REPUBLIC vs. THE GOVERNOR, BANK OF GHANA AND OTHERS; EX PARTE GAVOR [2001-2002] 1 GLR 112

CASES REFERRED TO

(1) Attorney-General v Butterworth [1963] 1 QB 696; [1963] 3 All ER 326, CA.

(2) Attorney-General v Newspaper Publishing Plc [1988] Ch 333; [1987] 3 All ER 276, CA.

(3) Republic v Liberty Press [1968] GLR 123.

(4) R v Griffin 88 Cr App R 63, CA.

(5) R v Colvin (1957) 3 WALR 89.

[p.114] of [2001-2002] 1 GLR 112

APPEAL to the Court of Appeal from the decision of the Regional Tribunal, Accra dismissing the applicant’s application for an order to issue a writ of attachment for contempt against the Governor of the Bank of Ghana and two others. The facts are sufficiently stated in the ruling of the court delivered by Afreh JA.

Charles Hayibor (with him Ms Margaret Insaidoo, Kodjo and Marken Kudjordji) for the appellant.

Nutifafa Kuenyehia for the respondents.

A Gyambiby, Principal State Attorney, for the Republic.

AFREH JA. Delivered the judgment of the court. This is an appeal from the ruling of the Regional Tribunal, Accra chaired by Tetteh J sitting with Messrs R A Quarshie and A K Arhin as panel members on 18 August 2000.

The applicant-respondent (hereinafter referred to as the respondent), Sebastian Gavor, and two other persons were on 22 May 2000 charged with two counts of (1) conspiracy to steal; and (2) stealing an amount of US$1,500,000. On the same day they were arraigned before the Regional Tribunal, Accra, chaired by Duose J, sitting with Messrs A K Arhin and R A Quarshie. All three accused persons pleaded not guilty and were granted bail.

At a subsequent sitting of the tribunal on 17 July 2000, counsel for the respondent (the first accused in the criminal case) told the tribunal that whilst the case was pending some state institutions had been interfering in the process. The first was the Bank of Ghana which had on 30 June 2000 sent dismissal letters to the first and second accused persons and had on 4 July 2000 given retrospective effect to those letters making 5 May 2000 the effective date of the dismissals.

In reaction to this information, the tribunal ruled:

“Regarding the dismissal, we hold that it is prejudicial to and pre-emptive of any findings that the court might make at the end of the trial. This borders on contempt of court. We shall advise that the bank returns to the status quo of interdiction pending the conclusion of this trial or subsequent to proper administrative process or be cited for contempt.”

[p.115] of [2001-2002] 1 GLR 112

This “advice” was incorporated in a formal drawn-up “Order for Revocation of Dismissal and Interim Freezing of Assets” in this form:

“(3) That with regard to the dismissal the bank returns to the status quo of interdiction pending the conclusion of this trial or subsequent to proper administrative process or be cited for contempt.”

On the failure of the bank to comply with this order, the respondent filed a motion on notice for an order to issue a writ of attachment for contempt under Order 59 of the High Court (Civil Procedure) Rules, 1954 (LN 140A). When the application came up for hearing before the Regional Tribunal, Accra chaired by Tetteh J, sitting with Messrs Arhin and Quarshie, the tribunal dismissed it on the ground of lack of jurisdiction and incompetence. The full ruling of the tribunal stated:

“By Court:

The court is disabled from hearing this case by the very enactment that created it. For the purposes of the parties I will like to state the relevant Acts. Section 24(1) of the Courts Act, 1993 (Act 459) says: ‘Subject to the provisions of the Constitution, this Act and any other law, a Regional Tribunal shall have concurrent original jurisdiction with the High Court in all criminal matters and shall in particular try— (a) the special offences specified under Chapter 4 of Part III of the Criminal Code 1960 (Act 29);

(b) offences arising under—

(i) Customs, Excise and Preventive Service Management Law, 1993 (PNDCL 330);

(ii) Income Tax Decree, 1975 (SMCD 5);

(iii) Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236) . . .’ Article 143(1) of the Constitution, 1992 also proceeds to say:

‘A Regional Tribunal shall have jurisdiction to try such offences against the State and the public interest as Parlia-

[p.116] of [2001-2002] 1 GLR 112 ment may, by law, prescribe.’ Aside of these all there is a stay of execution for which the applicants have not reacted to. The application is incompetent and vexatious. This court does not go by the civil rules therefore the pursuant Order, ie Order 59 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) which the applicants are coming by is not applicable.”

It is from this ruling that the instant appeal has been brought. Originally four grounds of appeal were filed but counsel for the appellants abandoned two of them and argued only the following grounds:

“(1) The tribunal erred when it ruled erroneously that it had no jurisdiction to hear the application for contempt.

(2) The tribunal further erred when it erroneously ruled that it lacked jurisdiction to hear the application because the application had assumed the character of a civil matter.”

These grounds raise two main issues:

(1) whether Regional Tribunals have power or jurisdiction to commit for contempt to themselves; and

(2) if they have the power or jurisdiction whether they can investigate allegations of contempt and punish contemnors under Order 59 of LN 140A.

Jurisdiction of Regional Tribunals to commit for contempt to themselves

Under article 126(1) of the Constitution, 1992 Regional Tribunals are superior courts, although they can only try criminal cases. The superior courts are superior courts of record and have power to commit for contempt to themselves and such powers as were vested in a court of record immediately before the coming into force of the Constitution, 1992: see article 126(2) of the Constitution, 1992. It is clear from this provision of the Constitution, 1992 that Regional Tribunals, as superior courts, have power to commit for contempt to themselves. Even without the express mention of the power to commit in article 126(2) they would have power as superior courts

[p.117] of [2001-2002] 1 GLR 112 of record to commit for contempt because in modern practice the main significance of such courts is that they have power to punish for contempt of court.

Superior courts also have power to punish for contempt to themselves under article 19(12) of the Constitution, 1992. Apart from these constitutional provisions, section 36 of the Courts Act, 1993 (Act 459), in conformity with the Constitution, 1992 confers on superior courts the power to commit for contempt to themselves.

From these constitutional and statutory provisions there can be no doubt that Regional Tribunals have the power or jurisdiction to commit for contempt to themselves.

Procedure for committal for contempt to Regional Tribunals The question is, by what procedure should Regional Tribunals commit for contempt to themselves? Both counsel for the appellant and the respondents were of the view that it was wrong for the appellant to have brought committal proceedings under Order 59 of LN 140A. The view of counsel seems to have been predicated on the idea that civil and criminal contempts are so different that they can or should only be tried by or under two different rules of procedure, one civil, the other criminal; and if a court proceeds under the wrong rule it errs in law and its decision cannot stand. But more clearly articulated is the view that Regional Tribunals, being exclusively criminal courts, cannot apply a civil process to deal with contempt of court or, presumably, any other conduct.

By conceding that he proceeded under the wrong rule, counsel for the appellants, in effect, admitted that the appeal should be dismissed. He only asked us to deal with the “substance” of the case and come out with practice directions.

We are not bound by the views of counsel as to what the law is. It is our duty to consider their views and all other views and opinions as well as all relevant provisions of the Constitution, 1992, Act 459, other enactments and the common law on the subject and decide the case according to the law as we understand it.

The difference between “civil” and “criminal” contempt should not be exaggerated. A contempt of court is an act or omission calculated to interfere with the due administration of justice: see

[p.118] of [2001-2002] 1 GLR 112

Attorney-General v Butterworth [1963] 1 QB 696, CA. There are myriad ways in which this can be done. But whatever form it takes a superior court has power to deal with it firmly and effectively. Since the case of Attorney-General v Newspaper Publishing Plc [1987] 3 All ER 276, CA the widespread acceptance of classification of contempt as being either civil or criminal has become less important. As Sir John Donaldson MR said at 294:

“Despite its protean nature, contempt has been classified under two heads, namely ‘civil contempt’ and ‘criminal contempt’. Whatever the value of this classification in earlier times, I venture to think that it now tends to mislead rather than assist, because the standard of proof is the same, namely the criminal standard, and there are now common rights of appeal. Of greater assistance is a reclassification as (a) conduct which involves a breach, or assisting in the breach, of a court order and (b) any other conduct which involves an interference with the due administration of justice, either in a particular case or more generally as a continuing process, the first category being a special form of the latter, such interference being a characteristic common to all contempts (see Attorney-General v Leveller Magazine Ltd [1979] 1 All ER 745 at 749 per Lord Diplock). What distinguishes the two categories is that in general conduct which involves a breach, or assisting in the breach, of a court order is treated as a matter for the parties to raise by complaint to the court, whereas other forms of contempt are in general considered to be a matter for the Attorney General to raise. In doing so he acts not as a government minister or legal adviser, but as the guardian of the public interest in the due administration of justice.”

So, in my opinion, in determining the procedure a court, in this case a Regional Tribunal, should apply to investigate and punish contempt, it is not material whether a contempt is classified as being civil or criminal. Neither is it material whether the court is criminal or civil, for there is no principle of law or procedure which requires that the forum for the trial of contempt is determinable by the choice of procedure: see Akufo-Addo CJ in Republic v Liberty [p.119] of [2001-2002] 1 GLR 112

Press Ltd [1968] GLR 123 at 132.

There is nothing in the Constitution, 1992, Act 459, the Criminal Procedure Code, 1960 (Act 30) or any other enactment as to how Regional Tribunals can or should commit persons for contempt to themselves. In theory, the procedure of indictment or summary can be resorted to. In Republic v Liberty Press Ltd (supra) Akufo-Addo CJ said in holding (2) that:

“The common law position had always been that the procedure by summary trial and by indictment were alternative procedures depending on the character of the contempt ex facie curiae. Where the contempt was clear and unambiguous the procedure for trial had always been by summary trial, whereas in a case in which the contempt was not all that clear and certain, indictment had been the appropriate procedure.”

I do not think any of these procedures is satisfactory for dealing with contempt of court in Ghana today. It has been said that “the summary procedure to deal with contempt is unique in English law. It is both substantive and procedural and has often raised concerns because of the lack of clearly defined principles”: vide Archibold (2000), paras 28-108 at p 2347. In the summary procedure the judge is entitled to proceed of his own motion. There is no summons or indictment, nor is it mandatory for any written account of the accusation made against him to be furnished to the contemnor. The summary procedure is not adversarial in character. The judge in effect is the investigator, prosecutor and judge. The summary procedure, which by its nature is to be issued quickly if it is to be used at all, omits many of the safeguards to which an accused is ordinarily entitled, and for this reason, it has been repeatedly stated that the judge should choose to adopt it only in cases of real need: see Mustill LJ in R v Griffin 88 Cr App R63 CA. Such a procedure which entails ignoring many of the safeguards for fair trial en-shrined in article 19 of the Constitution, 1992 may be unconstitutional, even when used to try contempt in the face of the court. In any case, the summary procedure is not appropriate for dealing with contempt for disobedience to orders of a court.

In Ghana, trial by indictment is in practice now confined to a

[p.120] of [2001-2002] 1 GLR 112 small number of offences, such as unlawful homicide—murder and manslaughter and first degree felonies. It would be surprising if the Attorney-General instituted contempt proceedings by indictment. Even in England where trial on indictment is more common, prosecution of criminal contempt on indictment is in disuse. As stated by Blackstone’s Criminal Practice (1992), B 14.60, p 591: “It remains theorotically possible to prosecute criminal contempt on indictment, but this is hardly ever done, and in the last reported case in which it was, the court of appeal condemned the procedure as inappropriate and quashed the convictions which had been imposed CD [1984] A.C.778 at p. 792.”

In practice, therefore, in England, all forms of contempt (except contempt in the face of the court) are dealt with by a formal process in which an application is made to the divisional court of the Queen’s Bench Division under Order 52 of the Supreme Court (Civil Procedure) Rules,1965: see Archbold (2000) paras 28-128 to 137, pp 2354-2356 and Blackstone’s Criminal Practice (1992), para B 14.60, pp 595-596. In both books, Order 52 of the Supreme Court (Civil Procedure) Rules, 1965 is set out in full as the rules governing committal for contempt.

It may appear odd that civil procedure rules are used for the trial of an offence which is criminal or quasi-criminal. But cases of alleged contempt have always been tried by procedures which are peculiar to that offence. As in England, so in Ghana. In this country, the procedure the High Court and its predecessors have always used for committal for contempt of court is an application under the appropriate Order (today it is Order 59 of LN 140A), whether the contempt is classified as being civil or criminal. Thus, for example, in Republic v Liberty Press Ltd (supra) it was the procedure used to try a criminal contempt of the Court of Appeal. An application under Order 59 of LN 140A is of course used in the High Court for committal proceedings for contempt to itself or inferior courts.

So far as I know an application under Order 59 of LN 140A is the only process available and used in this country for committal for

[p.121] of [2001-2002] 1 GLR 112 contempt of court. But as I have indicated above, it has been submitted that Regional Tribunals being exclusively criminal courts, cannot use it. If contempt (other than contempt triable by the summary procedure) is committed of a Regional Tribunal it must refer the case to the High Court for investigation and punishment.

This submission looks attractive but is not correct. It implies that Regional Tribunals do not have jurisdiction to try contempt to themselves except contempt triable by the summary procedure. This will relegate Regional Tribunals to the position of inferior courts; but they are superior courts, equal in status to the High Court. In fact, the High Court may not have jurisdiction to punish contempt of Regional Tribunals because in general one court may not punish a contempt of another court of equal rank: see Archibold (2000), paras 28-107 at p 2347. Thus, in R v Colvin (1957) 3 WALR 89 the Divisional Court, Accra refused to entertain an application to punish contempt of the Divisional Court, Kumasi because in such cases the only court with jurisdiction to hear an application for attachment for contempt was the court in respect of which the contempt was alleged to have been committed.

It seems from the wording of article 126(2) of the Constitution and section 36 of Act 459 that every superior court of judicature has jurisdiction to commit for contempt to itself. Every superior court should therefore have the related power to investigate whether punishment is merited. As Akufo-Addo CJ said in Republic v Liberty Press Ltd (supra) at 132: “I fail to see how a court can have the power to punish for an offence without the related power to investigate whether punishment is merited.” It also seems clear to me that by virtue of article 126(2) of the Constitution, 1992 and sections 25 and 36 of Act 459, Regional Tribunals have all the powers of the High Court in relation to contempt of court. Section 25 (2) of Act 459, far from denying Regional Tribunals power to apply Order 59 of LN 140A to commit for contempt to themselves does confer on them the power to do so. In doing so they will not be doing anything more than applying a rule of the High Court applicable in criminal trials and appeals. For contempt of court is under the Constitution, 1992 and section 10 of the Criminal Code, 1960 (Act 29), a criminal offence. If the High Court punishes it

[p.122] of [2001-2002] 1 GLR 112 under Order 59 of LN 140A so can Regional Tribunals.

There is nothing unique about Regional Tribunals, exclusively criminal courts, having jurisdiction to apply a civil process to commit for contempt to themselves. In England too, the Crown Court, which like the Regional Tribunals, is an exclusively criminal court, has by virtue of section 45(4) of the English Supreme Court Act, 1981 all the powers of the High Court in relation to contempt.

I think the Regional Tribunal erred in law when it ruled that it had no jurisdiction to hear the application for contempt; and that it lacked jurisdiction to do so because the application had assumed the characteristics of a civil matter. The appeal is therefore allowed. The case will be remitted to the tribunal to hear it on its merits.

We, however, note that there is nothing on record to show that leave to bring the application was obtained before the motion on notice for a committal order was filed. If there was no such leave then the application was incompetent. But without further information or submissions on this matter, we cannot make any definitive pronouncement on it.

In the course of the hearing of this appeal several interesting submissions were made on the propriety of the order of the Regional Tribunal to the Bank of Ghana to return the respondent and others to the status quo of interdiction. Unfortunately, we are limited by the grounds of appeal argued before us. We cannot therefore say anything about the propriety of the order of the tribunal. But when or if the application for a committal order comes on for hearing before the Regional Tribunal counsel can raise it.

Akoto-Bamfo JA. I agree.

Amonoo-Monney JA. I also agree.

Appeal allowed.

DRKS