Daniel Korang (aka Prof)
Introduction
One question which has perennially perplexed philosophers and jurists over the centuries is whether or not men have the obligation to obey court decisions which they think are erroneous, unfavourable, unjust or void. Of course, this question has philosophical and jurisprudential undertones. The courts have always framed the question in the following terms: “The issue is whether a party to a suit, or a person to whom an order of a court of competent jurisdiction is directed can justify his disobedience on grounds that the order or process is null and void, or erroneous, or improvidently made?”
Both history and the experience of other countries teach us that in politically charged cases like the on-going 2012 election petition where both parties have large following, party apparatchiks swear to disobey the court’s verdict if it does not favour their party. The truth must not be lost on us that, in our legal system no two parties appearing before a court can win the case without the other losing it. Similarly, no court has the right to refrain from pronouncing the winner in a case before it. I think if such discretion exists, then the Supreme Court might be more inclined to desist from announcing its verdict on 29th August, 2013.
All the peace calls have the sole motive of ‘convincing’ the litigating political parties and their followers to accept and obey the court’s decision. I have always thought that, by voluntarily adopting a democratic system of government, we must also be deemed to have voluntarily relinquished all personal viciousness and inclinations which motivate us to disobey unfavourable court orders. This, in my view, is a crass paradox!
It must be positively stated without any fear of possible contradiction that it is not – and it is important to say that it has never been and shall never be - a democratic right of liberated persons to disobey court orders which they perceive to be unfavourable, erroneous, void or improvidently made. This is a truism that transcends every conceivable repudiation. No truly liberated person can legitimately claim any right which permits him to choose whether to obey a court decision or not. Indeed, any such claim must be pooh-poohed as a travesty of civility and a blundering abuse of liberation.
As a people, we have, by virtue of our independence and democracy, surrendered all our individual might, power and supremacy to the state to administer justice for a free living. This awesome power has been further vested in the Judiciary to ensure the rule of law and discourage all forms of the early brutish proclivities notoriously characteristic of some regimes that existed before our election to adopt a civilized national life. There is no justification, therefore, for a man, who is an eye-witness of the trajectories of the process of our civilization, to willfully disobey the verdict of a court of competent jurisdiction. Any attempt to disobey the verdict of a Court will be the most overwhelming onslaught on Ghana’s democratic successes tiresomely chalked about two decades now.
The obligatory nature of court orders requiring an unquestioned obedience thereto until the order is revoked was succinctly stated in the case of The Republic v. High Court, Accra Ex Parte Afoda (2001 – 2002) SCGLR 768. In this case, the defendants refused to vacate the disputed premises and deliver same to the plaintiffs contrary to an order of the High Court. When they were cited for contempt, it was argued on their behalf that in the special circumstances of the case, the order of the court ought not to have been made. According to the defendants, the order was erroneous, irregular and void. The defendants therefore argued that, they were justified to disobey what they perceived as void or erroneous court order. The issue for determination by the Supreme Court was whether a person has the discretion to obey or disobey a court order which he perceives to be apparently wrong, erroneous or void.
The supreme Court unanimously held that the fact that an order of, or a process from, a Court of Competent jurisdiction is perceived and considered void or erroneous should not give a party who is affected by the order, or to whom the process is directed, the slightest encouragement to disobey it; and when cited for contempt, only to turn round to justify the said disobedience by the fact that the order ought not to have been made or the process issued in the first place. The proper thing to do is to either obey, or sue for a declaration to that effect or apply to have it set aside. This decision was approved in the recent case of Enock Awasabi Gbertey vrs E.A. Accam Esquire & Anor (Civil Appeal No J4/4/2011 10TH APRIL, 2013).
This principle has flourished for a long time now and has gained an inflexible posture in our legal system. A dissatisfied litigant must follow due process to champion his course.
THE PROPER FORUM FOR CHALLENGING COURT DECISIONS
Generally, I think, that what makes men truly free and liberated is not mere existence of self-government. No! I believe what makes men truly independent and liberated is their willingness – I mean general commitment – to relinquish all individual proclivities to the state and yield altogether to the rule of law and due process in the pursuit of justice. Any form of justice obtained without recourse to due process is a manifest injustice. Democracy frowns upon the form of life wherein men seek to obtain justice through the flexing of muscles and the barrel of the gun.
The beauty of the rule of law and democracy lies in the fact that, when a litigant loses a court action the door of justice is not slammed on him; he has the right to appeal against unfavourble court verdicts and even seek a further review of the decision. The desire of litigants to exhaust these procedures is a cherished keystone of all truly civilized nations, and to me that distinguishes humans from other creatures. This perhaps motivated the Supreme Court to declare as unconstitutional the portion of CI 75 which prohibited a review of the decision of the court in the on-going election petition.
In the old case of Russel Vrs. East Anglian Railway Co. (1850) 42 E.R. 201 Truro, L.C. stated that:
"…it is an established rule of this Court that it is not open to any party to question the orders of this Court, or any process issued under the authority of this Court, by disobedience. I know of no act which this Court may do, which may not be questioned in a proper forum, and on a proper application; but I am of the opinion that it is not competent for anyone to interfere with … or to disobey… any other order of the Court, on the ground that such orders were improvidently made. Parties must take a proper course to question their validity, but while they exist they must be obeyed. I consider the rule to be of such importance to the interest of and safety of the public, and to the due administration of justice, that it ought, on all occasions, to be inflexibly maintained.”
In the recent case of The Republic Vrs The High Court Judge, Fast Track Division Ex-Parte Benjamin Badu Quaye & Anor (J5/10/2006) judgment delivered on 31/7/2006, ATUGUBA J.S.C. stated that it is on grounds of public policy that an order or process of a court of competent jurisdiction should be treated as valid until vacated by legal process. This is to avoid rancorous confrontations in the administration of justice. The litigating political parties must be careful not to circumvent due process by resorting to violence when they are not satisfied with the court’s verdict, after all, whatever the court’s verdict may be, the general good of Ghana is what must reign.
Conclusion
As a matter of public policy, it is important that the authority of the Court and the sanctity of its process and orders be maintained at all times. It is too dangerous to suggest that litigants and their supporters have the right to decide which orders or process of the Court are lawful and therefore deserving of obedience, and if not, must be disobeyed. An order or process of a Court of competent jurisdiction cannot be impeached by disobedience. No court verdict can be legitimately varied or vacated by recourse to non-compliance with the said verdict. That way, we would needlessly be empowering litigants, in the slightest provocation, to have supervisory jurisdiction over the Courts and thereby permitting disgruntled litigants to superimpose their notion of justice over that of the courts. That will be an effective way to undermine, if not destroy, the administration of justice and poison the stream of justice.
At this stage of our civilization, it deserves emphasis that no litigant has the right to determine for himself whether or not a court order is valid to command his obedience to it. Compliance with the orders of the Court is the only sure route to public order and peace which we need to sustain a stable democratic social order. While it is necessary for the political parties and their followers to obey decisions of the court, it is not, at all, out of place to advice judges to entirely submit to the dictate of the law they ought to enforce. In Osborne v. United States, 9 Wheat. 738 at 866 Marshall gave a clear direction as to how a court or a judge is expected to manage judicial proceedings in the following words: “Judicial power is never exercised for the purpose of giving effect to the Will of the judge; always for the purpose of given (sic) effect… to the Will of the law”. The decision of the court in the current election petition must reflect its commitment to uphold fundamental human rights of Ghanaians. In conclusion, it is necessary to refer to the felicitous and insightful words of Hayfron Benjamin J. (as he then was) in the case of Republic v. Chieftaincy Committee on Wiamoasehene Stool Affairs; Ex parte Oppong Kwame [1971] 1 G.L.R. 321 at 336 where he said:
"The process of liberalisation is by no means complete. In the infant democracy of Ghana it is exceptionally important that the courts should not put fetters on their own ability to protect the fundamental human rights… by adopting highly technical and artificial limitations on their powers, limitations which are being rapidly discarded even in monarchial regimes. Democracy in the last analysis, receives its sustenance from remedial laws and procedures; it is the availability of effective and reasonably quick remedies for doing justice that gives meaning to democracy.”
Daniel Korang (aka Prof)
Sunyani
0208759342
Email: ampenkro@yahoo.com
Note to the Editor: Column description
POINT OF LAW
With Daniel Korang (aka Prof) LL.B
Email:ampenkro@yahoo.com
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