REPUBLIC vs. HIGH COURT, ACCRA; EX PARTE ASAKUM ENGINEERING AND CONSTRUCTION LTD AND OTHERS [1992]DLSC850

REPUBLIC vs. HIGH COURT, ACCRA; EX PARTE ASAKUM ENGINEERING AND CONSTRUCTION LTD... [1992]DLSC850

Date	1992-12-01
Suit No.
Citation No.	[1992]DLSC850

ADADE JSC

AMUA-SEKYI JSC

AIKINS JSC

BAMFORD-ADDO JSC

CHARLES HAYFRON- BENJAMIN JSC

WAN ADUMUA-BOSSMAN FOR THE APPLICANTS.

DJABANOR FOR THE SECOND RESPONDENTS.

[1992]DLSC850
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">REPUBLIC<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">HIGH COURT, ACCRA; EX PARTE ASAKUM ENGINEERING AND CONSTRUCTION
LTD AND OTHERS<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1993-94] 2 GLR 643<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: 1
DECEMBER 1992<o:p></o:p>

</div>COUNSEL:<o:p></o:p>WAN ADUMUA-BOSSMAN FOR THE APPLICANTS.<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">

DJABANOR FOR THE SECOND RESPONDENTS. <o:p></o:p>

ADADE, AMUA-SEKYI, AIKINS, BAMFORD-ADDO, CHARLES HAYFRON- BENJAMIN<o:p></o:p>

</div>JUDGMENT OF CHARLES HAYFRON-BENJAMIN JSC.<o:p></o:p>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 fourteen
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, Supreme Court, Accra, 20 February 1990;
unreported, in a similar case in which the applicant wanted to circumvent the
appeal process by resort to an application for a prerogative writ, conceded
that:<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">“there are situations in which the court show anxiety to deal with
cases by adopting methods which are faster than the usual processes of normal
appeals by resorting to the remedies being sought in the present application.”<o:p></o:p>This court then stated the two hallowed grounds upon which the
suprevisory jurisdiction of the court will be invoked namely: (i) excess or
want of jurisdiction of the court; and (ii) error of law appearing on the face
of the record. This court in the Darbah case (supra) concluded that the:<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">“application is only a desperate attempt to obtain the help of the
Supreme Court to avoid the consequences facing a litigant who has twice lost
his appeal and has neglected to observe the rules of court regarding appeals to
the Supreme Court.”<o:p></o:p>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] GLR 650, SC. This judgment was delivered on 17 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 in that order having failed to comply with that order is in contempt
of court and therefore cannot be permitted to litigate on any matter in the
court until he has purged his contempt.<o:p></o:p>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-Adyaye—they were the plaintiffs in civil
appeal No 3/90 which terminated in court on the 17 July 1990. Mr Maxwell Kwasi
Agyeman Agyekum is the second respondent to this application and the defendant
in civil appeal No 3/90 referred to above.<o:p></o:p>The applicants’ complaint is that by the order of this court dated
17 July 1990, the present second 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 second respondent on 6
August 1991 filed a petition for the winding up of the applicant company of
which the second respondent claimed he was a shareholder. In a well-reasoned
judgment Kpegah JA sitting as additional high court judge, on 23 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 receiver or liquidator of any company for a
period of six years.”<o:p></o:p>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 22 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 second respondent.<o:p></o:p>It is interesting to note</main>