<p class="mb-5" id="contentDlCitation" hidden>[1992]DLSC4283</p> <div class="restriction-wrapper"> <div class="container-lg"> <div class="row"> <div class="col-md-12 restricted-content"> <div class="restricted-content-img-wrapper"> <div class="lock-icon bounce-7"> <img class="" src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png" alt="Subscription based content"> </div> </div> <a href="https://www.dennislawgh.com/login" class="btn btn-primary btn-lg" style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> Login to Read Full Case </a> </div> </div> </div> </div> <main id="main" class="content" style="min-height: 60rem" ><span style="font-size: 18px !important;"><p class="MsoNormal" align="center" style="text-align:center;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif";color:#00B0F0">REPUBLIC<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="text-align:center;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif";color:#00B0F0">vs.<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="text-align:center;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif";color:#00B0F0">HIGH COURT, ACCRA, EX PARTE ASAKUM ENGINEERING & CONSTRUCTION LTD AND OTHERS<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="text-align:center;line-height:115%"><span style="font-size:10.0pt;line-height:115%;font-family:"Book Antiqua","serif"">[SUPREME COURT, ACCRA]<o:p></o:p></span></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="text-align:right;line-height:115%; border:none;mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in; mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-size:10.0pt;line-height: 115%;font-family:"Book Antiqua","serif"">DATE: 1 DECEMBER 1992<o:p></o:p></span></p> </div><p class="MsoNormal" style="text-align:justify;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif"">COUNSEL:<o:p></o:p></span></b></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">ADUMUA-BOSSMAN FOR THE APPLICANT.<o:p></o:p></span></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" style="text-align:justify;line-height:115%;border:none; mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">DJABANOR FOR THE RESPONDENT.<o:p></o:p></span></p> </div><p class="MsoNormal" style="text-align:justify;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif"">CORAM:<o:p></o:p></span></b></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" style="text-align:justify;line-height:115%;border:none; mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">ADADE JSC, AMUA-SEKYI JSC, AIKINS JSC, BAMFORD-ADDO JSC, HAYFRON-BENJAMIN JSC<o:p></o:p></span></p> </div><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">HAYFRON-BENJAMIN JSC. At first blush it would appear that this application raises grave and serious issues of law. The applicants, suing in aid of the exercise of this court’s supervisory power of certiorari have stated no fewer than 14 grounds upon which they consider this court should accede to their prayers in their motion. However, upon a close reading of the grounds it is clear that the applicants have misconceived the laws on the issues which they have so raised. This court in Darbah v Ampah dated 12 February 1990, SC, a similar case in which the applicant wanted to circumvent the appeal process by resort to an application for a prerogative writ, conceded that there were situations in which the court showed anxiety to deal with cases by adopting methods which were faster than the usual processes of normal appeal by resorting to the remedies being sought in that application. This court then stated the two hallowed grounds upon which the supervisory jurisdiction of the court will be invoked namely (i) excess or want of jurisdiction in the court and (ii) error of law appearing on the face of the record. This court in the Darbah case concluded that the application was only a desperate attempt to obtain the help of the Supreme Court to avoid the consequences facing a litigant who had twice lost his appeal and had neglected to observe the rules of court regarding appeals to the Supreme Court.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">The situation in the present application is not entirely dissimilar. The matters leading to the present application are clearly set out in the judgment of this court in Agyekum v Asakum Engineering and Construction Ltd [1989-90] 2 GLR 650. This judgment was delivered on the 17th July 1990. It is the contention of the applicants that on that day this court made certain orders consequent upon the delivery of its judgment the chief among which was an order that “the counterclaim of the defendant still stands and is to be tried by the High court”. In this application the applicants contend that the defendant having failed to comply with that order is in contempt of court and therefore cannot be permitted to litigate on any matter in the courts until he has purged his contempt.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">At this stage it is proper to identify the parties to this application. The applicants herein are the Asakum Engineering and Construction Ltd and its two directors, Mr George Kofi Asafu-Adjaye and Dr James Bafour Boakye, otherwise known as Asafu-Adjaye. They were the plaintiffs in Civil Appeal No 3/90 which terminated in this court on the 17th July 1990. Mr Maxwell Kwasi Agyeman Agyekum is the 2nd respondent to this application and the defendant in Civil Appeal No 3/90 referred to above.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">The applicants’ complaint is that by the order of this court dated the 17th July 1990 the present 2nd respondent, then the defendant, had counterclaimed that he was a shareholder of their company and therefore he was in duty bound to pursue that course before he could embark on any other proceedings before any court. In the circumstances the 2nd respondent on the 6th August 1991 filed a petition for the winding up of the applicant company of which the 2nd respondent claimed he was a shareholder. In a well-reasoned judgment, Kpegah JA, sitting as additional High Court judge on the 23rd December 1991, granted the petition and barred the two applicants “from being directors of or in any way, whether directly or indirectly, be concerned or take part in the running of any company or act as a receiver or liquidator of any company for a period of six years”.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">The applicants against whom Kpegah JA had delivered this devastating judgment were unmoved. They did not exercise their undoubted right of appeal. Instead, six months later they, to be precise on the 22nd June 1992, filed the present application seeking two reliefs, namely, (i) certiorari to quash the judgment of Kpegah JA and (ii) an order for committal for contempt against the 2nd respondent. It is interesting to note that on the 8th July 1991 in Suit No 868/84, a year after the judgment of this court referred to, (reported sub nom Agyekum v Asakum Engineering and Construction Ltd [1989-90] 2 GLR 650) Emelia Aryee J sitting in the High Court, Accra granted an order nisi attaching the 2nd and 3rd applicants for contempt. The learned High Court judge wrote:<o:p></o:p></span></p><p class="MsoNormal" style="margin-left:.5in;text-align:justify;line-height:115%"><i><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif"">“... this court hereby grants leave to applicants to apply for attachment of plaintiff-respondent as prayed. Pursuant notice to issue.”<o:p></o:p></span></i></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">The applicants had been adjudged to be in contempt and were required by law to show cause why the punishment of the court should not be visited upon them. Instead, a year later the applicants demanded that this court should punish the 2nd respondent for contempt of court. This is surely the case of the pot calling the kettle black. Before Kpegah JA the applicants as respondents strenuously tried to prevent the learned judge from embarking on an enquiry into the petition claiming that the petitioner was in contempt and therefore could not be heard by any court. The applicants further claimed that what the learned judge was doing was ultra vires because the learned judge’s action in hearing the petitioner was calculated “to frustrate the order of this (Supreme) court dated the 17th July 1990”. If I understand the present application correctly what the applicants are saying is that by reason of the fact that the respondent had failed or neglected to pursue his counterclaim as ordered by this court he was in contempt of this court. Further that if he was in contempt of court then not until he had purged his contempt he could not be heard on any matter by any court. That in hearing the petition with the knowledge that the petitioner was in contempt of court the learned judge acted ultra vires and therefore his judgment ought to be vacated by means of the application of the prerogative writ. I must confess that this last proposition that a superior court could in the exercise of its supervisory jurisdiction quash an ultra vires decision is novel to me and in any case not well-founded. An act is ultra vires if it is something done in excess of powers conferred by law. On the other hand “jurisdiction” in the sense that it is used in prerogative applications is “the power of a court or judge to entertain an action, petition or other proceeding”.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">The applicants are not saying that Kpegah JA had no jurisdiction to entertain the petition but that he exceeded his powers in proceeding with the petition when it was brought home to him that the petitioner was in contempt. The simple question is was the petitioner in contempt of court? It is not necessary to advert to what acts constitute contempt of court. In the present application the applicants consider that the failure of the 2nd respondent to prosecute his counterclaim constitutes a contempt of court. I do not agree. There is nothing beneficial to a party to charge his adversary with being in contempt of court if such contempt is not brought to the notice of the court by any of the known processes for attaching a party for the contempt. In the present application no such step has been taken. Nor is the order really such as can be enforced by attachment for contempt. A counterclaiming defendant is in the</main>
