REPUBLIC VRS BOATENG (C10/051/2023) [2024] GHAHC 189 (4 March 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION “B” (GENERAL JURISDICTION) HELD AT SUNYANI ON MONDAY THE 4TH DAY OF MARCH, 2024 BEFORE HER LADYSHIP JUSTICE JOYCE BOAHEN, HIGH COURT JUDGE SUIT NO. C10/051/2023 IN THE MATTER OF AN APPLICATION FOR COMMITAL FOR CONTEMPT OF COURT KWASI ANTWI BOASIAKO PLAINTIFF VS. KOFI BOATENG DEFENDANT AND IN THE MATTER OF THE REPUBLIC VS. KOFI BOATENG @ KETEWA RESPONDENT EX – PARTE; KWASI ANTWI BOASIAKO APPLICANT JUDGMENT – CONTEMPT OF COURT Parties present Glenna – Lois Boakye – Yiadom holding brief of Barima – Agyekum Hinneh for the Applicant present 1 Nana Agyei Korang appears with Rosina Ama Appiah being led by Kofi Iddrissah for the Respondent CASE OF THE APPLICANT AND HIS COUNSEL’S SUBMISSION On 5th April, 2023 the Applicant herein per his Counsel filed motion on notice under Order 50 of the High Court (Civil Procedure) Rules, 2004 (C.I 47) seeking an order for attachment of the Respondent herein for contempt of Court. The Applicant’s case per his affidavit in support is that he issued a writ against the Respondent in a suit entitled Kwasi Antwi Boasiako vrs. Kofi Boateng @ Kofi Ketewaa with suit number C1/006/2022. He attached a copy of the writ of summons and statement of claim as exhibit “A”. In the said suit the Applicant (Plaintiff) claimed against the Respondent (Defendant) among other reliefs; A declaration of title to and recovery of possession of all that piece and parcel of Teak farm / plantation situated at a place called Mepepewasu, Dumasua North on Dumasua sub – stool land bounded by the Mepepewasu stream, Dumasua stool land on two sides (now demarcated to people as building plots) and Mr. Osei Gyasi which the defendant has trespassed upon. According to the Applicant the Court differently constituted granted an order of interlocutory injunction in the said suit on 10th March, 2022 and restrained both parties from carrying out any activities or interfere with the disputed land until the final determination of the case. The Applicant’s case is that the Respondent was served with the order for interlocutory injunction on 13th July, 2022 per a search conducted at the Court’s registry attached to the Applicant’s affidavit in support as exhibit “B”. The Applicant contended that in spite of the order of injunction restraining both parties from going to the land the Respondent went to the land and carried out several activities and interfered with the land contrary to the Court’s orders. The Applicant stated in paragraphs (6) and (7) of his affidavit in support as follows; 2 (6) That in spite of being served with the order, the Respondent has gone ahead to carry out several activities and has interfered with the land in dispute, contrary to the orders of the Court. (7) That my visit to the disputed land on 28 /3/2023 revealed that the Respondent has disobeyed the orders of the Court and gone ahead to fell several teak trees planted on the land, in preparation for a new farm. The Applicant attached exhibit ‘C’ series which are photographs of teak trees that were fell on the disputed land. According to the Applicant there are witnesses to testify to the effect that the Respondent was the one who fell the teak trees on the disputed land. The Applicant prayed the Court to punish the Respondent for his contumacy which amounts to contempt of Court. Following the Respondent’s denial in paragraph (4) of his affidavit in opposition that he was not served with the order for interlocutory injunction, the Applicant filed supplementary affidavit in support on 6th December, 2023 and reiterated his claim that the Respondent was served with the order per exhibit “B”, a search report emanating from the Court’s registry. Counsel for the Applicant in a written submission filed in support of the application on 2nd June 2023, repeated the depositions in the affidavit in support and stated as follows; A search conducted at the Registry of the Honourable Court indicates that the order of interlocutory injunction dated 10th March, 2022 was duly served on the defendant/respondent on 13/07/2022. (Please see exhibit “B”). What the search results indicated is that at all time material, the Respondent is aware of the order injuncting him from entering unto the disputed land to do anything. In or around March 2023, the Plaintiff visited the disputed land and to his surprise, found the Defendant Respondent on the forbidden land, feverishly felling teak trees in preparation of a new farm, contrary to the orders of the honourable Court. (Please see exhibit “C1”, “C2”, “C3” and “C4”. 3 According to Counsel the Respondent has disobeyed the Court’s orders and therefore he must be punished. Counsel cited Order 43 rule 5 (b) and (c) of the High Court (Civil Procedure) Rules, 2004 (C. I 47) to support his submission. OPPOSITION OF THE RESPONDENT AND HIS COUNSEL’S SUBMISSION The Respondent filed affidavit in opposition on 18th July, 2023 and stated that the Applicant’s affidavit in support is incompetent. He initially denied being served with the order of interlocutory injunction in paragraph (6) of his affidavit in opposition but subsequently admitted paragraph (5) of the affidavit in support which stated that he was served with the order of interlocutory injunction on 13th July, 2022. He denied cutting the teak trees as alleged by the Applicant. Counsel for the Respondent noted in his written submission in support of the Respondent’s opposition, that the Applicant’s affidavit in support to his motion is incompetent and sins against the rules of Court, Order 20 Rule 4 (2) of C. I 47). Counsel contended that the Applicant’s affidavit in support sins against the rules because the Applicant did not state his name and the affidavit in support does not meet the legal requirements in Order 20 rule 4 (2) of C.I 47. Counsel argued that the Respondent has not committed any offence for him to be punished by the Court. According to Counsel the Respondent denied paragraph (7) of the Applicant’s affidavit in support which alleged that the Respondent cut the teak trees on the disputed land despite the order of interlocutory injunction. Counsel contended that exhibit “C” series that the Applicant attached to his affidavit in support do not show that the Respondent went to the land and therefore the Applicant could not prove his case beyond reasonable doubt as required by law. Counsel cited the cases of the Republic vrs. Bekoe; Ex – parte Adjei [1982 – 83] Ghana Law Report (GLR) 91 and Gbadamoshi vs. Mohammadu [1991] 1 GLR 283 – 294 and 4 noted that the said cases held that the guilt of a person charged with contempt of Court must be proved with the same strictness as required in a criminal trial which is proof beyond reasonable doubt. According to Counsel the Respondents in the above case were given the benefit of a doubt and acquitted because their guilt was not established beyond reasonable doubt. Counsel prayed the Court to dismiss the application with punitive cost. BY COURT; The Court observed that both Counsel wrote very scanty submissions. Counsel for the Applicant wrote a little above one and half pages and supported his submission with Order 43 rule 5 (b) and (c) of the High Court (Civil Procedure) Rules, 2004 (C. I 47) which provides that; 5. (1) Where (b) 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 (c) an order of committal against that person … Counsel for Respondent wrote one and half pages and supported his submission with Order 20 Rule 4 (2) of (C. I 47) and the cases of the Republic vs. Bekoe, Ex – Parte Adjei and Gbadamoshi vs. Mohammadu. Order 20 Rule 4 (2) of C.I 47 provides that; (2) Every affidavit shall be expressed in the first person and shall state the place of residence of the deponent and the occupation of the deponent or, if the deponent has none, the description of the deponent and whether the deponent is, or is not employed by a party to the cause or matter in which the affidavit is sworn. The Court gave both Counsel opportunity to address it verbally in addition to their written submission which the Court considered as scanty but both Counsel relied on the 5 written submission they filed. First of all, the Respondent and his Counsel noted that the Applicant’s affidavit in support is incompetent because it sins against the rules per Order 20 rule 4 (2) of C.I 47 cited above. Upon perusal of the above order the Court found that the Applicant did not state his name and occupation neither did he state the place of his residence which makes the affidavit irregular. The Applicant did not pray the Court for leave to use the affidavit in evidence notwithstanding the irregularity as provided for in Order 20 rule (7) of C.I 47 as follows; (7) An affidavit may with leave of the Court be filed or used in evidence notwithstanding any irregularity in its form. Counsel for the Respondent did not apply for the affidavit to be set aside, instead the Respondent took a fresh step and responded to the said defective affidavit by filing an affidavit in opposition and his Counsel by filing his written submission in support of the Respondent’s opposition to the motion. In the circumstance, the Respondent and his Counsel are considered to have waived their right to complain about the said defective affidavit per Order 81 rule 2 (2) of C.I 47 which provides that; (2) No application to set aside any proceedings for irregularity shall be allowed unless it is made within reasonable time and the party applying has not taken a fresh step after knowledge of the irregularity. Order 50 rule 1 sub rules (1) to (5) of the High Court (Civil Procedure) Rules, 2004 (C.I 47) on committal for contempt provides as follows; 1. (1) The power of the Court to punish for contempt of court may be exercised by an order of committal. (2) Committal proceedings shall be commenced by an application to the Court. 6 (3) The application shall be supported by an affidavit stating inter alia the grounds of the application. (4) Subject to subrule (5), the notice of motion, together with a copy of the affidavit in support of the application shall be served personally on the person sought to be committed. (5) Without prejudice to its power under Order 7 rule 6 the Court may dispense with service of the notice of motion if it thinks it just to do so In the cases of the Republic vs. Bekoe, Ex – Parte Adjei [1982 – 83] GLR, 91 and Gbadamoshi vs. Mohammadu [1991] 1 GLR 283 – 294, the Court held in both cases that the standard of proof in contempt cases is proof beyond reasonable doubt. In the Bekoe case, the Court held that in the absence of supporting evidence, the Applicant failed, on the face of the affidavit filed, to prove the contempt beyond reasonable doubt. The Applicant failed to call the Registrar of the Central Regional House of Chiefs to lead further evidence to support his case. The Court held that the respondents were therefore entitled to the benefit of the doubt. In the Gbadamoshie case, the Court held that a charge of contempt was not made out against the defendant and the defendant could not be said to have uttered the words attributed to him upon the Applicant’s failure to call other witnesses who were present including a policeman when the defendant allegedly made the said utterances, to lead further evidence to support the Applicant’s case. The case of In Re Effiduase Stool Affairs (No. 2); Ex – Parte Ameyaw II (1998 – 99) Supreme Court of Ghana Law Report (SCGLR) 639 @ 660 Acquah JSC as he then was defined contempt of Court as follows; 7 In brief, contempt is constituted by any act or omission tending to obstruct or interfere with the orderly administration of justice or to impair the dignity of the Court or respect for its authority. In the case of The Republic vrs. Sito & Fodjour [2001 – 2002] SCGLR 322, the Court stated the ingredients of contempt of Court as follows; (i) There must be a judgment or order requiring the contemnor to do or abstain from doing something (ii) It must be shown that the contemnor knows what precisely he is expected to do or abstain from doing (iii) It must be shown that he failed to comply with the terms of the judgment or the order and that his disobedience is willful. In the case of Boamah & Ansah Sikatuo vs. Amponsah [2012] 1 SCGLR 58 @ page 59, the Court unanimously allowed the judgment of the Court of Appeal and set aside the conviction and sentences imposed on the appellants by the trial High Court and stated at page 59 as follows: the basic principle regarding the standard of proof for the offence of contempt of court was well – settled. Since contempt of court was quasi – criminal and punishment for it might take various forms, including a fine or imprisonment, the standard of proof required was that of proof beyond reasonable doubt… Per the Boamah and Ansah Sikatuo case and the Republic vs. Bekoe, Ex – Parte Adjei and the Gbadamoshi vs. Mohammadu cases cited above, the standard of proof required in contempt application is proof beyond reasonable doubt. The Applicant therefore in the light of the above authorities and the Republic vs. Sito case, must establish all the three ingredients of the offence of contempt of Court. It is instructive to note that apart from the affidavit of the Applicant being incompetent, the Applicant failed to attach the order, 8 the subject matter of this application to his motion which the Court considers as very crucial. The first ingredient is that “there must be a judgment or order requiring the contemnor to do or abstain from doing something”. The Applicant stated in his affidavit in support that the order for interlocutory injunction was granted on 10th March, 2022 restraining both parties from further carrying out any activities or interfering with the disputed land until the final determination of the matter. However, the Applicant failed to attach a copy of the order for the Court’s perusal. The Applicant indicated that the said order was served on the Respondent on 13th July, 2022 per exhibit “B” a search conducted at the Registry of this Court. The Respondent denied being served with the order for interlocutory injunction in paragraph (6) of his affidavit in opposition but admitted paragraph (5) of the Applicant’s affidavit in support which states; “That a search conducted at the Registry of the Honourable Court indicates that the Respondent was duly served with the order for interlocutory injunction on 13/07/2022”. The Respondent’s admission of paragraph (5) of the Applicant’s affidavit in support established that he was served with the order for interlocutory injunction on 13th July, 2022. Since the Applicant failed to attach the order the Court is unable to make any comments on it. Although the Court would have preferred an affidavit in proof of service instead of a search because the affidavit of service would state the name of who was served, what was served and when service was effected for the avoidance of doubt, the Court is inclined to rely on the search report, exhibit “B” attached by the Applicant. In the absence of the order and in the light of the search which confirmed that there was an order for interlocutory injunction dated 10th March, 2022 the Court is inclined to accept the evidence of the Applicant that the Respondent was served with the order on 13th July, 2022. The Respondent confirmed that he was served with the order by admitting paragraph (5) of the Applicant’s affidavit in support. From the foregoing, the Court is of 9 the view that the Applicant established the first ingredient of the offence that the Respondent was served with the order of interlocutory injunction on 13th July, 2022 restraining him from carrying out any activity or interfering with the disputed land until final determination of the case. The second ingredient is that; “It must be shown that the contemnor knows what precisely he is expected to do or abstain from doing”. According to the Applicant the Court restrained both parties not to carry out any activity on the land or interfere with the disputed land until the final determination of the case. The Applicant noted that in spite of the subsistence of the order, the Respondent carried on several activities on the land including felling teak trees on the land in preparation for a new farm and that there are witnesses available to testify to that fact per paragraphs (6), (7) and (8) of the affidavit in support. The Respondent denied paragraphs (6), (7) and (8) of the Applicant’s affidavit in support and further denied that he went to the disputed land to fell teak trees. The Respondent denied that witnesses are available to testify to the effect that he was the one who fell the teak trees. He denied the Applicant’s claim that he exhibited conduct that amounted to contempt of Court. These denials by the Respondent confirm that the Respondent knew that he was not supposed to go to the land to cut teak trees pending final determination of the case. The Court is therefore of the view that per the Applicant’s depositions in paragraphs (7), (8) and (9) of the affidavit in support, the Applicant established that the Respondent knew that he was not supposed to go unto the land let alone cut teak trees until final determination of the case. The Court is therefore of a considered view that the Applicant established the second ingredient of the offence. Regarding the third ingredient that “it must be shown that the Respondent failed to comply with the terms of the judgment or the order and that his disobedience is willful”, the Applicant 10 claimed that in spite of being served with the order, the Respondent went ahead to carry out several activities on the land and interfered with the land in dispute, contrary to the orders of the Court. According to the Applicant, his visit to the disputed land on 28 /3/2023 revealed that the Respondent disobeyed the orders of the Court and went to the disputed land to fell several teak trees planted on the land, in preparation for a new farm. The Applicant stated further that there are witnesses available to testify to the effect that the Respondent was the one who fell the teak trees on the disputed land. The Applicant’s Counsel supporting the Applicant’s claim stated that in or around March 2023, the Applicant visited the disputed land and to his surprise, found the Respondent on the forbidden land, feverishly felling teak trees in preparation of a new farm, contrary to the orders of the Honourable Court per exhibits “C1”, “C2”, “C3” and “C4” which are photographs of the disputed farm. Although the Applicant’s Counsel claimed that the Applicant found the Respondent on the disputed land in or around March 2023 feverishly felling teak trees in preparation for a new farm, the Court found that exhibit “C” series that the Applicant attached to his affidavit in support only showed teak trees that were fell. The Respondent is not in any of the photographs to establish that he was the one who fell the teak trees. The Respondent denied that he fell the teak trees. The Applicant was therefore obliged to lead further evidence to buttress his case. Although the Applicant stated that there are witnesses to testify to the effect that the Respondent was the one who fell the teak trees, none of the said witnesses were called. The Court is of a considered view that the Applicant’s mere deposition in the affidavit that there are witnesses available without seeking leave of the Court to file affidavits for the said witnesses to be cross – examined by Counsel for the Respondent, is not enough to establish the Respondent’s guilt beyond reasonable doubt. 11 It is to be noted that after both Counsel filed their written addresses which the Court considered as scanty, the Court gave both Counsel opportunity to address the Court verbally in addition to their written submissions which they both declined. Counsel for Applicant could have used that opportunity to seek leave of the Court to file affidavits for the said available witnesses to be cross examined but he did not do so. In the circumstance, the Court’s considered view is that the Applicant could not prove the third ingredient of the offence to the Court’s satisfaction and therefore failed to establish beyond reasonable doubt that the Respondent was the one who fell the teak trees. In the light of the Applicant’s failure to establish the third ingredient of the offence, the doubt must inure to the benefit of the Respondent as decided in the above cited cases of Boamah & Ansah Sikatuo vs. Amponsah, the Republic vs. Bekoe, Ex – Parte Adjei and Gbadamoshi vs. Mohammadu. In the case of Boamah & Ansah Sikatuo [2012] 1 SCGLR 58 @ page 64, the Court held that; In the face of the denial by the appellants, the respondents to the contempt application, the applicant ought to have called further evidence in the matter or by seeking leave to have the deponents cross – examined on their deposition, which in such cases, has the effect of evidence – in – chief; and not having done so, then the court was faced with an assertion and a denial situation which by the operation of the rules, placed the burden of dislodging the effect of the denial of the applicant in order to sustain his application for contempt of court. His failure so to do signaled the failure of his application for contempt of court as the appellants, the respondents to the application for contempt of court, were entitled in the circumstances to have the benefit of the doubt. CONCLUSION In the light of the foregoing, the Court’s conclusion is that the Applicant was able to establish the existence of an order for interlocutory injunction dated 10th March, 2022. The 12 Applicant further established that the said order restrained both parties from carrying on activities on the disputed land or interfere with the disputed land until final determination of the case notwithstanding the fact that the Applicant did not attach a copy of the order to his affidavit in support. The Applicant established that the Respondent was served with the said order on 13th July, 2022. Furthermore, the Applicant established that the Respondent knew that per the interlocutory order he was not supposed to carry out any activity on the land in dispute or interfere with the land until final determination of the case. The Applicant however failed to establish that the Applicant was the one who fell the teak trees as shown in exhibit “C” series because of the Applicant’s failure to call the available witnesses to testify to the effect that it was the Respondent who fell the teak trees. Upon the Applicant’s failure to prove the third ingredient of the offence, the Court is of a considered view that the Applicant failed to establish the guilt of the Respondent beyond reasonable doubt and therefore the doubt should inure to the Respondent’s benefit. In the light of the evidence adduced by the parties and the authorities cited above, the Court is of a considered view that the Applicant was not able to prove the liability of the Respondent for contempt of Court beyond reasonable doubt. The Court therefore finds the Respondent not liable for contempt of Court and gives the Respondent the benefit of a doubt. The application is hereby dismissed as unmeritorious. Cost of GH₵ 2,000.00 awarded in favour of the Respondent. JUSTICE JOYCE BOAHEN HIGH COURT JUDGE 4TH MARCH, 2024 (SGD) 13 14