Republic Vrs Annan [2023] GHAHC 146 (17 May 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE WINNEBA, CENTRAL REGION OF GHANA HELD ON MONDAY, THE 17TH DAY OF MAY, 2023, BEFORE HIS LORDSHIP, JUSTICE ABOAGYE TANDOH, HIGH COURT JUDGE. THE REPUBLIC VS. SUIT NO. E12/021/2021 1. JAMES KOFI ANNAN … RESPONDENT EX PARTE: ALEXANDER AFENYO MARKIN … APPLICANT ______________________________________________ JUDGMENT The Applicant by a motion on notice filed an application on the 16th day of December,2020 for an order to commit the Respondent to prison for Contempt of court pursuant to Order 50 rule 1of the High Court (Civil Procedure) Rules, 2004 (C. I 47). It is the case of the Applicant that he was the Plaintiff in suit No. A5/4/2020, commenced at the District Court, Winneba by way a Writ of Summons against the Respondent, then the Defendant therein per Exhibit Aand claimed as follows: (i) A declaration that the contents of the Press Conference are defamatory (ii) An order directing the Defendant to render an unqualified apology to the Plaintiff through the same modus the defamatory statements were published. (iii) An order of perpetual injunction restraining the Defendant from further authoring and publishing any defamatory statement against the Plaintiff. (iv) General damages of the Twenty Thousand Ghana Cedis (GH¢ 20,000.00) (v) Cost According to the Plaintiff the District Court, Winneba on 28th say of August, 2020, determined the matter in his favour per Exhibit Band the court ordered the Respondent to retract the defamatory press statement issued on 17th March, 2020 and render an apology to him between 28th August 2020 and 31st August 2020 and duly served on the Respondent per Exhibit C. The Applicant further stated that the Respondent filed a Notice of Appeal per Exhibit D and also filed a motion for stay of execution pending appeal but same was dismissed per Exhibit E. The Respondent further filed a repeat application for stay of execution pending appeal before this Honourable Court but same was dismissed per Exhibit F. According to the Applicant, notwithstanding the service of the order of the District Court, Winneba on the Respondent herein, the Respondent has failed, refused to comply with the order of the District Court, Winneba, to render an unqualified apology to the Applicant and also retract the defamatory statement. The Applicant contends that, the conduct of the Respondent constitutes a deliberate disregard of the order of the District Court and thus bringing the administration of Justice into ridicule and that he will continue to disrespect the orders of the court unless committed for contempt of court. In his affidavit in opposition to the motion, the Respondent stated that the application was incompetent and same must be dismissed. The Respondent further contends that he is a law – abiding citizen and has not conducted himself in any way to bring the administration of justice into disrepute. According to the Respondent, the orders of the District Court, Winneba which is the basis of the present application was to the effect that he should render an apology to the Applicant between 28th August and 31st August 2020. The Respondent contends that he filed a Notice of Appeal and a Motion for Stay of Execution of the District Court’s judgment dated 28th August 2020 which included the orders of the court to render an apology to the Applicant and same was dismissed by the District Courton the 11th day of September 2020 per Exhibit 1. The Respondent further contents that he repeated the application for stay of execution before thus Honourable Court per Exhibit 1 but was dismissed on the 25th day of November 2020. According to the Respondent, the period within which he was ordered to render the apology to the Applicant had elapsed by the time he exercised his right to have the said order stayed by the various courts. The Respondent further contends that, notwithstanding, he has written the media houses involved in the publication of the defamatory press statements, retracting the press statement and apologizing to the Applicant per he apologized to the Applicant per Exhibit 3. The Respondent in his supplementary affidavit filed on 5th February 2021, contends that subsequent to filing his affidavit in opposition, he granted an interview to Nice FM 90.7 Winneba on 10th January 2021 where he apologized to the Applicant per Exhibit 4. In the case of REPUBLIC V SITO I; EX-PARTE: FORDJOUR (2001-2002) SCGLR 322 the Supreme established that in an application for contempt, the burden of proof is be beyond reasonable doubt just as in a criminal discourse. The party can only be shown to be guilty if there is an order or judgment of which he is aware that requires him to do or abstain from doing a particular thing In deciding this application one way or the other, it is important to examine the alleged conduct of the Respondents being complained of within the perspective of the law on contempt. The law is trite that any conduct that constitutes disobedience to an order of court or the Court’s process amounts to contempt of court. Oswald on “CONTEMPT OF COURT” 2ND EDITION page 6 states of contempt of court in the following words: “…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 litigation” 1 (2001-2002) SCGLR 322 In his recent academic work on the “LAW OF CHIEFTAINCY IN GHANA INCORPORATING CUSTOMARY ARBITRATION, CONTEMPT OF COURT AND JUDICIAL REVIEW” S. A. Brobbey (JSC) at page 460 stated as follows: “An act or omission will amount to contempt of court if it tends to lower the authority of the court or to pre - empt or forestall the outcome and thus undermine the power of the court to determine the case as it deems fit”. The rationale for relief when contempt is brought to the attention of the Court by an Applicant is to ensure that orders of the Court are enforced and the sanctity of its processes is not unlawfully abused. ALDRIDGE, EADY & SMITH ON CONTEMPT 2ND EDITION 1999 states at paragraphs 12 to 15 at page 736 as follows: “It is obvious that any civilized society depends upon the authority and effectiveness of orders made in its court. There is thus a public interest in seeing that orders are enforced. Civil Contempt cannot be considered therefore merely as a means by which individual litigants can enforce orders in their favour. The court has an interest on behalf of the community at large in ensuring that orders are not disobeyed at the option of one party or even both”. Further Lord Diplock in AG VRS. TIMES NEWSPAPER LTD. (1973) 3AER page 54 said as follows: “The provision of such a system for the administration of justice by the courts of law and the maintenance of public confidence in it are essential, if citizens are to live together in peaceful association with one another”. In the face of the denials, is it the case that the Applicants having satisfied the Sito test or principles of Sito and other cases earlier mentioned to grind a contempt charge? One has to ponder over what the Court has been presented with. The Respondentdo not have much of a burden except to deny the allegations against him which he has appropriately done. By the principles that establish Contempt and which are trite learning, what order has the Respondent breached, per the SITO principles? The burden of prove in this allegation of contempt ought to be one beyond reasonable doubt. The Applicantcontends various acts against the Respondent. A mere allegation without concrete proof is insufficient to establish contempt. As it has been held in a number of cases, and in particular the Supreme Court in the case of IN RE EFFIDUASE STOOL AFFAIRS (NO. 2) REPUBLIC VRS. NUMAPAU PRESIDENT OF THE NATIONAL HOUSE OF CHIEFS; EX-PARTE: AMEYAW III (NO. 2) (1998 – 99) SCGLR 639 Holding 2). “Since contempt of court was quasi criminal and the punishment for it might include a fine or imprisonment, the standard of proof required was beyond reasonable doubt. An Applicant must therefore first make out a prama facie case of contempt before the court could consider the defences put up by the Respondents”. At page 666 the Supreme Court in elaborating the principle further stated that: “...in this regard, an admission or proof of the factual allegation does not imply an admission of liability in contempt, as it would still be the burden of the Applicant to establish that the said actual allegations constitute contempt”. 2 (1998 – 99) SCGLR 639 To my mind, the position of the Supreme Court buttresses the provisions of SECTION 13(1) OF THE EVIDENCE ACT, 1975 (NRCD 323) which provides that: “In any civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt”. In an application of this nature, the Respondents need not prove anything. It is sufficient that they create doubts which the Applicant must help the Court resolve by providing concrete evidence. In the instant case before this court, the issue worth considering is whether or not the Respondent was in contempt of court when the court asked him to render an unqualified apology to the Applicant and do same on the airwaves of all the media houses and other media the defamatory statements were published. Respondent was ordered so to do, in order to purge himself. This is because an appeal cannot operate as a stay and more especially at a time there was no stay of execution was pending. The execution of the order was important, in order not to be seen to flouting or violating the orders of the court else there would not have been any need to stay same. However, the Respondent has solely relied on the appeal processes to refuse to comply with the order of the court when he knew or ought to have known that there was no stay of execution of the court’s order. For the avoidance of doubt Order 51 rule 9(1) of the High Court (Civil Procedure) Rules, 2004 (C. I 47) provides for the effect of appeal from the District Court in civil matter thus: (1) An appeal shall not operate as a stay of execution in respect of the judgment or order appealed from except where the court below or the court otherwise orders. See also Rule 20 of the Supreme Court Rules, 1996 (C. I .16) In fact this no doubt informed the Respondents decision to apply to the court below for an order of stay of execution and when that failed went ahead to repeat same before this court (Appellate Court). Unfortunately, the application for stay of execution before this court also failed but the Respondent failed to take immediate steps to address the legal challenge he was confronted with. In the case of BAAH v. BAAH AND ANOTHER [1973] 2 GLR 8-13do also support the view expressed in the SITO case (Supra) and it held that : (1) Disobedience to a judgment or order of the court for the payment of money to any person or into court constituted contempt of court for which the sanction was attachment. Disobedience was a refusal to honour the order of the court rather than a mere failure to do so. The distinction lay in one case in an intentional unwillingness to do what the court had ordered to be done even though one was able so to do and in the other case in inability to comply with the order even if one wanted so to do. Intention and ability were the relevant matters for a consideration of this type of contempt. (2) Where a case was made that a party alleged to be in contempt for disobedience to an order of the court to pay money had at the time of the application or had had before then the ability to pay and had intentionally refused or neglected to pay, there was justification for granting an order for attachment for contempt of court. On the evidence the defendants could have complied with the order of the court if they were so minded. Their disregard of that order for the reason that it was unreasonable or incorrect amounted to a conscious disobedience of a court order. In the circumstances, however, the defendants would be ordered to purge their contempt by lodging a suitably worded written apology to the court within 24 hours. There was a subtle attempt on the part of the Respondent to apologize to the Applicant an indication that having exhausted his right of appeal it was incumbent on him to comply with the order of the court below despite the pending appeal but that attempt was far short of the manner ordered by the court. This is because the judgment and order of the court at the District Court specifically required the Respondent to use the same media outlets he employed in his press conference including Adom TV, Joy TV, a United TV and online media portals to apologize and retract defamatory statements. But the Respondent was selective in the media to use in his apology contrary to the order of the court. In the instant case before this court, the Respondent deliberately and quietly ignored the order of Court at time there was no stay of execution of the Court’s order, but with the hope that the appeal will succeed but that is a very risky venture to undertake. I have examined the affidavits evidence of the respective parties including the submissions for and on behalf of the respective parties (Respondent and Applicant) and hold the view that the Respondent failed to raise a doubt as to the case of the Applicant pursuant to Section 13(2) of the Evidence Act 1975 NRCD 343. From the foregoing I find that the Applicant led evidence beyond reasonable doubt to establish the charge of contempt against the Respondent and I according find him liable for contempt. The Respondent is accordingly found guilty of contempt and he is so convicted. In sentencing the court took into consideration the suit that the contemnor is a first offender on the plea for mitigation for and on behalf of the contemnor and his preparedness to purge himself and as ordered by the court below subject matter of the contempt charge. I have also considered the submission for and on behalf of the Applicant and his observation of remorse on the part of thecontemnor and therefore associating himself with the submission of case for the contemnor. The contemnor is accordingly sentenced by way of a caution and discharged. The contemnor is also ordered to retract his publication of the defamatory statement and render unqualified apology to the Applicant in compliance of the court order below as per Exhibit ‘C’ by using the same media outlet for the press conference of 17th March, 2020 including Adom TV, Joy TV,United Television and the various media portals which carried the defamatory publication and within8 days. JUSTICE ABOAGYE TANDOH JUSTICE OF THE HIGH COURT (SGD) C. H. CHAMBERS, COUNSEL FOR THE APPLICANT. B. B. SIMPSON, COUNSEL FOR THE RESPONDENT.