• IN THE SUPERIOR COURT OF JUDICATURE
  IN THE HIGH COURT (GENERAL JURISDICTION DIVISION, COURT 6),
  ACCRA - A.D 2019
  

THE REPUBLIC - (Plaintiff)

vs.

RICHARD HLORMADOR - (Respondent)
EX PARTE: ATTIYYATUL AZIZ ABDULLAH -(Applicant)

RULING– REVIEW APPLICATION

---

 

i. Introduction:

[1] Just as the existence of the inherent jurisdiction of a superior court is indisputable and certain, there is a statutory basis and scope for the review of a ruling made by the High Court and same is therefore not debatable [1]. This Court is called upon by the Respondent/Applicant to review its decision of June 13, 2019 pursuant to “Motion on Notice: Application for Review and/or Bail  Review”.

 

 

 

[2] The Applicant herein has filed the instant application for review of the judgment of this Court pursuant to Order 42 of the High Court Civil Procedure Rules, (2004) C.I. 47. Accompanying the application is a 12 paragraph initial affidavit with no exhibit of the Applicant. A 22 paragraph supplementary affidavit in support of the review application was also filed on July 1, 2019.

 

 

 

[3] The Applicant filed the instant application the same day of the judgment and sentence and prayed the Court for a review of the decision or in the alternative bail pending the hearing of the review. When the application came before the Court the Court found that there was an Affidavit of Service and after further enquiry from Counsel for the Applicant, the Court was satisfied that Counsel for the Applicant for the Contempt had been served and was aware of the hearing but did not to attend and therefore the Court proceeded with the hearing.

 

 

 

[4] The Court notes when the application was moved provides in part as follows:

 

“This is an application on notice for review and/or bail pending review. The application is supported by the affidavit of the Applicant, Richard Hlormador. Counsel moves the application and relies on the depositions in the affidavit and prays the Court to grant the application or in the alternative the Court should grant bail to the Applicant pending the hearing of the application.

 

By Court:

 

This Court on June 13, 2019 convicted the Applicant Richard Hlormador of contempt of the Court and imposed a custodial sentence of fourteen days. The Court also granted cost of GH¢5,000 against the Respondent and said in default of payment the Contemnor shall serve a further fourteen days. The  instant application prays the Court to review the orders made. I have looked at the Rules of Court and is of the view that procedurally, by Order 42 Rule 2(1) of C.I. 47 the application for review cannot be heard as of now as it was filed only yesterday. The rules of Court provide that an applicant shall give seven days’ notice of the application to all parties to the action…..

 

I have thoroughly reviewed the affidavit evidence and I am of the opinion that though I cannot hear the substantive application now, the collateral issue of bail can be considered now. The Applicant has deposed that he is not in good health and Counsel has reiterated same in his submission to the Court.

 

As indicated in my judgment, the finding of contempt transcends the dispute between the parties as contempt is against the Court and not a litigant. To that extent, a conviction for contempt and the punishment imposed should not be used to overly punish anyone including the Applicant even when his health is at stake.

 

Consequently, I hereby invoke the Court’s inherent jurisdiction to grant the Applicant, Richard Hlormador bail in the amount of GH¢10,000 to be signed by a surety pending the hearing of the review application.”

 

The application itself was adjourned to June 27, 2019. An Affidavit in Opposition was filed by the Applicant/Respondent herein on June 21, 2019.

 

 

 

ii. Arguments for & Against the Application:

 

[5] Learned Counsel in moving the application relied on all of the depositions in the affidavits filed and prayed the Court to review the fourteen days jail term imposed on the Respondent. Counsel prayed the Court to review both the conviction and the sentence. According to him based on the depositions in the Supplementary Affidavit and the attached exhibits it is clear that “the Respondent ought not to have dealt with the property in any way shape or form”. Counsel further submitted that the Respondent who is not a lawyer relied on the advice of his previous Counsel in dealing with the land but he was wrong.

 

 

 

[6] Mr. Nimako Marfo further submitted that having reviewed the entire file including the separate suit instituted and pending at the Land Division of the High Court he is of the view that the steps taken were wrong by the Respondent’s previous representatives. According to him that fresh suit should not have commenced in the first place. With regards to the sentence imposed, Counsel profusely apologized on behalf of the Respondent/Applicant and prayed that in lieu of a custodial sentence, the Court either sentence the Respondent to a fine or reprimand him as he has paid the cost awarded already. Counsel submitted that it is the Respondent/Applicant’s first brush with the law   and to that extent he is of the view that the Court should review the custodial sentence.

 

 

 

[7] Learned Counsel also submitted that his client undertakes not to be on the land during the pendency of the suit and has indeed not been on the land after the Court’s judgment and sentence. Responding to the affidavit in opposition Learned Counsel submitted that the Respondent to the present review application’s deposition that the sentencing is not harsh is to “belittle the impact of the deprivation of one’s liberty”.

 

 

 

[8] In further response to the Respondent’s Exhibit 2 series and the deposition that the Applicant has not purged himself of the contempt but is still building on the land, Counsel submitted that the photographs show nothing because the structure in the photograph does not show any constructional works. According to Counsel the said photographs depict old work done on the property.

 

 

 

[9] Lastly, Counsel submitted that it is not out of disrespect for the Court that the Respondent/Applicant worked on the land, but due to wrong advice of his Counsel and the fact that  he has a deed of conveyance and a Land Title Certificate covering the land he erroneously believed  that he could go and work on the land. Counsel therefore again apologized on his client’s behalf and said it will not happen again.

 

 

 

[10] Based on all of the above and the other depositions contained in the affidavits filed including all of the exhibits filed and submissions of, Mr. Nimako Marfo urged on the Court to allow the application by reviewing the judgment of June 13, 2019 and the sentence imposed on the Respondent.

 

 

 

iii. Arguments Against the Motion:

 

[11] Responding to the arguments of Counsel for the Respondent/Applicant, learned Counsel for the Applicant/Respondent first called on the court to dismiss the instant application as being without merit. Counsel also relied on the affidavit in opposition filed and submitted that his first ground of opposition is on jurisdictional ground. Counsel cited the unreported Supreme Court case of THE REPUBLC v. HIGH COURT (COMMERCIAL DIVISION A) TAMALE, EX PARTE: DAKPEM ZOBOGUNAA HENRY KALEEM (SUBSTITUTED BY ALHAJI ALHASSAN I. DAKPEMA) – DAKPEMA NAA  ALHASSAN  MOHAMMED  DAWUNI  –  INTERESTED  PARTY  Civil  Motion  No: J5/6/2015 delivered on 4th June, 2015 to submit that according to the Supreme Court “the High Court has no jurisdiction to review its own decisions”. I shall later speak to this submission of Counsel.

 

 

 

[12] The next argument made by Counsel was that even if the Court held the view that it has jurisdiction to deal with the application it is the submission of the Respondent that the Applicant has not demonstrated that there are exceptional circumstances for the grant of the application. Counsel cited the Supreme Court case of ZANYO v FOFIE [1994 – 95] 1 G B R 476 – 485 to support the submission. In this case Counsel submitted that the Applicant is using the review application as an attempt to re-argue the case and therefore same should not be allowed because if the Applicant is not happy about the decision, he should rather file appeal.

 

 

 

[13] Counsel also submitted that the Respondent/Applicant has not demonstrated in any way that he has purged himself of the contempt. Counsel submitted that by Exhibit 2 Series the Applicant is still on the land and developing same. To that extent, Counsel prayed the Court to dismiss the application.

 

 

 

 

 

[14] In a rebuttal submission, Mr. Nimako Marfo submitted that the Supreme Court never said that the High Court has no review jurisdiction so the submission of his learned friend was wrong and misleading. He also submitted that the exceptional circumstance as a ground for review applies to the Supreme Court but for the High Court, Order 42 the standard is sufficient grounds for the application. He therefore prayed the Court to dismiss the submission against the application and rather grant same.

 

 

 

iv. Analysis & Opinion of the Court

 

[15] As stated above the nature of the issue in this application – being a review of this Court’s judgment it undoubtedly calls for the Court consideration of Order 42 of C.I. 47. It is therefore pertinent that reference is made to that rule of procedure as the foundation for my analysis. The rule titled “Application for Review” provides:

 

“1. (1) A person who is aggrieved

 

(a) by a judgment or order from which an appeal is allowed, but from which no appeal has been preferred; or

 

(b) by a judgment or order from which no appeal is allowed, may upon the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within that person's knowledge or could not be produced by that person at the time when the judgment was given or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, apply for a review of the judgment or order.

 

(2) A party who is not appealing against a judgment or order may apply for a review of that judgment or order notwithstanding the pendency of an appeal by any other party, except where the ground of the appeal is common to the applicant and the appellant, or where, being the respondent, he can present to the Court of Appeal the case on which he applies for the review”.

 

 

 

[16] I start my analysis by stating that I have no difficulty in dismissing the Respondent’s Counsel’s (Mr. Ayamdoo’s) jurisdictional argument. In my view the submission has no legal basis. Based on the law, it is my holding that the High Court has the requisite jurisdiction to review its  judgments/rulings.

 

 

 

[17] Now, dealing with the substantive application, I wish to state that it is important to note that a review application is not an opportunity for a party to argue its case all over again and to correct its own errors or mistakes. There must be a legal basis for a Court to review its decision. To that extent, it is my respectful opinion that based on the facts before me and the law as I understand it, there cannot be any legal basis for the review of the conviction of the Respondent. This is because as pointed out to Mr. Nimako Marfo at the oral hearing his own submission was that in his view the Applicant should not have gone onto the land when same had been attached by an order of the Court in any way shape or form. That submission in my view was candidly made and therefore the submission supports the Court’s reasons for the conviction. To that extent it is my holding that the conviction of the Respondent made by this Court on June 13, 2019 was correct and reasonable and therefore same is not subject to review based on the law.

 

 

 

[18] Since the application for review was for both the conviction and the sentencing I shall now speak to the sentence imposed. To address this part of the application, I find it prudent to refer to the statement of the law by Baffoe-Bonnie JSC speaking for the Supreme Court in the case of THE REPUBLIC v. BANK OF GHANA & 5 OTHERS;  EX PARTE BENJAMIN DUFFOUR Civil Appeal  No. J4/34/2018 Delivered on June 6, 2018. The Court after referring to the case  of  Republic  v  Numapau and Others; Ex Parte Ameyaw II [1999-2000] 2 GLR 629 stated as follows:

 

“One of the main objective of the offence of contempt of Court is to protect the dignity of the Court. The Courts have been set up to ensure peaceful settlement of disputes and for the maintenance of law and order. It is the general interest of members of the community that the authority vested in the Courts to protect them is not trampled upon. Any act which therefore seeks to emasculate the authority of the Courts should not be countenanced. The members of the community must at all times have confidence and hope in the authority of the Courts to deliver justice. The concept of contempt of Court is to prevent any act which seeks to damage the dignity of the Court. It is also designed to prevent unjustified interference in the authority of the court. It is also designed to prevent any act which seeks to damage the dignity of the Court. Contempt of Court is not there to protect the dignity of any one individual person but the overall dignity of justice delivery machinery.

 

The duty to protect the dignity of the Court is not vested in judges alone. Where contempt is ex facie curia, i.e. contempt committed outside the Court, it is duty of litigants and in some cases the Attorney General to bring proceedings to commit the contemnor for contempt. However, litigant in such cases should be mindful not to assume that the essence of the contempt proceedings is to their dignity or for their personal satisfaction. The appellant in accordance with his public duty started the contempt proceedings in the High Court. His role to protect the dignity of the Court ceased once Court of Appeal found the Respondent guilty and convicted them for contempt. The appellant by appealing to this Court for an enhanced punishment seems to have personalized the contempt application. This Court cannot grant the personal satisfaction the appellant is seeking in this case. His relief for an enhanced punishment is therefore refused”. [Emphasis Mine].

 

 

 

[19] In this case the original Applicant, Madam Attiyyatul Aziz Abdullah has filed an affidavit in opposition to say that the sentence imposed was lenient “given the arrogant and contumelious behavior of the Contemnor”. She also deposed that “the alleged health issues of the Contemnor are an afterthought and even so, the alleged health reasons should have motivated him to show utmost respect for the sanctity of court orders and the authority of the court”. In my respectful view Ms. Aziz Abdullah’s position is similar to the Applicant in the Duffour Case Supra, against which the apex Court exhorted. In my respectful view after conviction, the sentence is that of the Court and the Applicant does not have the option of taking a position to it as stated by the Supreme Court because contempt is against the Court and not the hurt feelings of a bitter litigant.

 

 

 

[20] With that out of the way I hereby consider the sentence aspect of the application. I am of the respectful opinion that despite my conclusion above that the conviction cannot be reviewed, based on the law and invoking the inherent jurisdiction of the Court, the sentence imposed can be reviewed   and it is indeed reviewable. An aspect of the sentence imposed to my mind was made in error and not based on the law. Specifically, this is the part where I stated that “Also, Cost of GH¢5,000 awarded against the Respondent and when paid GH¢3,000 shall be paid out to the Applicant. In default of payment the Respondent shall serve further 14 days in prison”. To my mind that default clause attached to the payment of the cost was in error as the cost was not a fine imposed. When the Court imposes cost non-payment of same cannot attract sanctions for further jail sentence. I was wrong, I concede same and therefore the default part of the conclusion is set aside as made in error.

 

 

 

[21] Further, even though ordinarily the 14 days jail term imposed cannot be said to be excessive based on the facts presented, I am willing to take a look at it based on the apology offered to the Court by the Respondent/Applicant’s present Counsel. As the record goes, the Respondent’s affidavit filed   in opposition to the application, the submission of Counsel and the general position was belligerent and litigious even though it was clear that based on the facts there could be only one outcome, being a conviction. I note that at paragraph 56 of the ruling I stated “Even though in the opinion of the Court this may be the Respondent’s first brush with the law, in the view of the Court the action of the Respondent and the tone of the affidavit filed in this case to justify the illegal action taken by him is such that the Court ought to show its disapproval of the action”.

 

 

 

[22] To my mind, since the sentence was not imposed to satisfy the Court per se but to condemn the action of the Respondent/Applicant and having reviewed the materials filed and also heard from Counsel, the purposes of vindicating the law and serving as a deterrent to others has been achieved. I understand that the Respondent has already paid the cost of GH¢5,000 and therefore GH¢3,000 of same is to be paid out to the Madam Attiyyatul Aziz Abdullah as ordered. To that extent I am willing to note the time served by the Applicant in custody and suspend the remaining days and also caution him to be of good behavior for Six Months starting from today.

 

 

 

[23] I cannot conclude this ruling without commenting on two issues that emerged in the course of this application. The first is to do with a deposition made by Madam Aziz Abdullah in her affidavit in opposition filed. At paragraph 8 of the affidavit in opposition it was deposed that:

 

“That the Contemnor since filing the motion and upon his “bizarre” release from custody has not taken any step whatsoever to show any modicum of respect for the authority of the Honourable Court. His contemptuous acts continue unabated”.

 

 

 

[24] Order 20 Rule 8 (1) of C.I. 47 provides that:

 

“An affidavit shall contain only facts that the deponent can prove, unless any provision of these Rules provides that it may contain a statement of information or belief or both”.

 

I note that at the oral hearing Counsel for the Madam Aziz Abdullah conceded that at the time the affidavit was signed he had not obtained a copy of the Court’s notes of June 14, 2019. The question then is: what was the basis for the scandalous deposition that the Respondent/Applicant was “bizarrely” released from custody? Since it cannot be denied that the affidavit was drafted by Counsel   I only wish to reiterate what Justices Akoto Bamfo and Anin Yeboah JJSC said in the case of The Republic v. High Court Judge, Kumasi: Ex Parte Hansen Kwadwo Koduah; Paragon Investment Limited – Interested Party [2] when it found the language used by Counsel in the pleading and affidavit filed to be inappropriate.

 

 

 

[25] Akoto Bamfo JSC said:

 

“Practicing lawyers should never lose sight of the fact that they belong to an honorable profession which places them on a pedestal in society and such a high standing in society should, at all times be reflected in their language and comportment. It is not for nothing that they address each other as learned friends. They are not only expected to display a deep and scholarly knowledge of the law, they must be seen to have risen above emotional outbursts particularly in their work, for scholarship and intemperate or abusive language cannot be housed together”.

 

 

 

His Lordship Anin Yeboah JSC also opined that:

 

“I think that lawyers owe it as a duty to assist the court in maintaining that litigation is conducted in a manner which would project the profession as the most Honourable one. Care must be taken not to abuse the privileges and immunities conferred on lawyers by law only to pursue a course not befitting the  ethics of the profession in pursuit of justice for litigants”

 

In my view the deposition made was scandalous as it attacked the integrity of the Court to have done something wrong and illegal. To say the Applicant was bizarrely released was without any legal or factual basis.

 

 

 

[26] The other issue is the submission Counsel for the Applicant/Respondent Mr. Ayamdoo made to the Court when the application was heard. Relying on the case of EX PARTE: DAKPEM ZOBOGUNAA HENRY KALEEM (SUBSTITUTED BY ALHAJI ALHASSAN  I.  DAKPEMA)  SUPRA, Counsel boldly submitted to this Court that the Supreme Court has held that the High Court has no review jurisdiction. The basis for the submission was the statement by the Court at pages 5 to 6 of the printed copy of the decision as follows:

 

“Since the coming into force of the 1992 Constitution, Parliament has passed some substantive laws granting different types of jurisdiction to various Courts in the country. For our present purposes we  will recall section 15 to 21 of Act 459 setting out different types of jurisdiction that the High Court could exercise. Section 15 and 16 reiterate Articles 140 and 141 of the Constitution respectively. Section 17 to 20 of Act 459 have granted jurisdiction to the High Court over piracy matters, infants, persons of unsound mind and maritime matters respectively. And section 21 deals with the High Court’s  jurisdiction in appeals from the lower Courts. It is clear that in neither the Constitution nor Acts 459 and subsequent amendments thereto namely Act 464, Act 620 and Act 674 was the High Court granted the review jurisdiction. There have been  numerous authorities, both local and foreign, which have decided that jurisdiction of a Court could only be granted by substantive legislation and not by a body charged with the duty to make rules to regulate the conduct of cases before the Court. We are mindful that even this Court has decided some cases applying some of the provisions under rule 42 of C.I 47 without questioning the review jurisdiction of the High Court”.

 

 

 

[27] Based on the above quote Mr. Ayamdoo told the Court that this Court has no jurisdiction to review its judgment or ruling. Without doubt I have struggled to understand the basis of the submission of Counsel when it is so clear that the submission was wrong because that is not what the Supreme Court said. On the same page 6 of the decision, the apex Court continued its analysis and stated unequivocally as follows:

 

“Whatever the arguments may be on merits, we are tempted not to delve into this question in this decision, for whatever we say will be obiter only and will not create a judicial precedent. It should be reserved for future proceedings in which it becomes an issue whereupon the Court will have the benefit of full argument from both sides”

 

[28] From the above it is clear that a more careful read would have spared Counsel significant embarrassment. In my respectful opinion, though I am unable to ascertain what informed the obvious misleading submission of Counsel, he ought to know that the Court and the public depend on the utmost honesty and integrity of all lawyers who practice before the Court. In my respectful view, any Lawyer, who breaches one of the commandments of the legal profession must be condemned in no uncertain terms. It ought to be stressed to Counsel and others like him that the importance of public confidence in the integrity and trustworthiness of members of the legal profession is of utmost importance because it must always be observed that the reputation of the profession is more important than the fortunes of any individual member.

 

 

 

[29] I think that as officers of the Court, barristers must know that they owe a duty to the Court and the public not to undermine the integrity of the court and bring administration of justice into disrepute. While barristers are duty-bound to zealously protect the interests of their clients, there are ethical boundaries which must not be crossed. If those boundaries are crossed, a party to a suit should not be allowed to benefit from their own ethical/legal breaches.

 

 

 

[30] I make these observations not as a matter of censure but in my capacity as a judge. In the common law tradition, courts have a supervisory role over the conduct of lawyers to the extent that the latter are officers of the court whose actions shape perceptions of the integrity of the justice delivery system in the popular imaginary. A word to the wise is enough!

 

 

 

[31] In the result, the application is partly granted pursuant to Order 42 of C.I. 47 and the inherent jurisdiction of the

 

Court.

 

  

 

CASES REFERRED TO

 

THE REPUBLC v. HIGH COURT (COMMERCIAL DIVISION A) TAMALE, EX PARTE: DAKPEM ZOBOGUNAA HENRY KALEEM (SUBSTITUTED BY ALHAJI ALHASSAN I. DAKPEMA) – DAKPEMA NAA ALHASSAN MOHAMMED DAWUNI – INTERESTED PARTY Civil Motion No: J5/6/2015

 

ZANYO v FOFIE [1994 – 95] 1 G B R 476 – 485

 

THE REPUBLIC v. BANK OF GHANA & 5 OTHERS; EX PARTE BENJAMIN DUFFOUR Civil

 

Appeal No. J4/34/2018 Delivered on June 6, 2018.

 

THE REPUBLIC v. HIGH COURT JUDGE, KUMASI: EX PARTE HANSEN KWADWO KODUAH; PARAGON INVESTMENT LIMITED – INTERESTED PARTY

 

EX PARTE: DAKPEM ZOBOGUNAA HENRY KALEEM (SUBSTITUTED BY ALHAJI ALHASSAN I. DAKPEMA) SUPRA.