REPUBLIC vs. DISTRICT COURT GRADE I, DUNKWA-ON-OFFIN; EX PARTE OWUSU [1988]DLHC2300

Date	1988-01-22
Suit No.
Citation No.	[1988]DLHC2300

KPEGAH J.

ODRO FOR THE APPLICANT.

ASIAM FOR THE RESPONDENT.

[1988]DLHC2300
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC<o:p></o:p>vs.<o:p></o:p>DISTRICT
COURT GRADE I, DUNKWA-ON-OFFIN; EX PARTE OWUSU<o:p></o:p>[HIGH
COURT, CAPE COAST]<o:p></o:p>[1991] 1
GLR 136<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 22 JANUARY 1988<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ODRO FOR
THE APPLICANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

ASIAM FOR
THE RESPONDENT. <o:p></o:p>

</div>JUDGMENT
OF KPEGAH J.<o:p></o:p>This
application raises the issue whether an inferior court can commit a person for
contempt committed ex facie curiae. The applicant was alleged to have violated
an order embodied in a judgment of the district court in a land case which was
before the said court. The adversary of the applicant then brought a motion in
the district court seeking to have the applicant committed for contempt of the
district court in not obeying its express orders. The magistrate demonstrated a
determination to proceed with his investigations into the allegations of
contempt. The applicant, therefore, brought an application for an order of
prohibition against the said court on grounds of lack of jurisdiction. Mr Asiam
who appears for the interested party, that is the applicant before the district
court in the contempt proceedings, honourably conceded the point. There was no
appearance for the magistrate by the Attorney-General. Although the point was
conceded, I decided to give a ruling since such assumptions of jurisdiction by
some of the inferior courts, especially district courts, grade II, are not
uncommon but rather on the ascendancy.<o:p></o:p>The case
for jurisdiction is stated in the case of Peacock v. Bell and Kendal (1667) 1
Wms. Saund. 73 at 74-75 thus:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“And the
rule for jurisdiction is that nothing shall be intended to be out of the
jurisdiction of a Superior Court, but that which specially appears to be so;
and, on the contrary, nothing shall be intended to be within the jurisdiction
of an Inferior Court but that which is so expressly alleged.”<o:p></o:p>In the
West African Court of Appeal case of Timitimi v. Amabebe (1953) 14 W.A.C.A. 374
at 376, Coussey J.A. also stated the rule as to jurisdiction as follows: <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“ . . .
want of jurisdiction is not to be presumed as to a Court of superior
jurisdiction; nothing is out of its jurisdiction but that which specially
appears to be so. On the other hand an inferior Court . . . is not presumed to
have any jurisdiction but that which is expressly provided.”<o:p></o:p>See also
the case of Akyem v. Adu; Adu v. Brantuo (Consolidated) [1976] 2 G.L.R. 63,
C.A. It is generally accepted that every superior court of record possesses
inherent jurisdiction to prevent contempt of its proceedings, and exercise
censorial power over its officers. In this regards, there is no distinction as to
contempt in facie curiae or ex facie curiae. But when it comes to inferior
courts of record, their jurisdiction to summarily commit for contempt is
limited to only those contempts committed in facie curiae. In the case of
Republic v. Kpeve District Magistrate Grade II; Ex parte Agbozo, High Court,
Ho, 21 July 1970; digested in (1970) C.C. 102, it was held that inferior courts
have no inherent powers but derive their jurisdiction from powers conferred on
them by statute. And that, there is no power conferred on a magistrate to
enable him deal with contempt ex facie curiae.<o:p></o:p>Perhaps
the best known exposition of the law is to be found in the case of Re, A County
Court Judge; Ex parte Jolliffe, (1873) 28 L.T. 132. This was a case in which
the county judge summoned the applicant to answer for contempt of court in
writing to the local newspaper a letter which contained reflections upon the
judge’s conduct in a case judicially before him. The applicant then brought an
application for prohibition against the county judge. This case is akin to, if
not on all four with, the instant one in the sense that both applications
involved the consideration of the power to commit for contempt ex facie curiae.
This is what Cockburn C.J. said in the Jolliffe case (supra) at 133:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“We are
all of the opinion that there must be a prohibition, because a County Court
judge has no authority to punish a person for contempt not committed in the
face of the court. It is true it is laid down by high authorities that every
court of record has power to fine and imprison for contempt committed in the
face of the court while the court is sitting in the administration of justice.
Such a power is obviously necessary for the conduct of public justice and
administration of the law, which may otherwise be interrupted or obstructed
unless there is power to repress such outrages. But it is a very different
thing to say that a court shall have power to fine and imprison for contempts
not committed in the face of the court, and not amounting to an actual obstruction
of its proceedings... The power of committing for contempts committed in the
face of the court is given to inferior courts, but they had not power so to
punish contempts committed out of court. There is </main>