IN THE SUPERIOR COURT OF JUDICATURE

THE SUPREME COURT

ACCRA
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CORAM: ATUGUBA, J.S.C. (PRESIDING)

DR. DATE-BAH, J.S.C.
ANSAH, J.S.C.
ADINYIRA (MRS), J.S.C.
S. K. ASIAMAH, J.S.C.

CIVIL MOTION
NO. J8/13/2008

5TH MARCH, 2008

THE REPUBLIC

VS.

DR. KWAME DUFFOUR

EX-PARTE: NICHOLAS EDWARD ASARE
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RULING

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ATUGUBA, J.S.C.:

This is an application for committal, for contempt of this court, allegedly committed by
the respondent, Dr. Kwame Duffour. The grounds for the application are mainly
contained in paragraphs 2, 4 and 5 of the applicant’s supporting affidavit. They are as
follows:

“2. That on 7th June 2006, this Honourable Court gave a unanimous judgment
in Civil Appeal, No. J4/25/2005 entitled:

Nicholas Bernard Asare - Plaintiff/Applicant/Respondent

Vrs
1. Dupaul Wood Treatment Co. (Ghana) Ltd
2. Dr. Kwame Duffour - Defendants/Respondents/Applicants

3. X X X

4. That in its said judgment (page 26) this Court, after a very careful and
exhaustive examination of the evidence made 3 declarations, namely:

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 1. a declaration that the respondent is a shareholder and a member of
the first appellant and holds 50% of its issued share capital;

2. a declaration that the new regulations adopted on 1st May 1980

were never registered with the Registrar General’s Department
and are therefore void and of no effect;

3. a declaration that the purported removal of the respondent as a

director was unlawful and so void.

5. That this Honourable Court further confirmed two (2) other orders made
by the Court of Appeal i.e.

1. “That the applicant’s name be entered in the Register of Members of

the first Respondent Company (ie. The Appellant company before this
court) pursuant to section 35 of the Companies Code 1963 (Act 179).

2. That the Applicant be paid all the directors’ fees and allowances which
were discontinued as a result of his purported removal as a director of
the company”.

There is no doubt that this court has power to commit for contempt to itself. That
is a power possessed at common law by a superior court, see Asumadu-Sakyi II v. Owusu
(1981) GLR 398 C.A. That power ahs been retained by article 126(2) of the 1992
Constitution which provides as follows:-

“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”.

The question that arises on this application is whether this court has jurisdiction to
entertain the same.

The Declaratory Reliefs.

First the declaratory reliefs. Declaratory orders declare the rights of the parties
but do not order anything to be done by them. They are therefore not enforceable. It has
been held by this court that where the declarations are made by a customary tribunal they
are enforceable inasmuch as at customary law decisions are rendered in declaratory
terms. This would have required closer scrutiny, but is in this case nihil ad rem
(irrelevant) since the declarations in this case did not emanate from a customary tribunal.
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It has been held in Dzotepe v. Hahormene III (1984-86) 1 GLR 289 C.A. that unless an
order for recovery of possession of land has been granted by a court that remedy is not
open to a successful party in a land suit. Indeed in Conca Engineering v. Moses (1984-
86) 2 GLR 319 C.A. the remedy of recovery of possession was denied a plaintiff, who
succeeded in his claim for declaration of title, because his counsel were indolent in not
seeking that relief. The court left him as to a subsequent action for that relief. All this
would not have been so if declarations were enforceable reliefs. See Republic v. High
Court, Accra; Ex parte Laryea Mensah (1998-99) SCGLR 160. That is not to say that a
person cannot be guilty of contempt in all circumstances which do not involve an
enforceable relief. Atuguba, J.S.C. adverted to this in In re Effiduase Stool Affairs (No.
2); Republic v. Numapau, President of National House of Chiefs, Ex parte Ameyaw II
(No. 2) (1998-99) SCGLR 639 at 673. We may give an example, if a person were to say
of a declaratory judgment that it has been made by a stupid or useless judge or court, this
could be contempt of scandalizing the court see Republic v. Mensah Bonsu and Ors; Ex
parte Attorney-General (1995-96) 1 GLR 377 S.C.

The application in this case charges disobedience to the judgment of this court.
Thus in paragraph 13 of the applicant’s supporting affidavit he deposes as follows:- “13.
That almost 18 months have elapsed since this Honourable Court gave its judgment of 7 th
June, 2006 but the respondent has not complied with any part of that judgment.” e.s.
But the applicant himself admits in respect of the question of enforceability of
declaratory reliefs in paragraph 14 of his supporting affidavit, thus “14. That I am advised
by counsel and verily believe the same to be true that the two orders made by the Court of
Appeal and confirmed by this Honourable court, not being declarations, are executable”.
We therefore hold that in so far as this application relates to disobedience to merely
declaratory reliefs no contempt is made out. There is also the charge of contempt with
regard to the institution of a fresh suit in the High Court, claiming substantially the same
reliefs on the same facts as were determined by this court on the 7 th day of June, 2006.
We have anxiously considered the same.

The applicant aforesaid, contends in respect of this step by the respondent, that it
is a design to belittle the authority of this court. In In re Effiduase Stool Affairs (No. 2),
Republic v. Numapau, President of the National House of Chiefs and Ors; Ex parte

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Ameyaw II (No. 2) (1998-99) SCGLR 639 at 667-668 Acquah, J.S.C. (as he then was)
held in respect of the entertainment of a petition to the research committee of the
National House of Chiefs, as follows: “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 same aside. Contempt does not arise in such
circumstances. Otherwise, whenever a body entertains a matter which had previously
been determined by a competent judicial authority, that body would be held to be in
contempt of that judicial authority. But this is not the legal position. The doctrines of
per incuriam and res judicata are meant to protect previous binding decisions of courts.
It follows that the staff of the research committee who were present and are cited as the
thirteenth, fourteenth and fifteenth respondents can, by no stretch of imagination, be
equally held liable in contempt”. Upon reflection we accept this legal position. After all,
it is trite law that the parties to a case can choose to do what they like with a judgment by
agreement between them, see Okantey v. Kwaddey (1975) 1 GLR 193 C.A. and Ansah-
Ado v. Addo (1972) 2 GLR 400 C.A. We therefore also dismiss this charge of contempt.

Contempt jurisdiction in respect of orders confirmed on appeal.

The other sets of reliefs, though enforceable,, were not orders of this court but
orders of the Court of Appeal which were merely confirmed by this court. It has
sometimes been held in this court that such confirmed orders are enforceable by the
confirming court. We think that, with the greatest respect, the better view is that such
confirmed orders remain the orders of the court that made them and are to be enforced by
the latter, see MOSI v. BAGYINA (1963) 1 GLR 337 S.C. Indeed the nature of an
appeal lends support to this view. An appeal is a plea to a higher court to correct the
decision of a lower court which is contended to be wrong, see A/S Norway Cement
Export Ltd v. Addison (1974) 2 GLR 177 C.A. (Full Bench). If therefore the appellate
court does not interfere with the decision below one would have thought that the decision
in question remains wholly that of the lower court. This is fortified by the principle that
if a lower court’s judgment is confirmed on appeal the judgment of the lower court is
effective as from the date it was given by such lower court, see in re a Debtor (1953) 1
WLR 1050. There is further fortification for this view in the several decisions of this
court that where an appellate court dismisses an appeal without making any executable

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orders by itself there cannot be an application for stay of execution pending an appeal
from such a judgment. See Mensah v. Ghana Football Association (1989-90) 1GLR 1
S.C., NIB Landmark Ltd. v. Lakiani (2001-2002) SCGLR 318.

There are isolated decisions and dicta of this court tending to the contrary, but
with the greatest respect, there is a heavy body of authorities in support of the view that
orders which have been merely confirmed on appeal cannot be the subject of an
application for stay of execution pending an appeal from such judgments.

In In Re Effiduase Stool Affairs (No. 2) Republic v. Numapau, President of the

National House of Chiefs, Ex parte Ameyaw II (No. 2) (1998-99) SCGLR 639 Acquah,
J.S.C. (as he then was) impliedly held that contempt of a High Court order is punishable
in this court, whereas a contempt of orders of the traditional councils and Houses of
Chiefs is punishable only by the High Court by virtue of section 36(7) of the Chieftaincy
Act, 1971 (Act 370) and regulation 13(5) of the Chieftaincy (Proceedings and Functions)
(Traditional Councils) Regulations, 1972 (L.I. 798). With the greatest respect, we do not
agree with the first part of this holding.

However if the basis for the same is statutory, then it would be article 126(2) of
the 1992 Constitution, which has been set out supra.

It will be seen that this provision confers the powers to commit for contempt on
the superior courts severally and not jointly and severally.

In any case if under this provision this court has jurisdiction to punish for
contempt of the High Court, it is difficult to see why it should not have jurisdiction over
contempt in respect of the Chieftaincy tribunals merely because ordinary legislation in
the Chieftaincy Act 1971 (Act 370) or the Regulations, 1972,, (L.I. 798) gives
jurisdiction in such matters only to the High Court.

Charles Hayfron-Benjamin and Ampiah JJ.S.C. in the Numapau case supra, relied
on articles 126(2) and 129(4) to hold that this court has jurisdiction over contempt cases
emanating from the High Court and the Chieftaincy tribunals, inter alia. With the

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greatest respect we have already dealt with article 126(2) supra. We would however add
that contempt from inferior courts generally could be dealt with by the High Court which
has always been a superior court of general jurisdiction and therefore also possesses that
power by virtue of the second part of article 126(2), namely, “…. and all such powers as
were vested in a court of record immediately before the coming into force of this
Constitution”. e.s.

Even if it is said that the superior courts held their powers of dealing with
contempt of court jointly as one superior court of judicature, that cannot now be so since
under the 1992 Constitution the superior courts being separate courts cannot hold any
powers jointly as one superior court of judicature. The superior courts of record under
the 1992 Constitution can however continue under the second part of article 126(2) to
have such powers, which vested in a superior court immediately before it came into force
as the inherent jurisdiction to correct accidental slips in its judgments or orders or to
clarify the same, etc. Such powers inhere in any superior court qua superior court and do
not depend upon any joint tenure.
With regard to article 129(4) it provides thus: “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”. It is
plain that this provision confers the powers, authority and jurisdiction of other courts in
aid of the exercise of this court’s own jurisdiction with regard to any matter. As
explained by Atuguba, J.S.C. in Edusel (No. 2) v. Attorney-General (1998-1999) SCGLR
753 at 798-799, article 129(4) is auxiliary to the Supreme Court but is not the fons et
origo of jurisdiction over a matter over which it otherwise has no jurisdiction. To take
one or two examples, in the exercise of its supervisory or appellate jurisdiction over a
case concerning chieftaincy maters, this court may, particularly with regard to appeals,
deem it necessary to make consequential orders concerning chieftaincy matters which it
would otherwise not have jurisdiction to make. But this provision cannot by itself clothe
this court with original jurisdiction over chieftaincy matters.

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 In any event the settled Practice Direction of this court, see (1981) GLR 1, would
disentitle the applicant from coming to this court first without prior resort to the Court of
Appeal whose orders this court affirmed, even if this court had concurrent jurisdiction
(which we deny), over this part of the application.

We need not say anything that would tend to prejudice any subsequent application
to the appropriate court, as far as the second part of this application is concerned.

For all the foregoing reasons we dismiss this application.

W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT

DR. S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT

J. ANSAH
JUSTICE OF THE SUPREME COURT

S. O. B. ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT

S. K. ASIAMAH
JUSTICE OF THE SUPREME COURT

COUNSEL:
Mr. Kwame Gyan for Applicant
Thadeus Sory for Respondent.

gso*