REPUBLIC VRS. DE-LIMA (CR/0546/2022) [2024] GHAHC 56 (16 February 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE COMMERCIAL DIVISION, HELD IN ACCRA ON FRIDAY THE 16TH DAY OF FEBRUARY, 2024 BEFORE HIS LORDSHIP FRANCIS OBIRI ‘J’ SUIT NO.CR/0546/2022 THE REPUBLIC Vs GERALDO DE-LIMA - RESPONDENT EX PARTE: PATRICIA AKUA ASANTE---- APPLICANT JUDGMENT On 17th June 2022, the Applicant filed a motion before this court for an order to commit the Respondent for contempt of Court as per the grounds stated in the supporting affidavit. I hereby reproduce the relevant paragraphs of the affidavit in support in this delivery. 3. That the Respondent and I were in amorous relationship out of which we have one issue namely; Dzidzorli Kofi De-lima aged 6 years. 4. That I initiated a maintenance action against the Respondent and on 21st day of July, 2021, the Family and Juvenile Court granted custody of the issue to me, amongst other reliefs. (Attached hereto is copy of the Court’s judgment marked as exhibit A series). 5. That the Respondent defied the orders of the Honourable Court, hence I instituted a different maintenance action against the Respondent and on 6th of April 2022, the Family and Juvenile Court, Accra granted custody of the issue to me, amongst 1 other reliefs. (Attached hereto is copy of the court’s judgment marked as exhibit B series) 6. That further to the above, the Honourable Court granted reasonable access to the Respondent. 7. That after the judgment, the Respondent picked the issue up to and from school. 8. That however, since 10th May, 2021, the Respondent has deliberately denied me access to our issue and all efforts made by me to achieve same have proved futile. 10 That I made a report at the Tesano Police Station, Accra where the Police impressed upon the Respondent to return the issue to me. 11. That the Respondent has failed to return the issue despite several attempts made by me to get the Respondent to return the issue to me. 12 That among other reliefs granted by the court is an order for the Respondent to maintain the issue with an amount of GH¢300.00 and to discuss with me before changing the issue’s school should he have an issue with same. 13 That the Respondent failed to pay for the maintenance fees and also changed the issue’s school without informing me. 14 .That the Respondent is well aware of the orders of the Honourable Court, but has deliberately refused to comply with same 15 .That I am advised by counsel and verily believe same to be true, that the actions of the Respondent are in direct breach of the orders of the Family and Juvenile Court, Accra as contained in exhibit A and B series, and also amount to disobeying the court and subjecting the orders of the court to ridicule. The Respondent resisted the application by filing affidavit in opposition. The relevant paragraphs are as follows: 4. That where my depositions relate to matters of law, I make so solely upon reliance of the advice of counsel, which I verily believe to be true. 2 5. That I have been served with an application for contempt together with supplementary affidavit filed by the mother of my son Madam Patricia Asante seeking to commit me for contempt of Court. 6. That I am vehemently opposed to the present application and state that I have not shown disrespect to this court or any other court by flouting any orders as alleged by the Applicant. 7. That I must state that the Applicant who is seeking to have me committed on the basis of contempt has attached both a consent judgment and a ruling of the Family and Juvenile court in support of her application and has failed to point out the parts of the said judgment and ruling that she claims I have flouted or disobeyed. 8. That I am aware that a major part of the applicant’s case concerns the payment of money owed in maintenance for the upkeep of our son 10 That a major part of this dispute is that the parties have not been able to reach a consensus on how much money has been paid towards the maintenance of the child. That in a recent reconciliation meeting held between the parties, my lawyer and the accountants at the juvenile court, the applicant refused to acknowledge a number of payments made into her account on the basis that they were not sent by me. 11 That I showed the applicant and the various officials present the transaction history from the account from which I sent the various funds to the applicant. However, all though she acknowledged having received three of these transfers, she vehemently stated that she would not accept that these moneys came from me as she transacted other business with her phone and could not be sure that this money was not money paid in respect of the said businesses. 3 14 That I am advised and verily believe same to be true that contempt being a quasi- criminal matter, the Applicant is enjoined by law to prove the matters she alleges beyond reasonable doubt. When the motion came up for hearing, counsel for the parties relied principally on their affidavits in support of the application and in opposition. I wish to discuss the offence of contempt. The power to commit for contempt is power possessed at common law by the Superior Courts. This power has been retained under our laws. Section 36(1) of the Court’s Act, 1993 (Act 459) and Article 126 (2) of the 1992 constitution support this position. See: ASUMADU-SAKYI II v OWUSU AND OTHERS [1981] GLR 201 CA 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.” However, the order which a person can be said to have disobeyed should be unambiguous so that the person 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 4 IN RE EFFIDUASE STOOL AFFAIRS (NO.2), REPUBLIC v NUMAPAU, PRESIDENT OF THE NATIONAL HOUSE OF CHIEFS AND ORS; EX PARTE AMEYAW (NO.2) [1998-1999] SCGLR 639 YOURI v ABOAGYE [2013] 67 GMJ 49 CA AGBLETA v THE REPUBLIC [1977] 1 GLR 445 CA 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 a Respondent must be proved. See: REPUBLIC v HIGH COURT, EX PARTE LARYEA MENSAH (SUPRA) YOURI v ABOAGYE (SUPRA) AGBLETA v THE REPUBLIC (SUPRA) 5 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 to commit for contempt by the court is great importance to society. By the exercise of the power to commit for contempt, law and other prevail. 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: REPUBLIC v MENSA-BONSU AND OTHERS; EX PARTE ATTORNEY- GENERAL [1995-96] 1 GLR 377 SC REPUBLIC v LIBERTY PRESS LTD & ORS [1968] GLR 123 REPUBLIC v HIGH COURT (LAND DIVISION), ACCRA EX PARTE KENNEDY OHENE AGYAPONG [2020] 170 GMJ 1 SC REPUBLIC v BOATENG & ODURO; EX PARTE AGYENIM BOATENG AND OTHERS [2009] SCGLR 154 In the case of REPUBLIC v 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 that his disobedience was wilful. 6 See also, THE REPUBLIC v AFEWU & ANOR; EX PARTE TAKORADI FLOUR MILLS AND ANOTHER [2018] 121 GMJ 210 CA REPUBLIC v CONDUAH, EX PARTE AABA [2013-2014] 2 SCGLR 1032 REPUBLIC v NANA BONSU II [2006] 9 MLRG 204 CA REPUBLIC v ANYETEI NUNOO; EX PARTE BENNET QUARCOO [2018] 121 GMJ 142 CA I wish to state that in a situation where there is a pending application like injunction, which has not been determined, any act that seeks to do the very thing or act which the application is seeking to prevent will also amount to contempt of court. See: REPUBLIC v MOFFAT AND OTHERS, EX PARTE ALLOTEY [1971] 2 GLR 391 In the case of ARYEETEY v AGBOFU II AND ANOTHER [1994-1995] GBR 250, the Supreme Court held at page 252 as follows: “…The Applicants having been served with the motion for the interim injunction to restrain them from carrying out any kind of installation until the outcome of the suit was known, deliberately stole the march over the Respondent by doing the very thing for which the motion had been brought. While the motion for the interim injunction was pending. … Once the Applicants had become aware of the pendency of the motion, any conduct that was likely to prejudice a fair hearing of that motion was tantamount to contempt” However, since contempt is quasi-criminal, the law requires that its proof by an Applicant against the Respondent should be beyond reasonable doubt. The proof of contempt is like any criminal case under section 13 (1) of NRCD 323. The rationale for the high standard of proof in contempt is that it can lead to the contemnor being imprisoned upon conviction. 7 See: REPUBLIC v MAJOR CLIFFORD ATTA WIRROM (RTD); EX PARTE: ERASMUS QUAISON AND OTHERS [2013] 63 GMJ 133 CA REPUBLIC v ACQUAYE alias ABOR YAMOAH II; EX PARTE ESSEL AND OTHERS [2009] SCGLR 749 The law is also settled that contempt of court may be committed intentionally or even unintentionally. And it is no defence to a charge of contempt of court for a party to say that he did not intend to commit contempt of court. Where a party knowing that a case is sub-judice but engage in an act or omission which tendered to prejudice or interfere with the fair trial of the case, despite the absence of a court’s order, it may constitute contempt. See: REPUBLIC v BANK OF GHANA & OTHERS EX PARTE DUFFOUR [2018-2019] 1 GLR 445 SC However, this is not a principle of general application and will depend on the circumstances of each case. 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 EX PARTE KODUAH (PARAGON INVESTMENT LTD. – INTERESTED PARTY) [2015-2016] 2 SCGLR 1349 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. 8 Consequently, 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. See: YOURI v ABOAGYE (SUPRA) In this case, the entire application is predicate on a consent judgment of the Family and Juvenile Court, Accra dated 21st July 2021. It was a judgment between the parties herein in a petition for maintenance, custody and other reliefs in respect of the child between the parties herein. The Applicant and the Respondent herein agreed on certain things which the court adopted as its judgment on 21st July, 2021 in respect of the case. The summary of the agreed terms are as follows: 1. CUSTODY The applicant shall have custody of the child. 2. ACCESS That Respondent shall have access to the child as and when the need arises. 3. MAINTENANCE That Respondent shall pay monthly maintenance of Three Hundred Ghana Cedis (GH¢300.00) for the child. Maintenance shall be paid into mobile account number 0544137921 in the name of PATRICIA AKUA ASANTE by the 3rd of each month effective July, 2021. 4. EDUCATION: That the Respondent shall pay the child’s school fees and anything concerning his education. 9 5. HEALTH: That Applicant shall register the child on National Health Insurance Scheme and renew it when it falls due. 6. NAMING: Is referred back to Court. BY COURT: Terms of Settlement dated 19th July, 2021 and signed by the parties herein before Madam Doris Kotey (mediator) is hereby adopted as the Consent Judgment of this Court. It can be observed, that in respect of some of the reliefs granted, contempt cannot lie. For example, failure to pay the maintenance of GHS 300 for the child as agreed by the parties herein and ordered by the court will not give rise to contempt. This is because, failure to pay money within a certain period does not give rise to contempt of court. In that case, the affected party must take execution process to recover the money. SEE: REPUBLIC v HIGH COURT (FAST TRACK DIVISION), ACCRA; EX PARTE PPE LTD AND PAUL JURIC (UNIQUE TRUST FINANCIAL SERVICES LIMITED – INTERESTED PARTY) [2007-2008] 1 SCGLR 188 This caveat is also borne out of the definition of contempt as stated in the Oswald’s contempt of court 3rd edition at page 6. However, some of the other directions or orders given by the Family and Juvenile Court can give rise to contempt if they are not obeyed. From the evidence before the court, there is evidence that the Respondent did not grant custody of the child to the Applicant in 2021. This is because, as late as 6th April 2022, the Judge of the Family and Juvenile Court in a ruling on an aspect of this case indicated at page 2, of the said ruling that the Respondent was still keeping the child contrary to the 10 terms of the Consent Judgment which the learned Judge condemned in her ruling which is attached to the application as exhibit PAA1. The court ordered the Respondent to register the child under National Health Insurance Scheme (NHIS). This was also not complied with by the Respondent. The registration of the child under the NHIS is not money coming to the Applicant. Therefore, if there is a default, the Applicant cannot resort to any of the execution process in civil proceedings but only to resort to contempt of court. Again, when the Applicant stated in her affidavit in support that the Respondent has not complied with the terms in the Consent Judgment which is exhibit PAA1, the Respondent did not deny it. The Respondent denial in the affidavit in opposition was only in respect of the maintenance and nothing else. The law is settled, that when a party makes an averment and the averment was not denied, no issue is joined and no further evidence need to be led on the averment. Similarly, when a party had given evidence on a material fact and was not cross- examined upon, he needs not call any further evidence of that fact, it implies admission. See: KUSI & KUSI v BONSU [2010] SCGLR 60 DANIELLI CONSTRUCTION LTD v MABEY AND JOHNSON LTD [2007-2008] 1 SCGLR 60 FORI v AYEREBI & ORS [1966] GLR 627 SC HAMMOND v AMUAH & ORS [1991] GLR 89 WESTERN HARDWOOD ENTERPRISES LIMITED v WEST AFRICAN ENTERPRISES LTD. [1998-99] SCGLR 105 11 It is also settled law, that where an opponent in an action failed to challenge the other party on an issue of fact alleged, then the court would take that failure to challenge as an admission of the truth of the fact as presented by the one who asserted it. See: ARYEETEY v BROWN [2006] 5 MLRG 160 CA It is therefore my finding, that save the issue of the maintenance which cannot give rise to contempt, the Respondent failed to comply with the agreed terms 1, 4 and 5. The court gave the orders on 21st July, 2021. There is no indication that the Respondent complied with the agreed terms before the present application was filed on 17th June, 2022. It is trite law, that an order of a court of competent jurisdiction as in this case is considered right until it is set aside or vacated. Therefore, as long as the judgment which was delivered on 21st July, 2021 has not been vacated, same is valid and should be complied with, until it has been set aside. See: REPUBLIC v CONDUAH; EX PARTE AABA (SUPRA) It is not the business of litigants or their counsel to determine which orders and processes of court are lawful and deserving of obedience and those which must not be obeyed. The rule is that a party is obliged to take proper course to question the validity of an act or order of a court even if it is perceived to be void, but while it exists, it must be obeyed. See: REPUBLIC v HIGH COURT, ACCRA; EX PARTE AFODA [2001-2002] SCGLR 768 REPUBLIC v BREW [1992] 1 GLR 14 KUMNIPAH II v AYEREBI AND OTHERS [1987-1988] GLR 265 SC 12 Again, it is the law that whatever the merits or demands of an order of a court, the order stands and effect has to do be given to it until it is set aside. See: BAAH V BAAH AND ANOTHER [1973] 2 GLR 8 Even in situation where the court has power to extend time, for an order to be complied with, it would be based on meritorious grounds. Litigants should not be given the power to hold the machinery of justice in abeyance as long as they desire. Litigation must come to an end sometime and the court’s discretion to extend time should only be used in deserving cases. See: ESSILFIE AND OTHERS V ANAFO AND OTHERS [1992] 2 GLR 654 SC I do not thing the Respondent has any justification for not complying with orders, 1, 4 and 5 of the Family and Juvenile Court, dated 21st July 2021. I do agree, that the law is based on what society can reasonably expect of its members. And that it should not set intractable standards of behaviour which requires mankind to perform acts of martyrdom and brands as criminal or wilful any behaviour falling below those standards. However, the Respondent’s defence does not in any way justify his attitude of not obeying all the orders of the court which were made in his presence and which have not been vacated. The sanctity of the courts must be maintained. It is clear disobedience for an order of a court not to be complied with. I am of the view, that the Respondent’s disobedience of the orders of the Family and Juvenile Court, Accra dated 21st July 2021 is wilful and intentional. The Applicant has therefore been able to prove her application beyond reasonable doubt. The Respondent’s non-compliance with the orders is intentional and wilful. 13 I therefore find him liable and proceed to convict him for contempt of court. SENTENCE: COUNSEL FOR THE RESPONDENT We are praying for mitigation of sentence on the following grounds: 1. The issue of custody and the registration of the child under the NHIS were rectified before the Application for contempt was moved. 2. 3. The Respondent purged himself of the contempt before the motion was moved. The Respondent paid the arrears in respect of the maintenance in court. We therefore pray, that this court should temper justice with mercy and caution the Respondent to go and sin no more. BY COURT I have listened to the submission by counsel for the Respondent. I have also considered all the circumstances in this case. Contempt has no minimum sentence and it also has no maximum sentence. Therefore, the extent of the sentence the Court will impose will depend on the circumstances of the case. I do agree, that the person at the centre of the entire case is a child between the parties. However, I have always held the view, that a child should not suffer for any disagreement between his or her parents. I think the Respondent should be given a harsher sentence to serve as a deterrent to others. When it comes to sentencing in either contempt or strict criminal cases, the court takes into consideration the following factors: 14 1. The seriousness of the offence or the act. 2. The degree of revulsion felt by law-abiding citizens of the society. 3. The premeditation with which the act or the offence was plan and executed. 4. Sudden increase in the incidence of a particular act or offence within the particular society or the country as a whole. 5. Mitigating or aggravating circumstances such as old age, young person, good character and so on. See: KWASHIE v THE REPUBLIC [1971]1 GLR 488 CA • KAMIL v THE REPUBLIC [2011]1 SCGLR 300 • RAZAK & YAMOAH v THE REPUBLIC [2012] 2 SCGLR 750 • SAKYI v THE REPUBLIC [2010] 34 MLRG 188 CA • ADU BOAHENE v THE REPUBLIC [1972] 1 GLR 70 • ASAAH ALIAS ASI v THE REPUBLIC [1978] GLR 1 I have considered the fact that the Applicant and the Respondent were once in an amorous relationship and had a child, I will therefore not impose a custodial sentence as a first option. I hereby sentenced the Respondent to a fine of GH¢10,000.00, in default, he will serve thirty (30) days imprisonment. He is also to sign a bond to be of good behaviour for twenty-four (24) months, in default, he will serve thirty (30) days imprisonment. 15 Since the punishment for contempt takes criminal nature, I hereby order that if the fine is paid by the Respondent GH¢8,000.00 should be given to the Applicant as compensation under section 148 of Act 30 as amended by section 13 of Act 633. I will award the Applicant cost of GH¢2,000.00 against the Respondent. SGD. FRANCIS OBIRI (JUSTICE OF THE HIGH COURT) COUNSEL YAA AFRAHEMAA NYARKO FOR YVONNE AMEGASHIE FOR THE APPLICANT PAA KWESI KUDOADZI FOR THE RESPONDENT AUTHORITIES 1. ASUMADU-SAKYI II v OWUSU AND OTHERS [1981] GLR 201 CA 2. REPUBLIC v HIGH COURT ACCRA, EX PARTE LARYEA MENSAH [1998- 1999] SCGLR 360 3. IN RE EFFIDUASE STOOL AFFAIRS (NO.2), REPUBLIC v NUMAPAU, PRESIDENT OF THE NATIONAL HOUSE OF CHIEFS AND ORS; EX PARTE AMEYAW (NO.2) [1998-1999] SCGLR 639 4. YOURI v ABOAGYE [2013] 67 GMJ 49 CA 5. AGBLETA v THE REPUBLIC [1977] 1 GLR 445 CA 16 6. REPUBLIC v MENSA-BONSU AND OTHERS; EX PARTE ATTORNEY- GENERAL [1995-96] 1 GLR 377 SC 7. REPUBLIC v LIBERTY PRESS LTD & ORS [1968] GLR 123 8. REPUBLIC v HIGH COURT (LAND DIVISION), ACCRA EX PARTE KENNEDY OHENE AGYAPONG [2020] 170 GMJ 1 SC 9. REPUBLIC v BOATENG & ODURO; EX PARTE AGYENIM BOATENG AND OTHERS [2009] SCGLR 154 10. REPUBLIC v SITO 1; EX PARTE FORDJOUR, [2001-2002] SCGLR 322 11. THE REPUBLIC v AFEWU & ANOR; EX PARTE TAKORADI FLOUR MILLS AND ANOTHER [2018] 121 GMJ 210 CA 12. REPUBLIC v CONDUAH, EX PARTE AABA [2013-2014] 2 SCGLR 1032 13. REPUBLIC v NANA BONSU II [2006] 9 MLRG 204 CA 14. REPUBLIC v ANYETEI NUNOO; EX PARTE BENNET QUARCOO [2018] 121 GMJ 142 CA 15. REPUBLIC v MOFFAT AND OTHERS, EX PARTE ALLOTEY [1971] 2 GLR 391 16.ARYEETEY v AGBOFU II AND ANOTHER [1994-1995] GBR 250 SC 17. REPUBLIC v MAJOR CLIFFORD ATTA WIRROM (RTD); EX PARTE: ERASMUS QUAISON AND OTHERS [2013] 63 GMJ 133 CA 18. REPUBLIC v ACQUAYE alias ABOR YAMOAH II; EX PARTE ESSEL AND OTHERS [2009] SCGLR 749 19. REPUBLIC v BANK OF GHANA & OTHERS EX PARTE DUFFOUR [2018-2019] 1 GLR 445 SC 17 20.KANGAH v KYEREH AND OTHERS [1979] GLR 458 21.REPUBLIC v HIGH COURT, KUMASI EX PARTE KODUAH (PARAGON INVESTMENT LTD. – INTERESTED PARTY) [2015-2016] 2 SCGLR 1349 22.REPUBLIC v HIGH COURT (FAST TRACK DIVISION), ACCRA; EX PARTE PPE LTD AND PAUL JURIC (UNIQUE TRUST FINANCIAL SERVICES LIMITED – INTERESTED PARTY) [2007-2008] 1 SCGLR 188 23. KUSI & KUSI v BONSU [2010] SCGLR 60 24. DANIELLI CONSTRUCTION LTD v MABEY AND JOHNSON LTD [2007-2008] 1 SCGLR 60 25.FORI v AYEREBI & ORS [1966] GLR 627 SC 26.HAMMOND v AMUAH & ORS [1991] GLR 89 27.WESTERN HARDWOOD ENTERPRISES LIMITED v WEST AFRICAN ENTERPRISES LTD. [1998-99] SCGLR 105 28.ARYEETEY v BROWN [2006] 5 MLRG 160 CA 29. REPUBLIC v HIGH COURT, ACCRA; EX PARTE AFODA [2001-2002] SCGLR 768 30. REPUBLIC v BREW [1992] 1 GLR 14 31. KUMNIPAH II v AYEREBI AND OTHERS [1987-1988] GLR 265 SC 32.BAAH V BAAH AND ANOTHER [1973] 2 GLR 8 33.ESSILFIE AND OTHERS V ANAFO AND OTHERS [1992] 2 GLR 654 SC 18 34.KWASHIE v THE REPUBLIC [1971]1 GLR 488 CA 35. KAMIL v THE REPUBLIC [2011]1 SCGLR 300 36. RAZAK & YAMOAH v THE REPUBLIC [2012] 2 SCGLR 750 37. SAKYI v THE REPUBLIC [2010] 34 MLRG 188 CA 38. ADU BOAHENE v THE REPUBLIC [1972] 1 GLR 70 39. ASAAH ALIAS ASI v THE REPUBLIC [1978] GLR 1 19 20