The Republic Vrs Adjei [2023] GHAHC 182 (24 March 2023)

IN THE HIGH COURT OF JUSTICE, HELD IN SOGAKOPE ON FRIDAY THE 24TH DAY OF MARCH, 2023 BEFORE HER LADYSHIP JUSTICE DOREEN G. BOAKYE- AGYEI (MRS.) JUSTICE OF THE HIGH COURT ========================================================= SUIT NO: E13/10/2023 THE REPUBLIC VS YAW ADJEI EX-PARTE: 1. AMI AFEKORTU 2. TAZI AFEKORTU 3. FELIX AFEKORTU 4. A. K. SEADZI ======================================================== PARTIES: RESPONDENTS - PRESENT 3RD APPLICANT PRESENT AND REPRESENTS OTHER APPLICANTS COUNSEL: MR. VINCENT GARR FOR APPLICANTS - PRESENT. ========================================================= JUDGMENT Plaintiffs/Applicants have filed this instant application seeking to have Defendant/Respondent herein committed for contempt of Court. Plaintiffs/Applicants sued the Defendant/Respondent over a parcel of land at Anloga Sereme near Avete after the Court of Appeal entered Judgment on their behalf in respect of the land for the following reliefs. a. b. c. d. Declaration of title to the piece of land and described in paragraph 7 of statement of claim. Recovery of possession Damages for trespass Perpetual injunction to restrain the Defendant from entering the said land in dispute e. Costs. Their case is that at while the matter was pending they filed a Motion on Notice for interlocutory injunction on 31st March, 2022 to be moved on 7th April, 2022 to restrain the Defendant from putting up a building on the land. That the Defendant who was served with the application but did not file any affidavit to oppose the motion, however continued to work on the land as if nothing is at stake. That on 13th July, 2022 it was agreed that the application for interlocutory injunction should be moved during the vacation on Tuesday 16th August, 2022. That on the said date, the Defendant Lawyer’s failed to come to Court because he did not file affidavit in opposition to the Motion on Notice for Interlocutory Injunction. Their case is also that while the application was pending, the Defendant who now claims the land in dispute belongs to him, has allowed kiosk owners in the area to place kiosks on the land and collected monies from them claiming that it was his property. Plaintiffs state that being law abiding citizens, they want the matter to be directed to the High Court for Contempt against the Defendant. That the Defendant is boasting in town that he has taken over the land from the Plaintiffs and they cannot do anything. That the Defendant’s behavior is contemptuous of court thus they pray for the Court to attach the Respondent for contempt of Court. They attached Exhibit A being a picture of some kiosks along the road as the Kiosks Respondent allowed people to place on the land in dispute. The Respondent in the suit states that he is vehemently opposed to the said Motion because the gravamen of the Applicants application as captured in paragraph 8 alleges that notwithstanding the fact that he had been served with a motion on notice for an injunction, Respondent selected to disregard same by causing kiosk owners to place kiosks on the land to be injuncted. Respondent states that he has not ordered any kiosk owner to place a kiosk on any disputed land and in any case the application fails to describe the disputed land in question. He also states that he has not at any time boasted anywhere that he has taken over the Plaintiff’s land. Respondent contends that it is not enough for the Plaintiff to just exhibit a picture of some containers along the main street of their community and make an allegation that it is at Respondent’s instance that those containers were positioned there. That this being a quasi-criminal case, the standard of proof required by law in not what is being demonstrated by the Applicants. Respondent contends that he has not done anything that has undermined the sovereignty and integrity of this Honourable Court and challenges Applicants therefore to the strictest proof of same. He prays that the Plaintiff’s case be dismissed as it contains no cause of action for which he should be committed for contempt. The authorities on application for committal of contempt are very clear on the ingredients to be considered. In the case of NARH VRS. DOMBO 1970 CC 68, the Court of Appeal stated the test for determining whether an act is contemptuous as follows: "In determining whether any action amounts to contempt of court the test is this; has the act complained of interfered or tendered to interfere with the due administration of justice... in determining the obstruction of the administration of justice it is not the actual obstruction resulting from an act but the character of the act done and its direct tendency to prevent and obstruct the discharge of judicial duty" JSC Brobbey in his book "the Law of Chieftaincy in Ghana, 2008" on contempt states on page 480 thus: "To amount to contempt, there should be pending in the court a case which is yet to be determined or a case already disposed of and the person accused of the contempt should be aware of it. From the cases cited below it not a requirement of the law that there should always be an express order of injunction in addition to the filing of the case" JSC Brobbey continues on page 481 as follows; "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". See BALOGUNN VRS EDUSEI (1958) 3 WALR 517, REPUBLIC VRS AKENTEN II EX PARTE YANKYERA [1993-94] 1 GLR 246, CA. The law is quite tritely known that Contempt is quasi criminal and requires the following elements which must be proved beyond reasonable doubt to succeed against an alleged contemnor; 1. There must be a judgment or order requiring the contemnor to do or abstain from doing something; 2. It must be shown that the contemnor knows what precisely he is expected to do or abstain from doing, and 3. It must be shown that he failed to comply with the terms of the judgment or order and that hos disobedience is willful. (See the case of REPUBLIC V. SITO I EX PARTE FORDJOUR (2001-2002) SCGLR 322) The Black Law Dictionary, 8th Edition, defines contempt as a “conduct that defies the authority or dignity of a court or legislature. Because such conduct interferes with the administration of justice, it is punishable, usually by fine or imprisonment.” Further, the Oxford Advanced Learner’s Dictionary of Current English by A. S. Hornby (7th Edition) defines contempt of court as “the crime of refusing to obey an order made by a court; not showing respect for a court or judge.” The power of the High Court to punish for contempt is provided in S. 10 of the Criminal Offences Act, 1960 (Act 29) and Articles 19 (12) and 126 of the 1992 Republican Constitution of Ghana. In the case of REPUBLIC V. HIGH COURT, ACCRA; EX PARTE LARYEA MENSAH (1998-99) SCGLR 360 at page 368 where the court explained contempt of court as follows: “By definition, a person commits contempt and may be committed to prison for willfully disobeying an order of court requiring him to do any act other 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:. There is yet another form of contempt of court which has to do with the alleged contemnor attempting to or actually overreaching the court in such a manner as to prejudice the outcome of a case which is pending before a court, or generally scandalizing the court or doing anything to bring it into disrepute. Thus in the case of REPUBLIC V. MENSA-BONSU & OTHERS; EX PARTE ATTORNEY-GENREAL (1995-96) 1 GLR 377 @ 403, the learned Adade JSC stated; “There are different forms of contempt. Underlying all of them, however, is one basic notion, that the roadways and highways of public justice should at all times be free from obstruction. Conduct which tends to create such an obstruction constitutes contempt. Thus interfering with witnesses or jurors; frightening off parties to litigation; refusing to answer questions in court; commenting on pending proceedings in such a manner as to prejudice the outcome; running down the courts and the judges; refusing to obey an order of a court, any of these, if calculated to, or tends to impede or obstruct the course of justice will constitute contempt. And conduct complained of therefore must be viewed and assessed against the backdrop of this basic principle.” In the case of the DEEPSEA DIVISION OF THE NATIONAL UNION OF SEAMEN AND OTHERS V. TRADES UNION CONGRESS OF GHANA AND OTHERS (1982- 83) GLR 941, it was held that the court would only punish as contempt a breach of injunction if it was satisfied that the terms of the injunction were clear and unambiguous, that the defendant had proper notice of the terms and that the breach of the injunction had been proved beyond reasonable doubt. Where the disobedience was unintentional or accidental, the court would not issue a writ for attachment. See also THE REPUBLIC V. BEKOE AND OTHERS; EX PARTE ADJEI (1982-83) GLR 91, where it was also held that it was a legitimate defence to a charge of contempt that the person charged had had no notice of the order; a person could not be guilty of an order of the court of which he had had no notice. The applicant had failed to satisfy the court that all the respondents had notice of the order of the judicial committee prior to the date of the alleged contempt, either because they were present in court when the interim orders were made or that they were subsequently served on them. Although, on the evidence, the respondents were represented by counsel before the committee, in matters of contempt, which would deprive the liberty of a subject, actual, but not imputed, notice of the specific terms of the orders must be proved. Thus in the case REPUBLIC V. MICHAEL CONDUAH; EX PARTE SUPI GEORGE ASMAH; Civil Appeal No. J4/28/2012 date 15th August 2013, unreported, the Supreme Court held that “the High Court had acted without jurisdiction in the first place and accordingly vacated the order it had made over ten years earlier. However, the court held that as long as that decision had not been set aside the applicant had no reason to disobey it and so allowed the conviction for contempt to stand. In this case, the main issue to be considered would or should be the effect of the application for the order for injunction on the instant application for contempt? In the face of the Respondent’s deposition that he has not allowed persons to place kiosks on the land in dispute and also not boasted in the town that he has taken over the land, the Applicant was obligated to adduce further evidence either through cross-examination of the Respondent or the production of some documentary evidence to the contrary to persuade the Court beyond reasonable doubt that the Respondent, having knowledge of the pending application, has wilfully sought to disrespect and overreach the Court by his conduct as alleged by them. This burden the Applicant has failed to discharge as showing just a picture of some kiosks along the road is not sufficient to demonstrate that Respondent directed or allowed the owners to place same on the land in dispute and for which reason the application should fail. In the Supreme Court case of the REPUBLIC V. OPANIN KWAME BOAMAH & 3 OTHERS, EX PARTE: KWAKU AMPONSAH, SUIT NO. CIVIL APPEAL NO. JA/3/2011, DATED: 27TH JULY, 2011 (UNREPORTED), it has been held at page 3 as follows: …In the face of the denial by the respondents to the contempt application, the applicant ought to have called further evidence in the matter or by seeking leave to have the deponent cross-examined on his deposition, which in such cases has the effect of evidence-in-chief and not having done so then the court was faced with an assertion and a denial that by the operation of the rules placed the burden of dislodging the effect of the denial on the applicant in order to sustain his application for contempt. His failure so to do signalled the failure of his application as the respondents were entitled in the circumstances to have the benefit of the doubt. On the strength of the Republic V. Opanin Kwame Boamah & 3 others, Ex Parte: Kwaku Amponsah supra, the instant application for committal for contempt of court of the Respondent is accordingly dismissed as the Applicant, in the face of the denial by the Respondent failed to dislodge beyond reasonable doubt the effect of the denial in order to sustain his application for contempt. Application is accordingly refused and same is dismissed and Respondent discharged accordingly. H/L DOREEN G. BOAKYE-AGYEI (MRS). J. ESQ. JUSTICE OF THE HIGH COURT CASES CITED REPUBLIC V. SITO I EX PARTE FORDJOUR (2001-2002) SCGLR 322) REPUBLIC V. HIGH COUT, ACCRA; EX PARTE LARYEA MENSAH (1998-99) SCGLR 360 REPUBLIC V. MENSA-BONSU & OTHERS; EX PARTE ATTORNEY-GENREAL (1995-96) 1 GLR 377 @ 403, DEEPSEA DIVISION OF THE NATIONAL UNION OF SEAMEN AND OTHERS V. TRADES UNION CONGRESS OF GHANA AND OTHERS (1982-83) GLR 941 THE REPUBLIC V. BEKOE AND OTHERS; EX PARTE ADJEI (1982-83) GLR 91 REPUBLIC V. MICHAEL CONDUAH; EX PARTE SUPI GEORGE ASMAH; Civil Appeal No. J4/28/2012 date 15th August 2013, REPUBLIC V. OPANIN KWAME BOAMAH & 3 OTHERS, EX PARTE: KWAKU AMPONSAH, SUIT NO. CIVIL APPEAL NO. JA/3/2011, DATED: 27TH JULY, 2011 (UNREPORTED) NARH VRS. DOMBO 1970 CC 68 BALOGUNN VRS EDUSEI (1958) 3 WALR 517 REPUBLIC VRS AKENTEN II EX PARTE YANKYERA [1993-94] 1 GLR 246, CA.