Legal Effect of Service And Pendency of an Application for Injunction in Ghana – Restating the Position!
Dedication
The author dedicates this paper to his sister[1], who obtained and graduated with her PhD from Ghana Institute of Management and Public Administration (GIMPA) on 15th December 2023 which date by divine coincidence was her birthday. Congratulations to her are in order and Happy Birthday to you Vivian E. Sampson PhD.
Introduction.
In civil proceedings before the court, there may be the need in some instances to preserve the status quo to allow the court the time and opportunity to determine the respective rights of the parties. Injunction is one of the mechanisms that help the court to achieve this purpose.
In recent times, the issue of the effect of being served an application for injunction has become topical for several reasons. In the year 2022, the Government of Ghana wanted to introduce the Electronic Transactions Levy Act[2] which Act was passed in March 2022[3]. Its implementation was scheduled to take effect on 1st May 2022[4]. The National Democratic Congress (NDC) Minority in Parliament through three of its members,[5] took a position and issued a writ and filed a motion to the Supreme Court to restrain the implementation pending the determination of the suit before the apex court[6]. Despite the pendency of the application for injunction before the apex court, the implementation of the levy was carried out on 1st May 2022, before the hearing which was heard on 4th May 2022,[7]rendering the application before the Supreme Court otiose. The author notes that the application for injunction was eventually refused by the apex court in a unanimous decision.[8] Recently, upon the death of a man of God, Rev. Dr. Anthony Boakye, his surviving wife issued a writ in the case titled, Rev. Mrs. Margaret Boakye v. Resurrection Power New Generation Church and 6 Others[9], in the High Court Kumasi and applied for an injunction to restrain the performance of the final burial and funeral rites. In fact, the learned Court upheld and granted the injunction restraining the Defendants in the following terms, “…. It is hereby ordered that the 1st to 6th defendants, their agents, their privies, assigns, agents, family members, colleagues and the like in anyway whatsoever from purporting to bury or burying or observe or perform any burial rites of the late Rev. Dr. Anthony Boakye who died on the 21st day of February, 2023 until otherwise discretionarily decided by this Court. It is further hereby ordered that the 7th defendant specifically is restrained from releasing the corpse of the late Rev. Dr. Anthony Boakye to any of the Defendants herein or their family members, privies, assigns or church members or anyone whatsoever until otherwise decided by the court based on the parties mutual understanding”.[10]
In spite of the grant of the injunction, the corpse was released and not only was the final funeral and burial rites organized, but same was attended by prominent citizens of Ghana including the President of the Republic of Ghana, in whom the executive authority of Ghana is vested.[11] The Constitution 1992 provides that, “The executive authority of Ghana shall vest in the President and shall be exercised in accordance with the provisions of this Constitution.”[12] It further provides that, “The executive authority of Ghana shall extend to the execution and maintenance of this Constitution and all laws made under or continued in force by this Constitution.”[13]
The sources of laws of Ghana are provided by Article 11 of the Constitution 1992. In the scenario of the ‘OccupyJulorbiHouse’, the Ghana Police Service alleged that they had applied for an injunction against the organization of the protest and had served same on the organizers, even though the organisers denied being served with any such. It was the contention of some of the organizers that the mere filing or service operated to prohibit them from so proceeding. Some practitioners erroneously in the author’s view, argue that the mere service of an application does not operate as an injunction and so even if served, they commit no wrong if they proceed to do the very acts which is the subject of the injunction, a position the author does not share.
The author assumes the burden in this paper to discuss briefly the law on injunctions in Ghana, the circumstances under which it is applied for, the principles the court considers in granting or refusing same, the contrasting views on the effect of service of same on a person and restate the position of the law in Ghana regarding the effect of same.
What is Injunction.
Injunction is an equitable and discretional remedy that avails a party in civil proceedings before the court. It is a judicial order restraining a person, either natural or artificial from beginning or continuing an action threatening or invading the legal right of another, or compelling a person to carry out a certain act. According to the celebrated S. Kwami Tetteh in his phenomenal book,[14] defines injunction as, “An injunction is a court order that commands a party to do or abstain from a specific act”.[15] On her part, the learned Francisca Serwaa Boateng[16] in her recent book[17], had this to say on injunction at page 389, “An injunction is an equitable remedy or order to restrain a person from doing something or to compel someone to do something.” Its nature therefore is to seek the intervention of the court in order to maintain a certain status quo pending the final determination of the substantive suit.
Grounds for the grant or refusal of Injunction
The Courts in exercising its discretion in the hearing of an injunction, consider several factors which have been developed through case law. Overall, the Court will grant an order for interlocutory injunction in cases when it is just or convenient to do so. According to the learned S. Kwami Tetteh, in his book cited earlier argues at page 485, that, although the phrase ‘just or convenient’ is couched disjunctively, the phrase is interpreted conjunctively to mean ‘just as well as convenient’. He says further that, “The just and convenient” test, however rendered, remains the test; the grant or denial of the application must be just and convenient. The applicant for an injunction application must for instance show that there is a serious question to be tried or there must be some right to be protected by the court and such right must either be at law or equity.
In the case of Owusu v Owusu-Ansah & Another,[18] the Supreme Court said that, “The granting or refusal of an injunction is at the discretion of the court but that discretion has to be exercised judiciously… The fundamental principle in applications for interim injunction is whether the applicant has a legal right at law or in equity, which the court ought to protect by maintaining the status quo until the final determination of the action on its merits. This could only be determined by considering the pleadings and the affidavit evidence before the court.” In the case of 18th July Ltd v Yehans International Ltd,[19]the apex Court summarized the principles and held that, “even though it is discretionary, we are of the view that a trial court in determining interlocutory applications must consider whether the case of an applicant is not frivolous and had demonstrated that he had a legal or equitable right which a court should protect. The court is also enjoined to ensure that the status quo is maintained so as to avoid any irreparable damage to the applicant pending the hearing of the matter… The trial court ought to consider the balance of convenience and should refuse the application if its grant would cause serious hardships to the other party”. In the view of the learned Francisca Serwaa Boateng, in her valuable book referred to supra, the basic principles for interlocutory injunction as could be gleaned from the 18th July Ltd case are as follows:
- i) the applicant’s case is not frivolous and she has a legal or equitable interest which must be protected;
- ii) the status quo should as much as possible be maintained
iii) the court should ensure that the successful party does not have a hollow victory at the end of the day;
- iv) the order must not work greater inconvenience to either party than is reasonably or absolutely necessary; and
- v) the question of hardship to either party must be seriously considered.
Once the court is satisfied with the grounds referred to above and any other that the court deems relevant, the Honourable Court would make a determination either to grant the application, refuse same or stay the hands of both parties, pending the final determination.
It is the legal effect of the service and pendency of such applications that has engaged the mind of the present author in this paper.
Position in favour of maintaining the status quo upon service of motion
There is one school of thought that suggests that the moment an application prohibiting the conduct of an act is served on a party or the party becomes aware of the pendency of the application, same must tie his or her hands and maintain the status quo until the court, whose jurisdiction has been invoked by the Applicant has made a pronouncement. This school admits that the mere service of the application or notification of same, is not an express order of the court, in fact, and indeed, at that stage, the court whose powers have been invoked is yet to determine the issue. But the position of that school of thought, to which the author belongs is that, although the service of the application is not an order, the effect of the filing and notification on the person, operates to stay his or her hands once the judicial powers have been invoked by the Applicant.
It is trite that justice emanates from the people and same shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to the Constitution.[20] The Constitution 1992 provides in this regard that, “The judicial power of Ghana shall be vested in the Judiciary, accordingly, neither the President, nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power.”[21] It therefore presupposes that, when an application is filed and a person has been served and has thus become aware of the pendency of the application, that person cannot simply ignore the pendency of the application and allow the conduct sought to be prohibited to go on the basis that the court is yet to determine the application or make a specific order. Doing so in the author’s view, amounts to interfering in the administration of justice and seeking to bring the administration of justice into disrepute and the courts ought not countenance or entertain such conduct.
This position has been endorsed by their Lordships in several judicial authorities and in the author’s view, the position is well settled, although some practitioners argue otherwise with the support of some other judicial authorities which the author shall discuss and attempt to distinguish and indeed suggest that those instances are the exceptions and must be looked at in the context of the facts and circumstances under which such cases were decided. The general rule, to the author’s mind, therefore, is that, once a person has become aware of the pendency of a suit and/or an application, seeking to prohibit a conduct, the status quo must be maintained, and parties must give respect to and abide the decision of the court in whom judicial power is vested.
Judicial Authorities in support
Under this head, the author proposes to discuss and review some judicial authorities that have held that the moment the application seeking to prohibit the conduct is served on a person or a person becomes aware, that person must maintain the status quo failing which that person may be liable for contempt.
In the case of Republic v Moffat and Others; Ex Parte Allotey,[22] which the author suggests is a locus classicus for this position, the High Court per Abban J (as he then was) laid down the principle in this regard to the effect that, once a person is aware of the pendency of an application seeking to prohibit a conduct, any attempt to disregard the pendency of the motion will be prejudicial and hence in contempt of the court seized with the pendency of the application. In the Ex parte Allotey case, the facts of which were that, the parties were all elders of the Sempe Stool, Accra. Upon the death of the occupant of the Sempe Stool, the Applicant was asked to act as such pending the installation of a new Sempe Mantse. When the time was due for the election of the new Sempe Mantse, the family split into two rival groups, with each group led by the Applicants and Respondents. A committee was set up to resolve the rivalry but its findings were not accepted by the Applicant’s group who asked for the appointment of another committee. Before that other committee could be appointed, the Respondents group started preparations to outdoor a candidate from their side as New Sempe Mantse, whereupon the Applicant’s group filed an ex parte motion to seek leave to apply for an order of prohibition against all the Respondents to restrain them from outdooring their candidate.
The Court among others held that “any conduct which tends to bring the authority and administration of the law into disrespect or to interfere with any pending litigation is contempt of court. Once the respondent became aware of the pendency of the motion before the High Court, any conduct on their part which was likely to prejudice a fair hearing of that motion or interfere with the due administration of justice amounted to contempt of court.” By this dictum is implied that the moment a person is aware of the pendency of proceedings or motion yet to be determined, the status quo before the pendency of the action must be preserved and not ignored, since failing to do so would amount to prejudicing the judicial powers of the Court that is seized with the jurisdiction over the pending matter. There ought not be an order before the person maintains the status quo. This is what His Lordship Abban J (as he then was) said in that case, “It is well established that any conduct which tends to bring the authority and administration of the law into disrespect or to interfere with any pending litigation is contempt of court. So that once the respondents had become aware of the pendency of the motion before the High Court and which motion gave them notice in clear terms of the court’s intention to inquire into the matter and to decide whether or not they should be prohibited from outdooring the said James Allotey, any conduct on their part which was likely to prejudice a fair hearing of that motion or was likely to interfere with the due administration of justice, would amount to contempt of court, absence of an interim order for stay notwithstanding.”
Similarly in the case of Republic v Eha II & Others; Ex Parte Togobo & Others[23] this same principle was affirmed by the Court of Appeal coram Asare Korang, Akoto-Bamfo and Osei JJA, when their Lordships upheld the finding of the court below of contempt against the appellants therein. In the case of Ex Parte Togobo, following the nomination by other appellants of APA, the 4th appellant as substantive Awoamefia of Anlo, a petition was filed by the respondents with the judicial committee of the Volta Regional House of Chiefs, seeking to challenge the nomination and a motion for an interim junction restraining the purported outdooring and installation. In spite of this, the appellants went ahead with the rest of the customary rites and out doored the 4th appellants as Awoamefia of Anlo, whereupon the respondents filed a contempt action against the appellant on the basis that they were aware of the pending petition against the installation and yet went ahead hence their action amounted to contempt of court.
The Appellants in opposing the application argued inter alia that they were not aware of any interim injunction, neither did they breach any. The learned High Court found inter alia that the appellants were aware of the pendency of the petition before the judicial committee of the Volta Regional House of Chiefs and therefore found the appellants liable for contempt.
The appellants being aggrieved, unsuccessful appealed where in dismissing their appeal, the Court of Appeal had this to say, “there was ample evidence on the record that the appellants were aware of the pendency of a series of petitions before the judicial committee of the Volta Regional of Chiefs challenging the installation of the fourth appellant as the Awoamefia of Anlo. Yet, the appellant willfully and deliberately went ahead to outdoor the fourth appellant as Awoamefia of Anlo, the very act which the respondent’s petitions and motions were seeking to avert and halt. Consequently, since the petitions filed before the judicial committee were yet to be determined, the conduct of the appellants clearly interfered with the judicial process and was calculated to bring the administration of justice into disrepute and disrespect. In the result, the learned trial judge rightly found the appellants guilty of contempt and sentenced them accordingly. In the circumstances, therefore, the appeal should be dismissed.” In this case, therefore, the court took the view that to the extent that the appellants were aware of the pendency of the motion and yet went ahead to conduct themselves in the manner as they did, that amounted to contempt. The Court actually commented in its delivery thus, “What was the contempt alleged to have been committed in this case? It was not that the appellants had breached or disobeyed any order of injunction made against them by the judicial committee of the Volta Regional House of Chiefs. The basis for the charge of contempt was that the appellants, with full knowledge of the pendency of the litigations in the judicial committee of the Volta Regional House of Chiefs, bearing on the qualification of the fourth appellant as Awoamefia, undermined and tended to bring the authority and administration of law into disrepute and also interfered with the pending litigations. The principle is that if a party knowing of the existence of a case – a writ, a petition or a motion – pending before an adjudicating body seeking to restrain an act, makes a decision himself to deal with and grant the very remedy to himself without giving opportunity to the adjudicating body to hear the matter, he commits contempt…”
In the recent case of The Republic v Bank of Ghana and 5 Others, (Ex Parte Benjamin Duffour)[24], the Court of Appeal had this to say, “when during, or following the pendency of a matter before the court, a person scorns the orders of a court or disregards such pendency, the offence is against the court itself, for it brings its authority and the administration of law into disrespect, or in disregard.” (emphasis mine)
The Court of Appeal stressing the position argued by the author further said thus, “… But where there is no order by the Court to be obeyed, contempt of court may be constituted simply by conduct which interferes with the pending litigation….. This is so where a party or privy does acts that will prejudice the res litigia. Anything short of that will not prevent a party from exercising his right…” The brief facts of this case as rendered by the Supreme Court report, were that, the Appellant, a Deputy Manager of the Bank of Ghana, who by virtue of his employment was granted licence to reside in the Bank’s apartment at East Cantonment. The Bank wrote a letter to all occupants of the apartments to vacate the building to another location to enable the Bank develop the place into a medical facility, which all staff moved, with the exception of the Appellant. Frustrated by the events, the Bank took steps to evict him, whereupon he instituted an action against the Bank to prevent them from evicting him and claimed that the conduct of the Bank was in breach of the licence agreement.
Among his reliefs were a declaration that the conduct of the Bank was in breach of the licence agreement, an order setting aside the sanctions imposed on his as well as a perpetual injunction restraining the Bank and its agents and assigns from ejecting him from his accommodation contrary to the licence agreement pending the determination of the suit. The Bank entered appearance and filed a counterclaim for a declaration that the continued occupation of the Appellant in the apartment amounted to trespass. In addition to the appellant’s application for injunction to restrain the Bank from ejecting him, he also sought a further order restraining the Bank from calling upon the Appellant to appear before the disciplinary committee pending the determination of the suit. The trial Court granted the injunction seeking to restrain the Bank from calling the Appellant from proceeding at the Disciplinary Committee but refused the application to restrain the Bank from ejecting the Appellant. Yet the Bank forcibly ejected the Appellant and by a letter summarily dismissed the appellant from its employment, whereupon the Appellant applied and cited the Bank for contempt of Court. The trial High Court refused same. On appeal to the Court of Appeal, their Lordships found the Bank’s conduct to be contempt but cautioned and discharged the Bank among others. Aggrieved, the Appellant further appealed to the apex court.
The Republic v Bank of Ghana and 5 Others, (Ex Parte Benjamin Duffour)[25] when the case went further to the Supreme Court, their Lordships, speaking through Baffoe Bonnie JSC, “The judicial power of Ghana, by article 125(3) of the 1992 Constitution, has been vested in the Judiciary. This power cannot be fettered by any person, agency or organ including the President and Parliament. Any conduct that contravenes this provision is clearly unconstitutional and as such null and void. When a court is seized with jurisdiction to hear a matter, nothing should be done to usurp the judicial power that has been vested in the court by the Constitution of Ghana. In effect, the state of affairs before the court was seized with the matter, must be preserved until the court delivers its judgment. This is so whether or not the court has granted an order to preserve the status quo or not. A party to the proceedings will be in contempt if he engages in an act, subsequent to the filing of the case, which will have the effect of interfering with the fair trial of the case or undermine the administration of justice. The conduct must be one which has the effect of prejudging or prejudicing the case even before a judgment is given” On the ways in which intentional contempt may arise, Baffoe Bonnie JSC had this to say, “Intentional contempt may arise in two ways: where a party willfully disobeys an order or judgment of a court, and where a party knowing that a case is subjudice, engages in an act or omission which tends to prejudice or interfere with the fair trial of the case despite the absence of an order of the court” (emphasis mine).
In the case of the Republic v Jafro Mensah Larkai and 4 Others,[26] Apau J.A (as he then was) on the scope of contempt of court, vis-à-vis landmark judicial authorities had this to say, “What constitutes contempt of court has been defined in a plethora of authorities or decisions emanating from our highest court, i.e. the Supreme Court. A few of such authorities in question are: – 1. In Re-Effiduase Stool Affairs (No. 2), Republic v Numapau [1998-99] SCGLR 639, 2. Republic v High Court Accra, Ex parte Laryea Mensah [1998-99] SCGLR 360 @ 368, 3. In Re-Kwabeng Stool, Republic v Broni – Ex Parte Karikari & Another [2005-2006] SCGLR 35, 4. Aryeetey v Agbofu II & Another [1994-95] GBR 250, 5. Republic v Duffour, Ex-Parte Asare [2007-2008] SCGLR 394, 6. Republic v Osei Bonsu II, Mamponghene & Others, Ex-Parte Amadie & Bour [2007-2008] SCGLR 555, 7. Republic v Boateng & Oduro; Ex-Parte Agyenim Boateng & Others [2009] SCGLR 154.” He continues thus, “These authorities contend that contempt of court is not limited to only situations where an order of the court has been violated by the respondent, but includes any act or conduct that tends to interfere with the administration of justice or tends to prejudice the outcome of an action before the court or in a nutshell tends to bring the administration of justice into disrepute.”
The Courts have been consistent in their approach on this subject and in the author’s view that continues to be the position of the law. There law report is replete with several authorities in which their Lordships have affirmed the above discussed position. To recap, the moment a party is aware of the pendency of an action before the court or an application seeking to prohibit certain acts, the party is precluded in acting in a manner the prejudices the fair hearing of the matter, the absence of a specific order notwithstanding.
Cases cited against the above position
The other contrasting view that some practitioners take on this matter is that the mere service of the prohibitory application does not operate to stay the hands of the person conducting an act. They argue that there must be an express order or a substantive order granted by the court, which when flouted or disregarded must be contemptuous. One of the cases such persons’ site is the case of Republic v Court of Appeal; Ex Parte Sito I,[27] where in holding two thereof, the court with the peculiar facts before it, sought to lay down the principles thus, “On the authorities, for a party to be guilty of contempt: (a) there should be a judgment or order requiring the contemnor to do or abstain from doing something; (b) it had to be shown that the contemnor knew what precisely he was expected to do or abstain from doing; and (c) it has to be shown that he had failed or restrained to comply with the terms of the judgment or order and that the disobedience was willful. In the instant case, even though the appellant surrendered the black stool nearly ten years after the time stated in the order of the trial judicial committee, the respondent took no steps to enforce the order. He commenced the contempt proceedings only after the order had been complied with, had become discharged and was no longer operative. Moreover, since there was no order forbidding the enstoolment of the appellant by the Kralongo house or his holding himself out as Omanhene and parading as chief of Banda and besides, the return of the stool was not made a condition precedent to enstoolment, the enstoolment and public conduct of the appellant could not be used to sustain a charge of contempt against him. Accordingly, the finding of contempt made against the appellant by the Court of Appeal would be set aside and he would be acquitted and discharged.”
In Republic v High Court, Accra Ex parte Laryea Mensah,[28]the Court speaking through Bamford-Addo JSC rendered the principle thus; “By definition, a person commits contempt and may be committed to prison for wilfully disobeying an Order of Court requiring him to do any act other than the payment of money or to abstain from doing some act, and the Order sought to be enforced should be unambiguous and must be clearly understood by the Parties concerned. The reason is that a Court will only punish for contempt, a wilful breach of a clear Court Order requiring obedience to its performance. Therefore, disobedience which is found not to be wilful cannot be punished. In this case, the Honourable Court in a suit No. 1693/94 specifically ordered that a certain OB’s burial should proceed in accordance with arrangements agreed which order was carried out. Subsequently, one WT caused some publications which was considered to be in contempt of the specific orders of the court in suit no. 1693/94 whereupon the person was cited from contempt. The contempt application failed. The dictum must be considered in the context of the facts which is among others that there was an alleged specific order that was disobeyed. The dictum of the court was that, “a person committed contempt and might be committed to prison for willfully disobeying an order of court requiring him to do any act other than the payment of money or to abstain from doing an act. The order sought to be enforced should however be unambiguous and had to be clearly understood by the parties concerned, for the court would only punish as contempt a wilful breach of clear court order requiring obedience to its performance. Hence disobedience which was not found to be wilful could not be punished.”
The case of Republic v High Court, Sekondi; Ex Parte Perkoh II[29] is another case cited by proponents that the mere service or pendency of an application does not preclude a person from so acting. The Court of Appeal in that case speaking through Benin JA (as he then was) had this to say in holding 2 thereof, “The mere filing of an application for an interim injunction seeking to restraining a chief from performing the functions of a chief would not operate to restrain him from performing the functions of his office when he had not been destooled and the court had not so ordered. Since a chief played key roles in the traditional set up, a decision to the contrary would result in chaos and anarchy in the society by encouraging a chief’s detractors to bring frivolous actions against him and on applying for interim injunction, automatically compel him to cease to perform as a chief. In the result, it would be the applicant who would determine when the chief had to stop performing his functions, rather than a properly constituted and competent chieftaincy tribunal. However, there should not be a vacuum in the position of a chief without going through the well-laid down rules of law and customary practice. Thus, even where a chief had been found liable on a charge to destool him, when he appealed against the decision, section 27 of the Chieftaincy Act, 1971 (Act 370) permitted him to perform the functions of his office, unless the appellate court or tribunal decided otherwise…” The facts show that in this case, there was an application for injunction seeking to restrain a chief from performing the function of his office as chief after destoolment charges were brought against the said chief. The chief had continued to perform the functions of his office as a chief despite the service and pendency of the application against him. The Court distinguished the facts from Ex Parte Allotey and refused to commit the chief to contempt for the above reasons.
The author is unable to resist the temptation to state what the Court said in this regard that, “Counsel for the respondent was o the view that if the chief was not restrained automatically upon being served with an application for interim injunction, he may “alienate stool property” so that by the time the motion is finally disposed of he might have dissipated most of the stool properties.”At the court below the respondent’s counsel relied on the case of Republic v Moffat; Ex parte Allotey [1971] 2 GLR 391. It seem it is this authority that has been relied upon for the argument that once a person has been served with an application for interim injunction, he must cease performing the act for which the application has been brought else he is automatically guilty of contempt.” His Lordship Bennin JA (as he then was) continued thus, “I think it is about time we put such argument and belief to rest. That case did not in the first place did not lay down any hard and fast rule that a person served with an application for interim injunction commits contempt of court if he does that very act for which the application has been brought. Moreover the court was careful in emphasizing the point that it was only conduct that was likely to bring the administration of justice into disrespect or interfere with any pending litigation that was contempt of court. In that case the court came to that conclusion because of the fact that before the application could be heard the very act for which the application had been brought had been performed. It was about outdooring of a person as a chief which they were seeking to restrain, so by outdooring the person whilst the application to restrain it was pending, it amounted to rendering the entire application otiose and exposing the court process to ridicle.” To the mind of the author, a person cannot by the pendency of an application, seek to prevent another from performing the functions of his office, an office he or she occupied prior to the pendency of the application.
Analyses of the two seemingly contrasting positions.
The author suggests that, upon a careful review of the authorities, it is clear that the position of the law is that the moment a party is served with an application seeking to restrain the person from doing something, that person must not do anything that will prejudice the outcome of the suit or bring the administration of justice into disrepute.
From the above two positions, one could see that, in the instances where a person is held to have committed contempt when a specific order or judgment of the court is breached or disregarded, the facts of the case itself shows that what was before the Honourable Court involved a Court order which was being breached. This is obvious in the cases of Republic v Court of Appeal; Ex Parte Sito I and Republic v High Court, Accra Ex parte Laryea Mensah. The author submits that, these are specific instances where orders of the court were allegedly breached and the Honourable Court had to pronounce on same based on the facts before it. The case of Republic v High Court, Sekondi; Ex Parte Perkoh II, is in the view of the author, not an authority to support the general position that the mere filing of an application does not tie the hands of the party. It is apposite in the author’s view to point out that, whereas in Ex Parte Allotey, the application was seeking to restrain persons from being outdoored, in Ex Parte Perkoh the application sought to restrain the chief from performing the functions of his office.
The correct import of the ratio therein in that case is that, an application for injunction cannot be used to prevent a person to perform the functions of his office, an office the person is occupying at the time or prior to the filing of the said motion. That case is therefore distinguishable per its facts and ought to be seen as an exception and not the general rule. The other position, which the author holds, is the general position that the moment a person is served or becomes aware of the invocation of the jurisdiction of the court and the pendency of the application, the status quo must be maintained and nothing done to disturb the status quo or attempt to usurp the judicial power of the court. These general position are seen in the Republic v Moffat Ex Parte Allotey, Ex Parte Togobo, Ex Parte Benjamin Duffour among other such. The position advanced in the line of cases of Ex Parte Sito and Ex Parte Laryea Mensah ought not be seen as the general position of the law, but rather exceptions or seen as decision rendered as a result of the peculiar facts confronting the Honourable Court. In the case of Rev Boakye, if the defendants or any other persons are being cited for contempt, it would be in relation to the valid court order that was granted by His Lordship and not the pendency of the application.
Does this principle apply to Stay of Execution pending appeal?
After a court has rendered a decision in a matter, whether after full trial or an interlocutory matter, an aggrieved party is entitled to appeal against the decision. The mere filing of a Notice of Appeal does not stay the execution of the orders in favour of the victor. It is trite that an appeal in itself does not operate as a stay. The Court of Appeal Rules provides in that regard that, “An appeal shall not operate as a stay of execution or of proceedings under the judgment or decision appealed against except where the court below or the Court otherwise orders”[30] A party who intends to stay the execution of an order or judgment, must after the Notice of Appeal, also apply to the Court below by filing a motion for stay of execution. The application for the stay will be fixed for a date for the parties to argue and for the court to determine whether to grant or refuse based on the principles governing same. It is the view of the author, that upon service of the application for stay of execution on a party or judgment creditor, he or she must stay and not proceed to execution, failing to abide the hearing of the stay is an act tantamount to contempt of the court. In the unreported case of In the matter of the Estate of Albert Kwame Appiah alias Nana Appiah-Kubi of Bomeng via Effiduase (Decd) and In the matter of Application for Probate by Afua Antwiwaa and Kwame Adjei and In the matter of Albert Kwaku Appiah & 3 Others vrs Afua Antwiwaa and 4 Others,[31] the Court of Appeal coram Angelina M. Domakyaareh (Mrs.) J.A (Presiding), A.B Poku Acheampong JA, Samuel K.A Asiedu held that once an application for stay of execution is pending for hearing, no lawful execution can proceed. Samuel K.A Asiedu JA (as he then was) speaking the mind of the Court said thus, “Thus even if it is true that the motion for stay of execution had been pending for well over a year before the High Court, that fact alone does not cause the motion to lapse and until it is moved, the motion remains pending before the Court and to the extent that it is a motion for stay of execution, no execution can lawfully take place until the motion has been dealt with in any way lawful”. His Lordship continues thus, “The whole process of execution in the face of the pendency of the motion for stay of execution was not sanctioned by any law or rule of procedure.” It is therefore not surprising that in the case of Republic v Sangari; Ex parte Sangari[32] a lawyer who wrongly advised a party to proceed to levy execution during the pendency of an application for stay of execution was convicted for contempt.
Can Injunction be abused and what should be the cure?
It has recently been the practice for some persons, for reasons best known to them to abuse the remedy of injunctions. Instances abound when persons will deliberately apply to the court at the last minute when they know the conduct they seek to prohibit is a few days away. The author suggests that, as a purely public policy reason, injunctions which to the mind of the court is clearly to frustrate another person in such instance brought at a later time ought not to be entertained. Recently, there was an ex parte application for injunction against the celebration of the final funeral rites of the late Ga Manye, Naa Dedei Omaeduro, this application was obtained on the Wednesday before the weekend of the funeral. One wonders the reason for the late application when the funeral of the late Queen mother and the planning thereof had been in the public domain for a number of months. It actually took another ex parte application by the other side on the Thursday to set aside the earlier ex parte application granted by the same Court. On that occasion, the learned judge seeing the possibility of another ex parte application on the Friday to reinstate the Wednesday Order, asked that any party seeking an injunction in respect of the same subject matter must this time come on notice and not ex parte. This shows that some persons can intentionally wait and activate the powers of the court at the last minute, only to frustrate the activity of an opponent.
There is also an instance where the Ghana Police Service in their seeming attempt to infringe on the constitutional rights of citizens to demonstrate or exercise other fundamental rights, adopt this last-minute approach which the author suggests smacks of mischief and unbecoming of a service of that nature. The Public Order Act,[33] does not say citizens require the permit of the police to demonstrate or exercise such rights, Demonstrators are only to notify the police of their intention to demonstrate in not less than five days prior to the event. The law is that, “A person who desires to hold a special event in a public place shall notify the police of the intention not less than five days before the date of the special event[34]”. Yet recently, it seems to the author that, the practice has unfortunately been that, the Police will wait and in the last days ahead of the demonstration, would file an application seeking an injunction against persons from exercising such rights. Once the application is served on the persons, by the law discussed supra and the position canvassed by the author, they are supposed to tie their hands and abide by the determination of the court, failing which they become candidates of contempt. A case in point is the recent demonstration by the Democracy Hub when they sought to occupy the flagstaff house.
The author suggests that when the court sees that the main purpose of the application is to frustrate others, such application, by whoever it is brought must not only be refused, but costs must be mulcted against such applicants to serve as a deterrent to others.
What happens if the Court’s power is disrespected by disregarding the order or the pendency of the application?
The Court is the creation of law and its sanctity must be respected and protected by the citizenry. Therefore, any act which tends to disparage the court must be frowned upon. If a court is ceased with a matter or if its jurisdiction has been invoked by a party, any party who attempts to disregard same and proceed in a manner that is prejudicial is liable for contempt. If a court gives express orders, same must be respected until same is set aside. The law is that even if the order is wrong in the view of the person or his counsel, same must be obeyed or complied with, unless the person aggrieved thereby has applied to have the said order set aside.
The respected former Supreme Court Judge, S.A Brobbey in his valuable book[35] at page 452 says this of contempt, “In its simplest sense, contempt of court means any conduct that interferes with or undermines the administration of justice. This definition covers criminal as well as civil contempt. The interference may be in respect of a specific case. It may be one calculated to encourage others to resort to similar conduct in the future and thus bring about interference with the general administration of justice.” Brobbey further refers to Oswald on Contempt of Court (3rd ed), page 6 thereof the oft cited locus classicus on contempt of court thus, “To speak generally, contempt of court may be said to be constituted by any conduct that tends to bring the authority and administration of the law into disrespect or disregard or to interfere with or prejudice parties, litigants or their witnesses during the litigation.” In the peculiar facts, the Supreme Court in the case of Republic v High Court, Accra Ex Parte Laryea Mensah[36] said that, “a person commits contempt and may be committed to prison for willfully disobeying an order of the court requiring him to do any act than the payment of money or abstain from doing some act; and the order sought to be enforced should be unambiguous and must be clearly understood by the parties concerned.” The author submits that the dictum in these line of cases must be looked at in the lenses of their peculiar facts.
The author submits, that it is contempt for a party who has been served or is aware of the pendency of an action to do an act that prejudice the action before the court. Contempt is not only when there is a specific order or judgment that is disrespected or disregarded. In the case of Republic v Sangari; Ex parte Sangari,[37] a lawyer who gave a wrong advise for a party to go into execution while there was an application for stay of execution pending in the Supreme Court was convicted for contempt. In the case of Republic v Akenten II; Ex parte Yankyera[38] during the pendency of a chieftaincy dispute before the judicial committee of a traditional council as to which of the parties was entitled to occupy the stool., the appellant during the pendency of the action dissolved the stool and replaced it with another one. Upon an application for contempt against him for interfering with the administration of justice, he was convicted. The Supreme Court was apt in the case of Aryeetey v Agbofu II[39] when it held that, “While the motion was pending, it was disrespectful to the Ga Traditional Council for the first applicant to install the second applicant. Once the applicant had become aware of the pendency of the motion any conduct on their part that would prejudice the fair hearing of the motion was tantamount to contempt. The applicant should not be allowed to get away with such behavior, which must be deprecated plainly by this court….” The author notes and emphasizes that in this case the pendency of the motion was not even before the regular court but without sounding disrespectful, before the judicial committee of the Traditional council. The respected Brobbey in his book cited supra sums up the firm position of the law on this matter when he stated the firm position of the law at page 481 of his book thus, “Whichever way one considers it, the established rule is that after a court case has been filed, any action, omission or conduct that is likely to prejudice the fair trial of the case or interfere with the due administration of justice will be tantamount to contempt of court.”
Role of Counsel
Even though lawyers take instructions to act on behalf of their clients, clients also are supposed to take legal advice from their lawyers. It is therefore imperative that in engagement with clients, counsel must advise clients properly in such matters. It is a misadvise therefore on the part of a lawyer who are officers of the court and are supposed to know better, to advise their clients to ignore the pendency of an application and do what the application seeks to restrain thereby prejudicing the issue and denying the court the opportunity to pronounce on same. Lawyers must advocate and uphold the sanctity and authority of the courts. Lawyers in addition to their duty to their clients, have duty to the Court[40]before whom they practice. It is a misconduct for a lawyer to advise a client in a manner tar brings the administration of justice into disrepute. Counsel, as officers of the Court, in the view of the author, must rather be in the forefront of advising their clients correctly on the position of the law, that the pendency of an application operates to stay one’s hand from doing anything that will prejudice the case or bring the administration of the justice into disrepute. According to the Code of Ethics, “A lawyer commits misconduct if he knowingly assists, enables or permits his client to do anything which in his opinion is dishonest or dishonourable.”[41]
Conclusion
The author concludes by submitting that the law is settled on the effect of the service and pendency of an application for injunction or any such application seeking to prohibit certain acts. The moment the jurisdiction of the court is invoked and a party or a person is served and has become aware of the pendency of same, such parties are to stay their hands and not to interfere with the administration of justice by seeking to do the very acts which is a subject matter for the court’s determination. The argument that the mere service of the application or the pendency of same does not operate to stay one’s hands until the determination although attractive is unconvincing. Indeed, the author used to take that same view for many years in law school as a student but has upon the review of the authorities and with experience in the practice of the law, the author has departed from that position. Those of the Christian faith are familiar with the Pauline writing in I Corinthians 13:11, which the author cites to conclude, mutatis mutandis, to the effect that, “When I was a child, I spake as a child, I understood as a child, I thought as a child: but when I became a man, I put away childish things.”
[1] Vivian Esumanba Sampson, BBA, MPhil, PhD. Lecturer, UPSA, Faculty of Finance and Accounting
[2] 2022 (Act 1075)
[3] https://thebftonline.com/2022/03/30/parliament-passes-e-levy-bill-2/
[4] https://www.africanews.com/2022/04/29/ghana-set-to-implement-electronic-levy-e-levy-on-may-1//
[5] Hon. Haruna Iddrisu, Minority Leader at the time, Hon. Samuel Okudzeto Ablakwa and Hon. Mahama Ayariga.
[6] https://citinewsroom.com/2022/05/supreme-court-to-hear-minority-members-suit-against-e-levy-implementation-today/
[7] https://dailyguidenetwork.com/supreme-court-to-hear-minoritys-suit-against-e-levy-implementation-today/
[8] https://www.graphic.com.gh/news/general-news/supreme-court-throws-out-injunction-application-against-e-levy.html or https://www.myjoyonline.com/supreme-court-in-a-unanimous-7-0-decision-dismisses-minority-mps-injunction-case-against-e-levy/
[9] Suit No. GJ/12/90/2023 coram Ali Baba Abature J.
[10] https://www.ghanaweb.com/GhanaHomePage/NewsArchive/Rev-Anthony-Boakye-s-wife-secures-court-injunction-to-halt-funeral-1816385
[11] https://www.youtube.com/watch?v=sBoFwM_jjRs
[12] Article 58(1) of the Constitution 1992
[13] Article 58(2) of the Constitution 1992
[14] Civil Procedure a Practical Approach
[15] Ibid p 483
[16] Founder and Managing Counsel, Head of Litigation and Arbitration at FSB Law Consult
[17] The Handbook on Civil Procedure & Practice in Ghana, Rules, Cases, Commentary & Precedent
[18] [2007-2008] SCGLR 870
[19] [2012] 1 SCGLR
[20] Article 125(1) 1992 Constitution Ghana
[21] Article 125 (3) 1992 Constitution of Ghana
[22] [1971] 2 GLR 391
[23] [2003-2005] 1 GLR 328
[24] (2017) 113 G.M.J 156 CA
[25] [2018]123 G.M.J 205
[26] [2012] 48 G.M.J 112
[27] [2001-2002] 1 GLR 319
[28] [1998-99] SCGLR 360
[29] [2001-2002] 2 GLR 460 CA coram Benin, Akoto Bamfo and Owusu-Ansah JJA
[30] Rule 27(1) of Court of Appeal Rules C.I 19
[31] Civil Appeal No. H3/20/2021 judgment dated 27th October 2023
[32] [1994-95] GBR 246
[33] Section 1(1) of Public Order Act, 1994 (Act 491)
[34] Section
[35] The Law of Chieftaincy in Ghana
[36] [1998-99] SCGLR 368
[37] [1994-95] GBR 246
[38] [1993-94] 1 GLA 246
[39] [1994-95] GBR 250 SC
[40] Ghana Bar Association Constitution and Code of Ethics
[41] Rule 46(1)(c) GBA Code of Ethics