Republic Vrs Dora and 9 Others (E12/136/2023) [2023] GHAHC 497 (29 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, HELD IN CAPE-COAST ON TUESDAY THE 5TH DAY OF FEBRUARY, 2024 BEFORE HIS LORDSHIP JUSTICE JOHN-MARK NUKU ALIFO “J” SUIT NO. E12/129/2023. THE REPUBLIC VRS 1. MADAM DORA & 9 ORS ……….. RESPONDENTS EX PARTE: FRANCIS KOFI MENSAH ……….. APPLICANT ---------------------------------------------------------------------------- JUDGMENT ----------------------------------------------------------------------------- INTRODUCTION The Applicant filed a Motion for Contempt the on 11th April, 2023 against 15 Respondents. In the Applicant’s Motion paper, he pleaded the Honourable Court for an order to commit the Respondents for contempt for allegedly disobeying and disrespecting the Court judgment against the 1st and 2nd Respondents. On the 11th of May 2023, the 4th, 5th, 6th, 7th, 8th, 10th, 11th, 12th, 13th and 14th Respondents filed their Affidavits in Opposition to the Motion for committal for contempt. This Court reckons all the 10 Affidavits in Opposition is replete with assertions that the Deponents do not to know any of the parties to the Judgement for which Applicant seek to commit the Respondents for contempt, neither were they served with an Entry of Judgment. Applicant by a Supplementary Affidavit filed on the 5th of June 2023 maintained by referring the Court to his Exhibit C of his Affidavit in Support that the Respondents were served with the Entry of Judgement on 7th October, 2022. Meanwhile, on the 6th of June 2023, Counsel for Respondents filed a Motion to withdraw his services as Lawyer for the 3rd Respondent as he did not instruct Counsel and he was inadvertently listed in the Notice of Appointment of Lawyer filed on 5th May, 2023. The Court granted the application taking cognizance of the fact that the 3rd Respondent was deceased as per paragraph 2 of the Applicant’s Affidavit in Support of his Motion for Committal for Contempt. On the 26th June 2023, this Court granted Applicant`s Motion filed on 19th June, 2023 to discontinue the Application against the 1st, 2nd, 3rd, 10th and 15th Respondents. By this is order of 26th June, 2023, the current Application is against 10 Respondents being the 4th, 5th, 6th, 7th, 8th,9th, 11th, 12th, 13th and 14th Respondents. CASE OF THE APPLICANT Applicant on the 15th of August 2023 filed his Statement of Case in support of the Application. It is the case of the Applicant that on the 21st December 2017, the Applicant caused to issue a Writ of Summons and Statement of Claim directed at three (3) Defendants namely John Koomson, Francis R. Arthur and Opanyin Kwame Enyan at the Circuit Court, Cape Coast claiming the following reliefs; a. Declaration of Title b. Damages c. Recovery of possession of the disputed land at Mankessim. On 19th June, 2022, the Court gave judgment against Defendants therein on the reliefs endorsed on Applicant`s Writ. On 4th November, 2022 the Court granted the Applicant leave to go into possession and the bailiffs of the Court put Applicant in possession. It is the case of Applicant that the Respondents re-entered the land claiming that they were not parties to the original suit. Based on the Respondents` alleged conduct, Applicant brings this instant action against them for contempt. Applicant claims that two of the first original three (3) Defendants who became the 1st and 2nd Respondents obeyed the orders of the Court for which reason Applicant discontinued against them in the motion filed on 26th June, 2023. CASE OF RESPONDENT The Respondents through their Counsel filed their Statement of Case on 15th November, 2023. It is the case of all the Respondents that they were not parties or privy to the Suit culminating in the said judgment, neither did they acquire their interest in the land from the Applicant or any of the parties to the judgment. It is also their claim that they were not served the Court processes in the matter. They claim to be on the respective portions of land when some persons came there claiming that there is a judgment on the entire land and that they should vacate the land. Respondents maintain that no proceedings were served on them to bring the said suit or judgment to their notice. Meanwhile, it has been the case of the Respondents that they acquired the land from one Alhaji Kobina Darko who is now deceased years ago and that they do not know any of the parties to the said judgment. Most importantly, they maintain that they do not claim interest in the said land or trace their root of title through any of the parties to the said suit and that the instant application has been brought in bad faith and ought not be granted. ISSUE FOR DETERMINATION 1. The issue before the Court is whether the Respondents have committed contempt by disobeying the orders of a Judgment in a matter in which they were not parties. INTRODUCTION The Constitution clothes Superior Courts with jurisdiction to commit for contempt any person that opposes or defies the authority or dignity of the Court or undermines the administration of justice and this Court being a Superior Court, is capacitated to hear the instant Application for contempt of court for disobedience to the judgment of the trial Circuit Court. A person who commits the offense of Contempt of Court commits a criminal offense and is punishable by imprisonment or fine as provided for by Article 126 (2) of The 1992 Constitution thus: “The Superior Courts shall be superior Courts of record and shall have the power to commit for contempt to themselves and all such powers as were vested in a Court of record immediately before the coming into force of this constitution.” Section 36 of the Courts Act, 1993 (Act 459) re-affirms the provisions of the apex law of the state in the following words: “The Superior Courts of Judicature shall have the power to commit for contempt to themselves and all such powers as were vested in a Court of record immediately before the coming into force of the Constitution in relation to contempt of Court.” DISCUSSIONS AND ANALYSIS There are plethora of authorities on what constitutes Contempt of Court. Justice S. A. Brobbey in his Paper: “THE LAW AND PRACTICE OF CONTEMPT OF COURT IN THE CONTEXT OF OUR CONSTITUTIONAL VALUES; WITH SPECIFIC EMPHASIS ON SCANDALIZING THE COURT'' defined contempt to mean the “offense of being disobedient or disrespectful towards a Court of law and its officers in the form of behavior that opposes or defies the authority or dignity of the Court or undermines the administration of justice.” Justice S. A Brobbey went further to simplify contempt to be: “any act, omission or conduct that undermines the authority of the Court or prejudices fair trial.” In Oswald’s Contempt of Court, 3rd edition at page 6, it is stated that “To speak generally, contempt of Court may be said to be constituted by any conduct that tends to bring the authority and administration of the law into disrepute or disregard or to interfere with or prejudice parties, litigants, or their witnesses during litigation. This means that a person commits contempt and may be committed to prison for wilfully disobeying an order of a Court requiring him to do any act other than payment of money or to abstain from doing some act.” Any act of willful disobedience of a judgment or an order of a Court by a party will amount to the offense of contempt of Court. See: REPUBLIC v HIGH COURT ACCRA, EX PARTE LARYEA MENSAH [1998- 1999] SCGLR 360. IN RE: EFFIDUASE STOOL AFFAIRS (N0.2); REPUBLIC VRS. NUMAPAU, PRESIDENT OF THE NATIONAL HOUSE OF CHIEFS AND OTHERS; EX PARTE AMEYAW II (NO.2) [1998-99] SCGLR 639 Again, the Black’s Law Dictionary, 9th Edition by Bryan A. Garner as editor in chief at page 360 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.” 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, or not showing respect for a Court or judge”. To constitute contempt, it must be proved that the disobedience was a wilful breach of a Court’s order which requires the party to do or abstain from doing something. This is because it is not an absolute offense. Therefore, the intentional act of the Respondent must be proved. See: REPUBLIC v HIGH COURT, EX PARTE LARYEA MENSAH (Supra). However, the power of contempt is rarely invoked by the Court. It is only invoked when the dignity, respect and the authority of the Court is threatened. It has been said that these powers are given to the Courts to keep the course of justice free. The power of contempt by the Court is of great importance to society. By the exercise of the power of contempt, law and order prevails. Those who are interested in wrong are shown that the law is irresistible. Again, the purpose of contempt is to protect the whole system of administration of justice. See the unreported case of THE REPUBLIC VRS. JAMIL MOUGANIE EX - PARTE: WISSAM LABA, (COMMERCIAL COURT 2. DATED 24TH JULY, 2022 See also the case of REPUBLIC v MENSAH BONSU AND OTHERS; EX PARTE ATTORNEY GENERAL [1995-96] 1 GLR 377 SC. It has been held by Akuffo Addo C. J in the case of REPUBLIC v. LIBERTY PRESS LTD. AND OTHERS [1968] GLR 123 at page 135 concerning the power of the Courts to commit persons for contempt that: "...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 offense not only against the Courts but against the entire community which the Courts serve. Such conduct constitutes 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 judges) to keep the course of justice free; power of great importance to society, for by the exercise of them law and order prevail; those who are interested in wrong are shown that the law is irresistible." This position was reiterated in the case of REPUBLIC VRS. MENSA-BONSU [1995- 96] 1 GLR 377, SC. Her Ladyship Bamford Addo JSC explained that the purpose of contempt is not to vindicate any particular judge but to protect the whole system of administration of justice. The Learned Justice stated thus: “This is the reason why the Courts are given power to commit for contempt, that is to punish any acts which tend to interfere with the proper administration of justice, or which 'scandalises' the Courts, by eroding public confidence in them or by - weakening and impairing their authority. The power to commit summarily for contempt is indeed an effective but very powerful 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' round the Courts for obvious reasons. The public must have confidence in the law and the Courts, and any attempt by any one calculated to erode such confidence must be viewed very seriously and must be punished swiftly to restore the integrity of the Courts which administer the law." In the case of REPUBLIC VRS. SITO 1; EX PARTE FORDJOUR, [2001-2002] SCGLR 322 the Supreme Court set down the ingredients which have to be proved in contempt as follows: - a. “There must be a judgment or an order requiring the contemnor to do or abstain from doing something. b. It must be shown that the contemnor knows what precisely he is expected to do or abstain from doing. c. It must be shown that he failed to comply with the terms of the judgment or the order and d. That his disobedience was wilful”. See also: THE REPUBLIC v AFEWU & ANOTHER; EX PARTE TAKORADI FLOUR MILLS & ANOTHER [2018] 121, GMJ 210 CA REPUBLIC v CONDUAH; EX PARTE AABA (SUBSTITUTED BY ASMAH) [2013- 2014] 2 SCGLR 1032. The Learned Jurist Justice S. A. Brobbey in his Book THE LAW OF CHIEFTAINCY IN GHANA, INCORPORATING CUSTOMARY ARBITRATION, CONTEMPT OF COURT, JUDICIAL REVIEW, 2008. Page 539-541 discussed extensively the proof and liability of contempt and stated that, the general rule on the standard of proof in contempt proceedings was summed up in IN RE: EFFIDUASE STOOL AFFAIRS (N0.2); REPUBLIC VRS. NUMAPAU, PRESIDENT OF THE NATIONAL HOUSE OF CHIEFS AND OTHERS; EX PARTE AMEYAW II (Supra) as stated in holding (2) as follows: “Since contempt of Court was a 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 even consider the defenses put by the respondent” . Expatiating on this principle further at page 666, the Supreme Court stated that: “And 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 the said actual allegations constitute contempt”. By the established rule therefore the same standard of proof beyond reasonable doubt is expected of the Applicant to prove the guilt of the Respondent in every contempt case. Section 13(1) of the Evidence Act, 1975 (NRCD 323) provides as follows: “In a 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.” The rationale for the high standard of proof in contempt cases is that, if proved against the Respondent, the Respondent is liable to be punished for it by imprisonment or fine. See AKELE VRS. COFIE, AKELE VRS. OKINE (CONSOLIDATED) (1979) GLR 84. In KANGAH v KYEREH AND OTHERS [1979] GLR 458, it was stated in the headnote as follows: “To obtain committal for contempt, the Applicant must strictly prove beyond reasonable doubt that the Respondent has wilfully disobeyed and violated the Court’s order. In the absence of such evidence, the Respondent could not be guilty of contempt”. See also, REPUBLIC v HIGH COURT, KUMASI EXPARTE KODUAH (PARAGON INVESTMENT LTD – INTERESTED PARTY) [2015-2016] 2 SCGLR The authorities have held further that the purpose of the law of contempt is to protect the integrity of the justice system and the right of individual litigants to have justice effectively administered. To this end, punishment is imposed on persons found by words or acts, to have impeded or interfered with the administration of justice, or to have created a substantial right of the course of justice being seriously prejudiced or interfered with, or to have otherwise scandalized the court. To this end, I proceed to consider the competence of this application bearing in mind the duty of the Applicant to prove his case beyond reasonable doubt. From the facts of the instant case before this Court, it can be deduced that there was a judgment of the Circuit Court in Suit Number C1/06/2018 dated 9th June 2022 between Francis Kofi Mensah and John Kofi Mensah & 2 Ors of which none of the Respondents in the instant Application is a party to. Neither does the said judgment affect or bind the single grantor of all the Respondents called Alhaji Kobina Darko. Counsel for Respondents cited the case of SANGARI VRS OKU & 2 ORS [2014] 78 G. M. J 82, where Kusi-Appiah J. A stated that ”Normally, the position of the law is that no Court has the jurisdiction to give a judgment and order that binds a stranger to the suit as that would be void because it is against the principles of justice. Without a doubt, such judgments are admissible as evidence against privies in a subsequent action; they are not however admissible or enforceable against them in the first action which they are, ex hypothesi, not parties" If that be the case, the Applicant has the onus of showing that he has actually complied with the rules of procedure of bringing to the notice of the third parties the judgement it sought to enforce same against. This mandatory rule cannot be circumvented as same would result in gross miscarriage of justice. This august Court takes cognisance of Applicant’s Exhibit C attached to his Affidavit in Support on which he places much reliance in discharging his onus of proving the fact that the Respondents are aware of the judgment. The said Exhibit C as considered by this Court is a Search conducted to ascertain whether the Respondents have been served with Applicant’s Entry of Judgement. The said Exhibit C on the face of it shows that the Respondents were served with the Entry of Judgement. Even though the said Exhibit C is a document emanating from the Trial Court, Applicant failed to Exhibit the said Entry of Judgement which was supposedly served on the Respondents knowing very well the standard of proof required of him in the instant Application. This Court is of the strong view that Exhibit C alone without the copy of Entry of Judgment cannot be a conclusive evidence of the service of the said Entry of Judgment on the Respondents for it stands as a canoe on the middle ocean without a fisherman with a paddle, it shall definitely drown in the ocean. This is the fate of Exhibit C. Per Order 43 Rule 7 (2) (a) and (4) (a) of C. I. 47, it is mandatory to indorse on a judgment order so made, with a penal notice informing the Respondents that if they disobey the order or the judgment they shall be liable to the process of execution. The combined effect of Order 43 Rules 5 and 7 of C. I. 47 is that for the committal to be successful, the Applicant must show that the Respondents have been served with copies of the order or judgment endorsed with what is called the penal notice. In THE REPUBLIC V. KWAME DOSSE, OKAIKOI NORTH MUNICIPAL ASSEMBLY AND BOYE LARYEA, MUNICIPAL C. E. O EX PARTE: BEN KOOMSON PAYIN [2018]DLHC3954, Ackaah-Boafo J. A sitting then as a additional Justice of the High Court had this to say “It is noted that the indorsement of the penal notice is a necessary precondition for the enforcement of an order by way of committal before the Court’s jurisdiction to enforce is invoked. The procedure rules uses “shall”, and therefore it is trite learning that it is imperative and not optional.” Even though this decision is not binding on this Court, this Court finds favor in the same by affirming it. This Court finds it imperative that an Applicant ought to discharge the onus of proving his case beyond reasonable doubt that the rules of court on execution of judgment of such nature have been complied. However, the Applicant has failed to show that Order 43 of C. I 47 on enforcement of judgment to do or abstain from doing an act has been complied with. Applicant could not rely on just the search conducted in the trial Court to find the Respondents culpable especially when the Applicant did not prove that they were privy to the suit before the trial Circuit Court, neither was their grantor and therefore, the said judgment could not have automatically bound the Respondents. Applicant was therefore duty bound to have followed procedure by sufficiently bringing the judgment to their notice to enable them act if they were so minded. The immediately preceding observation is not to say that there is a special requirement on enforcing the judgment on the Respondents as the rules provide that a judgment may be enforced on third parties in the same manner as if they were a party to the suit save to say that an application for committal for contempt is a serious one which places a higher onus of proof on a party to discharge. See order 43(3) and order 43(9) of C. I 47. The Applicant however failed to exhibit or show that the Respondents were served with the Notice of Proceedings together with the Entry of Judgement such that the Entry of Judgement has also been endorsed or attached to it the Penal Notice. This Court is not convinced by Applicant that the Respondents have been properly informed notified of the judgment in line with procedural law. See the case of MOSI v. BAGYINA [1963] 1 GLR 337. The Applicant heavily relies on his Exhibit C to support his contention that Respondents being occupants of the land which is the subject matter of the judgment have been served with the Applicant’s writ of possession. The principle as stated on contempt is that it must be shown that the contemnor knows what precisely he is expected to do or abstain from doing. See the case of HELLAND V. ALEXANDRA [1966] GLR 758. See also the case of COMET CONSTRUCTION CO. LTD v. GHANA COMMERCIAL BANK, TEMA [1976] 2 GLR 220 at 224 where the Court of Appeal per Amissah JA held thus; “Without knowledge of any kind of the court’s proceedings or order, a person cannot be held in contempt of Court for acting in manner which interferes with the proceedings or contravenes the order”. Based on the above learning, this Court has carefully reviewed the motion paper and the affidavit evidence filed in this case, both in support of, and as against the application as well as the written submissions of Counsel. The Court considers that the Applicant not have been able to meet the standard of proof to sustain his case against the Respondents. I therefore hold that the Applicant gas failed to prove he has fulfilled the precondition necessary for invoking the present action. The precondition for the purposes of emphasis is such that the Applicant ought to have shown that the Respondents have been duly notified in accordance with the rules of court of the existence of the judgment and the consequences on the Respondents not complying with same. CONCLUSION From the foregoing, the Respondents cannot be said to be culpable of any of the elements of the crime of Contempt as the Applicant will want this Honourable Court to believe. This Court finds that the Application has failed to meet the test laid in REPUBLIC VRS. SITO 1; EX PARTE FORDJOUR, [2001-2002] SCGLR 322 particularly the requirement that “there must be a judgment or an order requiring the contemnor to do or abstain from doing something” such that “it must be shown that the contemnor knows what precisely he is expected to do or abstain from doing.” It is therefore this Court’s opinion that by failing to show that the Applicant has satisfied the first two tests reproduced in this concluding part of my judgment, the Applicant’s application failed to meet the standard of proof beyond reasonable doubt as required under Section 13 (1) of the Evidence Act, 1975 (NRCD 323). I am of the view that the Courts should not be pushed to convict for contempt where the guilt of the Respondent has not been proved beyond reasonable doubt by an Applicant. The Courts should also be very slow to grant such prayer except in very clear situations of show of disregard or disrespect to the administration of justice. See: THE REPUBLIC v NANA KWABENA AMPONG & OTHERS, EX-PARTE NANA KWAME ADDAE & ANOTHER (unreported) Suit No. E12/72/2010, Dated 27TH JANUARY 2011. I wish to conclude this opinion by quoting the Holy Scriptures, Proverbs 3:30 which states “Do not accuse anyone for no reason when the person has not done you any wrong.” On this biblical note, my conclusion is that, the Applicant’s application crumbles to the ground and same is dismissed. The Respondents are accordingly discharged. Cost of Ghs1500.00 awarded against the Applicant in favour of each of the 10 Respondents for such unwarranted and reckless application for contempt against the Respondents. He has the right to institute actions against the Respondents if he is so minded to claim his land as per the valid judgment of the Circuit Court and enjoy the fruit thereof. (SGD) JOHN-MARK NUKU ALIFO ‘J’ JUSTICE OF THE HIGH COURT COUNSEL CAB ADDAE ESQ. FOR APPLICANT. DANIEL ARTHUR ESQ. FOR 4TH, 5TH, 6TH, 7TH 8TH AND 10TH RESPONDENTS. 16