IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
KUMASI - A.D 2019
PROFESSOR COLLINS FOSU - (Plaintiff)
FIRST TRUST SAVINGS & LOANS AND OTHERS - (Defendant)
DATE: 8 TH FEBRUARY, 2019
SUIT NO: RPC 31/2019
JUDGES: DR. RICHMOND OSEI-HWERE, J
AMA ASENSO FOR THE PLAINTIFF/RESPONDENT
ARCHIE DANSO FOR THE 1ST & 2ND DEFENDANTS/APPLICANTS
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.
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:
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& Another (1994/95) GBR 848 at 849.
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  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.
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.
Now the profound question is: can the instant application be heard in the light of the pending contempt application?
In Hadkinson v Hadkinson  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& 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  SCGLR 327, our Supreme Court restated this principle of law as follows:
“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. 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. Otherwise if the rule against hearing a contemnor were an absolute one it would run counter to the well-established maxim thatactus curiae neminemgravabit…”
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.
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 face of the record that the pending contempt application is not against the applicants herein, as observed early on. I am however conscious of the fact that the respondents of the contempt application are officers of the applicants. In spite of this, I am unable to tag the applicants as contemnors pending the determination of the contempt application. Be that as it may, whether they are described as contemnors or not, the court has the discretionary power to hear their application since it borders on the jurisdiction of the court. We should, however, never forget that in contempt application one cannot justify his disobedience of the court order based on the irregularity of the said order. It therefore goes without saying that the outcome of the instant application to set aside judgment in default of appearance shall not in any way be prejudicial to the outcome of the contempt application.
For the reasons above, I will exercise my discretion with prudence and hear the applicants’ motion to set aside the judgment entered in default of appearance. Consequently, the preliminary legal objection fails.