The Republic vrs Sulemana and Another (H1/132/20094) [2004] GHACA 5 (16 July 2004);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
SITTING AT ACCRA ON THE 16TH DAY OF JULY,
2004.
H1/132/20094.
CORAM - ARYEETEY, J.A. (PRESIDING)
OSEI, J.A.
DOTSE, J.A.
THE REPUBLIC
VRS.
MOHAMMED SULEMANA ] … RESP/RESP
EX-PARTE NAZIRU WAZIRI ] … APPLICANT/APPELLANT
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J U D G M E N T
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DOTSE J.A. - On the 27th day of November, 2001 NASIRU WAZIRI, the Applicant in a contempt application filed an Appeal against the Judgment of the High Court, Accra presided over by Ebrasah, J, dated 29-10-2001 upon the following grounds:
(i) “That the learned Judge erred in law in ordering recovery of possession
of House No. B.518/24 Abeka, Accra in favour of the contemnor
without giving a hearing to the Applicant thereby violating the
Applicant’s constitutional rights.”
- That the Learned Judge lacked the jurisdiction to set aside the
decision of His Lordship Gbadegbe J.A. (sitting as an additional
Judge of the High Court) made on 27th July, 2000.
- That the Learned Judge misdirected himself in law on the nature and
import of the said decision made on 27th July 2000 which misdirection
led him to order recovery of possession in favour of the contemnor.
- That the decision of the learned Judge was obtained by fraudulent
misrepresentation of the contemnor/Respondent.
- That further grounds of Appeal may be filed upon receipt of the
Record of Proceedings.
For purposes of this Judgment, the Applicant/Appellant herein would be referred to as Appellant, whilst MOHAMMED SULEMANA, the Respondent to the contempt Application and this Appeal would also be referred to as the Respondent.
What then was the nature and purport of the orders and or Ruling that was delivered by Ebrisah J that has given rise to the instant appeal?
On page 85 of the appeal record is an entry to the following effect purporting to be proceedings of the 29th day of October, 2001 held before Ebrisah J at the High Court, Accra.
“Defendant/Applicant represented by Lawful Attorney
Salimatu Sulemana .
Mr. Abraham Ofori for Defendant/Applicant brings this
Motion Ex-Parte for Order of Possession to Applicant of
House No. B. 518/24, Abeka, Accra.
Counsel moves accordingly.
BY COURT:- Application to grant possession to Applicant herein
of House No. B. 518/24, Abeka, Accra, granted.”
(Sgd.) J.K. EBRISAH
JUSTICE OF THE HIGH COURT
For the purposes of the above order, all references to the Applicant should be taken as references to MOHAMMED SULEMANA, who was the Applicant in the Ex-Parte application.
It must also be noted that there is no defendant in the case under review and it must be taken as a mistake of fact and a mis-description.
This order or Ruling of 29-10-2001 appears to be very simple and would therefore admit of no complexity. But in the presentation of their Statements of Case, Learned Counsel for the parties, especially Counsel for the Respondent sought to introduce extraneous and irrelevant material into their submissions.
In order to have a clean slate, it is necessary to set out in some detail a brief historical
basis of this case. That way, it would be easy for he facts of the case and the conclusion.
that would be reached to be properly evaluated.
This case commenced in the High Court as a Contempt Application initiated by the Appellant against the Respondent in Misc. 1926/98. The Appellant alleged at the time that he purchased House No. B. 815/24 Abeka, from the owner one Mallam Issaka Sebine for ¢17,000,000.00 which he fully paid.
However all attempts by the Appellant to enjoy vacant possession of the said House met stiff resistance from the Respondent a son of the original owner, Mallam Issaka.
As a result, the Appellant initiated action at the erstwhile Community Tribunal, Osu against the Respondent herein for recovery of possession of House No. B. 815/245.
The Osu Community Tribunal entered judgment in favour of the Appellant against the Respondent and decreed possession of H/no. B. 815/24 Abeka, Accra and awarded ¢200,000.00 costs to the Appellant.
In this suit before the Osu Community Tribunal, the Appellant was the Plaintiff whilst the Defendant was the Defendant.
Several attempts were made by the Court Bailiffs and the Police to eject the Respondent but he would not budge.
As the Appellant felt threatened by the Respondents conduct as a Soldier, he initiated the contempt proceedings claiming the Respondent has flagrantly and contemptuously refused to obey the judgment of Osu Community Tribunal by refusing to handover the keys of the premises and vacate same.
After series of adjournments, at the instance of the Respondent to enable him settle the case with the Appellant, Gbadegbe J.A. sitting as an additional Judge of the High Court on 27-7-2000 delivered the following Ruling on the contempt application that was pending before him to the following effect:-
“I think that it is important that orders made by the Courts are
seen to be effective in order to enhance public confidence in
the administration of Justice. Since the applicant has been
unable to pay up the value of the property in terms of the purchase
price and the accrued interest thereon for about a year now, I thereby
direct that he be removed from the property with the assistance of the
Police as well as his Commanding Officer C.O. of 64 Battalion Burma
Camp, Accra.
According to the Chief Registrar is by this order empowered to liaise
with the said authorities in carrying out the execution of the Judgment
of the Community Tribunal the execution of which has been obstructed
and or resisted by the Respondent (Contemnor) and provoking the
application herein.
I will in the circumstances of this case make no order but caution and,
discharge the Respondent.” (emphasis mine).
It should be clear therefore that, the earlier reference to the applicant should have read Respondent in order to make sense and “according” should also read accordingly to be meaningful.
It must further be noted that this order of 27-7-2000 was consequent upon an earlier order given by the High Court similarly constituted on 29-7-99 wherein the court held as follows:-
“There can be no question from the said circumstances that his
conduct is one of contempt of court and it seeks to bring the
authority of the court into ridicule by tending to create the impression
that orders of the court made in actions between parties may be
resisted without any remedy and or the court asserting its authority….
…………Accordingly, the Respondent is convicted for the said
contempt. In the circumstances I will adjourn to 28-10-99 in order
to consider the sentence to be passed.” (Emphasis mine).
This explains why there were several adjournments until the orders of 27-7-2000 were made already referred to supra.
From the appeal record, it appears that the Respondent did not appeal against the orders of the High Court made on either 29-7-99 or 27-7-2000.
Instead, he took certain steps to have the judgment or orders set aside. The first of such steps which was taken on 14-8-01 was set aside by Ebrisah J on 6-9-01.
However, on 27-9-2001 Ebrisah J had the following entries to indicate the proceedings of the 27-9-01.
“Applicants Attorney present.
Mr. Abraham Ofori Kuragu for the Applicant brings this Motion
on Notice for an Order setting aside the Orders/Judgment
confirming the Orders of Osu Public Tribunal.
Counsel moves accordingly.
By Court - Motion granted. The Order/Judgment of the High
Court confirming the Orders of Osu Public Tribunal is hereby set
aside. (emphasis mine).
It is difficult to comprehend which of the orders of the High Court that Ebrisah J purported to set aside. This is so because none of the Judgments/Orders sought to confirm the Judgment of the Osu Community Tribunal.
What must be noted is that, the Judgment of the Osu Community Tribunal, like that of the High Court had not been appealed against.
The case that came before the High Court was an application for contempt of court based upon the Judgment of the Osu Community Tribunal.
It is clearly therefore a misconception to state that the Judgment/Order of the High Court confirmed the decision of the Osu Public Tribunal. This is clearly erroneous and the court was therefore in error.
It must be clearly noted that the only process by which a validly obtained Judgment of the lower courts, i.e. Osu Community Tribunal can be set aside is either by an appeal to the High Court or by process known as Certiorari whereby the said Judgment can be quashed.
Not having embarked upon any of these processes, it is clearly wrong for Learned High
Court Judge to state that the Judgment/Orders confirming the Osu Community Tribunal is hereby set aside.
Basing himself on such an erroneous impression that the Osu Community Tribunal Judgment had been set aside, the Respondent herein an 25-10-2001 filed what is purportedly headed
“This Honourable Court will be moved by Counsel for and on
behalf of the Applicant herein praying for an Order of Possession to Applicant of House No. B. 518/24 Abeka Accra,
upon the grounds contained in the accompanied affidavit and
for any further Order as to this Honourable Court may seem fit.”
The affidavit of the Respondent, herein, therein described as the Applicant really exposed him and his team of legal advisers as not having understood the nature of the proceedings that terminated with the contempt proceedings.
It is surprising how a trained person in the law would substitute a contempt application founded upon a Community Tribunal Judgment as confirmation by the High Court of the Community Tribunal Judgment. This is not only preposterous but also erroneous and shows a complete lack of understanding of Civil Procedure in the courts in Ghana as by law established.
In order to have a full grase of the mind set of the Respondent herein and his legal adviser, it is necessary to set out in extenso certain averments in the affidavit in support of this Motion Ex-Parte for Possession as follows:-
- “That the Respondent was granted recovery of Possession due to
the Applicants inability to pay back the entire purchase price on time.”
- “That the Applicant was cited for contempt by the High Court for
failure to give up possession as per the Tribunal Judgment.”
- “That the High Court confirmed the Judgment of the Tribunal.”
- “That the High Court presided over by His Lordship Mr. Justice
J.K. Ebrisah on 27th September 2001 set aside the Orders/Judgment of the High Court presided over by His Lordship Gbadegbe J.A. sitting on an (sic)
Additional High Court Judge which confirmed the earlier Judgment of the
Osu Tribunal (Exhibit).
(14) “That I am advised and believe same to be true that in view of the
fact that the Order/Judgment of the Osu Tribunal which was later
confirmed by the High Court, has now been set aside, every action
taken or purported to have been taken pursuant to the said Judgment
has literally no feet to stand upon, and is therefore void and it would
be proper for this Honourable Court to give back possession to the
Applicant.”
The above were the averments which convinced Ebrisah J presiding over an Accra High Court to grant possession of H/No. B.518/24 Abeka to the Respondent.
It must be noted that, the averments contained in the affidavit in support of the Ex-Parte application contains some factual statements, and also false, misleading and downright misconceptions.
For example, it is a statement of fact that the Osu Community Tribunal granted recovery of possession to the Appellant herein in respect of H/No. B. 518/24 Abeka.
Secondly, it is also a statement of fact that the Respondent herein was cited for contempt by the High court, presided over by Gbadegbe J.A. sitting as an additional Judge of the High court for failure to comply with the Judgment of the Osu Community Tribunal to wit, give up possession of the House No. B. 518/24 Abeka, Accra.
Thirdly, it must be clearly understood that, since it was not an appeal case that was pending before Gbadegbe J.A. at the High Court, he could not and did not confirm the Judgment of the Osu Community Tribunal.
As was earlier stated, it was a contempt application. However, it must be noted that before a High Court can commit a Respondent for contempt, it must be satisfied about the validity of the Judgment of the lower court sought to be enforced.
In this instance, the validity and inviolability of the Judgment of the Osu Community Tribunal, delivered in this case between the parties dated 11-5-98 is not in doubt.
To the extent that it is sought to create the impression that Gbadegbe J.A.’s Judgment or Ruling in the High Court case of contempt was an order which confirmed the Judgment of the Osu Community Tribunal, is not only wrong and erroneous but a misconception for that matter.
Fourthly, it is a fact that Ebrisah J., purported to set aside the order of Gbadegbe J.A. sitting as an additional High Court Judge.
It must however be noted that, and this has already been pointed out by me, the order of Ebrisah J. himself is so confusing that it is really very difficult to comprehend what Order/Judgment he was setting aside.
As a matter of fact, the contents of Ebrisah J’s orders of 27-9-2001 admit of several complexities and ambiguities. This is what he said:
“Motion granted. The Order/Judgment of the High Court
confirming the orders of Osu Public Tribunal is hereby set
aside. Registrar to draw up the order” reference page 84 of the record.
Since Gbadegbe J.A., in essence did not give any Order/Judgment seeking to confirm a Judgment of the Osu Community Tribunal the orders of Ebrasah J. are meaningless.
Besides, it has already been pointed out that Gbadegbe J.A. made several orders notably on 27-7-99 and 27-7-2000 respectively. Exactly which of these orders has been set aside is also not clear. However, it is certain from the motion paper filed on 31-7-2001 by the Respondent herein on page 46 of the appeal record that the order of Gbadegbe J.A. which was to be set aside is the one dated 27-7-2000 and not the earlier one dated 27-7-99 which actually convicted the Respondent of the contempt.
Even assuming without admitting that Ebrisah J’s orders of 27-9-2001 have had the effect of setting aside the orders of Gbadegbe J.A. dated 27-7-99 and on 27-7-2000 respectively, it must be noted without any shadow of doubt that a High Court, presiding over a contempt application in respect of a Judgment of a lower court, does not sit as an Appellate Court over the decision or orders of the lower court.
In any such case, the sanctity or otherwise of the validity of the lower court judgment remains solid and valid. In the instant case therefore, it must be noted that, the judgment of the Osu Community Tribunal remains valid for all times until set aside on appeal or in the exercise of the supervisory jurisdiction of the court. Since that is not the case or situation here, it must be noted that the judgment of the Osu Community Tribunal
which granted recovery of possession to the Appellant herein is valid.
Finally, it must be noted that the averments in paragraph 14 of the affidavit in support of the Ex-Parte motion for possession really exposed the Respondent as not having appreciated the nature of the civil procedure involved. I state without any hesitation whatsoever that, it is not only erroneous but a complete fallacy to hold that having purportedly set aside the orders of a High Court, then it follows that the decision of the Osu Community Tribunal has also been set aside. This is absolutely wrong and there is no need to spend time on such a wrong proposition of law.
Having considered all the grounds of appeal it as my view that these grounds can be summed up succinctly as follows:-
“Whether the procedure used in granting possession of H/No. B. 518/24 Abeka, Accra
by the order of Ebrasah J, dated 29-10-01 is proper having
regard to the facts and law of the case.”
It is the view of this court, that since the decision of the Osu Community Tribunal was still valid and subsisting the method adopted by the Respondent to apply ex-parte for possession is not warranted by the rules of court.
As a matter of fact, it is desirable if not mandatory for parties to specify the rules of the High Court or indeed of any other court under which they initiate proceedings to clearly state the rules. 0If this had been done, it would have been very clear which of the rules of the High Court that the Respondent had invoked in the ex-parte application.
Be that as it may, it is Order 47 of the High Court Rules, 1954 LN 140 A that deals with Writ of Possession.
Order 47 rule (1) 1 provides as follows:-
“A Judgment or Order that a party do recover possession
of any land may by leave obtained on an ex-parte application
to the court or a Judge supported by affidavit be enforced by writ
possession.”
Rule (1)(2)
“Such leave shall not be given unless it is shown that all persons
in actual possession of the whole or any part of the land have
received such notice of the proceeding as may be considered
sufficient to enable them apply to the court for relief or otherwise.”
Since the ex-parte application was applied for and granted by the High Court, it meant that it could only have been granted under Order 47.
From the rules in Order 47 as has been referred to supra, it is clear that the following conditions must be fulfilled before an Application can succeed under the said rules. These are:
- There must be a subsisting Judgment of the court.
- Such a Judgment must decree recovery of possession of land in the Applicant.
- The Application must be an ex-parte one supported by affidavit.
- All persons in actual possession of the land must be ascertained to have had notice of the proceedings that gave rise to the Judgment.
In the instant appeal, there is no indication and or proof that any Judgment has been given in favour of the Respondent herein. Indeed, there is no such Judgment and there can be no such Judgment.
Secondly, there is no order of any sort that has decreed recovery of possession in favour of the Respondent.
As I have stated earlier, assuming Ebrisah J’s orders had the force of setting aside the orders of Gbadegbe J.A., convicting the Respondent of contempt, the potency and force of the Judgment of the Osu Community Tribunal is still valid and subsisting.
It must be noted that in all cases where a party applies for writ of possession based upon an ex-parte application in the High Court, such an application could only have been premised under Order 47.
Furthermore, it is clear that where there is no valid and subsisting Judgment of the High Court decreeing recovery of possession in the Applicant in the application, then under Order 47, the High Court should not grant the application. There is therefore no conceivable reason why the High Court, Accra presided over by Ebrisah J should have granted the application for writ of possession.
In the circumstances, I declare the grant of possession by the Learned High Court Judge as arbitrary, contrary to the rules of procedure and clearly unwarranted.
However, before I conclude this Judgment let me deal with some peripheral matters that had been introduced by Learned Counsel for the Respondent. These are the issues concerning jurisdiction and whether the instant appeal is one that has the capacity to declare as null and void the Judgment of the Osu Community Tribunal.
I have already held that the orders of Ebrisah J, if they have any force or potency at all cannot affect the validity of the Judgment of the Community Tribunal, Osu.
This will therefore leave me with the issue of jurisdiction that was raised by Learned Counsel for the Respondent.
In order to appreciate the analysis of this issue of jurisdiction, it is crucial to refer to the reliefs the Appellant claimed before the Osu Community Tribunal.
On page 9 of the appeal record, the nature of the Appellant’s claim is stated as follows:-
“Plaintiff claims against Defendant recovery of possession of
H/No. B. 518/24, Abeka – Accra.”
In the accompanying Statement of claim on page 10 of the appeal record, there is no iota of truth in the submissions of Learned Counsel for the Respondent that the value of the disputed house far exceeds the jurisdiction of the Osu Community Tribunal. There was no question of value of the property that had been put into issue before the Osu Community Tribunal.
Even though the jurisdiction of the Community Tribunal has been stated in Section 47(1)(e) of Courts Act, 1993, Act 459, to be not more than value’s of ¢5,000,000.00 (Five Million Cedis) before the Courts Amendment Act, 2002, Act 620 was passed increasing the jurisdiction to ¢50,000,000.00, the nature of the relief before the Osu Community Tribunal actually confers jurisdiction on the said Community Tribunal.
Besides, this issue of jurisdiction has not been properly raised in this appeal since there is no evidence on the matter whatsoever.
I therefore dismiss the submissions on this matter of jurisdiction since the decided cases referred to by counsel for the Respondent do not apply.
The result is that, the appeal filed herein against the decision and or judgment of Ebrisah J, dated 29-10-2001 as appears on the Notice of Appeal filed on 27-11-01 is accordingly allowed. The judgment of the High Court dated 29-10-2001 is accordingly set aside.
J. DOTSE
JUSTICE OF APPEAL
I agree. B.T. ARYEETEY
JUSTICE OF APPEAL
I also agree. J. A. OSEI
JUSTICE OF APPEAL
