THE REPUBLIC vs. THOMAS ASARE EX-PARTE: NAA TWAA KOFI [1999]DLCA6633

Date	1999-05-20
Suit No.	CIVIL MOTION NO. 90/99
Citation No.	[1999]DLCA6633

WOOD (MRS.) JA

PRESIDING BROBBEY JA.

ARYEETEY JA

[1999]DLCA6633
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>THOMAS ASARE<o:p></o:p>(DEFENDANT/APPELLANT.)<o:p></o:p>EX-PARTE: NAA TWAA KOFI<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL MOTION NO. 90/99&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 20TH MAY, 1999.<o:p></o:p>

WOOD (MRS.) JA, PRESIDING BROBBEY JA.,
ARYEETEY JA,<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>WOOD
(MRS), JA. <o:p></o:p>The
parties in these proceedings are the parties in a suit pending before the Tema
High Court, Civil Division presided over by Mrs. Felicity Amoah J. On the 22nd
of January 1999, she found the applicant “guilty” of contempt for having
disobeyed an interim order made in the course of the pending civil cause. She
made the following pronouncement with regard to sentence”: <o:p></o:p>“I
find the respondent guilty and for his contemptuous act he is sentenced to a
fine of ¢3 million or in default 3 months imprisonment. ¢2 million of the fine
when paid should be given to the applicant as compensation. <o:p></o:p>The
respondent is to pay the fine within 10 days. He is therefore admitted to ball
in the sum of ¢3 million with one surety to be justified. I award cost of
¢200,000.00 against respondent.” <o:p></o:p>Within
four days of the order, the applicant, in the exercise of his legitimate rights
has appealed against the ruling, the finding that he was in contempt of court
and the sentence. He quickly followed it up with a motion for stay of execution
pending appeal, which unfortunately the trial court found unmeritorious and consequently
dismissed. He is therefore, by this present motion applying for that interim
relief, which was, denied him by the court below. The main grounds upon which
the appeal was filed and on which also this motion was argued before us, in an
attempt to demonstrate that theirs is no frivolous appeal, but one with a very
high success rate are the following:— <o:p></o:p>“(1) That the ruling was an error in
law as the applicant was wrongly found guilty for a criminal contempt when the
act complained of was, properly speaking in the nature of a civil contempt. <o:p></o:p>&nbsp;(2) The sentence which was imposed was harsh
excessive and oppressive, having regard to the circumstances of the case,
particularly when the evidence did not show that the respondent suffered any
loss as a result of his alleged continuous acts.” <o:p></o:p>However,
what appeared to be a straightforward, simple and innocuous application raised
an interesting procedural issue. The argument raised by the other side in
opposition to the application as it stood; is this, since the contemptuous act
for which he was found “guilty” and “sentenced” to a fine of or in default a
term of imprisonment is in the nature of a quasi criminal offence, having
suffered a conviction, the proper course open to the applicant was to appeal to
the Criminal Division of the Court of Appeal and follow same up with an
application for bail pending appeal, if he were desirous of having the sentence
suspended. This argument did not come as a surprise. The respondent had clearly
in his affidavit in opposition raised it as the only point of objection to the
prayer sought. He deposed as follows by the par.7 <o:p></o:p>“That I am advised and verily believe
same to be true that contempt of court is of quasi criminal offence and having
been convicted by the trial court, the only recourse to the applicant is to
appeal against the decision and apply for bail pending appeal....” <o:p></o:p>In
response to these arguments, applicant counsel has argued that: <o:p></o:p>(1)
Firstly, since the trial judge never formally convicted the applicant we are
not in these proceedings dealing with a quasi criminal matter and in respect of
which they ought to follow the procedure laid down in criminal appeals. <o:p></o:p>(2)
In any case, should we come to the conclusion that she did, she was clearly in
error as the acts they are alleged to have committed would not amount to a
criminal contempt, at all but a civil contempt in which case she has not fallen
into any procedural error. <o:p></o:p>But
I do not think the solution to the issue raised by respondent counsel lies in
the approach advocated by applicant counsel in the second limb of his
arguments, that is his response to the respondent counsel's sole submission. I
think we should resist any temptation to draw firm conclusions of either law or
facts on points, which ought properly to be argued at the appeal hearing. To
draw firm the conclusions that he has invited us to, namely, that the trial
judge fell into error in wrongly convicting applicant for a pure civil contempt
would amount to a determination of and consequently to a prejudgment of the
appeal. <o:p></o:p>Certainly,
we cannot at this state pronounce on the soundness or othe</main>