Rep Vrs the Registrar, Cape Coast District Court and 2 Others (E12/136/2023.) [2023] GHAHC 496 (29 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, HELD IN CAPE-COAST ON WEDNESDAY THE 29TH DAY OF NOVEMBER, 2023 BEFORE HIS LORDSHIP JUSTICE JOHN-MARK NUKU ALIFO “J” THE REPUBLIC VRS SUIT NO. E12/136/2023. 1. THE REGISTRAR -------- RESPONDENTS DISTRICT COURT CAPE COAST 2. THE CHIEF BALIFF AKA EFO DISTRICT COURT CAPE COAST 3. HENRY MENSAH H/NO. F27/4 KOTOKURABA ROAD CAPE COAST EX PARTE: ALEXANDER BOADI MIREKU------------ APPLICANT ---------------------------------------------------------------------------- JUDGMENT ----------------------------------------------------------------------------- INTRODUCTION The Applicant filed a Contempt application on 27th April, 2023 against the Respondents. In the Applicant’s motion paper, he pleaded the Honourable Court for an order to commit the Respondents to prison or deal severely with them for committing the offence of contempt by way of interfering with the administration of justice in the case of “Alexander Boadi Mireku Vrs Henry Mensah”, which suit was pending trial at the Cape Coast District Court No.2. CASE OF THE APPLICANT The facts of the case per the averments from the affidavit in support of the Applicant’s Motion are that, he is a businessman who is into the retail and sale of drugs and operates a pharmaceutical shop on the Kotokuraba road ordinarily known as “Aseda” in a house commonly known as Steele Dadzie House, where he was a tenant. The Applicant further stated that the 3rd Respondent is an occupant of the Steele Dadzie House. The Applicant averred that, the deceased mother of the 3rd Respondent, Mrs. Lititia Araba Mensah in her lifetime instituted an action at the Cape Coast District Court No. 1 against him, which action he resisted. Upon her death, she was substituted by her son, Henry Mensah, the 3rd Respondent. Judgment was given against the Applicant in that suit. It is the case of the Applicant that, completely dissatisfied with the said judgment and upon the discovery of information that showed that the mother of the 3rd Respondent had no title to the house, he instituted a new action at the Cape Coast District Court No. 2 for a number of reliefs that included: i. An order to set aside the judgment that was obtained at the Cape Coast District Court No. 1 by the 3rd Respondent on the basis of fraud and for a further order of perpetual injunction to restrain the 3rd Respondent, his agents, assigns, workmen or any person(s) lawfully claiming through the 3rd Respondent from seeking to eject him, the Applicant from his pharmaceutical shop in the Steele Dadzie house. The Applicant further averred that, he applied for an order of interlocutory injunction to restrain the 3rd Respondent from seeking to enforce the judgment previously obtained at the District Court No. 1, pending the hearing and determination of his new suit at District Court No. 2 The Applicant claims all processes were served on the 3rd Respondent who never appeared in Court but put in an appearance through his brother named, Edmond Mensah. The Applicant claims that on 6th April, 2023, the 3rd Respondent’s head of family, Mr. Conduah came to Court and prayed the Court to be given the opportunity to withdraw the matter and settle the case out of Court and revert to the Court. The case was accordingly adjourned to 27th April, 2023 for Mr. Conduah to report the outcome of the settlement to the Court. According to the Applicant, Mr. Conduah did not communicate the date and venue of the settlement. Applicant said that he heard the 3rd Respondent was making feverish moves to eject him from the Steele Dadzie House before the 27th April, 2023 and thereby truncate the case pending before the District Court No. 2. Applicant said he therefore informed his Counsel who wrote a letter to the Registrar of District Court No. 1 and copied the 2nd Respondent and informed them that it would be wrong for them to go into execution against him whilst the case was pending in Court. The Applicant further averred that, the Respondents acted together and beyond their mandate, to carry out the execution on 20th April, 2023 using hooligans who were dressed like masked policemen, throwing out his goods worth GHS80,000.00 and forcibly barricaded the store, thereby denying him access. In a Supplementary Affidavit filed by the Applicant on 13/06/2023, he claimed the 1st Respondent has a personal interest in the affairs of the 3rd Respondent. CASE OF 1ST AND 2ND RESPONDENTS The 1st Respondent in her Affidavit in Opposition filed on 18th May, 2023 averred that the 3rd Respondent obtained Judgment (Exhibit R3) from the District Court No. 1 against the Applicant on 8th February, 2021 in the case of Leticia Araba Mensah Substituted by Henry Mensah Vrs. Alexander Boadi Mireku. The said judgment ordered the Applicant to pay a cost of GHS2,000.00 and give vacant possession of the premises to the 3rd Respondent after six (6) months. The 3rd Respondent, pursuant to the Judgment and subsequent rulings of the Court applied for a Writ of Possession which was granted and issued by the Court. (Exhibits R7 & R8) The 1st Respondent further averred that, a Formal Decree was prepared and served on the Applicant in accordance with due process.(Exhibit R12) The Supervising High Court Judge wrote a letter dated 8th November, 2022 to the Police, requesting for Police assistance in the execution of the Writ of Possession. (Exhibit R11). The 1st Respondent states that on 20th April, 2023, she directed the 2nd Respondent and the Principal Bailiff of the District Court to effect the execution with the assistance of the Police. It is the case of the 1st Respondent that she played her role as an Officer of the Court in the execution of the Writ of Possession, pursuant to the Judgment of the Court and in accordance with due process. She maintains that she has not in any way interfered in the administration of justice since there was no process or order of the Court that precluded her from doing so. The case of the 2nd Respondent case, similarly deduced from his Affidavit in Opposition is that, he was directed by the 1st Respondent to execute a Writ of Possession with the assistance of the Principal Bailiff and the Police pursuant to the Judgment given by the District Court in favour of the 3rd Respondent herein. A copy of the Formal Decree dated 30th March, 2023 was duly prepared for the execution of the Writ of Possession was served on the Applicant on 31st March, 2023. (Exhibits CB1 & CB2). And on 20th April, 2023, he executed the Writ of Possession with the assistance of the Principal Bailiff and the Police. It is the case of the 2nd Respondent that photos were taken while the execution was on going (Exhibits CB 4(a), 4(b) 4(c) and 4 (d)). The 1st Respondent avers that he also prepared and submitted a report to the 1st Respondent as required of him (Exhibit CB3). The 2nd Respondent strongly avers that, his actions were in consonance with laid down procedure and same was not at variance or in contradiction with any existing Court order in respect of the Judgment of the Court. CASE OF 3RD RESPONDENT The 3rd Respondent stated that, his mother, one Mrs. Letitia Araba Mensah (deceased) instituted an action against the Applicant at the Rental Control Office for ejection which matter was remitted for enforcement to the District Court, Cape Coast around May 2018. The 3rd Respondent was substituted for his mother who passed on before the matter could be determined. Judgment was entered in favour of the 3rd Respondent and the Applicant ordered to give vacant possession of the premises within 6months from the date of Judgment and an additional GHS2,000.00 awarded as cost against the Applicant. It is the case of the 3rd Respondent that 3 months after the expiration of the 6 months period, the Applicant filed a Motion on Notice for Extension of Time to vacate the premises in dispute but it was refused. The Applicant subsequently filed 3 Motions; first, Motion on Notice to pay judgment debt by installment; second, Motion on Notice for Extension of Time and the third, Motion for Stay of Execution. The applications were refused dated 13th October, 2021. The 3rd Respondent had applied for Writ of Possession pursuant to the Judgment which the Applicant had unsuccessfully tried to frustrate. The Court gave a further order that the 3rd Respondent was at liberty to proceed with the execution process. On November 8th, 2022, the Supervising High Court Judge requested the assistance of the Police to assist the Bailiff to execute the Writ of Possession. In March 2023, a Formal Decree was served on the Applicant for the recovery of the premises. The Police Officers performed their lawful duty by assisting the Applicant to relocate Applicant`s wares into an adjoining store which he had rented long ago but blatantly refused to move into in order to spite the 3rd Respondent and his family. The 3rd Respondent says he has done nothing to warrant the allegation against him and to demand that he be committed to prison for contempt or punished severely for interfering with the administration of justice. ISSUES FOR DETERMINATION 1. Whether or not the 1st, 2nd and 3rd Respondents committed the offence of contempt by way of interfering with the administration of justice in the case “Alexander Boadi Mireku vrs Henry Mensah”? 2. Whether the letter written by the Applicant to the 1st Respondent with the 2nd Respondent in copy suffices as an application for Stay of Execution or an Order for interim or interlocutory injunction to stop the execution process? DISCUSSIONS AND ANALYSIS A person who commits the offence of Contempt of Court commits a criminal offence 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.” 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: “offence of being disobedient or disrespectful towards a Court of law and its officers in the form of behaviour 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 offence of contempt of court. Therefore an order which a party can be said to have disobeyed should be unambiguous so that the party will know what he is to do or not to do. 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 offence. 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, (COMMECIAL COURT 2. DATED 24TH JULY, 2022 See: 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 offence 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: 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 CHIEFTIANCY IN GHANA, INCORPORATING CUSTOMANRY 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 defences 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 proof 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 it 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 an 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. Having made the above inferences and from the facts of the instant case, it can be adduced that there was no judgment or order of the District Court No.1 or any other Court for that matter, which precluded or restrained the 1st and 2nd Respondents from availing the execution of the Writ of Possession to the 3rd Respondent. If the 1st and 2nd Respondent had declined to undertake their official mandate that will allow the 3rd Respondent to repossess the premises in question, then they could be said to have acted unjustly. There is a natural flow of the law and procedure under our statutes for a party who is aggrieved with a Judgment or order of a court to apply for a stay of execution of that judgment while steps are taken by the aggrieved party to appeal against the said judgment or order or have same judicially reviewed in the appropriate court as the case may be. A person who is aggrieved therefore, by a decision made by the District Court is statute bound to file a Notice of Appeal at the High Court. In the case before this august court, the Applicant had a legal right to file a Notice of Appeal at the High Court and a stay of Execution at the District Court, pending the determination of his appeal by the High Court. The Applicant is presumed to be armed with this knowledge as he had earlier filed three (3) processes at the District Court that pronounced the judgment he sought to set aside thus: i. Motion on Notice for Extension of Time. (Exhibit R4). ii. Motion on Notice for stay of Execution to Pay Judgment Debt by Instalment (Exhibit R5) and iii. Motion on Notice to Set Aside Writ of Possession for Non-Compliance. (Exhibit R9). All the motions were dismissed on grounds that they were not on merit and the Respondent consequently granted leave to proceed with the execution process. It is the finding of this Court that the Applicant woefully failed to pass the first essential ingredient which has to be proved in contempt established in the SITO 1 Case (Supra) that: “There must be a judgment or an order requiring the contemnor to do or abstain from doing something”. In the case of REPUBLIC VRS OBENG DARKO ESQ SUIT NO. GJ/0373/2023 " (Unreported), Kweku T. Ackaah-Boafo, JA had this to say: ”it seems to me that this is a clear case where the court’s contempt power is being weaponized by the Applicant and his Counsel as a tactical instrument against a lawyer just for accepting a retainer to represent a client. In my view, litigants and Counsel ought to know that the denial of liberty resulting from conviction for contempt ought to be effected only in accordance with the principles of fundamental justice and not at the whim of a bitter litigant” (Emphasis is mine). It seems to me that, the Applicant in the instant case is embittered and with the help of his Counsel, is seeking merely to vent his frustration on the Officers of the Court, being the 1st and 2nd Respondents who performed their professional duty with diligence and without malice, affection or ill-will and the Plaintiff 3rd Respondent also who had to enjoy the fruit of the Judgment therefore. It is the opinion of this instant Court that, whilst the Applicant is free to commence a new case on the basis of new emerging facts, the Applicant’s right for redress on the earlier Judgment of District Court No. 1 lies in an appeal from the District Court to the High Court. The Applicant, if he indeed he had the cause to believe that justice had not been served could have contested the decision through the appellate system to the Supreme Court; I dare say, this is the beauty of our adversarial system of adjudication. Unfortunately, after his motions were refused at District Court No. 1, he didn’t pursue his grievance at the Superior Courts. Let me now address the infamous Exhibit C exhibited by the Applicant which is the phenomenon that emboldened the Applicant and his Counsel to embark on this enterprise of contempt proceedings. The claim of the Applicant that caused his Counsel to write a letter to the 1st Respondent (Exhibit C) and kept the 2nd Respondent in copy notifying them of the new case pending before District Court No. 2 is of no relevance or significance in the scheme of things. What Learned Counsel should have done, was to at least serve the Motion of Interlocutory Injunction in the new suit on the 1st and 2nd Respondents. That obviously would have put them on notice and stayed her hand from facilitating the execution of the valid judgment already set in motion and being executed by the 2nd Respondent with the assistance of the Police. Learned Counsel, however, failing to do so, and believed that, his letter of treat to the 1st Respondent can stop the execution process as was earlier directed by a Court of competent jurisdiction. The last paragraph of Exhibit C reads as follows: “Do not do anything that would put you in trouble”. Unfortunately for the Applicant, Letters on Lawyers` Letterheads have never been part of court processes at least in our Rules Book or Practice Direction and it baffles this Court how the Applicant and Learned Counsel will seek to import it into our legal system as an approved procedure worth mentioning. The actions of the Applicant and his Counsel offend the every known and legitimate procedural rule and will not be sanctioned by this Court; else it shall become a cancerous cell that will spread into the beautifully woven tapestry of justice. Where there are laws, rules, procedures, processes and or guidelines in the conduct of cases, then it is mandatory that any litigant seeking redress from the Court complies with those laws, rules, procedures, processes and or guidelines. One cannot create his own set of laws, rules, procedures and processes and expect to get validation from the Court. The Applicant and his Counsel can thus not create their own court procedures and seek to bind the 1st and 2nd Respondent (Officers of the Court) with same. In the case of BOYEFIO VRS. NTHC PROPERTIES LIMITED (1997-98) 1GLR 768, the court provided that: “Where a statute provides a remedy for a wrong and the procedure for achieving same, it is only by that procedure provided that a party may approach the court failing which the action is bound to fail”. CONCLUSION From the forgoing, the 1st and 2nd Respondent 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. Neither can the charge against the 3rd Respondent suffice. Having reviewed proceedings of the case from its inception, it is my finding that, the actions of the Applicant were deliberate to frustrate the enjoyment of the premises by the plaintiff (3rd Respondent and his assigns). The actions of the Applicant can thus be best described as frivolous, vexatious and prejudicial and an abuse of the lawful processes of the court system and this ought to be dismissed. This court expresses its displeasure on the actions of the Applicant to crucify the Respondents on the altar of bitterness and unjustified allegations when he actually knows that they have done no wrong in law. Unfortunately his Counsel also did not stop him from pursuing such an agenda. The Applicant in commencing a new suit in District Court No. 2 did not in itself preclude the Respondents from executing the judgment obtained by the 3rd Respondent. It is therefore my opinion that 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. For the unmeritorious, frivolous and obnoxious act of the Applicant, this Honorable Court awards a cost of GHS15,000.00 (GHS5,000 for each of the three Respondents) against the Applicant. (SGD) JOHN-MARK NUKU ALIFO ‘J’ (JUSTICE OF THE HIGH COURT) COUNSEL GUSTAV ARDINGTON ESQ. FOR THE APPLICANT AMA AKYAA TAYLOR (ASA) FOR THE 1ST & 2ND RESPONDENTS. FRANCISCA SEFENU ESQ. FOR THE 3RD RESPONDENT. 17