REPUBLIC vs. OBENEY [2001-2002] 2 GLR 206

CASES REFERRED TO

(1) Kwaframoah III v Sakrakyie II [1996-97] SCGLR 199.

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

[p.208] of [2001-2002] 2 GLR 206

APPEAL by the appellant to the Court of Appeal against the ruling of the High Court, Accra granting an application by the respondent contemnors for a review of an order by the court requiring them to purge their contempt by giving an undertaking to pull down a structure they had constructed on the land in dispute which order was given by the court following an application by the respondents for review of an order of the court commuting them to prison for contempt of court. The facts are sufficiently stated in the judgment of Addo JA.

Archer for the appellant.

Mrs Margaret Acheampong for the respondents.

Addo JA. This is an appeal from an order of the High Court, Accra presided over by Ebiasah J. The order of the court which gave rise to the present interlocutory appeal stemmed from an order of committal for contempt of the respondents by the court dated 26 November 2001. The court had earlier on 18 February 2000 in the suit entitled Anum v Obeney placed an injunction on both the appellant and the respondents, their agents and assigns from interfering with the land the subject matter of the suit. The respondents having been found in contempt of the orders of the High Court dated 18 February 2000, were accordingly on 26 November 2001 sentenced to a term of imprisonment for 21 days. This is what the court said at page 50 of the record of proceedings:

“Based upon respondents’ admission in their affidavit in opposition of 15 October 2001,I find the respondents herein, David Odartey Obeney and Bismark Dodoo in contempt of the orders of this court made on 18 February 2000. Accordingly, I sentence the respondents to a term of imprisonment for 21 days. They are to be taken to Nsawam medium security prison to serve the sentence.”

The following day after the sentence, 27 November 2001, an application for bail pending appeal was filed on behalf of the contemnors. On 29 November 2001, the application was dismissed after it had been heard by the court below. Undettered, the solicitor for the contemnors, filed an application on behalf of the contemnors for a review of the order of the court dated 26 November 2001.

[p.209] of [2001-2002] 2 GLR 206

The appellant opposed the application for review but on 6 December 2001 when the application came up for hearing, the court below after hearing both counsels for applicant and respondents granted the application for review and reviewed its order dated 26 November 2001 as follows: “It is hereby ordered that the contemnors herein purge themselves of the contempt of the court and the said undertaking is to be filed in court today.” The court further ordered thus:

“Bail is hereby granted to each of the contemnors David Odartey Obeney and Bismark Dodoo in the sum of ¢5 million with a surety each. It is ordered that the contemnors purge themselves of their contempt before 16 January 2002 and report to the court at that time.”

Pursuant to the order of the court dated 6 December 2001, the contemnors filed an undertaking in the court as follow:

“We the applicants do hereby this day 6 December 2001 give an undertaking to purge ourselves of the contempt by pulling down the structure to the point it was before we were injuncted in three weeks.”

On 18 December 2002 an application for review of the undertaking given by the contemnors following the first application for review, was filed on behalf of the contemnors by one Margaret N Achiampong, a solicitor who hitherto was unknown to the suit and had not taken any steps to get herself on the record by filing notice of change of solicitors. Subsequently, on 7 January 2002, notice of change of solicitor was filed by the said Mrs Achiampong who had now placed herself on the record as solicitor for the contemnors, the respondents herein.

When the application for review of the undertaking given by the contemnors came to be heard, two preliminary legal objections were raised by the counsel for the appellant herein who was counsel for the respondent at the court below. The preliminary objections were that: (i) the application was incompetent since no notice of change of solicitor was filed as at 18 December 2001; and (ii) that the undertaking given by the contemnors was in compliance with the order of review dated 6 December 2001 and by the provisions of the High Court (Civil Procedure) Rules, 1954 (LN 140A) no

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application to review a reviewed order is to be entertained. In spite of these preliminary legal objections, the court below went ahead and gave the following ruling which can be found in the record of proceedings:

“The contemnors herein gave an undertaking before the court to purge themselves of contempt by agreeing to demolish the structures on the land built in non-compliance with an order of injunction. They have now retained a solicitor who claim(s) that the undertaking should be reviewed by the court because the applicant does not own the land.”

The court proceeded further to say this:

“Preposterous as the argument proffered by counsel for the contemnors may seem the court should also consider that it is dealing with contemnors who are human beings and subject to all defects known to men; the quality of mercy is not strained but we also recognise that in the course of justice many of us will see solution(s); there are times when we must temper justice with mercy, because we are all human after all. I will impose a fine of ¢1 million on the contemnors herein and order that the matter be gone into by the court for a determination as to who owns the land in question and as to whether the contemnors have a right to deal with the land after all. I will order the parties to come to court and assert their claim of title to the land.”

From this ruling and order, the appellant has appealed to this court and has come suppliant before us to ask us to set the said ruling and order aside. In his notice of interlocutory appeal filed on 30 January 2002, he filed two grounds of appeal, namely: (1) that the review application filed on 18 December 2001 was incompetent since no notice of change of solicitor was filed as at that date; and (2) that the court erred in law in entertaining and granting an application to review an order made on a review. In this court, the appellant argued the said two grounds of appeal starting with the first ground. His submission on this ground was that the application to review the undertaking given by the contemnors was filed by a solicitor unknown to the matter and therefore the application was incompetent. The respondents’ answer to the submission of the

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appellant on this ground was that Order 70, r 1 of LN 140A covers the point raised by the appellant and by virtue of the said Order 70, r 1, the omission to file notice of change of solicitor at the time the application was filed but filed subsequently would not render the application incompetent.

Order 70, r of LN 140A provides that:

“1. Non-compliance 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 a 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.”

Order 7, r 2(1) of LN 140A which has to do with change of solicitors provides that:

“2. (1) A party suing or defending by a Solicitor shall be at liberty to change his solicitor in any case or matter, without an order for that purpose, but unless and until notice of any change of solicitor is filed and copies of the notice are lodged and served in accordance with paragraphs (2) to (5) inclusive of this rule, the former solicitor shall (subject to the provisions of rules 3 and 4 of this Order) be considered the solicitor of the party till the final conclusion of the cause or matter.”

The question that arises for determination by this court regarding ground (1) of the grounds of appeal is whether the failure or omission of the new solicitor for the contemnors to file a notice of change of solicitor at the time of the application but subsequently filing it is such a fundamental irregularity as to vitiate the application and the whole proceedings thereon or whether it was a mere irregularity curable by Order 70, r 1 of LN 140A.

It is my respectful view that although the failure or omission of the new solicitor for the contemnors to file notice for change of solicitor is irregular, it was not so fundamental as to vitiate the proceedings in the case. It was an irregularity of a nature amply catered for by Order 70 of LN 140A. Whether an irregularity is fundamental or not depends on all the circumstances of the case,

[p.212] of [2001-2002] 2 GLR 206 prejudice to the other party being an important consideration. In this case considering the irregularity complained of, the appellant did not suffer nor was the appellant likely to have suffered any prejudice by the omission or failure to file the said notice of change of solicitor. I would therefore dismiss the appeal regarding ground (1).

Ground (2) of the appeal is very crucial. Counsel for appellant argues forcefully that the court below erred in law in entertaining and granting an application to review an order made on a review. He submits that by Order 39, r 7 of LN 140A a review order cannot be reviewed. Counsel submits further that the effect of the application to review the undertaking given by the contemnors would be to review the order of the court which emanated from a review and the court below has no power to do that.

To these submissions, counsel for the respondents counter by submitting that the trial court acted within its jurisdiction to revise its order. Counsel for the respondents submits forcefully thus: “In conclusion, respectfully, my Lords, I humbly submit that the trial court indeed exercised (his) rightful jurisdiction in correcting its wrongful or voidable or void order on 26 November 2001 at page 82-83 of the record of appeal which was a revision of its earlier order based on the unpracticable, unreasonable and unconscionable “undertaking” given by the respondents under conditions which made the order voidable or void. Thus the said order being voidable the court merely exercised its power under its inherent jurisdiction to correct itself in debito justitiae to order the respondents to pay a fine of ¢1 million as punishment in lieu of purging their contempt by pulling down the building . . .”

I must say I find this submission by counsel for respondents bewildering and disingenuous. In my view Order 39, 7 of LN 140A is directly on the point. Rule 7 of Order 39 is explicit in what it says. It provides that: “No application to review an order made on an application for a review of a judgment or order passed or made on a review shall be entertained.” In other words, there can be only one time review and no more. The language of rule 7 of Order 39 of LN 140A admits of no ambiguity and is couched in peremptory terms. The court below therefore by Order 39, r 7 of LN 140A has

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no power to deal with any application for a review of an order made out of a review. This is clear and there can be no argument about this.

The evidence on record shows clearly that the undertaking given by the contemnors sprang from an order as a result of a review application brought by the contemnors’ former solicitor. The new solicitor apparently not happy with the undertaking the contemnors gave, applied on their behalf for another review. That is where the new solicitor went wrong, for Order 39, r 7 of LN 140A does not permit a review of an order made out of a review. It is for this reason that counsel for the appellant submits that the application to review the undertaking is incompetent and I am in entire agreement with him. The court below ought to have declined to entertain the said application because the language of Order 39, r 7 of LN 140A clearly shows that the court below has no power or jurisdiction to entertain the second review application filed by the new solicitor for the contemnors. If the court below has no jurisdiction to entertain the application, any order born out of entertaining the application is a nullity and cannot stand. In the case of Kwaframoah III v Sakrakyie II [1996-97] SCGLR 199, the Supreme Court held that if a tribunal adjudicates on a dispute over which it has no jurisdiction, its decision is a nullity and the party affected by it is entitled ex debito justitiate to have it set aside. I hold therefore that the order of the court below dated 16 January 2002 imposing a fine of ¢1 million on the contemnors herein is a complete nullity and ought to be set aside.

If the respondents felt aggrieved about the undertaking, what the new solicitor could have done was to have appealed against the order but not to go in for a further review. Or still if counsel for the respondents thought the undertaking was void as she repeats in her submissions, she could have brought an application to set aside the said undertaking under the Mosi v Bagyina [1963] 1 GLR 337, SC, principle but not to have brought a further application for review which is not permissible under Order 39, r 7 of LN 140A. In the circumstances and for the reasons I have canvassed I would allow the appeal and set aside the order of review dated 16 January 2002 given by the court below.

Adinyira JA. I agree with the conclusion reached by my brother [p.214] of [2001-2002] 2 GLR 206 that the appeal be allowed.

Owusu-Ansah JA. I also agree.

Appeal allowed.

M A-G