REPUBLIC VRS. QUAYSON (CR/0264/2022) [2023] GHAHC 627 (19 October 2023)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON THURSDAY THE 19TH DAY OF OCTOBER 2023 BEFORE HER LADYSHIP JUSTICE MARY M. E YANZUH, JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SUIT NO. CR/0264/2022 IN THE MATTER OF CRIMINAL CASE NO. CR/0264/2022 INTITULED THE REPUBLIC AND JAMES GYAKYE QUAYSON AND IN THE MATTER OF AN APPLICATION FOR COMMITTAL FOR CONTEMPT OF COURT BY: JAMES GYAKYE QUAYSON APPLICANT AGAINST KOBINA TAHIR HAMMOND RESPONDENT JUDGMENT I find it appropriate to commence this Judgment with the words of Lord Morris in the case of Attorney-General v Times Newspaper Ltd [1974] AC 273 @ 302, HL where the Learned Judge stated, "in an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interest of the community, it is imperative that the authority of the courts should not be imperiled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed, it is not because those charged with the responsibilities of administering justice are concerned for their own dignity: it is because the very structure of ordered life is at risk if the recognized courts of the land are so flouted that their authority wanes and is supplanted” Per an application filed on the 7th day of July 2023, the Applicant herein, James Gyakye Quayson prays the Court to commit the Respondent herein, Kobina Tahir Hammond to prison for contempt of Court. The basis of the prayer as set out in the affidavit in support of the originating motion and the supplementary affidavit filed on the 25th day of July 2023 is that, the Respondent has by his words in an interview conducted on the 4th day of July 2023 publicized nationally and internationally regarding the trial of the Applicant herein prejudiced the lawful process of the Honourable Court and brought the judicial process into disrepute. The Respondent opposed the Application per an affidavit in opposition filed on the 18th day of July 2023 and a supplementary affidavit filed on the 28th day of August 2023. THE CASE OF THE APPLICANT Per his Affidavits deposed to by his lawyer, Justin Pwavra Teriwajah Esq. stating the basis of the Application and the affidavit evidence in support of same, it was deposed in substance that, as a lawyer, the Respondent is aware that, by virtue of Article 19(2) (c) of the 1992 Constitution, a person charged with a criminal offence is presumed innocent until his guilt is proven. That, by virtue of Article 19(1) of the 1992 Constitution, a person charged with a criminal offence is to be given a fair trial within a reasonable time by a Court and that, it is through the Court process that a person is to be proved guilty and the appropriate punishment meted out to a guilty person. According to the Applicant, notwithstanding the foregoing, the Respondent herein who is a Minister of Trade and Industry and a Member of Parliament in an interview conducted on the 4th day of July 2023 on a TV Station, Oyerepa TV, categorically pronounced the accused person (applicant herein) guilty of the charges for which he is standing trial in this Court and went ahead to state that the accused person (applicant herein) will go to prison. It was deposed that, a copy of the said Interview may be found on a stated website and a copy of same was also attached to the affidavit in support as exhibit ‘A’. The Applicant contended that, by the words of the Respondent which has received wide publication nationally and internationally, the Respondent is violating the right of the Accused/Applicant to be presumed innocent as well as his right to a fair trial. To the Applicant, the said words are also in contempt of this Honourable Court as they are extremely prejudicial to and undermines the lawful process of the Court as well as bringing the administration of justice into disrepute as it will create in the minds of members of the public that no other conclusion other than that pronounced by the Respondent can occur. According to the Applicant, the Respondent is brazenly usurping my functions and by article 126(2) of the Constitution 1992, this Court has the power to commit the Respondent and people of his ilk for contempt of itself in order to keep the streams of justice pure. The Applicant in his Supplementary Affidavit which was essentially a response to the contents of the Affidavit in Opposition denied the comparison of his criminal case to that of Adamu Dramani Sakande and went further to draw a distinction between the two cases. As far as the Applicant sees it, the Respondent was conducting a media trial of his criminal case pending before this Court with the intention of setting the public to reject any outcome other than a conviction and imprisonment of the Applicant. The Applicant made reference to similar comments alleged to have been made by the President of the Republic of Ghana and another member of Government Hon. Andrew Egyapa Mercer who is the Deputy Minister for Energy. The Applicant contended finally that, as a lawyer, a Member of Parliament and a Minister of State, the Respondent knows or ought to have known that, the running of prejudicial commentary on a case that is pending before the Court with intent to excite popular prejudice for or against a Party to the pending proceedings is both contemptuous of the court and criminal conduct and deserves to be punished in an exemplary manner. THE DEFENCE OF THE RESPONDENT The Respondent per his affidavit in opposition deposed to by him and filed on the 18th day of July 2023 and a supplementary affidavit also filed on 28th August 2023 vehemently denied the allegation of contempt against him. According to the Respondent, the instant application is incompetent in many respects and cannot form the basis for the reliefs that the Applicant seeks. According to the Respondent, he as a lawyer understands the doctrine of stare decisis which dictates that rules or principles of law on which a superior court rested a previous decision are authoritative and bind all lower courts in all future cases in which the facts are substantially the same. That, on July 4th, 2023 he recalls that a parliamentary correspondent from one of the media houses asked him within the Parliament building about his colleague members of Parliament on the minority side in relation to their handling of the matter relating the court attendance of the Applicant herein. According to the Respondent, prior to that July 4th, 2023 he had read the Judgment of the Supreme Court in the case involving the Applicant herein entitled MICHAEL ANKOMAH NIMFAH V. JAMES GYAKYE QUAYSON & 2 OTHERS; SUIT NO. J1/11/2022; dated 17th May 2023 where the Court per Amegatcher JSC had stated at paragraph 3 of page 20 of the certified copy of the transcript that "Again, the ratio and facts of this suit are similar to the dispute situation in the case of Sumaila Bielbiel (No 1) v Dramani and Another [2011] 1 SCGLR 132, (the Bielbiel case) in which this court recognized the jurisdiction to settle questions relating to the qualification and eligibility criteria for members of Parliament under article 94 (2)(a). Regrettably, the Bielbiel case which is on all fours with the current case was never discussed by the parties in this case apart from cursory reference to it by the counsel for the plaintiff and the 3rd defendant. The similarity of the facts in that case to the present one is evident from the facts and decisions of the case." The Respondent deposed that, it was in the context of the discussion of precedent and the case of Adamu Dramani Sakande that he made some comments in the Akan language about the applicant’s case to the Parliamentary correspondent. The Respondent denied that, his said words in the interview are in contempt of court or are prejudicial to the lawful process of this Court in the ongoing trial of the Applicant which is not a jury trial but one conducted by an Honourable Justice of this Honourable Court. He deposed further that, in discussing the precedent of the Adamu Dramani Sakande case as reinforced by the Supreme Court in the MICHAEL ANKOMAH NIMFAH V. JAMES GYAKYE QUAYSON, he did not engage in any act or omission which tendered to prejudice or interfere with the fair trial of the case as he knew that the Applicant’s criminal trial was pending before the Court. Finally, he deposed that, there cannot be many people who have defended the image and integrity of the judiciary than him and it is ironical that he is rather accused of contemptuous behavior. THE LAW AND ITS APPLICATION TO THE INSTANT CASE The laws on contempt, from it types, standard of proof and its essential ingredients are well established by case law. In the case of IN RE EFFIDUASE STOOL AFFAIRS (NO.2); REPUBLIC VRS NUMAPAU, PRESIDENT OF THE NATIONAL HOUSE OF CHIEFS; EX-PARTE AMEYAW II (N0.2), (1998-99) SCGLR 639, the Supreme Court held that “Contempt of court may be classified either as direct and indirect or as civil and criminal. Direct contempt’s are those committed in the immediate view and presence of the court (such as insulting language or acts of violence) or so near the presence of the court as to obstruct or interrupt the due and orderly course of proceedings. Indirect (or constructive) contempt’s are those which arise from matters not occurring in or near the presence of the court, but which tend to obstruct or defeat the administration of justice, and the term is chiefly used with reference to the 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 are those quasi contempts which consist in the failure to do something which the party is ordered by the court to do for the benefit or advantage of another party to the proceedings before the court, while criminal contempts are acts done in disrespect of the court or its process or which obstruct the administration of justice or tend to bring the court into disrespect.” What is however certain from the authorities is that, no matter how one classifies contempt, that is whether Direct or Indirect, Civil or Criminal, the central objective is the need to protect the dignity and authority of the Court and to ensure that, the path of justice was set free from obstruction. To this end, it was held in the case of OPOKU VRS. LIBHERR FRANCE SAS & ANOTHER (2012) 1 SCGLR by the Supreme Court per Atuguba JSC at page 160 that, “it was well-settled that there were different forms of contempt. Underlying all of them, however, was one basic notion, that the path of public justice should at all times be free from obstruction. Conduct which tended to create such an obstruction would 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 the court - any of those, if calculated to, or tend to, impede or obstruct the course of justice would constitute contempt.” Since contempt is so manifold in its aspect, it is always important that, in an application citing a person for contempt, the basis or grounds of the contempt is set out clearly. This is the reason why Order 50 rule (1) (3) of C. I. 47, (as amended) provides that, the application shall be supported by an affidavit stating inter alia the grounds of the application. This enables the Court to know the very act which the person is alleged to have done that undermines the dignity and authority of the court or interferes with the path of justice. It also enables the person accused of committing the contemptuous act to know the nature of the accusation so as to be able to prepare his defence. In the instant case, the Applicant’s application is that, the Respondent herein should be committed to prison for contempt of Court because by his words in an interview conducted on the 4th day of July 2023 publicized nationally and internationally regarding the trial of the Applicant herein, he had prejudiced the lawful process of the Honourable Court and brought the judicial process into disrepute. Per the authorities, there is no doubt that, a person can by his words be found guilty of contempt if it is established that, by his words, he had scandalized the Court or commented on pending Court proceedings in such a manner that is calculated or intended to prejudice the outcome of the proceedings or obstruct the course of justice. It is by punishing such acts that, effect is given to provisions such as article 125(3) of the 1992 Constitution which provides that the judicial power of Ghana shall be vested in the Judiciary, accordingly, neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power. Let me hasten to add that, the fact that final judicial power is vested in the Judiciary does not mean that, no one can comment or publish on pending proceedings. Indeed, the justice that is administered by the judiciary emanates from the people as per article 125 (1) of the same 1992 Constitution. The same Constitution also guarantees freedom of speech within the boundaries of the law. What is forbidden is therefore not the exercise of the right to free speech but rather, the exercise of that right in a manner that is intended to or calculated to prejudice the exercise of the Court’s exclusive judicial power or obstruct the exercise of that power by the Court. Thus, in the case of REPUBLIC v MENSA-BONSU AND OTHERS; EX PARTE ATTORNEY-GENERAL [1995-96] 1 GLR 377, this point was succinctly captured as follows: “Freedom of expression was essential to the achievement and maintenance of a democratic society. Accordingly, the press might criticise in matters of public interest. That right was however not absolute but subject to the limitation that it did not violate the integrity of the court or present a threat to judicial authority.” Having considered the above-cited authorities and the contents of the instant application, I am unable to agree with the Respondent’s argument that, the Applicant has not set out the specific contempt or the types of contempt which the applicant is pressing against the Respondent. I do not share his view that, there appears to be more than one contempt that the Applicant is prosecuting, but they are not arranged or spelt out in any particular order with their distinct set of facts so as to give the Respondent a clear idea of what he is defending. The Applicant is clear in his application that, in his view, the Respondent has prejudiced his pending criminal trial by the interview he granted on the said 4th day of July 2023 which conduct of the Respondent, according to the Applicant is contemptuous of this Court. There is no ambiguity about that and in my view, the Respondent has always known what he is to defend and has gone ahead to file the necessary processes. Since the Applicant is the one accusing the Respondent of wrongdoing, he had the burden to prove that assertion in line with section 15(1) of the Evidence Act, 1975, Act 323 which provides that “unless and until it is shifted, the party claiming that a person is guilty of crime or wrongdoing has the burden of persuasion on that issue”. In contempt applications such as the instant one, the burden of proof is beyond reasonable doubt as stated in cases including the Republic vrs Osei Bonsu II, Mamponghene & Others; Ex-Parte Amadie & Buor, (2007-2008) SCGLR 566 and REPUBLIC v. BEKOE AND OTHERS; EX PARTE ADJEI [1982-83] GLR 91 where it was held that “the principle of law was quite clear that where a person was charged with contempt of court, his guilt should be proved with the same strictness as required in a criminal trial, i.e. proof beyond reasonable doubt. In the result, the onus of proof lay on the applicant and the one charged could not be compelled to give evidence against his will, although where an affidavit was used in evidence, the court had discretion under the rules of court to order the deponent to be cross-examined upon it.” As stated above, the Applicant herein has alleged that, the Respondent should be committed for contempt because he has said something that amounts to contempt of Court. By alleging this way, the Applicant was required to prove beyond reasonable doubt to this Court, firstly, what the Applicant said and secondly, how the same constituted contempt of Court. It was only after doing so that, the burden would shift to the Respondent for his defence. On the first task of proving that the Respondent uttered some words in his said interview, the Applicant deposed that, the said interview was granted by the Respondent on the 4th day of July 2023 on a TV Station, Oyerepa TV. It was deposed further that, a copy of the said Interview may be found on a stated website and a copy of same was also attached to the affidavit in support as exhibit ‘A’. As a court of record called upon to decide this matter, I am limited to considering the application on the basis of the papers before me. Per the processes filed before me, neither the motion paper nor the affidavit stated the exact words uttered by the Respondent in his said interview. The only process which had words directly attributed to the Respondent as the words he said in his said Interview are contained in what is said to be the News Report put up by the Reporter. In the said news report, it is noticed that, the full complement of what the Respondent is reported to have said is not reproduced therein. This is apparent from the fact that, from the 4th paragraph of the said exhibit “A” after, the sentence that begins with, “there is something we call precedence of the Court” I notice ellipses (…) being used before the sentence continues. It is a matter of common knowledge that, ellipses are used in sentences to show an omission of words or a pause or to indicate that, something has been left out of the sentence. The Respondent has insisted that, what is contained in the news report represents the News Reporter’s translation of what he, the Respondent stated in Twi language and also that, the said news report does not contain what was fully stated by him. The Applicant in response to this position of the Respondent took the position in his supplementary affidavit in support that the Respondent had admitted making the alleged contemptuous statement. The Court however holds a different view to that of the Applicant. What the Respondent admitted was the granting of the interview and not the contents of the interview as translated by the news reporter. The Respondent also insisted that, the news report exhibited by the Applicant as exhibit “A’ did not capture the full interview that he gave to the Parliamentary correspondent. In the face of the denial, it was incumbent on the Applicant to have at least exhibited the full interview or a full and officially transcribed version of it in the English language. He however failed to do so. Without the full complement of the said interview and/or an officially transcribed version in the English language which is the official language of the Court, the Court is deprived of the opportunity to know exactly what was said by the Respondent for the Court to proceed to determine whether the same is contemptuous or not. The Court cannot rely on the manifestly incomplete transcribing of the said Interview by the News Reporter in his own translation to deprive a man who has challenged same of his liberty. This is important because, to hold a person guilty of contempt as a result of his comments on pending proceedings, there is the need for the Court to know in full what was said by the alleged contemnor and the context within which it was said so as to determine whether the person said so to prejudice the fair trial of the case or only fairly exercised his right to free speech within the boundaries of the law. It is trite learning that, the power to commit for contempt is indeed an effective but very powerful tool which must be wielded only in very clear cases and evidence in support of same must be clear, certain and convincing. It is the law that Contempt is not established where there are rival depositions which create two equally possible situations, either the respondent had wrongfully done that which was urged against him or he had not done so. The court must be satisfied beyond all reasonable doubt that he had done so based on the affidavit evidence before it can convict in the absence of any defence. There is no room for conjecture and evidence was required to be placed before the court to enable it come to a decision on the matter. It is not enough to leave serious depositions of fact at large in contempt applications. See Boamah & Ansah Sikatuo v. Amponsah (2012) 1 SCGLR 58. In the case of RE BRAMBLEVALE LTD [1969] 3 All ER 1062 at 1063, Denning L J said as follows: “A contempt of court is an offence of a criminal character. To use the time honoured phrase, it must be proved beyond reasonable doubt. It must be satisfactorily proved. It is not proved by showing, that when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scales against him. But there must be some other evidence.” The Applicant in my view has not satisfied this evidential requirement to let me proceed further to determine whether the words said were contemptuous or not. The instant application for contempt is accordingly dismissed as same is without merit. H/L MARY M. E YANZUH JUSTICE OF THE HIGH COURT COUNSEL: JUSTIN PWAVRA TERIWAJAH FOR THE APPLICANT PRESENT KWEKU YAMOAH PAINTSIL FOR THE RESPONDENT PRESENT PARTIES: JAMES GYAKYE QUAYSON (APPLICANT) ABSENT KOBINA TAHIR HAMMOND (RESPONDENT) PRESENT 13