PROFESSOR COLLINS FOSU vs . FIRST TRUST SAVINGS & LOANS AND OTHERS [2019]DLHC6847

Date	2019-02-18
Suit No.	SUIT NO. RPC 31/2019
Citation No.	[2019]DLHC6847

DR. RICHMOND OSEI-HWERE J

AMA ASENSO FOR THE PLAINTIFF/RESPONDENT

ARCHIE DANSO FOR THE 1ST & 2ND DEFENDANTS/APPLICANTS

[2019]DLHC6847
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													<main id="main" class="content" style="min-height: 60rem" >PROFESSOR COLLINS FOSU<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs&nbsp; .<o:p></o:p>FIRST TRUST SAVINGS &amp; LOANS AND OTHERS<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT,
KUMASI]<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">SUIT NO.&nbsp; RPC 31/2019&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 18TH FEBRUARY, 2019<o:p></o:p>

AMA ASENSO FOR THE
PLAINTIFF/RESPONDENT<o:p></o:p>

ARCHIE DANSO FOR THE 1ST &amp; 2ND
DEFENDANTS/APPLICANTS<o:p></o:p>

</div>CORAM:<o:p></o:p>DR.
RICHMOND OSEI-HWERE, J<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>Before
me is an application to set aside judgment in default of appearance. However,
when the matter came up for hearing, counsel for the plaintiff/respondent
(hereinafter referred to as the respondent) raised a preliminary legal
objection to the propriety of theof the motion.<o:p></o:p>Counsel
argued that the application is an abuse of the court process because the1st
and 2nddefendants/applicants (hereinafter called applicants) are in
contempt of court in respect of the same matter and can therefore not be heard
by the court. She submitted that the parties resorted to self-help to prevent
the execution process relating to the matter and that a person in contempt of
court cannot be heard until the contempt is purged. Counsel cited the following
cases in support of her assertion:<o:p></o:p>Hardkinson
v Hardkinson (1952) 2 All ER 367; Republic v Bekwai Traditional Council exparte Aboraa (1994/95) GBR 574 at
Holding 5; and Danquah v Amartey&amp; Another (1994/95) GBR 848 at 849.<o:p></o:p>In
response to the preliminary legal objection, counsel for the applicants
submitted that a person cited for contempt is entitled to be heard particularly
where his plea is that the court had no jurisdiction in making the orders that
form the basis of the contempt application. It is counsel’s submission that the
basis of the application before the court is that the default judgment is a
nullity and same ought to be set aside. Thus, in spite of the pending contempt
application, they are at liberty to move the motion to set aside the judgment
entered in default of appearance. In support of his submission, counsel cited
the case of Republic v High Court (Commercial Division) Accra exparte Appenteng [2010] SCGLR 327 where
the Supreme Court heard an application for certiorari in spite of the fact that
a party had been convicted for contempt in the same matter. Counsel invited the
court to dismiss the preliminary legal objection.<o:p></o:p>The
substantive application for judgment in default of appearance was filed by the
applicants on 6th December, 2018. Prior to that, the respondent had
on 26th November, 2018 filed a contempt application against Dr. Nii
Kotei Dzani, the 7th defendant in the substantive suit and one
Charles Amoah who is not a party to the suit. It must be emphasized at this
stage that from the record there is no pending contempt application against the
applicants herein. The contempt application is against parties close to the
applicants i.e. the 7th defendant herein and the said Charles Amoah.<o:p></o:p>Now
the profound question is: can the instant application be heard in the light of
the pending contempt application?<o:p></o:p>In
Hadkinson v Hadkinson [1952] 2 All ER 567, CA it was held 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. As rightly
submitted by counsel for the respondent, this holding was given a stamp of
approval by our Court of Appeal in Republic v Bekwai Traditional Council exparte Aboraa (supra) and Danquah v
Amartey&amp; Another (supra). It is therefore a general principle of law that
an unpurged contemnor should not be heard by the court with regard to the same
matter before he purges himself of his contempt. In Republic v High Court (Commercial
Division) Accra exparte Apenteng
[2010] SCGLR 327, our Supreme Court restated this principle of law as follows:<o:p></o:p>“In deciding this case we are not
oblivious of the rule of law that an unpurged contemnor should not be heard, at
least with regard to the same matter before he purges his contempt.&nbsp; But we agree with Oliver J in Midland Bank
Trust Co Ltd v Green (No. 3) (1979)2 AII ER 193 that a contemnor can always
take proceedings against an order made without jurisdiction. We further support
his view that a court has discretion to hear or not to hear a contemnor.&nbsp; Otherwise if the rule against hearing a
contemnor were an absolute one it would run counter to the well-established
maxim thatactus curiae neminemgravabit…”<o:p></o:p>Thus,
in instances where a contemnor challenges an order made without jurisdiction
the court has the discretion to hear him. As espoused in the exparte Appenteng case (supra), this
discretion is in accord with the judicial view that in the absence of a total
ouster clause or in some instances failure on the part of a party to raise an
objection prior to a decision, the court can intervene to set aside the
decision for want of jurisdiction. Based on the principle of stare decisis, it
is apparent that under Ghanaian law the rule against hearing a contemnor is not
absolute.<o:p></o:p>In
the instant case, it is not in doubt that the applicants are challenging the
jurisdiction of the court in granting the judgment in default of appearance. It
is also apparent on the f</main>