REPUBLIC VRS. NYINAKU AND OTHERS (E12/211/2022) [2023] GHAHC 611 (16 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT ‘B’ – HELD IN TEMA IN THE GREATER ACCRA REGION OF THE REPUBLIC OF GHANA – BEFORE HER LADYSHIP JUSTICE PATRICIA QUANSAH (JUSTICE OF THE HIGH COURT) ON THURSDAY THE 16TH OF NOVEMBER 2023. SUIT NO.: E12/211/2022 ________________________________________________________________ IN RE CONTEMPT – ORDER 50 OF THE HIGH COURT (CIVIL PROCEDURE) RULES, 2004, C I 47 IN THE MATTER OF THE REPUBLIC VRS 1. MICHAEL NYINAKU 2. SEBASTIAN AKINA RESPINDENTS 3. USIF ADAM AFOKO EXPARTE: SERENE AMBIANCE GH. LTD. APPLICANTS & 5 OTHERS ________________________________________________________________ RESPONDENTS PRESENT 1ST APPLICANT REPRESENTED BY JOEL BORTEYE BISSINA 2ND TO 7TH APPLICANTS REPRESENTED BY ILLIASU TAHIRU Page | 1 ________________________________________________________________ RULING ON A MOTION FOR CONTEMPT I. BACKGROUND [1] There has been filed before Court a motion on notice for committal for contempt against the three Respondents above-named, and the grounds are contained in the facts as stated in the supporting affidavit thus: That on or around the 4th of February 2022, the Applicant herein caused its Counsel to issue a Writ of Summons against the 1st Respondent and other nominal Defendants and that suit is still pending before the Court with suit number LC/137/2022, for a declaration of title to some acres of land said to be situate at Adamrobe in the Greater Accra Region, among others. [2] Per the Applicant, after the writ was filed, a further application for injunction was made by the Applicant’s Counsel before the Court and same was granted. A copy of the order for injunction was thus served on all the Defendants in suit number LC/137/2022. Nonetheless and in complete disregard for the order(s) of the Court for injunction, the Applicant stated that the 1st Respondent herein has stationed armed land guards on the disputed land to prevent the Applicant herein from enforcing the orders of the Court. Page | 2 [3] Further, the 2nd and 3rd Respondents were said by the Applicant to be notorious land guards working for the 1st Respondent and who constantly intimidate the Applicant herein by firing gunshots indiscriminately to ward off the Applicant from the land. The Applicant added that on the 13th May 2022, the 2nd and 3rd Respondents were even accosted and arrested by the Police but all to no avail. The Respondents herein therefore continue to interfere with the Applicant’s quiet enjoyment of the land and the Respondents’ conduct has rendered the order of injunction granted by the Court nugatory. The Respondents are therefore in contempt of Court and ought to be convicted accordingly. II. AFFIDAVITS IN OPPOSITION [4] The 1st Respondent herein filed an affidavit in opposition, denying the averments against him. The 1st Respondent added that he had not entered onto the disputed land or instructed any one to do so after the Court granted the Applicant’s injunction application. He stated that he had also never been confronted by any of the Applicants on the disputed land. Furthermore, there is nothing to establish that 1st Respondent is the one carrying on the developments in the picture attached to the Application. Again, the Applicants are aware that some company known as Babbel Company Limited had acquired over 800 acres of land at Adamrobe or Adambrobe and the size of the land over which the Applicants are litigating is some 85 acres of land, falling within the 800 acres of land acquired by the said Babbel Company Limited. Page | 3 This Babbel Company Limited, sometime in 2014, sought to protect the 800 acres of land they had by putting security gates and guards at various points on the land. It is however the Applicants who have attacked and harmed the security guards of Babbel Company on the land and not the 1st Respondent herein; and the 1st Respondent reiterated that he had not flouted the Court order(s) and neither had he acted in any way to impair the dignity of the Court or disrespect the Court and so the present application was without merit and ought to be dismissed. [5] Both the 2nd and 3rd Respondents also filed affidavits opposing the application for contempt, denying the allegations against them. The 2nd Respondent contended that he was the Head of Security at Babbel Company Limited. In support of the 1st Respondent’s depositions, the 2nd Respondent also confirmed that Babbel Company Limited had a large tract of land at Adamrobe and for ease of monitoring, the company had erected security posts at various parts of the land and placed security men at those posts. The 2nd Respondent nonetheless informed the Court that he is not aware of any injunction covering any part of the land owned by Babbel Company Ltd, over which he guards, because he has never been a party to the Applicant’s suit no. LC/137/2022 and neither had he been served with any injunction order. The 2nd Respondent, among others, also stated that he had never entered onto any land belonging to the Applicants because he is not aware of any such land. He was rather attacked, beaten and rendered unconscious by over twenty land guards and Page | 4 2nd Respondent attached pictures of himself, said to have been assaulted and injured to his affidavit in opposition. Among others, he averred that he neither knew the Applicants or had any dealings with them and so he had not obstructed any order(s) of the Court and the present application against him was thus without merit. [6] The 3rd Respondent equally denied the allegations against him and also denied being on the Applicants’ land. He stated that he was not a mason or a labourer and had never worked on any land belonging to the Applicants. In short, the 3rd Respondent denied all acts of contempt against him and prayed the Court to dismiss the instant application. [7] Both Counsel were ordered to file their respective written submissions in lieu of the Court taking their viva voce submissions in Court; and they did. III. THE LAW ON CONTEMPT [8] There is a plethora of cases on contempt, and it is trite that contempt is a quasi- criminal offence. Proof thereof must therefore of a necessity be beyond reasonable doubt. In REPUBLIC v NUMAPAU; EX PARTE AMEYAW II AND OTHERS [1999-2000] 1 GLR 283, the Supreme Court held: Contempt of court was constituted by any act or omission tending to obstruct or interfere with the orderly administration of justice or impair Page | 5 the dignity of the court or respect for its authority. However, since contempt was quasi-criminal and the punishment for it might take various forms, including a fine or imprisonment, the standard of proof required to sustain liability was proof beyond reasonable doubt. Accordingly, … the applicant had to first make a prima facie case of contempt against each of the respondents before the court could turn to consider the defences put up by the respondents. [9] Also, in the case of Republic v Nkansah, Supreme COURT, 28 November 1995, (unreported) the power and authority of the Court was defined as follows: “The power of this court to commit for contempt is granted by article 126(2) of the Constitution, 1992. It is neither dependent on not ancillary to the jurisdiction granted to this court by any statute or any other law, and it is not only to demand obedience to the court’s orders, but also vindicate its authority.” It is therefore the law that anyone who willfully refuses to obey or fails to comply with any order(s) of any Court of competent jurisdiction can be held in contempt of Court. [10] Order 43 rule 5 of the High COURT (Civil Procedure) Rules 2004, CI 47 mandates an applicant to bring contempt proceedings against a person(s); whilst Order 50 sets out the procedure for bringing contempt proceedings against a person or an entity. Page | 6 Rule 5 of Order 43 provides: (1) Where a. A person disobeys a judgment or order requiring the person to abstain from doing an act, the judgment or order may, subject to these Rules be enforced by one or more of the following means b. an order of committal against that person … [11] The Lord Chancellor, Lord Truro in Russel vrs The East Anglian Railway Co; Exparte Bowes (1850) 42 ER at page 206 held as follows: “… It is an established rule of this Court that it is not open to any party to question the orders of this Court, or any process issued under the authority of this Court, by disobedience. I know of no act which this Court may do, which may not be questioned in a proper forum, and on a proper application; but I am of the opinion that it is not competent for anyone … to disobey an injunction or any other order of the Court, on the grounds that such orders were improvidently made. Parties must take a proper course to question their validity, but while they exist they must be obeyed. I consider the rule to be of such importance to Page | 7 the interest of and safety of the public, and to the due administration justice, that it ought, on all occasions, to be inflexibly maintained.” In addition to the above, it is also imperative that the sanctity of the Courts ought to be preserved at all times and all Courts orders be obeyed. Indeed, in Hennison v Baker [1972] 1 ALL ER 997 at 1005, it was held: “If the orders of the court can deliberately be set at naught by a litigant employing for her own personal advantage such means as her resorted to, and if indeed it be the case that she has to go unpunished for her contumacy, justice vanishes over the horizon and the law is brought into disrepute. In the memorable words of His Honour Judge Curtis Releigh, the law should not be seen to sit by limply. Whilst those who defy it go free, and those who seek its protection lose hope.” I further rely on the case of Republic v SITO 1 Ex-parte Fordjour [2001-2002] SCGLR 322; which laid down the following as the essential elements in dealing with the offence of contempt: 1) There must be a judgment or order requiring the contemnor to do or abstain from doing something; 2) That the order must have been served on the contemnor; 3) It must be shown that the contemnor knows precisely what he is expected to do or abstain from doing and Page | 8 4) It must be shown that he failed to comply with the terms of the judgment or order and that disobedience is willful. IV. ANALYSIS OF THE ISSUES AND THE LAW [12] In the present case, I find from the Applicants’ affidavit in support of the contempt application and the exhibits annexed that the Applicants are together claiming some acres of land which might be approximately 80 acres, more or less, taking into consideration their Exhibit S. A1, the Writ of Summons and the Statement of Claim, together with the reliefs sought, among others. The 1st Respondent herein stated that some company, which he named as Babbel Company Limited had also acquired some 800 acres of land within the same vicinity and that the disputed land, the subject matter of the Applicants’ writ of summons, falls within the acquisition of Babbel Company Ltd., as per paragraphs 11, 12 and 13 of the 1st Respondent’s affidavit in opposition; and also as per the composite plan attached to the 1st Respondent’s affidavit in opposition. Even though I find from the 1st Respondent’s annexures that there is a deed of assignment covering some 400 acres of land between Ebony Pearls Company Limited and Beige Home Limited; and I find no mention of Babbel Company Limited, save on the 1st Respondent’s Exhibits 2 and 3. Nonetheless, the connection between the said Babbel Company Ltd and Beige Home Limited can be gleaned from the substantive statement of defence filed by the 1st Respondent or his company in the substantive matter. Page | 9 I however find that the Applicants herein did not deny that their plots of land had been acquired within a larger plot; but whether or not that larger plot belongs to some other entity other than the Applicants’ grantors is an issue that has to be determined with the adduction of substantial evidence. [13] There is also no doubt that there is a substantive suit between the Applicants and the 1st Respondent and others; but the 2nd and 3rd Respondents herein, I find, are clearly not named Defendants in that suit no. LC/137/2022. There is also no doubt that the Court, in the substantive suit, an order for injunction was granted by the Court on the 11th of April 2022 (see the Applicants’ Exhibit S. A3) ; and same was served on only the 1st Defendant therein through the Manager, Alexander and the Attorney General’s Department through the legal secretary Glady Dery (see the Applicants’ Exhibit S. A.2). Per the Exparte Sito I case (supra) therefore, how were the 2nd and 3rd Respondents served with copies of the injunction order if they were not parties to the suit? Counsel for the Applicants, in his written submission stated at page 7, the penultimate paragraph that “… the respondents had the benefit of both actual and constructive notices of the Court order as the 1st Respondent was a party of the suit. Again, the posting of the order on the entire site was sufficient to put all the workmen of the defendants on notice including the 2nd and 3rd respondents herein.” Page | 10 The above submission, I find is not proof that the order was posted on the entire premises because there was no other evidence to substantiate same. No exhibit was annexed to show the posting on the premises, save Exhibit S. A.2, which shows personal service and not substituted service. Posting the Court order on the disputed premises is very easily capable of positive proof; but I find no iota of proof in support of that averment. Contempt, is quasi criminal, it is trite, and proof thereof ought to be beyond reasonable doubt. [14] Moreover, the Applicants also were unable to establish that the 2nd and 3rd Respondents were in any way affiliated to the substantive matter before the High Court. Further, the Applicants contended that the 2nd and 3rd Respondents were known land guards and attached pictures of the 2nd and 3rd Respondents standing in the company of others, with an earth moving machine of some sort in the picture, as well as a video recording. With all due respect to the Applicants and their Counsel, how does a person establish that another is a land guard with still pictures and video of the said “land guard(s)” standing on a plot of land with others and with some caterpillar working on the said land? The pictures alone and the video, in my candid opinion, do not in any way establish that the 2nd and 3rd Respondents are known land guards, in view of the affidavits of the Respondents in which they state they are Security Officers of some company. Indeed, in their affidavits in opposition, the 2nd and 3rd Respondents also exhibited photos which showed they had been severely assaulted; and it is more probable than not that it was in connection with the disputed land, bearing in mind Page | 11 the Applicants’ contentions that the 2nd and 3rd Respondents were even accosted by the Police in respect of the disputed land. [15] Furthermore, I find that in answer to the Applicants’ assertions that the Respondents are constructing walls and gates on portions of the disputed property, the 1st Respondent stated that it was some time in 2014 that the said security costs and gates were erected on his company’s plot of land and security men were placed therein to secure his property. Additionally, save the oral averments of the Applicants, that the 2nd and 3rd Respondents were working on the land under the express instructions of the 1st Respondent, there is no evidence to establish same, because the 2nd and 3rd Respondents stated they were security men of the company and neither labourers nor masons. Nowhere in the pictures tendered was the 1st Respondent ever seen to be giving the so-called instructions; and unfortunately, the Respondents in a contempt application cannot be held vicariously liable for the misdeeds of another person. The 2nd and 3rd Respondents, I hold, have thus been able to raise some reasonable doubt in their favour; and I am also left in doubt as to the exact role the 2nd and 3rd Respondents played, seeing that they were not parties to the suit and there was no proof that they had been served. The above is adequate proof that the Applicants have been unable to establish a prima facie case against the 2nd and 3rd Respondents herein; nor have they established their guilt beyond reasonable doubt. Page | 12 [16] With regards to the 1st Respondent, there is no doubt that he is or was the MD of the 1st Defendant therein and he is also the named 2nd Defendant in suit no LC/137/2022. It therefore could not be correct that the 1st Respondent was not a party to the suit at the time the injunction order was granted by the Court, as submitted by the 1st Respondent’s Counsel in his written address. There is also adequate evidence to establish that the 1st Defendant company was duly served with the injunction order; and the presumption therefore is that the 1st Respondent is aware of the order for injunction. Indeed, the 1st Respondent did not deny that he was aware of the order. The 1st Respondent however denied instructing any person to work on the land; and stated that he had at no time encountered any of the Applicants on the disputed plot. There is however proof that there are some walls and gates constructed on portions of some land; but I am left in doubt as to exactly where these walls and gates are and whether or not they are exactly on the land over which the order of injunction applied. [17] There is no doubt whatsoever in my mind that the order of injunction affects the land as claimed by Applicants herein in their writ of summons and described in the reliefs sought; because it is based upon the Plaintiffs’ claims that the application was made for injunction, to restrain the Defendants therein from interfering with the Applicants’ land and same was granted. Page | 13 The 1st Respondent herein, among others is claiming a larger area of land; and so wherein lies the proof that the said gates and walls constructed are on the Applicants’ portion of the land and none other? The injunction order is limited; and the gates and wall could very well be on the larger tract of land outside the injunction and claimed by the 1st Defendant. Adequate evidence therefore ought to be adduced by the Applicants to establish that the 1st Respondent has breached the injunction order granted in favour of the Applicants by constructing walls and gates on the lands specifically affected by the injunction. [18] The ownership of the disputed property, among others, is the main contention between the parties; and until it is established in whom ownership of the disputed land lies, and in the absence of proof that the gates and walls are on the Applicants’ portion of the land, this Court can unfortunately not come to the conclusion that the 1st Respondent had flouted the order of injunction made against the Defendants therein. [19] Contempt is personal against the person of the Respondents and as stated, the punishment could include imprisonment; and so until adequate evidence has been adduced to establish a prima facie case against the Respondents and to prove beyond reasonable doubt that a person has flagrantly disobeyed the orders of a Court and brought the administration of justice into disrepute, no Court has the duty to convict. [20] In the case of Miller v Minister of Pensions [1947] 2 ALL ER 372 at 373, Denning J held: Page | 14 “Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence “of course it is possible but not in the least probable,” the case is proved beyond reasonable doubt, but nothing short of that will suffice.” In the instant case, the Applicants, I find relied on some facts which they stated were within their knowledge and made oral averments that the 1st Respondent had authorized the 2nd and 3rd Respondents, who had in turn supervised some construction of a gate or structures, etc; but there is not sufficient proof before the Court that the Respondents have in any way disobeyed the injunction order granted by the Court. There being evidence that the 1st Respondent’s company may also have some land within the area, I find the Applicants would have to await the outcome of the substantive suit. [21] The substantive matter has to deal with land, as immovable property; and no matter how much development any person puts on the land, it can always be recovered for the Applicants, if they are so entitled. V. CONCLUSION Page | 15 [22] For the foregoing reasons, I am unable to establish any acts of contempt against the Respondents herein. The Respondents herein may be exhibiting some acts and conduct which may be unsatisfactory, if indeed they undertook works on the disputed plot, but I am unable to find them liable for contempt as the evidence adduced before this Court does not establish proof beyond reasonable doubt. I rely on the case of Agbleta v The Republic [1977] 1 GLR 445 at 447, CA, Azu Crabbe CJ stated: “It seems to follow from the authorities that willful disobedience of the order of the court must be established before a person can be held to be guilty of contempt. With all due respect to the learned judge, this court thinks that it is one thing to find unsatisfactory the appellant’s explanation of his conduct, and quite another to infer willful defiance from his conduct.” Reference may also be made to the case of Kangah v Kyere [1979] GLR 458, where it was held: “… To obtain a committal order for contempt, the applicant must strictly prove beyond all reasonable doubt that the respondents had willfully disobeyed and violated the court’s order. In the absence of such evidence, the respondents could not be guilty of contempt.” [23] I would conclude by stating that Counsel for the Applicants and the Applicants to concentrate and prosecute the substantive matter expeditiously for the parties to Page | 16 know their fate. The three Respondents herein be and are hereby acquitted and discharged in the circumstances. I will make no order as to costs, as the Applicants, individuals, I find are legitimately fighting for their interest in the disputed property. SGD. JUSTICE PATRICIA QUANSAH HIGH COURT ‘B’ TEMA GREATER ACCRA REGION. 16TH NOVEMBER 2023. COUNSEL: WILLIAM OKOE OKONNOR ESQ. PRESENT, HOLDING YAW AWUKU ASABRE’S BRIEF FOR THE APPLICANTS CHARLES ANDOH ESQ. WITH LESLIE ANIM ESQ. FOR THE RESPONDENTS PRESENT Page | 17 Page | 18