Republic Vrs Lamptey [2023] GHAHC 214 (26 July 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE, HELD AT KASOA-OFAAKOR ON WEDNESDAY THE 26TH DAY OF JULY, 2023 BEFORE HER LADYSHIP JUSTICE DOREEN GENEVIEVE BOAKYE-AGYEI, (MRS.) JUSTICE OF THE HIGH COURT ‘2’ SUIT NO. E12/OHC/025/2023 THE REPUBLIC VERSUS EBENEZER LAMPTEY … RESPONDENT EX-PARTE: REGINA LAMPTEY … APPLICANT PARTIES Applicant - Present Respondent - Present COUNSEL Prof. Emmanuel Selase Asamoah Esq. for the Respondent – Present Mr. Alex K. Mensah holding brief for Mr. Robert Twene Esq. for Applicant - Present JUDGMENT Applicant has before the Court, a motion on notice praying for an order to commit the Respondent to prison for his contumacious disregard and interference towards the administration of justice so as to prevent people of similar minds from interfering with court processes and the administration of justice. Applicant’s Counsel relies on the motion paper and all the annexures attached to the application as Exhibits A, B, C, & D series. It is the case of the Applicant that she commenced an action against the Respondent as Omanbatan of her family at the District Court, Kasoa. That during the course of the proceedings, an injunction application was filed and was granted by the District Court, a copy of the injunction application has been attached as Exhibit A. It is Applicant’s case that when the injunction was granted, the Applicant caused a copy of the order granting the interlocutory injunction to be served on the Respondent and a copy of proof of service is attached to the instant application as Exhibit B which was served on the Respondent on the 27th day of May, 2022. Applicant contends that having served a copy of the order on the Respondent, he has disregarded this order and is interfering with the subject matter of the dispute by grading portion of the land and putting up unlawful structures through his agents and privies of which they attached to the instant application the Exhibit D series. Applicant’s Counsel again submits that with or without the order of the Court, that is the District Court granting the injunction application, the Respondent did not have any business whatsoever to interfere with the subject matter which is currently pending before the said court. That Respondent ought to have through his agents and privies, preserved the status quo ante pending the determination of the case by the District Court. That having failed to respect the sanctity of the Court by going ahead to grade the land which is in dispute before a court, put up sign post on the portion of the land as well, mounting pillars, depositing sand and trips of gravels as well on the land by the Respondent and through his agents and privies, it is a clear indication that the Respondent does not respect the Court and did not have the patience to wait for the Court to determine the matter that was before the said Court. Counsel prays that the instant application is granted and the Respondent punished to serve as deterrent to other people with similar minds. In responding to their affidavit in opposition, paragraph 11, Applicant’s Counsel submits that it is never correct that the Applicant or anybody relating to her has granted any land to any individual during the pendency of this suit and the burden is on the Respondent to prove that assertion since he who alleges must prove. It is their submission that the instant application is not frivolous and vexatious as being alleged by the Respondent and it is very competent in law. Counsel referred to the following cases as well: THE REPUBLIC v SITO I, EX-PARTE FORDJOUR (2001- 2002) SCGLR 322, THE REPUBLIC v MOFFAT, EX-PARTE ALLOTEY (1971) 2 GLR, 391 and THE REPUBLIC v THE BANK OF GHANA & 5 ORS. EX-PARTE BENJAMIN DUFFOUR CIVIL APPEAL NO. J4/34/2018 ON 6TH DAY OF JUNE 2018. Counsel for Respondent vehemently opposed the instant application relying on the averments in the affidavit in opposition and the exhibits attached which was filed on the 27th day of June 2023. He contends that this application is frivolous, vexatious and a complete waste of the Court’s time. Counsel confirms that there was a pending injunction granted by the District Court at Kasoa and that the order for injunction was served on the Respondent. Counsel submits that since the order for injunction was served on the Respondent, he has abided by the orders of the Court and has not engaged in any act to disrespect the said orders and has not executed any document of sale of land or negotiated any agreement aimed at selling portions of the disputed land. Counsel asserts that when the Respondent was served with the injunction order, he immediately ordered or instructed his assigns and agents to desist from doing anything on the disputed land and this has remained till date. Counsel submits that when before a Court on an application for contempt which has a potential of sending someone to prison, the Applicant ought to be serious and provide cogent evidence to support their application. That it is important that the Applicant establishes that the alleged contemnor either by himself or upon his instructions acted in contempt of Court. He also submits that there is nowhere in the Exhibit D series that shows that the Respondent himself, his agents or assigns have either allocated or are working on portions of the land. On Exhibit D5, it is their case that the man in Exhibit D5 is not the Respondent, neither is he known to the Respondent and that in this era of photoshop, these pictures can be taken from anywhere and not the disputed land. On Exhibit D, which has a signage with a telephone number written on it, Respondent contends through Counsel that the telephone number is not the number of the Respondent, neither is it a number belonging to the Respondent’s agents or assigns. Counsel submitted that the proof beyond reasonable doubt requirement in the charge for contempt are important safeguards to ensure that no person is deprived of his liberty or found guilty of contempt based on wrong and unproven facts. That the said Exhibit D series are mere conjecture and speculations and cannot form the basis to deny the Respondent of his personal liberty. Again, that mere conjecture not being a substitute for evidence, he prays this Honourable Court to dismiss this instant application with punitive cost to serve as a deterrent to the Applicant. THE LAW OF CONTEMPT To constitute the offence of contempt, there must be evidence of an act or conduct that inter alia, tends to undermine the authority of the court, brings the authority and administration of the law into disrespect or disregard, or is calculated to erode public confidence in the law and courts. Please see Bamford-Addo JSC in REPUBLIC V MENSAH-BONSU (1995-96) 1 GLR 377. See also REPUBLIC V OSEI BONSU II MAMPONHENE AND ORS; EX PARTE, AMADIE AND BUOR (2007-2008) SCGLR 566; IN RE EFFIDUASE STOOL AFFAIRS (NO. 2); REPUBLIC V NUMAPAU, PRESIDENT OF THE NATIONAL HOUSE OF CHIEFS; EX PARTE AMEYAW II (1998-99) SCGLR 639 It is trite law that the proof of contempt as a quasi-criminal offence is on the criminal standard of proof beyond reasonable doubt. Please see section 13 of the Evidence Act, NRCD 323, IN RE KWABENG STOOL; REPUBLIV V BRONI; EX PARTE KARIKARI AND ANOR (2005-2006) SCGLR 35 In REPUBLIC V SITO: EX PARTE FORDJOUR (2001-2002) SCGLR 322, the Supreme Court laid out the elements of the offence of contempt as follows: i) There must be a judgment or order requiring the contemnor to do or abstain from doing something ii) It must be shown that the contemnor knows precisely what he is expected to do or abstain from doing iii) It must be shown that he failed to comply with the terms of the judgment or order and that his disobedience is wilful In REPUBLIC V MOFFAT; EX PARTE ALLOTEY (1971) 2 GLR 391, the court 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. The Respondents in Republic v Moffat; Ex parte Allotey were committed for contempt because they disobeyed an order of prohibition. In Republic v Moffat Ex parte Allotey (supra) the court held that once the circumstances of the case show that the party knew or ought to have known of the order or proceedings that could be affected by the action taken, he would be liable for contempt. Again in Republic v Moffat; Ex parte Allotey (1971) 2 GLR 391, the court 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. In LUGUTERAH V NORTHERN ENGINEERING CO. LTD (1980) GLR 62, "willful disobedience was defined as 'not being accidental or unintentional. The intentional element is therefore required to establish the element of mens rea on the part of the Respondents. The learned author Justice S. A. Brobbey in his book "The Law of Chieftaincy in Ghana' at page 493, stated thus: "the disobedience must therefore, be a conscious disobedience of the order of the court, or at any rate turning a blind eye to it' According to the learned author Justice S. A. Brobbey in his book (supra) at page 487 'civil contempt is an act or omission which amounts to disobedience of an order or process of a court in a civil case. This kind of contempt is said to prejudice the administration of justice in a particular cause or matter before the court. The sanction for civil contempt is often intended to be coercive. In practice, civil contempt is often employed for the benefit of the person entitled to the order and therefore involves a private injury; it nevertheless has a criminal element in that disobedience of a court order such as injunction may result in committal for imprisonment, especially where the disobedience is flagrant, or where the contempt is committed in contumacious circumstances. In BAAH V BAAH (1973) 2 GLR 8, Executors who refused to pay money as ordered by the court were held to be in contempt. In DOMBO V NARH (1970) CC 64, the Court of Appeal said that "in determining whether any action amounts to contempt of court, the test is: has the act complained of interfered or tended to interfere with the due administration of justice? In RE EFFIDUASE STOOL AFFAIRS (NO. 2);REPUBLIC V NUMAPAU, PRESIDENT OF THE NATIONAL HOUSE OF CHIEFS; EX PARTE AMEYAW II (supra) the court said in holding 1 as follows 'Indirect or constructive contempts were those arising from matters not occurring in or near the presence of the courts, but which tendered to obstruct or defeat the administration of justice such as failure or refusal of a party to obey a lawful order, injunction or decree of the court laying upon him a duty of action or forbearance. Civil contempts were those quasi - contempt consisting of failure to do something which the party was ordered by the court to do for the benefit of or the advantage of another party to pending proceedings....... Therefore, it is the law as was held in the case of THE REPUBLIC v SITO I, EX- PARTE FORDJOUR (2001-2002) SCGLR 322 also in the case of THE REPUBLIC v MOFFAT, EX-PARTE ALLOTEY (1971) 2 GLR 91 where the Court held that for a party in a matter pending before any Court of competent jurisdiction to be convicted and sentenced on any contempt charges, three main ingredients must be satisfied. (1) It must be established that, that party has willfully disobeyed an order or judgment of a Court. (2) Where that party knows that a case is sub-judice, he engages in an act or omission which tends to prejudice or interfere with a fair trial of the case despite the absence of an order of the Court. (3) That the party knows precisely what he is expected to do or abstain from doing. It is also the law as was determined by the Supreme Court in the recent case of THE REPUBLIC v THE BANK OF GHANA & 5 ORS. EX-PARTE BENJAMIN DUFFOUR CIVIL APPEAL NO. J4/34/2018 ON 6TH DAY OF JUNE 2018. The Supreme Court stated and I quote “We ought to remind ourselves that the standard of proof in contempt cases is proof beyond reasonable doubt. The burden of proof is on the Applicant and for the Applicant to succeed in establishing contempt, he must adduce cogent and credible evidence to prove beyond reasonable doubt that the Respondent willfully disobeyed the Court order.” Exhibit B1 is the order granting the interlocutory injunction and it is worded thus: “IT IS HEREBY ORDERED that 1st defendant/respondent, his agents, assigns privies and all personal representatives are hereby restrained from selling and or alienating any land belonging to the KWASHIE TETTEH ABORADE family. Likewise, the order applies to the applicant as well. Her servants, workmen, assigns, agents are also injuncted from carrying any acts of development of the property in dispute or dealing with same in whatever way till the final determination of the substantive suit before the court”. Exhibit D series did not show anywhere that the Respondent is the one either developing the land or tipping stones and sand on the land. Exhibit D has the number 0551241972 and no compelling evidence has been put before the Court that it belongs to Respondent, for example records from the telephone service provider. On Exhibits D2 and D3, the “stop work” written on the structure has not been linked to Respondent and that same telephone number appears thereunder. Exhibit D5 shows a man in blue top, black trousers and black sandals walking in a patch of sandy soil with some green foliage and Exhibit D6 shows two heaps of sand and one heap of chippings. Respondent denies being the person in said picture and that he is also neither his agent, privy, servant nor assign. 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”. On the failure to cross-examine or to controvert a fact, the authorities are numerous that such a failure would amount to an admission. In FORI v. AYIREBI [1966] GLR 627, SC, it was held at Holding 6 of the head notes; “When a party had made an averment and that averment was not denied, no issue was joined and no evidence need be led on that averment. Similarly, when a party had given evidence of a material fact and was not cross-examined upon, he need not call further evidence of that fact.” This burden, after due consideration of the case however, the Applicant failed to discharge and on that score, the application is dismissed for want of proof of the Applicant’s claim beyond reasonable doubt. Costs of One Thousand Ghana Cedis (GH₵1,000.00) Ghana Cedis in favour of the Respondent against the Applicant. (SGD) DOREEN GENEVIEVE BOAKYE-AGYEI J. (MRS.) (JUSTICE OF THE HIGH COURT) CASES CITED THE REPUBLIC v SITO I, EX-PARTE FORDJOUR (2001-2002) SCGLR 322, THE REPUBLIC v MOFFAT, EX-PARTE ALLOTEY (1971) 2 GLR, PAGE 391 THE REPUBLIC v THE BANK OF GHANA & 5 ORS. EX-PARTE BENJAMIN DUFFOUR CIVIL APPEAL NO. J4/34/2018 ON 6TH DAY OF JUNE 2018 REPUBLIC V MENSAH-BONSU (1995-96) 1 GLR 377. REPUBLIC V OSEI BONSU II MAMPONHENE AND ORS; EX PARTE, AMADIE AND BUOR (2007-2008) SCGLR AT 566; IN RE EFFIDUASE STOOL AFFAIRS (NO. 2); REPUBLIC V NUMAPAU, PRESIDENT OF THE NATIONAL HOUSE OF CHIEFS; EX PARTE AMEYAW II (1998-99) SCGLR 639 IN RE KWABENG STOOL; REPUBLIV V BRONI; EX PARTE KARIKARI AND ANOR (2005-2006) SCGLR 35 LUGUTERAH V NORTHERN ENGINEERING CO. LTD (1980) GLR 62, BAAH V BAAH (1973) 2 GLR 8, DOMBO V NARH (1970) CC 64, FORI v. AYIREBI [1966] GLR 627, SC, 10