The Republic Vrs Gaglo & 5 Others [2023] GHAHC 210 (13 July 2023)

THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HO – VOLTA REGION A. D. 2023 CORAM: CHARITY A. ASEM (MRS) J. IN THE MATTER OF AN APPLICATION FOR COMMITTAL FOR CONTEMPT SUIT NO. E12/04/2023 DATE:13/07/2023 AND IN THE MATTER OF: THE REPUBLIC VRS. 1. SAMUEL DAGBA GAGLO OF AFLAO 2. DOVI ATIGAH OF KAVE NEAR DZODZE 3. YAO TORNYO OF NETSIKPE NEAR DZODZE (DSD) 4. PROSPER TORNYO OF NETSIKPE NEAR DZODZE RESPONDENTS 5. ETSE TORNYO OF NETSIKOPE NEAR DZODZE 6. AMUZU ABA TORKPO OF VOVIE (DSD) EX-PARTE: 1. KWAKU FEDAH 2. TOGBUI DAGLAMAH III 3. TOGBUI HAYIBOR II APPLICANTS JUDGMENT This application for Contempt is brought by the Defendant/Applicants herein on the 8/08/2022 against the plaintiff/respondents. The motion for Committal sought to invoke the jurisdiction of the court pursuant to Order 50 of the High Court (Civil Procedure) Rules, 2004 C. I. 47 and Section 36 of the Courts Act, Act 459 seeking the committal of the respondents to prison for contempt of the Honorable Court for their obvious disregard for the Honorable Court’s authority. “The courts must not only enjoy the respect and confidence of the people among whom they operate, but also must have the means to protect that respect and confidence in order to maintain their authority. For this reason, any conduct that tends to bring the authority and administration of the law into disrespect or disregard or to interfere in any way with the course of justice becomes an offence not only against the courts but against the entire community which the courts serve, such conduct constitute the offence of contempt of court, and the courts are vested with the power of dealing with it in a manner that is almost arbitrary, for this reason, the power is rarely invoked and only when the dignity, respect and authority of the courts are seriously threatened. It has been said that these powers are given to the courts (and the judge) to keep the course of justice free; power of great importance to society, for the exercise of them law and order prevail; those who are interested in wrong are shown that the law is irresistible.”- per AKOFFU-ADDO CJ, in REPUBLIC V. LIBERTY PRESS LD (1968) GLR 123 found at page 135, this decision was cited by KULENDI JSC recently in the case of REPUBLIC V. HIGH COURT (LAND DIVISION) ACCRA EXPARTE; KENNEDY OHENE AGYEPONG (APPLICANT) SUSAN BANDOH (INTERESTED PARTY) (2020) DLSC 9895 page 18. CASE OF THE DEFENDANT/APPLICANTS The case of the applicants as deposed to by one Torgbui Hayibor II of Netsikope in the Volta Region of Ghana on behalf of the applicants have it that, he has the consent as the 3rd defendant/applicant herein to depose to the matters contained in the 32 paragraph affidavit on behalf of the 1st and 2nd defendant/applicants. According to him the 1st defendant/applicant is the present head of the Daglama-Dugah family of Demekorfe-Kpelikope and Netsikope and has brought the instant action on behalf of his family. The 2nd defendant is the Chief of Demekope who also doubles as a principal elder of the Daglama-Dugah family. According to him, their immediate past predecessors filed a Writ of Summons and Statement of Claim against some of principal members of the plaintiff/respondents’ family including the 2nd and 3rd respondents herein in Suit No. LS/6/87 Exhibit ‘DD1’. The case of the applicants is that, the larger Dagbama Dugah family of Demekope- Kpelikope and Netsikope are the legal and beneficial owners of a large track of land situate and lying at Netsikope Dzodze covering an area of 328.04 acres more or less. Exhibit ‘DDF2’ is a copy of defendants’ site plan. The boundaries of the land was specifically narrated in paragraph 10-14 of the affidavit in support. Applicant continued that, in that suit LS/6/87, the High Court differently constituted restrained both parties from felling any palm trees and Odum trees which are economic trees on the land in dispute. Exhibit ‘DDF’ attached as copy of the Order for Injunction granted by the court. Applicants continued that subsequently, the court varied the injunction and permitted the parties to fell 400 palm trees each on their respective portions of land they claim. Exhibit ‘DDF4’ – copy of the variation order. It is the case of the applicants that the parties have been in peaceful obedience to the court’s order until the last surviving plaintiff, Kodzo Klu Hayibor passed on sometime in August 2021. Suddenly the respondents herein have started claiming ownership of the applicants’ family land. They have entered the applicants’ land and felling trees of Odum on the land. Not only that but the plaintiffs/respondents in furtherance of his illegal conduct, is attempting to register all the applicants’ family land in his name at the Regional Lands Commission Ho. Exhibit ‘DDF5’ (site plan covering the entire lands before the High Court in the name of 1st defendant). He continued that the 2nd defendant has felled in excess of two hundred (200) palm trees and still continues to fell some more. That the 3rd to 6th respondents have also felled in excess of 400 palm trees. They have caused damage to the boundary trees “Anya” crops and other trees on the land. They have proceeded to tap the palm trees and utilized the proceeds. It is his contention that the respondents are well aware of the injunction order of the court, yet respondents continue to fell economic trees on the land (See Exhibit ‘DDF6’ being photographs showing trees felled on the disputed land.) He continued not only the respondents but their agents, assigns and other persons acting through them are constantly altering the nature of the land with each passing day; which conducts have led to breach of the peace in Netsikope of which reports have been made to the police at Dzodze. That from the conduct of the respondents, he has been advised they are in Contempt of this honorable Court. That their actions are prejudicial to the outcome of the case and that the constant felling of economic trees will interfere with the justice delivery mandate of the court. Respondents through their actions have demonstrated an obvious disregard for the court’s authority so they must be convicted. And in a supplementary affidavit in support dated the 19/9/2022, applicant exhibited ‘DD7’ and ‘DD8’ series of photographic images of palm trees allegedly taken on 26/08/2022 and a further supplementary affidavit filed on 12/12/2022 attached thereto are Exhibit ‘DDF9’ and ‘DDF10’ CASE OF THE RESPONDENTS On the 14/10/2022 the 4th plaintiff/respondent representing the other respondents filed an affidavit in opposition to the contempt application. It is his case that has the consent of the 1st, 2nd 3rd and 6th respondents to depose to the matters contained therein. In paragraph 5 thereof Counsel for respondent sought the leave of the court to cross- examine the applicant/deponent to the motion on notice for contempt. According to him the 3rd and 6th respondents are deceased. He stated that the palm trees applicants are referring to, to have been felled, were as a result of the variation of the interim injunction granted by His Lordship Asare-Kwarang J which was varied by Justice A. Adama J on the 23rd April 1999. Exhibit PT 1 and PT2 (order for interim Injunction granted on 2nd February 1987 and order for variation dated 23rd April 1999.) According to the deponent the 3rd respondent now deceased, after the variation sold 400 palm trees to Papa Godor. That Papa Godor, did not fell the palm trees sold at the time but decided until recently to fell the palm trees, he was confronted by Togbui Hayibor II and reported the case to the police at Dzodze. That he narrated the issue as having bought the palm trees long ago but decided to fell same only recently. According to respondents, the applicants are forum shopping. That on the 11th April 2022 they have issued out writ of summons in Suit No. E1/47/2022 titled Kwaku Fedah & 2 Ors. V. Samuel Dagba Gaglo & 5 Ors against these individuals. They sought the following reliefs. a. A declaration that that the Daglamah-Dugah family of Demekorpe-Kpelikope and Netsikorpe is the legal and beneficial owner of a large tract of land situate and lying at Netsikorpe near Dzodze covering an area of 328.04 acres more or less. b. An order for the defendants to pay the plaintiffs the cost of all the palm trees felled on the plaintiffs’ family land. c. An order for perpetual injunction to restrain the defendants, their privies, assigns, and agents from interfering with the plaintiffs’ family peaceful use and enjoyment of their land as described in relief A. d. An order expunging from the records of the Lands Commission any registration done in the name of the 1st defendant. e. General damages for trespass. f. Cost including legal fees. He stressed that after the issuance of the above writ E1/47/2022 the applicants on the 19th September 2022 filed an application for an order for interlocutory injunction attached to the affidavit for interlocutory injunction. That attached thereto are the same Exhibit ‘TD1’ the as Exhibit ‘DDF’ they have now attached to the contempt application, and the supplementary affidavits attached as Exhibit PT4 series, attached to the injunction and contempt application. He continued that when E1/47/2022 was issued respondents challenged the writ that the land in dispute in LS/6/87 is the same as land in dispute in E7/47/2022. But the applicants demand that the land in each suit was different Exhibit PT5 series. That Exhibit ‘KTT2’ series attached to the injunction application in suit No E7/47/2022 is the same as Exhibit ‘DDF6’ series to the supplementary affidavit of the contempt application. PT6 pictures. He continued further that in Suit No. LS/6/87 the court ordered a composite plan to be prepared which was done by P. K. Azorliade a licensed surveyor which report was filed on the 20/06/1995. See PT5. On the 9/11/2022 deponent filed a supplementary affidavit in opposition to which he attached Exhibit PT8 in support of his case and stated that with the above narration the instant application does not meet the standard of the requirement for them to be committed of contempt of court as the order of the court has not been breached; by any of them. In line with the prayer made by Counsel for respondents to cross-examine the 3rd defendant/applicant, leave was granted and on the 15/03/2013, he was sworn and extensively crossed examined. Counsel for defendants/appellant took advantage of same leave to have cross-examined 4th plaintiff/respondent. Both lawyers submitted written address. Burden of Proof Required for Contempt to be successfully established. Contempt is a quasi-criminal matter and so the court requires strict proof of the allegations made. The authorities on this subject are legion and but speaking in one voice. Prove beyond reasonable doubt. In the case of The Republic vs. Mensah Bonsu & Ors. (1995-1996) 1 GLR page 403 SC, it was stated that, “There are different forms of contempt. Underlining all of them, however, is one basic notion, that the road ways and highways of public justice should at all times be free from obstruction. Conduct which tends to create such an obstruction constitute 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 tend to, impede or obstruct the course of justice will constitute Contempt. And conduct complained of thereof must be viewed and assessed against the backdrop of the basic principle.” Similarly in the Case of Republic vs Aquaye (2008-2009) 1 GLR at pages 474-475 the Distinguish Justice Dotse JSC (as he then was) whilst delivering the judgment of the court summed up the law on contempt by quoting with approval from In Re Effiduase Stool Affairs No. 2 Republic v. Numapaw, President of the National House of Chiefs & Ors Exparte Ameyaw II (No. 2) (1998-99) SCGLR page 639 and said, since Contempt of Court was quasi-criminal and the punishment for it might include a fine or imprisonment, the standard of proof required was proof beyond reasonable doubt. An applicant must therefore, first make out a prima facie case of contempt before the court could consider the defences put upon by the respondent. We believe that it is also to reinforce this time tested principle of the contemnor being presumed innocent until proven guilty that the Supreme court in the case of Republic vs Sito 1 Exparte Fordjour (2001-2022) SCGLR 322 laid down the following as the essential elements in dealing with the offence of contempt. “There must be a judgment or order requiring the contemnor to do or abstain from doing something. It must be shown that the contemnor knows what precisely he is expected to d or abstain from doing and it must be shown that he failed to comply with the terms of the judgment or order and that disobedient is willful.” To succeed in the instant case, the applicants must first of all adduce satisfactory and credible evidence to prove beyond reasonable that the contemnors are aware of the orders of the court, in order to determine if a wilful disobedience of the courts’ order has been occasioned. Section 13(1) of the Evidence Act, 1975 (NRCD 323) The averments contained in the instant motion has been forcefully denied by the respondents. In our adversarial system of jurisprudence, a person who makes an averment or assertion, which is denied by his opponent has the burden to establish that the averment or assertion is true. Thus the one who allege is required to produce pertinent information on the matter to the satisfaction of the court. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of the burden. – Zabrama v. Segbedzi (1991) 2 GLR 223. See also Republic v Adofrakye (2010-2012). In considering the instant case, the court will rely on Republic v. Kwadwo Sito 1 Exparte Kwadwo Fordjour (supra), where the applicant must prove that, a) There is a judgment or order requiring the contemnor to do or abstain from doing something. b) The applicant must show that the contemnor knows what precisely what he has to do or abstained from doing. c) It must be shown that he failed to comply with the terms and judgment or order and that his disobedience is wilful. From thence, the court must be satisfied that the applicant has establish the basic principles regarding the standard of proof in contempt charge. In the case of Republic v. Boamah & Ors (2010-12) 1 GLR. SC, the court held that, “The basic principle regarding the standard of proof in contempt matters was that since it is quasi-criminal in nature the standard of proof required to secure conviction was that proof beyond reasonable doubt as provided in Section 11(3), and 13(2) of the Evidence Act, 1975 (NRCD 323). Consequently, there should be no room for conjecture and evidence required to be placed before the court to enable it to come to a decision must be proof beyond affidavit evidence.” Kangah v. Kyere (1979) GLR 458 SC. RESOLUTION OF THE ISSUES GERMAME TO THIS CASE. From the processes filed so far, and the evidence solicited from the cross examination, the critical issues that engaged the mind of the court for determination are; i) Whether or not the applicant has introduced sufficient evidence to discharge the proof required in Contempt proceedings? ii) Whether or not the Respondents have established enough evidence to avoid committal for the Contempt charge. 1.1 The evidence put together by the applicant establishes the fact that the High Court differently constituted in Suit No. LS/6/87 on 2/02/1987 restrained both parties to the action, from felling palm trees and Odum trees on the land in dispute till further determination of the Suit Exhibit ‘DDF3’ attached. 1.2 Then again, the 23/04/1999, the court differently constituted made an order for Variation of Exhibit ‘DDF3’. In the variation order, the court allowed the parties then to fell 400 palm trees in the area of land they each claim in their respective pleadings before the court. The plaintiffs/respondents admit the existence of the above two orders. This court is therefore satisfied that, there is an order of court requiring the contemnor to do or abstained from doing something. And from the affidavit evidence before the court, this court is satisfied that the respondent is aware of what precisely he is to do or abstain from doing, no issue of ambiguity was raised. Having made that determination, the next germane issue left to be considered is whether or not the respondent has disobeyed the orders of the court and if so willfully? And if so whether a prima facie case has been made against the respondents for their defence to be considered. To demonstrate to his court that the respondents have violated the orders of the court by felling palm trees and Odum trees contrary to the variation order, the applicants introduced Exhibit ‘DDF6’ series made up of 18 photographs; attached to the main motion for contempt, depicting images of felled palm trees and some big trees. These images were undated, the photographs upon critical scrutiny, appear very old and mostly duplication of the same photographs. (Emphasis mine) On the 19/9/2022 the applicant filed a supplementary affidavit in support of his case. Attached thereto are Exhibits ‘DD8’ series made up of 12 images of felled palm trees. This time around the date appear on the face of all the images as allegedly taken on 26/8/2022. My observation is that the images are again duplicated and computer- generated print outs with superimposition of date on the face of it. The pictures, most of which are images from exhibit DDF6. The above images are the alleged acts of contempt committed by the respondents for which they were charged and brought before this court. In the affidavit in support of applicant’s case they alleged that the respondents have felled in excess of 400 palm trees. The images do not add up to 100 tress. The court cannot tell when the photographs were taken in view of the observation made above. Since the applicants are aware that the respondents were allowed by the court to fell 400 tree on specific area of the disputed land, the applicant must produce cogent and satisfactory evidence that, the respondents felled all the 400 trees in 1987 when the variation was granted, and have currently fell new trees up to 1,320 trees as alleged under cross examination by the 3rd applicant. Furthermore, applicant must show that the trees are being fell outside the boundaries stated in exhibit “DDF4’ (respondent boundary before the court in their counter claim). It is obvious that the many questions applicant responded to were unproven fact. To this court the photographs depicting the alleged disobedience must be clear, leaving no doubt in the mind of the court that, the trees being fell are not part of the 400 allowed in the variation order, that it is being fell outside the boundaries of the plaintiffs counter claim, and what the deceased sold have all been uprooted already. These essential evidences were lacking. Upon a careful evaluation and consideration of the affidavit evidence and the cross examination in support of the instant application, the exhibits from the respondent as well, I find that the vital element necessary, or the condition precedent to commit the respondent for contempt of court have not been conclusively established by the applicants to the standard required by law. Applicant has not discharged the burden of proof to the standard required by law as proof of willful disobedience of the courts orders so far as the present respondents are concerned. See Section 13(1) of the Evidence Act. The cases of KANGAH V. KYERE (1979) GLR page 458. (Supra) BOAMAH & ANSAH SIKATUO V. AMPOMSAH (2012) 1 SCGLR page 58. (Supra) The court is not satisfied that the applicants have made a good case for contempt of court and the court will hesitate in convicting the respondents herein. Finally, in the case of REPUBLIC V. MENSA-BONSU; EXPARTE ATTORNEY GENERAL (1994-95) GBR 130 at 202, SC the court speaking through Bamford –Addo JSC said; “The power to commit summarily for contempt is indeed an effective tool, which must be wielded only in very clear cases. It must be noted, however, that it is not to be used from a tenderness of feeling or to vindicate any particular judge; it is used to protect the whole administration of justice and to keep the blaze of glory around the courts for obvious reasons.” Flowing from the above therefore, the instant application fails and so dismissed. The respondents 1st 2nd 4th and 5th are acquitted and discharged from the contempt of court charges levelled against them by the applicant. The 3rd and 6th respondents are not legal persons before this court. They were deceased before the action was brought. MUMUNI & OTHERS V. ADUNA & ORS (2006) GHACA 3 (Civil Appeal No. H1/262/2004) The court will adjudge cost in the sun of GHC10, 000.00 in favour of the respondent against the applicants. Case dismissed. (SGD.) CHARITY A. ASEM (MRS.) (JUSTICE OF THE HIGH COURT) LEGAL REPRESENTATION: SIKA ABLA ADDO FOR THE DEFENDANT/APPLICANTS – ABSENT REPRESENTED BY RAPHEAL AGALA THEOPHILOUS DONKOR FOR THE PLAINTIFF/RESPONDENTS - PRESENT 13