefs; Ex parte Ameyaw II (No 2) [1998-99] SC GLR 639.

(2) Mechanical Lloyd Assembly Plant Ltd v Nartey [1987-88] 2 GLR 598, SC.

(3) Quartey v Central Services Co Ltd [1995-96] SC GLR 398.

(4) Agyekum v Asakum Engineering & Construction Ltd [1992] 2 GLR 635, SC.

(5) Nasali v Addy [1987-88] 2 GLR 286, SC.

(6) Fosuhene v Pomaa [1987-88] 2 GLR 105, SC.

(7) Republic v Totobi-Quakyi; Ex parte Edusei, Supreme Court, 26 July 1994, unreported. (8) Practice Directions (Review in the Supreme Court) [1987-88] 2 GLR 274.

(9) Afranie II v Quarcoo [1992] 2 GLR 561, SC.

(10) Republic v Owusu alias Buor; Ex parte Anane, Supreme Court, 25 July 1995, unreported. APPLICATION to Supreme Court to review its majority decision dismissing an application for an order of attachment and/ or committal for contempt against the respondents. The facts are sufficiently set out in the ruling of the majority of the court delivered by Edward Wiredu JSC.

Kwasi Danso Acheampong for the applicant.

Nana Adjei Ampofo for the first to twelfth and fourteenth and fifteenth respondents.

Kwami Tetteh (with him Anthony Forson, Jnr) for the sixteenth respondent.

Edward Wiredu JSC. Delivered the ruling of the majority of the court. On 21 July 1999, this court, by a majority decision, dismissed an application brought by the applicant herein for the attachment of the sixteen respondents herein for contempt of court. By the instant application, the applicant prays this court to review its said decision upon the ground that the decision has [p.632] of [1999-2000] 2 GLR 629 occasioned a grave miscarriage of justice and therefore it is in the interest of justice that the ruling be reviewed. According to the statement of case filed on behalf of the applicant, this contention is based on two grounds, namely that: “ (i) the ruling was given per incuriam for failure to consider the case law and statute law relevant to the application, and (ii) the applicant’s case was not adequately considered.” The power of this court to review its decisions is governed by rule 54 of the Supreme Court Rules, 1996 (CI 16), which stipulates the only grounds upon which we may exercise that power. These grounds are very well known to any assiduous practitioner. However, for ease of reference, we set them out in full as follows:

“(a) exceptional circumstances which have resulted in a miscarriage of justice;

(b) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the decision was given.”

In effect, these limited grounds are no different from those previously prescribed when the power of review was not statutory, but was rather premised on the inherent jurisdiction of the court. It has been held time and again that the review process must never be viewed or used as a devise for a re-hearing of the applicant’s case. Therefore, the case of the applicant, in support of an application for review must clearly establish factors that would justify the application under either of the stipulated grounds.

It is clear that the application herein was made under the first ground and therefore, to succeed, the applicant must demonstrate to us the existence of exceptional factors which show that the decision of the majority has manifestly resulted in a miscarriage of justice. What constitutes exceptional circumstances cannot be comprehensively defined. In previous decisions, it has been described as “some fundamental or basic error, which the court inadvertently committed in the course of considering its judgment”: see Mechanical Lloyd Assembly Plant Ltd v Nartey [1987-88] 2 GLR 598, SC; and Quartey v Central Services Co Ltd [1996-1997] SC GLR 398. In addition to such exceptional circumstance, rule 54 of CI 16 dictates that the applicant must also demonstrate that the result of the exceptional circumstances has been a miscarriage of justice. The revised 4th edition of Black’s

[p.633] of [1999-2000] 2 GLR 629

Law Dictionary defines miscarriage of justice “to mean” prejudice to the substantial rights of a party.” This definition we find very useful. In sum, therefore, in this application, it was incumbent on the applicant to show that his substantial rights in the matter that came before this court have been prejudiced by some fundamental or basic error made by the majority. As was aptly put by this court in Agyekum v Asakum Engineering Construction Ltd [1992] 2 GLR 635 at 637 (per holding (2)): “The acid test remained always the existence of exceptional circumstances and the likelihood of a miscarriage of justice that should provoke the conscience to look at the matter again.” For, as was pointed out by Taylor JSC in Nasali v Addy [1987-1988] 2 GLR 286 at 288:

“. . . all persons who have lost a case are likely to complain of a miscarriage of justice, but . . . in the absence of exceptional circumstances such complaints are a poor foundation for the exercise of the review power for it is only in exceptional circumstances that the interest rei publicae ut sit finis litium principle yields to the greater interest of justice.”

Therefore, whatever factors the applicant relies on must be such that the exercise of our power of review becomes extremely necessary if irreparable harm to the applicant is to be averted. A mere re-arguing of his original application will not suffice: see also Fosuhene v Pomaa [1987-88] 2 GLR 105.

In support of this application, the applicant deposed to an affidavit which, other than a bald statement of the aforementioned ground and contention, constitutes a mere rehashing of the original application. In this ruling, therefore, we do not intend to make any further reference to that affidavit. In his amended statement of case however, counsel for the applicant sought to demonstrate to us that there were indeed factors that constitute the outcome of the original application a miscarriage of justice.

In respect of the first ground upon which this application was made, counsel for the applicant submitted inter alia that under articles 126(2) and 129(4) of the Constitution, 1992, this court has the jurisdiction to commit for contempt of all courts including itself; and further, that in the case of the Republic v Totobi Quakyi; Ex parte Edusei, Supreme Court, Accra, 26 July 1994, unreported this court had held that it had jurisdiction to entertain contempt proceedings brought before it, even if no order of the court itself had been interfered with or the conduct complained of

[p.634] of [1999-2000] 2 GLR 629 is not against this court itself. Finally, counsel maintained that the failure of the court to consider the foregoing constitutes an exceptional circumstance, which has occasioned miscarriage of justice.

Regarding the second ground for the application, counsel contended that: first there were various pieces of evidence against the sixteenth respondent which cumulatively showed that he had deliberately attempted to prejudice, pervert or interfere with the course of justice, which evidence the majority failed to take into account. These according counsel, included the order by Amua-Sekyi J (as he then was) that the name of the sixteen a respondent be removed from the national register of chiefs; the evidence that the installation of the applicant as Effiduasihene had been recognised by the government; the evidence that when the sixteenth respondent petitioned the National House of Chiefs to re-enter his name in the national register, he failed to disclose that he had a petition pending before the judicial committee of the Mampong Traditional Council wherein he was claiming to be incumbent chief.

Secondly, counsel for the applicant argued that there was evidence against the first respondent demonstrating that, although he had knowledge of the existence of the order made by Amua-Sekyi J (as he then was) and the resultant incumbency of the applicant on the Effiduasi stool, he had by-passed the full house of the National House of Chiefs and placed the sixteenth respondent’s petition directly before the research committee and had, thereby, conducted himself in such manner as to assist and facilitate illegal activities of the sixteenth respondent. This counsel contended, amounted to contempt of the High Court, all of which the majority of this court failed to take into account.

Thirdly, counsel contended that there was also evidence showing that members of the research committee, the fourteenth and the thirteenth respondents, was also in contempt of the High Court, which the majority did not take into account. This, according to counsel, included the fact that the committee chose to ignore all evidence of the incumbency of the applicant when it reentered the name of the sixteenth respondent in the national register; the affidavit sworn by the thirteenth respondent that there was no record of the incumbency of the applicant; and the admission by the fourteenth respondent that he had re-entered the name of the sixteenth respondent into the register. Counsel,

[p.635] of [1999-2000] 2 GLR 629 therefore, submitted that, had the majority considered these pieces of evidence, the decision of the court would have been different.

The application to commit the respondents for contempt raised two issues of contempt namely, whether the respondents were in contempt of the High Court and this court, and whether the sixteenth respondent was in contempt of the Mampong Traditional Council. Acquah JSC, in his erudite ruling in support of the majority decision dismissing the application, (see In Re Effiduase Stool Affairs (No 2); Republic v Numapau, President of the National House of Chiefs; Ex parte Ameyaw (No 2) [1998-99] SC GLR 639) thoroughly reviewed the affidavit in support of the application and tested the same against the particulars of contempt levelled against each respondent (which had been denied by the respondents in their series of affidavits), the law on contempt, as well as the standard of proof required to be satisfied in proceedings for contempt of court (which, as we all know, is quasi-criminal in nature). He then made the following conclusions at 667-668 of see the report:

“The first respondent was then the president of the NHC, and the petition of the sixteenth respondent was addressed to him in that capacity. Certainly, he could not, on his own, take a decision to accept or reject the prayer contained in that petition. The Research Committee of the NHC, the members of which are cited in this application as the second to the twelfth respondents, is one of the committees constituted under section 2(2) of the Chieftaincy Act, 1971 (Act 370). Its functions, as spelt out in paragraph 56 of the NHC Standing Orders (Revised) 1991, are inter alia, ‘to study chieftaincy declaration forms for enstoolments, destoolments, abdications and death of chiefs. . . for entry in the National Register of Chief.’ The reference of the sixteenth respondent’s petition to that committee was thus the appropriate thing to do. And I do not see how members of that committee can be liable for contempt for doing what they are expected to do. If their recommendations turned out to be inconsistent with a binding decision of a court of competent jurisdiction, those adversely affected are entitled to apply to set it aside. Contempt does not arise in such circumstances . . . It follows that the staff of the research committee who were present and are cited as the

[p.636] of [1999-2000] 2 GLR 629 thirteenth, fourteenth and fifteenth respondents can, by no stretch of imagination, be equally held liable for contempt.

Indeed, on the facts and circumstances before the High Court, Kumasi, then, Amua-Sekyi J ordered that the sixteenth respondent’s name as Effitduasehene, be deleted from the national register of chiefs. His Lordship did not order, and the record does not say so, that the sixteenth respondent was perpetually forbidden from having his name entered as Effiduasehene in the National Register of Chiefs . . .”

Atuguba JSC in his learned opinion in that case, also dismissing the application, viewed the matter from the viewpoint of the wilfulness (ie, the mens rea) required to found a citation for contempt and concluded that none existed in the matter.

In view of the nature of the application that came before the court, none of the pieces of evidence which counsel claims had not been taken into account by the majority in arriving at its decision (which claim is not borne out by the rulings), have any impact on these conclusions such as to compel one to hold that there has been some fundamental or basic error that has rendered the outcome a miscarriage of justice. Furthermore, we have critically perused the constitutional articles referred to by counsel in his statement of case, and we sincerely fail to grasp their relevance in this matter. Article 126(2) of the Constitution, 1992 reads:

“(2) The Superior Courts shall be superior courts of record and shall have the power to commit for contempt to themselves and all such powers as were vested in a court of record immediately before the coming into force of this Constitution.”

Our understanding of this article is simply that all superior courts, as listed in clause (1)(a) of article 126 of the Constitution, 1992, have the power to commit for contempt. Nothing more. And article 129(4) of the Constitution, 1992, which relates to the general jurisdiction of the Supreme Court, states that:

“(4) For the purposes of hearing and determining a matter within its jurisdiction and the amendment, execution or the enforcement of a judgement or order made on any matter, and for the purposes of any other authority, expressly or by necessary implication given to the Supreme Court by this Constitution or any other law, the Supreme Court shall have

[p.637] of [1999-2000] 2 GLR 629 all the powers, authority and jurisdiction vested is any court established by this Constitution or any other law.”

Acquah JSC, in his ruling in support of the majority decision, raised the issue of the jurisdiction of this court in contempt matters when he considered the question of whether the sixteenth respondent’s petition to the National House of Chiefs, whilst his own earlier petition to the Mampong Traditional Council was still pending, was not calculated to interfere with or prejudice the fair hearing of the matter before the said traditional council. In determining this issue, he adverted his mind to section 26(7) of the Chieftaincy Act, 1971 (Act 370) and paragraph 13(5) of the Chieftaincy (Proceedings and Functions) (Traditional Councils) Regulations, 1972 (LI 798), which are founded on the well established general legal principle that no inferior court or tribunal has the power to commit for contempt. He then concluded that since chieftaincy tribunals, including that of the National House of Chiefs, are inferior tribunals: “The court with jurisdiction to entertain contempt applications from the judicial committees of the traditional councils is thus the High Court.” This being so, he further concluded that this court cannot determine, at first instance, the issue of whether or not the sixteenth respondent’s petition to the National House of Chiefs constituted contempt of the traditional council. Atuguba JSC, on the question of jurisdiction, drew attention to the practice direction of this court, namely Practice Direction (Reviews in the Supreme Court) [1987-88] 2 GLR 274 which requires that where a cause or matter can be determined by a superior court other than this court, the jurisdiction of the lower court must first be invoked.

These conclusions are firmly grounded in the law as it is and they cannot he be controverted. The above-quoted provisions of the Constitution, 1992 cannot, by any stretch of the imagination, be so construed as to permit this court to take at first instance applications that are statutorily required to be heard, at first instance, by the High Court. To proceed otherwise would be to dilute the statutory jurisdiction of other courts and lay this court open to a flood of unnecessary applications that could have been validly, more properly, dealt with in the first instance by the High Court. It, therefore, follows that the case of the Republic v Totobi-Quakyi; Ex parte Edusei (supra), relied upon by counsel for the applicant, was also quite irrelevant to the case that came before

[p.638] of [1999-2000] 2 GLR 629 this court. That was a matter in which the respondent therein had issued public statements on a matter that was then pending before this court. There is, consequently, no basis for the contention that the majority decision, challenged herein, was made per incuriam.

Finally, we have grave doubts as to the propriety of this application and whether the applicant has any locus standi to bring the same. The obvious question is: “what substantial rights of the applicant have been prejudice by the majority decision?” The substantive dispute between the applicant and the sixteenth respondent is not the issue that came before this court. Had the court, indeed, found the respondents in contempt of court, how would that have concluded the extant dispute? In contempt proceedings of the genre that came before us, the substantial interest at stake is the dignity of the courts and the integrity of the administration of justice, and it is, therefore, a public one. Once this court made the determination that the conduct of the respondents did not constitute contempt, the interests of the public and the administration of justice had been adequately served, and the role of the applicant as a faithful public servant, for the purposes of the protection of the judicial process, ceased. For the applicant to proceed further to apply for review is to personalise the objectives of the contempt of court process.

In conclusion, the applicant has failed to demonstrate the existence of any exceptional circumstances that have resulted in a miscarriage of justice, such as would justify a review of the decision made by this court. The application has no merits and must, therefore, be dismissed.

Ampiah JSC. On 14 July 1999, this court dismissed an application by the applicant herein for attachment for contempt against the respondents herein. The instant application is for a review of the ruling in that application.

This court has power to review its own decision where, inter alia, there are, “exceptional circumstances which have resulted in a miscarriage of justice” provide Rule 54(a) of the Supreme Court Rules, 1996 (CI 16). Among the grounds filed in this application is one which states: “The ruling was given per incuriam for failure to consider the case law and statute law relevant to the application and also that of the applicant’s case.” The court in its ruling of 14 July 1999 held inter alia that the conduct complained of did not constitute contempt of court. What was unclear in the ruling was

[p.639] of [1999-2000] 2 GLR 629 whether or not the Supreme Court has jurisdiction to commit for contempt acts alleged to be contemptuous of other courts or tribunals.

A review application, this court has observed time and again, is not one for the repetition of previous arguments and a revisit to past scenarios: see Afranie II v Quarcoo [1992] 2 GLR 561 at 565, SC. It is not one for the re-arguing of issues which have been put forward earlier in an appeal and which issues have been ruled upon. That being so, I would not attempt to resurrect my conclusions in my opinion in the application for attachment The maxim, interest rei publicae ut sit finis litium (it concerns the State that law suits be not protracted) applies. However, in the particular circumstances of this matter, I feel it is necessary to reconsider the earlier ruling to make certain this court’s jurisdictional competency in entertaining applications for contempts of other courts.

In his statement of case in the contempt proceedings, the applicant alleged that there was contempt of the Supreme Court, the High Court, Kumasi and the Judicial Committee of the Ashanti Mampong Traditional Council. In the Republic v Totobi-Quakyi; Ex parte Edusei, Supreme Court, Accra, 26 July 1994, unreported, the Supreme Court held inter alia that it has jurisdiction to commit for contempt conduct found to be contemptuous of other courts and tribunals. And in the case of the Republic v Owusu alias Buor; Ex parte Anane, Supreme Court, Accra, 25 July 1995, unreported this court committed for contempt conduct against the Judicial Committee of the Kumasi Traditional Council.

That the Supreme Court, a superior court, has jurisdiction to commit for contempt cannot be disputed. Article 129(4) of the Constitution, 1992 provides:

“(4) For the purposes of hearing and determining a matter within its jurisdiction and the amendment, execution or the enforcement of a judgment or order made on any matter, and for the purposes of any other authority, expressly or by necessary implication given to the Supreme Court by this Constitution or any other law, the Supreme Court shall have all the powers, authority and jurisdiction vested in any court established by this Constitution or any other law.”

Article 129(3) of the Constitution 1992 also provides:

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“(3) The Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law.”

My understanding of this provision of the Constitution is that the Supreme Court is bound by its own decisions; but it may depart from any of its decisions when it appears to it right to do so, To do so, it is necessary that the court gives a good reason for departing from its own earlier decision. If that were not so, uncertainties would be created in our law. Since the other courts are bound to follow the decisions of the Supreme Court, the courts would be put in a dilemma as to which decisions of the Supreme Court they should follow where the Supreme Court itself has given two or more inconsistent decisions on the same issue without giving any reasons for departing from its earlier decisions.

It is unclear from the ruling given by his court on 21 July 1999, whether these aspects of the law were seriously considered. A decision is said to have been given per incuriam where there is failure to consider a statute or a binding case law or a fundamental principle of practice and procedure relevant to the decision and which would have resulted in a different decision: see Afranie II v Quarcoo, (supra). Besides, since the court held inter alia that it had no jurisdiction to entertain the application, it was wrong for it to have decided on the merits of the acts complained of; findings that are made on these issues are likely to prejudice the parties in any subsequent action they may like to take in the appropriate forum.

The failure to examine critically the case law on the matter and the statutory provisions applicable, seriously affected the court in its evaluation of the evidence before it and led to an erroneous conclusion which has resulted in a miscarriage of justice. More so, when the respondents themselves had admitted the acts complained of but had pleaded ignorance of the legal effect of their conduct. In fact, they had taken steps to correct what they had done mistakenly or wrongly. Also, it could not be said that the delay in disposing of the matter had been caused by the applicant. The sixteenth respondent did raise a preliminary objection which necessitated ruling upon before the substantive application could be gone into. This preliminary issue was

[p.641] of [1999-2000] 2 GLR 629 eventually disposed of and the sixteenth respondent was appropriately punished. The applicant’s application could not be said to be vexatious or frivolous. The action was against the National House of Chiefs’ Research Committee through the persons who acted on its behalf; they could not be said to have acted fairly. It was therefore unfair to punish the applicant by imposing punitive costs of ¢32,000,000 against him.

In the particular circumstances of the case, I think this is a proper case for review. I would grant the application and review this court’s ruling of 14 July, 1999, including the costs awarded.

Application for review dismissed.

LSNA