REPUBLIC VRS. ADAMS (E12/216/2023) [2024] GHAHC 177 (18 June 2024)

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 TUESDAY THE 18TH OF JUNE 2024. ________________________________________________________________ SUIT NO. E12/216/2023 IN RE CONTEMPT THE REPUBLIC VRS GIBRINE ADAMS RESPONDENT EXPARTE: KOFI BROBBEY APPLICANT ________________________________________________________________ RESPONDENT PRESENT RULING – THE REPUBLIC VRS GIBRINE ADAMS EXPARTE KOFI BROBBEY 1 APPLICANT PRESENT ________________________________________________________________ RULING ON A MOTION FOR CONTEMPT 1. INTRODUCTION [i] The Applicant herein, per his Counsel has filed this present application for contempt, on the ground(s), among others that the Respondent herein has breached the order(s) of the Court and ought to be committed and punished for contempt. 2. FACTS OF THE APPLICANT’S CASE [ii] In the supporting affidavit, the Applicant contended that he instituted an action against some Defendants in suit no. LC/01/2022 and made an application before the Court for an order for interim injunction and same was granted. Subsequently, EPP Books Services Limited applied to be joined to the suit as a Co-Defendant and the motion for joinder was granted on the 21st of February 2022. The writ of summons and all processes were duly amended and served on all the Defendants, including the now joined 3rd Defendant, EPP Books Services Limited, which also entered appearance and filed a defence. [iii] The Chief Executive Officer of the 3rd Defendant in suit no. LC/01/2022, (EPP Books Services Limited) is the Respondent herein. The present application for contempt has been commenced because according to the Applicant, the Respondent herein, is said to be very much aware of the injunction order granted against all the Defendants, and yet he has wilfully ignored the Court RULING – THE REPUBLIC VRS GIBRINE ADAMS EXPARTE KOFI BROBBEY 2 order and trespassed onto the disputed land which shares a boundary with Zenith College; and has placed a backhoe machine thereon. [iv] The Respondent has also mounted signposts on the land in dispute; indicating it is land belonging to Zenith College when the Respondent is aware of the order of injunction against the Defendants. The Respondent’s actions are in violation of the Court order(s) and have brought the administration of justice into disrepute; and further prejudiced this case. The Respondent therefore ought to be committed for contempt and punished accordingly, the Applicant concluded. [v] The Applicant filed a supplementary affidavit, seeking to attach Exhibit D, said to be the affidavit of service of the Court order on the 3rd Defendant’s Counsel in suit no. LC/01/2022; but that exhibit was not attached to the supplementary affidavit filed on the Court’s docket. 3. AFFIDAVIT IN OPPOSITION [vi] The Respondent filed an affidavit in opposition denying that he had undertaken any act(s) which was/were in violation of the Court order(s) and therefore contemptuous. The Respondent stated he had not personally been served with any Court order and neither had he violated any such order. Additionally, the Respondent confirmed that he was the Managing Director of EPP Books Services Limited but denied ever taking the law into his own hands as alleged by the Applicant. [vii] According to the Respondent, the sign posts which the Applicant stated has recently been put up on the land had been on the land for a long time, to ward RULING – THE REPUBLIC VRS GIBRINE ADAMS EXPARTE KOFI BROBBEY 3 off trespassers and encroachers; but they were said to have fallen and so the Respondent stated the sign posts were remounted without his knowledge and instructions. Further, the Respondent stated he was away and his Lawyer was said to have instructed that the signs that read “THE LAND IS THE PROPERTY OF THE 3RD DEFENDANT” should be removed, because the Applicant’s Counsel had complained about same; and so the signs were simply changed, but even that, they were done when the Respondent was out of town. The Respondent thus attached pictures to demonstrate the change in the signs. [viii] The Respondent also denied putting any backhoe on the disputed land or instructing any one to do so. The Respondent concluded by stating he had not disobeyed the orders of the Court and neither had he done anything that was prejudicial to the determination of the substantive matter and so the instant application ought to be dismissed as it has only been fabricated for ill-purposes. As ordered by the Court, both Counsel filed their respective written addresses and so the duty of this Court is to determine whether or not the Respondent herein ought to be convicted for the offence of contempt brought against him. 4. THE LAW ON CONTEMPT [ix] In the case of the Republic v Nkansah, unreported case of the Supreme Court delivered on the 28th November 1995, the Supreme Court held: “The power of this Court to commit for contempt is granted by article 126(2) of the Constitution, 1992. It is neither dependent on nor ancillary RULING – THE REPUBLIC VRS GIBRINE ADAMS EXPARTE KOFI BROBBEY 4 to any jurisdiction granted to this Court by any statute or any other law… not only to demand obedience to the Court’s order(s) but also vindicate its authority”. Order 43 rule 5 of the High Court (Civil Procedure) Rules, 2004, CI 47 also provides: (1) Where 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 (i) An order of committal against that person. It is therefore imperative that the sanctity and dignity of the Courts be preserved at all times and all Court orders be obeyed. In Hennsion v Baker [1972] 1 AER 997 at 1005, it was again 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 here 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 His Honour Judge Curtis Releigh, the law should not be seen to sit by limply whilst those who seek its protection lose hope”. [x] Further in the case of REPUBLIC v NUMAPAU; EX PARTE AMEYAW II AND OTHERS [1999-2000] 1 GLR 283, the Supreme Court held: RULING – THE REPUBLIC VRS GIBRINE ADAMS EXPARTE KOFI BROBBEY 5 Contempt of court was constituted by any act or omission tending to obstruct or interfere with the orderly administration of justice or impair 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 out 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. [xi] There should therefore be ample evidence to establish that a contemnor has indeed defied the orders of the Court for contempt charges to be applicable; and a prima facie case has to be first made out against the Respondent. The above was also reiterated in the case of In Re Effiduase Stool Affairs (No. 2) [1998 -99] SCGLR 639. See also The Republic v Osei Bonsu II, Mamponghene & Ors; Exparte Amadie & Buor [2007 – 2008] SCGLR 566 at 576. Again, in Kangah v Kyere [1979] GLR 458 the Court held: “…To obtain a committal order for contempt, the applicant must strictly prove beyond all reasonable doubt that the respondents had wilfully disobeyed and violated the Court’s Order. In the absence of such evidence, the respondents could not be guilty of contempt”. RULING – THE REPUBLIC VRS GIBRINE ADAMS EXPARTE KOFI BROBBEY 6 [xii] I finally rely on the case of The Republic v SITO 1: Exparte Fordjour [2001 – 2002] SCGLR 322 which laid down the following as the essential elements in dealing with the offence of contempt: That 1. There must be a judgment or order requiring the contemnor to do or abstain from doing something. 2. 3. The order must have been served on the contemnor. It must be shown that the contemnor knows precisely what he is expected to do or abstain from doing and 4. It must be shown that he failed to comply with the terms of the judgment or order and that disobedience is willful. 5. EVALUATION OF THE AFFIDAVIT EVIDENCE ADDUCED [xiii] From the processes filed, I find that the order for injunction granted on the 26th of July 2021 specifically stated that the Defendants/Respondents “… are restrained from entering onto the land and carrying out any form of development or activity on the land …” At the time the injunction was granted however, there were only two Defendants to the suit; and that did not include the 3rd Defendant, EPP Books Services. It was later that the 3rd Defendant was joined; on the 21st February 2022. Even though the Applicant stated the 3rd Defendant’s Counsel was served with all processes including the order for injunction, the said affidavit or proof RULING – THE REPUBLIC VRS GIBRINE ADAMS EXPARTE KOFI BROBBEY 7 of service was not annexed to the supplementary affidavit as the Applicant sought to aver. [xiv] Moreover, the injunction order was not amended to include the 3rd Defendant therein. Therefore, even though the Respondent’s Company had been joined in the suit subsequent to the injunction granted, it did not affect the Respondent and the 3rd Defendant herein. I rely on the case of THE REPUBLIC V SITO 1 (supra) it was provided therein that for contempt to lie, (1) There must be a judgment or order requiring the contemnor to do or abstain from doing something, (2) It must be shown that the contemnor knows precisely what he is expected to do or abstain from doing, (3) and among others that his disobedience is wilful; but in the present case, I do not believe the first part of the requirement was fulfilled because the order granted did not include the Respondent herein. [xv] Further, the Respondent explains that he was out of town; and I find it believable, because the motion for contempt was even served on the Respondent by substituted service. The Respondent therefore, I find, also raised reasonable doubt in his favour when he stated that the signs were already on the plot and that he had also not put or authorized any backhoe to be put on the disputed plot; and further that his Counsel instructed the signs to be changed in order that the signs will not be prejudicial; in order to resolve the complaint of the Applicant’s own RULING – THE REPUBLIC VRS GIBRINE ADAMS EXPARTE KOFI BROBBEY 8 Counsel; since the earlier signs referred to the 3rd Defendant as the owner of the disputed plot, when the matter is sub judice. [xvi] The onus thus shifted on to the Applicant to establish the guilt of the Respondent by adducing affidavit evidence to dispute the defence put forth by the Respondent; but I find the defence went unchallenged. As stated, contempt is quasi criminal and proof of same ought to be beyond reasonable doubt, but it was not the Respondent’s Counsel who was charged, but the Respondent, when there is no proof that he was a party to the injunction order and/or that it had been served on him. The burden was on the Applicant to establish before this Court, beyond reasonable doubt, that the signs were not there before or that the backhoe was recently placed thereon and upon the express instructions of the Respondent; but I find no evidence was adduced to implicate the Respondent, save the mere averments of the Applicant that there were sign posts and a backhoe on the disputed plot without linking those activities exclusively to the Respondent herein. 6. CONCLUSION [xvii] On the basis of the above, I am unable to establish that it was the Respondent herein who gave the orders for the signs and/or backhoe to be placed on the land after the injunction order was granted; and this is proof that the Applicant has not been able to make a prima facie case against the Respondent and further that he has been unable to establish the guilt of the Respondent beyond reasonable doubt. RULING – THE REPUBLIC VRS GIBRINE ADAMS EXPARTE KOFI BROBBEY 9 For the above reasons, I find I would have to acquit and discharge the Respondent herein and he is hereby so acquitted and discharged. I will make no order as to costs, considering the entire circumstances of this case. Substantive matter to follow its normal course. SGD. JUSTICE PATRICIA QUANSAH HIGH COURT B, TEMA GREATER ACCRA REGION 18TH JUNE 2024. COUNSEL: STEPHEN OBENG DARKO ESQ. WITH NII AKPOR BOTCHWAY AND BEING LED ALFRED BANNERMAN – WILLIAMS ESQ. FOR THE RESPONDENT RULING – THE REPUBLIC VRS GIBRINE ADAMS EXPARTE KOFI BROBBEY 10 CHRISTIAN TEI AZU ESQ FOR THE PLAINTIFF/APPLICANT PRESENT RULING – THE REPUBLIC VRS GIBRINE ADAMS EXPARTE KOFI BROBBEY 11