Kumi v Republic (J5/37/2025) [2025] GHASC 134 (12 March 2025)

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IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – AD 2025

Coram

PWAMANG JSC (PRESIDING) PROF. MENSA-BONSU (MRS.) JSC GAEWU JSC KWOFIE JSC ADJEI-FRIMPONG JSC 12TH MARCH, 2025

Civil Motion

J5/37/2025

THE REPUBLIC VRS HIGH COURT 3, KOFORIDUA … RESPONDENT EX PARTE ERNEST YAW KUMI … APPLICANT

1. HON. HENRY BOAKYE YIADOM … 1ST INTERESTED PARTY

2. THE ELECTORAL COMMISSIION … 2ND INTERESTED PARTY

3. THE CLERK OF PARLIAMENT … 3RD INTERESTED PARTY

Ruling

PRELIMINARY ISSUE OF WHETHER APPLICANT, CONTEMNOR IS

Majority Opinion

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ADJEI-FRIMPONG JSC:

Background

On December 7, 2024, the people of Akwatia in the Eastern Region went to the polls to elect, what is of relevance to th e instant proceedings , a member of Parliament for the constituency in the general elections. The applicant was a candidate in the elections representing the New Patriotic Party (N.P.P). The 1 st Interested Party contested on the ticket of the National Democratic Congress (N.D.C.)

At the close of polls and on counting and collation of results, the Applicant was declared winner by the 2 nd Interested Party, the Electoral Commission (E.C .). The EC has since gazetted the results of the constituency parliamentary election s even though in this application, the issue of when this was actually done is in some controversy.

Following the declaration of the results however, the 1st Interested Party on 31st December filed a petition in the High Court Koforidua seeking to challenge the results on grounds of alleged irregularities and misconduct s, that to him , affected the final outcome of the elections. The petition sought the following reliefs:

(a) A declaration that the purported declaration of the winner of the parliamentary election held at Tesano Police Training School in Accra on Thursday, the 12 th December, 2024 is void and of no legal effect.

(b) An order cancelling the results of the said declaration by agents of the 2nd Respondent.

(c) A declaration that the 1st Respondent was not validly elected as Member of Parliament.

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(d) A declaration that upon the cancellation of all unlawful votes and upon proper collation the Petitioner is the validly elected member of parliament for the Akwatia Constituency.

(e) Costs and any order just and fair in the eyes of the law.

On the back of the petition, the 1 st Interested Party the same day filed an application ex parte for an interlocutory injunction restraining the Respondents therein from essentially, doing anything to hold the applicant out as a duly elected Member of Parliament. In particular, the Applicant was to be restrained from being called, admitted, registered, sworn in or gazetted as Member of Parliament for that constituency.

Senyo Amedahe J on the 2 nd January 2025, granted the ex parte application for a limited period of ten (10) days. The next day 3rd January 2025, the applicant caused an application to be filed in that Court to set aside the ex parte order and the petition that founded it. The basis of the application was that at the time of the petition and the subsequent order, the results of the parliamentary elections had not been gazetted and by law, no valid petition could have been filed to invoke the jurisdiction of the High Court. This position did not find favour with the learned Judge . Rather, he accepted a submission made on behalf of the 1 st Interested Party that , there had been a media publication by which the E.C declared that the results of all, except two (Dome Kwabenya and Ablekumah North) of the 276 Constituencies had been gazetted. Persuaded by this submission, the judge dismissed the application to set aside the petition and the order of injunction.

Subsequent events in that court resulted in a contempt application being mounted against the Applicant on 13 th January 2025. Meanwhile on the 8 th January 2025, the Applicant invoked the supervisory jurisdiction of this Court seeking orders in the nature of certiorari and probation to have the proceedings and orders in the High Court quashed Page 4 of 20

and the learned Judge prohibited from proceeding with the matter. At the material time, a further application had been filed in the High Court challenging its jurisdiction to entertain the petition and the various processe s brought upon it. It was whilst the application before this Court and others before the High Court were pending that the contempt application was determined against the Applicant for which he was convicted on 19th February 2025 and a warrant issued for his arrest.

In this application seeking to invoke the supervisory jurisdiction of this Court pursuant to article 132 of the Constitution and Order 61 of the Rules of this Court (C.I 16) (as amended), the applicant seeks the following reliefs:

i. A declaration that the Petition filed by the 1st Interested Party on 31st December, 2024 in the absence of the Gazette Notification of the Parliamentary Election Results to which the election relates is incompetent as a same did not properly invoke the jurisdiction of the High Court and that any Order founded on same is void an d of no effect.

ii. A declaration that the Contempt Proceedings and the Ruling dated 19th February, 2025 founded on the premature election petition filed on 31 st December, 2024 is void and of no effect.

iii. An order of Certiorari by this Honourable Court quashing, the Ruling of His Lordship Justice Emmanuel Senyo Amedahe sitting at the High Court 3, Accra Koforidua dated 19th February, 2025 the petition filed on 31 st December, 2024 and the Interim injunction Order dated 2nd January, 2025, and the Ruling dated 6th January 2025 made pursuant to the said premature Election Petition, filed on 31st December 2024. Page 5 of 20

iv. An order quashing the Ruling delivered on the Contempt Application and the Execution of the Bench Warrant issued by the Court dated 19th February, 2025 by His Lordship Justice Emmanuel Senyo Amedahe.

v. An order of prohibition against His Lordship Justice Senyo Amedahe from proceeding to sentence the applicant, Hon. Ernest Yaw Kumi pending the hearing of the instant suit.

vi. Any other Order(s) as the Court deem fit.”

The above reliefs are being sought on the following grounds:

1. “That the learned High Court Judge committed jurisdictional error of law apparent on the face of the record when he assumed jurisdiction in Parliamentary Election Petition at Akwatia Constituency at the time when the Electoral Commission had not published t he Gazette Notification of the results to which the Election relates in the Gazette.

2. The learned High Court Judge breached the rules of natural justice when he proceeded to hear and determine the Contempt application despite the pendency of Applicant’s Motion to set aside the said Contempt for want of jurisdiction.

3. The learned High Court Judge was biased and highly prejudicial against the Applicant when he, among others, refused to grant Counsel for the Applicant audience on the basis that Counsel had not filed “Appearance” in the Contempt.”

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At the hearing of this application on 26th February 2025, this Court suo motu raised the issue of the right of the Applicant to be heard on same, given his conviction of contempt by the High Court which was not purged and for which warrant was pending for his arrest. The parties were directed by the Court to file submissions to address the Court on the issue.

From the record, only the Applicant filed a submission. Whereas Learned Counsel for the 1st interested Party chose to leave the matter in the hands of the Court to make a determination, Counsel for E.C. took the position that, if indeed the Applicant was not heard on the contempt application in the High Court, then he was entitled to be heard in this Court.

DETERMINATION. The general rule is that a comtemnor is not entitled to be heard until he has purged the contempt. This rule is however not an inflexible one. The contemporary judicial attitude suggests that the courts have discretion in making the decision. This appears a universal proposition. The esteemed editors of HAL SBURY’S LAWS OF ENGLAND have expressed the position as follows:

“The general rule is that a party in contempt cannot be heard or take proceedings in the same cause until he has purged his contempt; nor while he is in contempt can he be heard to appeal from any order made in the cause. This is, however, subject to exceptions. Thus, a party in contempt may apply to purge the contempt, or appeal with a view to setting aside the order on which his contempt is founded , and in some cases he may be entitled to defend himself when some application is subsequently made against him. A plaintiff in Page 7 of 20

contempt has been allowed to prosecute his action when the defendant had not applied to stay proceedings, and the proceedings will not be struck out. Even in cases where the rule is prima facie applicable, the court appears to retain a discretion whether or not to hear the party in contempt and may in its discretion refuse to hear a party only on those occasions when his contempt impedes the course of justice and there is no other effective way of enforcing his obedience. In an appropriate case, the court may decide to hear submissions from the contemnor de bene esse.” Vol 9(1), 4th ed., Reissue, para 511, p. 321.

In the same sense, writing on the topic “The court’s discretion not to hear a contemnor until the contempt is purged” the authors of ARLIDGE, EADY & SMITH ON CONTEMPT have stated:

“An effective sanction (deriving from canon law) was the practice that one who was in contempt might not be heard further in the same litigation, for his own benefit unless and until he had purged his contempt. In the words of Lord Brougham , “it is a general rule of all Courts, that no party shall be allowed to take active proceedings, if in contempt”. This was clearly a practice primarily coercive in nature rather than punitive. It was by no means universally applied. There have always been recognized so called “exceptions” so that for example a contemnor might be heard on an application to purge the contempt; or for the purpose of setting aside the order breach of which had put him in contempt, or of appealing against a relevant order for lack of jurisdiction; also, he was not precluded from defending himself in the action itself…” 5th ed., Sweet & Maxwell, para 12-73, page 1054.

In HADKINSON VRS HADKINSON [1952] P. 285 Denning L.J. espoused at 298:

“It is a strong thing for a court to refuse to hear a party to a cause and it is only to be justified by grave considerations of public policy. It is a step which a court will only take Page 8 of 20

when the contempt itself impedes the course of justice and there is no other effective means of securing compliance…Applying this principle I am of the opinion that the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard, but if his disobedience is such that, so long as it continues, it impedes the course of justice in the cause, by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make, then the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.”

It was in the case of X LTD. VRS MORGAN-GRAMPIAN [1991]1 AC 1 at 46-47 where the House of Lords prescribed that the question whether a contemnor may be heard be approached on the basis of a discretion to be exercised flexibly, according to the circumstances, rather than on the basis of a rule. In that case where the Court of Appeal had refused to hear a contemnor even though the court’s authority to make the order was being challenged, the House held that the Court of Appeal on the facts of the case erred in not granting the contemnor a hearing. Lord B ridge of Harwich in his speech referred to the above passage of Denning LJ in the HADKINSON’s case and opined:

“I cannot help thinking that the more flexible treatment of the jurisdiction as one of discretion to be exercised in accordance with the principle stated by Denning L.J. better accords with contemporary judicial attitudes to the importance of ensuring proc edural justice than confining its exercise within the limits of a strict rule sub ject to defined exceptions. But in practice in most cases the two different approaches are likely to the lead to the same conclusion…”

This Court has had occasion to consider the issue as an exception to a general rule rather than by way of discretion even though as determined on authority, the two approaches are likely to lead to the same conclusion. In REP UBLIC VRS HIGH COURT, KUMASI; Page 9 of 20

EX PARTE KODUA (PARAGON INVESTMENT LTD INTERESTED PARTY) [2015 - 2016]2 SCGLR 1349 at 1358, AKOTO-BAMFO JSC delivered herself as follows:

“Generally, it is the position of the law that a person in contempt cannot be heard until he has purged his contempt. The argument is that, having shown no respect for the orders of the court, it would not be proper for the court to exercise a discretion in his favour. Dankwa v Amartey [1994 -95]2 GBR 8 48, C.A. Many exceptions to this rule have been admitted thereby gradually enlarging the rights of a contemnor to be heard. Thus, a person who contests the regularity of the process or service by which he is in contempt, can be heard in the absence of a purge. In Gordon v Gordon (1904) Probate Division 163 it was held that the principle that a person in contempt cannot be heard, prima facie, applied to voluntary applications, i.e., when the party comes to the court asking for something but not when he is challenging the order that it was made without jurisdiction or in cases in which all that the contemnor is seeking is to be heard in matters of defence.”

Also, in the case of IN RE: APENTENG (DECD) THE REPUBLIC VRS HIGH COURT, ACCRA (COMMERCIAL DIVISION); EX PARTE APENTENG (APENTENG, INTERESTED PARTY) [2010] SCGLR 327 where a contemnor had sought to quash his conviction by the High Court raising its jurisdictional challenges, this Court refused the order of certiorari due to the conduct of the applicant in participating in the impugned proceedings. However, on the question whether a contemnor was entitled to be heard in that application, ATUGUBA JSC who delivered the decision of the Court agreed with the position of OLIVER J in MIDLAND BANK TRUST CO. LTD VRS GREEN (NO.3) (1979)2 ALL ER 193 and pronounced at page 339-340 of the report:

“In deciding the instant case, we are not oblivious of the rule of law, namely , that a contemnor, who has not purged his contempt, should not be heard, at least with regard to Page 10 of 20

the same matter before he purges his contemp t. But we agree with Oliver J in Midland Bank Trust Co Ltd v Green (No.3) [1979]2 ALL ER 193 that a contemnor can always take proceedings against an order made against him without jurisdiction. We further support the view that a court has di scretion to hear or not to hear a contemnor. Otherwise, if the rule against hearing a contemnor were an absolute one, it would run co unter to the wellestablished maxim actus curiae neminem gravabit.”

From the authorities considered, it seems well settled that the general rule that a person in contempt of court cannot be heard until the contempt was purged as derived from ancient canon law has outlived any inflexible application granted it was ever absolute and universal. The rule is now exposed to manifold exceptions and made subject to the discretion of the courts. The exercise of the discretion depends on varied factors including the nature and purpose of the proceeding by which further hearing is sought, the nature of the disobedience that resulted in the contempt and whether its persistence will fatally impede the course of justice . The court may also co nsider the conduct of the contemnor or any other party and indeed the overall circumstances of the case.

In the instant application, we are clear in our minds that the Applicant seeks to attack the very jurisdiction of the High Court to entertain the election petition and all subsequent proceedings brought upon it including the contempt proceedings. For what we find most significant, the jurisdiction of this Court in the instant application was invoked before the commencement of the contempt proceedings in that Court. As recounted, as of 8th January 2025, the jurisdiction of this Court had been invoked seeking to impugn the election petition itself and subsequent processes in the High Court on grounds including lack of jurisdiction. Indeed, it is obvious the High Court had notice of the application in this Court at the time it entertained and proceeded with the contempt application . At the same time there were processes before the High Court itself challenging its juris diction Page 11 of 20