CA ex parte Aborah (Benin JA) 574

Republic v Bekwai Traditional

Council, ex parte Aborah

COURT OF APPEAL
LAMPTEY, FORSTER, BENIN, JJA
8 DECEMBER 1994
State proceedings – Certiorari – Application for leave – Application to be
made within six months or as prescribed by statute – Court may extend
time – Or 59 r 3, High Court (Civil Procedure) Rules 1954 (LN 140A).
State proceedings – Certiorari – Application for leave – Court granting
leave out of time – Respondent to apply to vacate order, not to appeal.
State proceedings – Certiorari – Application for leave – Application filed,
moved and granted on same day – Procedure irregular but not fatal -
Order 59 r 2(3), High Court (Civil Procedure) Rules 1954 (LN 140A).
State proceedings – Certiorari – Application for leave – Objection to
application to be raised timeously – Or 59 r 21, High Court (Civil
Procedure) Rules 1954 (LN 140A).
Contempt of court – Committal – Application – Whether respondent may
object to regularity of application.
The applicant and some members of the royal family filed a petition
in the Ashanti Regional House of Chiefs challenging the election the
7th respondent as chief and applied for certiorari to quash the
proceedings of the traditional council nominating and electing him.
The application was filed, granted, drawn up and signed on the
same day and restrained the respondents from installing the 7th
respondent. Upon service of the order on them the respondents
proceeded to install the 7th respondent. The applicant applied for
leave to commit them for contempt. The motion paper did not
indicate the rule under which the applicant had applied but the
respondents did not raise the point. Rather they pleaded guilty and
the 2nd to the 6th respondents were committed to prison for a
month each. They appealed to the Court of Appeal.
Counsel for the appellant-respondents argued on appeal that the
application for leave was filed out of time and in violation of Order
59 r 21. Counsel for the applicant-respondent submitted that once
the order restraining the installation emanated from a superior court
it ought to have been obeyed until set aside. Furthermore Order 59 r
575 Ghana Bar Reports [1994-95] GBR

1 precluded an order or rule nisi or summons to show in any

proceeding under Or 59.
CA ex parte Aborah 575

Held: (1) Under Order 59 r 3 leave could not be granted to apply for
certiorari unless the application was made not later than six months
after the date of the proceeding complained of or within such
shorter period as may be prescribed by enactment unless the court
extended time. The application was filed out of time. Eku alias
Condua III v Acquaah [1961] GLR 285, Danawi & Sons v Dako [1961]
GLR 72, SC, State v Asantehene’s Divisional Court B1, ex parte Kusada
[1963] 2 GLR 238, SC, Elliott v Thompson 33 LT 337, Republic v
National House of Chiefs, ex parte Faibil III [1984-86] 2 GLR 731, CA
referred to.
(2) Order 59 r 2(3) provided that an applicant for certiorari should
give notice of the application for leave to the registry not later than
the day preceding the application and lodge copies of the statement
and affidavit in the registry at the same time. Although the rule was
defaulted (as the application was heard on the day of filing) the
default did not nullify the proceedings. The rule was to enable the
registry process the application and afford the judge sufficient time
to study the application and prepare for the hearing. The judge had
the discretion to rule whether the default obstructed the hearing; the
respondent could also waive the default. Republic v Moffat, ex parte
Allotey [1971] 2 GLR 391 referred to.
(3) A party affected by an order made in violation of Order 59 rule
2(3) was entitled to apply to the court ex debito justitiae to vacate
the order but not to appeal. For it was in the interest of justice that
parties should exhaust available remedies at the trial before
embarking upon appeal. If the appellants believed that the order
granting leave was void they ought to have applied to the court to
vacate it in the first instance. State v Asantehene’s Divisional Court B1,
ex parte Kusada [1963] 2 GLR 238, SC, Republic v National House of
Chiefs, ex parte Faibil III [1984-86] 2 GLR 731, CA, Craig v Kanseen
[1948] 1 All ER 108, CA, Forfie v Seifah [1958] 1 All ER 289, PC, Mosi
v Bagyina [1963] 1 GLR 337, SC referred to.
(4) The application was made not under order 59 but under Order
44. Granting that it was made wrongfully under Order 59 the
respondent was entitled to have it set aside in the court below. No
party had a vested right in procedure. A party affected by a wrong
procedure ought to move the court timeously to set aside the
proceeding. Where such party participated in the proceeding to a
conclusion, such party would be deemed to have waived the
objection. The respondents ought to have applied under Order 70 r
2 to set aside the application when they were served, before taking a
576 Ghana Bar Reports [1994-95] GBR

fresh step by filing affidavits in opposition. Dake v Dorwu Practice

Note [1971] 2 GLR 75, Tetteyga II v Sappor [1973] 2 GLR 277, CA,
Shardey v Adamtey and Shardey v Martey (Consolidated) [1972] 2 GLR
380, CA referred to.
(5) A person in contempt of court could hardly complain of the
regularity of the proceeding for committal. The court would refuse
to hear a person guilty of contempt until the offence was purged.
Hadkinson v Hadkinson [1952] 2 All ER 567, CA, Chuck v Creamer 47
ER 820 referred to.
Cases referred to:
Chuck v Creamer (1846) 2 Ph 113, 1 Coop temp Cott 338, 47 ER 820, 16
LJCh 92, 8 LTOS 309.
Craig v Kanseen [1943] 1 All ER 108, [1943] 1 KB 256, 112 LJKB 228,
168 LT 38, CA.
Dake v Dorwu Practice Note [1971] 2 GLR 75.
Danawi & Sons v Dako [1961] GLR 72, SC.
Eku alias Condua III v Acquaah [1961] GLR 285.
Elliott v Thompson 33 LT 337.
Forfie (Kofi) v Seifah (Kwabena) [1958] 1 All ER 289, [1958] AC 59,
[1958] 2 WLR 52, PC.
Hadkinson v Hadkinson [1952] 2 All ER 567, [1952] P 285, [1952] 2 TLR
416, CA.
Mosi v Bagyina [1963] 1 GLR 337, SC.
Republic v Moffat, ex parte Allotey [1971] 2 GLR 399.
Republic v National House of Chiefs [1984-86] 2 GLR 731, CA.
Shardey v Adamtey, Shardey v Martey (Consolidated) [1972] 2 GLR 380,
CA.
State v Asantehene’s Divisional Court B1, ex parte Kusada [1963] 2 GLR
238, SC.
Tetteyga II v Sappor [1973] 2 GLR 277, CA.
APPEAL to the Court of Appeal against the committal of the
appellants in the High Court.
BENIN JA. This is an appeal from the judgment of the High Court,
Kumasi dated 31 May 1994 by which the 2nd, 3rd, 4th, 5th and 6th
appellants (hereinafter referred to simply as the “appellants”) were
each sentenced to a term of one month’s imprisonment for
contempt. The 2nd to the 6th appellants are said to be the
kingmakers of the Bekwai paramountcy and are all members of the
Bekwai Traditional Council, (hereinafter called the “council”). The
8th respondent who was also sentenced did not appeal. The
applicant-respondent (hereinafter simply called the “respondent”) is
CA ex parte Aborah 577

also said to be the head of family of the Bekwai royal stool.

The brief facts of this case will be recounted as follows: The
Bekwai paramount stool became vacant sometime in 1991. On 18
June 1992 a meeting of the council was convened to which the
respondent was invited; and according to the respondent, it was at
this meeting he got to know it had been summoned to elect a
candidate to occupy the vacant stool. In his capacity as the head of
the royal family and in the absence of a queenmother, it became his
lot to nominate a candidate to fill the vacancy. He called for a
postponement because he had not been notified of the agenda but
the council went ahead and elected the 7th respondent as the new
Omanhene.
CA ex parte Aborah (Bennin JA) 577

Certain matters that ensued after this are not relevant to re-call
here except that the respondent and some members of the royal
family filed a petition on 10 February 1993, in the Ashanti Regional
House of Chiefs challenging the validity of the 7th respondent’s
election. Notwithstanding the pendency of that petition, it was the
respondent’s contention that the appellants, inter alia, were bent on
installing the Omanhene-elect as Omanhene. The respondent
therefore instituted prerogative proceedings for an order of
certiorari to quash the decisions of the council taken on 18 June
1992. The application ex parte, with an accompanying statement and
affidavit was filed on 15 February 1993 at 9.10 a.m. was moved the
same day and granted the same day. The order was also drawn up
and signed that same day.
It is this part of the order which gave rise to the contempt
proceedings: “It is hereby ordered that the respondents are
restrained forthwith from installing the 7th respondent (Nana Kwasi
Kobi) as Bekwaihene until the final determination of this suit.” The
respondent, on 25 February 1993 came back to that very court with a
motion on notice praying for an order requiring the respondents to
show cause why each of them should not be committed to prison for
contempt. The reason being that notwithstanding the court’s
restraining order the alleged contemnors went ahead and installed
the 7th respondent as Omanhene after they had been served with
the order. After an initial opposition all the appellants pleaded
guilty to being in contempt of the court. This they did by affidavit
filed with the court. As if to avoid any doubt, the court put all of
them into the witness stand to confirm on oath that they actually
intended to plead guilty and they did just that. The court therefore
sentenced them.
They have appealed to this court on several grounds out of which
only two were argued namely:
“(i) That the grant of leave to apply for an order of certiorari and
the order itself be declared incompetent, null and void and be set
aside.

(ii) That the application by motion on notice to show cause why

each of them should not be committed to prison for contempt of
court be declared incompetent, null and void and be set aside.”
Arguing the first ground, counsel for the appellants made
references to Order 59 r 3 and Order 59 r 2(3) of the High Court
(Civil Procedure) Rules, 1954 LN 140A. In regard to Order 59 r 3
counsel for the appellants submitted that the order sought to be
578 Ghana Bar Reports [1994-95] GBR

quashed was taken about eight months within which an application

ought to have been brought; no extension of time was sought or
granted by the court. The court, counsel submitted, had no
jurisdiction and was thus incompetent to hear the application. In
respect of Order 59 r 2(3) counsel’s argument was that the
application was required to be filed at least a day prior to the
hearing but in this case it was filed, moved and granted the same
day. This was equally wrong. The appellants were thus entitled to
have the orders vacated as of right. He cited these cases in support:
State v Asantehene’s Divisional Court B1, ex parte Kusada [1963] 2 GLR
238, SC, Craig v Kanseen [1943] 1 All ER 108, CA.
Counsel for the respondent replied that the appellants could go to
the High Court to set aside its orders if they believed they were
illegally made in terms of lack of jurisdiction. Thus two issues have
to be resolved: (1) whether the court exercised its function or power
rightly in the sense that it had jurisdiction, (ii) if the court was
wrong, whether an application should in the first instance be made
to it to vacate its order(s), or whether the appeal is the appropriate
remedy.
Order 59 r 3 provides:
“Leave shall not be granted to apply for an order of certiorari to
remove any judgment, order, conviction or other proceeding for
the purpose of its being quashed, unless the application for leave
is made not later than six months after the date of the proceeding
or such shorter period as may be prescribed by any enactment;
and where the proceeding is subject to appeal and a time is
limited by law for the bringing of the appeal, the Court or Judge
may adjourn the application for leave until the appeal is
determined or the time for appealing has expired.”
Under this provision, a court is duty bound to reject an
application ex parte for certiorari which is made outside the period
prescribed by an enabling enactment and in the absence of any such
enactment after a period of six months.
On the other hand the court has discretion to extend the time in
appropriate cases. See the following cases: Eku alias Condua III v
Acquaah [1961] GLR 285, Danawi & Sons v Dako [1961] GLR 72, SC,
State v Asantehene’s Divisional Court B1, ex parte Kusada supra.
In this case there was no other enactment prescribing time, so the
six months period set under Order 59 r 3 would apply. And as
decided in Elliott v Thompson 33 LT 337 the six months would run
from the date of the order or decision sought to be quashed. In this
case the decisions complained of were taken on 18 June 1992 so six
CA ex parte Aborah (Bennin JA) 579

months expired on 18 December 1992. But it was not until 15

February 1993, that the application ex parte was filed, and without a
valid extension of time it was clearly filed out of time. In the ex parte
Kusada case supra, where the applicant did not comply with the
rules governing the granting of extension of time, the Supreme
Court held that the High Court should not have entertained the
application for the writ of certiorari. See also Republic v National
House of Chiefs, ex parte Faibill III [1984-86] 2 GLR 731, CA. It is my
view therefore that the court below erred when it granted leave on
the ex parte application for a writ of certiorari to quash a decision
taken over six months earlier without any extension of time granted.
Order 59 r 2(3) also reads:
“The applicant shall give notice of the application for leave not
later than the preceding day to the Registry and shall at the same
time lodge in the said Registry copies of the statement and
affidavit.”
Here again this rule was not complied with for the application
was fixed for hearing for that very day it was filed. But it seems to
me that this particular rule is there to give the registry sufficient
time to process the application and to the judge sufficient time to
receive and study the application and thus be prepared to meet the
argument to be made by one side only and to ensure that all
prerequisites are satisfied before deciding to grant it or not. In my
view therefore it is not a mandatory rule whose failure to comply
with will render proceedings nullity. It is for the judge to decide
that lack of sufficient notice has disabled him from hearing the
application. And the respondent can readily waive non-compliance
with this rule. Abban J was thus right when he held in the case of
the Republic v Moffat, ex parte Allotey [1971] 2 GLR 391 at 399 that
“non-compliance with the provisions of Order 59 r 2(3) is not a
defect which should render the proceedings void.” The court has
discretion under this rule whether to proceed in the face of short
notice. And in this case where a delay, even for a single day, would
destroy or stultify the very basis of the application, the court could
not be accused of indiscretion; it was a case where the judge
exercised his discretion properly in waiving the one-day’s notice
and hearing the application.
At this stage I shall deal with the effect of non-compliance with
Order 59 r 3. The authorities cited namely ex parte Kusada supra and
ex parte Faibil III supra both say the court should decline to entertain
an application where the prerequisite conditions have not been
satisfied. I should think that in such a situation the party affected
580 Ghana Bar Reports [1994-95] GBR

would be entitled to apply to the court which made the order to

vacate same. That is precisely what was decided in the case cited by
counsel for the appellants, namely Craig v Kanseen supra. The court
held that if an order was void the court was to vacate it under its
inherent jurisdiction and the person affected is entitled to it as of
right. No discretion arose. But the court went on to hold that an
appeal against such an order was otiose. In the case of Forfie v Seifah
[1958] 1 All ER 289, PC at 290 it was held that “a court had inherent
power to set aside a judgment which it had delivered without
jurisdiction” and in Mosi v Bagyina [1963] 1 GLR 337, the Supreme
Court held at page 347 that the power of the court or a judge to set
aside such judgment or order was derived from the inherent
jurisdiction of the court to set aside its own void orders and that
there was no time limit for the party affected by such a void order
or judgment to apply to set it aside. See also Halsbury’s Laws of
England, 3rd edition, Vol 30 pages 399-400, paragraph 740.
The position of the law then is that where a person complains of a
void order his immediate remedy does not lie in an appeal against
the order, but in an application to the court, which made the void
order to vacate it ex debito justitiae. It is in the interest of justice that
remedies available at the trial level should be fully exhausted before
appeals are resorted to. Thus if the appellants believe the order
granting leave for the writ of certiorari to issue was void they
should go to that court to vacate it in the first instance and for that
court to take a decision thereon, which in such circumstances, will
be a final decision before coming to this court on appeal from the
High Court’s decision or order.
The second ground of appeal also deals with a defect in
procedure. Counsel for the appellants referred to the application
which initiated the contempt proceedings. His submission was that,
that application was contrary to Order 59 r 1. He said the procedure
for contempt is set out under r 21 of Order 59. Counsel said the
leave granted under this application whereby appellants were found
guilty of contempt was totally void and should thus be vacated.
Counsel for the respondent submitted that however wrong the
court’s order might be it ought to be obeyed. Once an order has
issued from a superior court it must be obeyed until it has been set
aside. Order 59 r 1 provides:
“No order nisi, rule nisi or summons to show cause shall be made,
granted or issued in any proceedings to which this order relates.”
The application initiating the contempt proceedings was filed on
25 February 1993 and it reads in relevant parts as follows:
CA ex parte Aborah (Bennin JA) 581

“IN THE MATTER OF AN APPLICATION FOR

ATTACHMENT AND/OR COMMITTAL FOR CONTEMPT
THE REPUBLIC V THE BEKWAI TRADITIONAL COUNCIL
ETC
MOTION ON NOTICE
MOTION ON NOTICE on behalf of the applicant herein praying
for an order requiring the respondents to show cause why each of
them should not be committed to prison for contempt on the
grounds stated in the accompanying affidavit.”
I believe this objection could and should have been raised in the
court below before the appellants had taken any further step in the
matter. Counsel is here assuming or taking it for granted that the
application for contempt was made under Order 59. If that were so
then obviously the procedure should have been under r 21. But
having regard to the nature of the application (supported by an
affidavit only) it appears it was not made under order 59. An
application for leave for attachment for contempt can also be made
under Order 44 by motion supported by affidavit: see Dake v Dorwu
Practice Note (1971) 2 GLR 75, also Tetteyga II v Sappor [1973] 2 GLR
277, CA.
In the instant application no Order was cited on the motion paper
and counsel for the appellants also did not ask under what Order
the application had been brought to enable him raise any objection,
if need be. The application proceeded on the basis that it was
regular before the court. It has been held in Shardey v Adamtey and
Shardey v Martey (Consolidated) [1972] 2 GLR 380, CA that the citing
of rules of court in applications before the court was desirable, but
was not so indispensable that failure to do so would rock the very
foundation of the administration of justice.
When an application is made and the relevant rule is cited, it
enables the court to ascertain whether the application is properly
before it and also what powers it has under the rule. It is my view
that if the applicant fails to cite the relevant Order or rule in the
motion paper, the respondent should find out from him so as to
enable him raise any objection if the applicant has proceeded under
the wrong Order or rule. If he contests the application on the footing
that it is competent before the court he cannot be heard later to
complain unless there was no rule of procedure at all to govern the
application.
And granting that this application was made under Order 59 and
therefore the procedure adopted was wrong, yet it only entitled the
582 Ghana Bar Reports [1994-95] GBR

appellants to have the proceedings set aside for irregularity. No

party in any proceeding has any vested right in procedure, so the
party affected by a wrong procedure adopted must move the court,
in a reasonable time, to set aside the particular proceeding
complained of. If he does not and takes part in the proceedings to a
conclusion on merit, then he will be deemed to have waived his
right under Order 70 r 2. At any rate the appellant’s recourse was to
apply under Order 70 r 2 to set aside the motion paper and
supporting affidavit when they were served before filing the
affidavits in opposition, which was a fresh step within the meaning
of the rule.
Be that as it may a person in contempt of court can hardly
complain that the procedure used in bringing him before the court
to answer for his contempt was irregular. If he was clearly in
contempt of court the court could even refuse to hear him at all until
he has purged his contempt. The party will not be allowed to say: “I
am not in contempt of court because the procedure adopted in
bringing me before this court to purge my contempt was wrong.”
Thus in the case of Hadkinson v Hadkinson [1952] 2 All ER 567, CA it
was held at page 569 per Romer LJ that anyone who disobeys an
order of the court is in contempt and may be punished by committal
or attachment or otherwise that no application to the court by such a
person will be entertained until he has purged himself of his
contempt. The compulsive nature of a court order is illustrated by
the case of Chuck v Creamer 47 ER 820 where Lord Cottenham LC
said that “a party who knows of an order, whether null or valid,
regular or irregular, cannot be permitted to disobey it … it would be
most dangerous to hold that the suitors or their solicitors, could
themselves judge whether an order was null or valid - whether it
was regular or irregular….”
Thus apart from the fact that the application in its form and
content could well come under Order 44, and if so competent,
nevertheless the appellants having failed to object to it if they
considered same irregular under Order 59 and having contested it
on merits, would be deemed to have waived their right to object.
However if they believed the proceedings were void they could go
back to the court to vacate same under its inherent jurisdiction. For
these reasons I will dismiss the appeal.
LAMPTEY JA. I agree.
FORSTER JA. I also agree.
Application dismissed.
CA ex parte Aborah (Bennin JA) 583

S Kwami Tetteh, Legal Practitioner