REPUBLIC VRS. BASE ESTATE COMPANY LTD AND ANOTHER (CR/0212/2024) [2024] GHAHC 266 (17 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, LAW COURT COMPLEX (CRIMINAL DIVISION “2”) HELD IN ACCRA ON WEDNESDAY, 17TH DAY OF JULY, 2024 BEFORE HER LADYSHIP JUSTICE MARIE-LOUISE SIMMONS (MRS.), JUSTICE OF THE HIGH COURT SUIT NO.: CR/0212/2024 THE REPUBLIC VRS. 1. BASE ESTATE COMPANY LTD. 2. JONATHAN ODARTEY BADDOO EX-PARTE: CONSIKA LTD ========================================================================== JUDGMENT ========================================================================== The Applicant of this Contempt application is Morrison Kouassi, General Manager of a company called Consika Limited and Plaintiff in an ongoing land suit at the Circuit Court, Accra. The application was filed on the 22nd March 2024. He has deposed to an affidavit in support, seeking to have the Respondents herein committed for “aggravated contempt.” The 1st and 2nd Respondents are an Estate Company and its Managing Director respectively and are also the Defendants in the pending land suit. The gravamen of the Applicant’s case is that whilst the case is sub judice, the Respondents are busy and Page 1 of 22 hurriedly building on the “subject matter of the undetermined Court litigation” an act which the Applicant states “prejudices and interferes with the fair trial and outcome of the case.” The application was served on the 2nd Respondent personally on the 19th March 2024 as per an affidavit of service dated 22nd Mach 2024. Upon service, the Respondents also filed an affidavit in opposition on the 22nd March 20424 which was also served on the Applicant’s counsel on the 26th March 2024. Subsequently, counsel for both parties addressed the Court viva voce on the 16th May 2024 but chose to file further submissions in support of their cases. Applicant’s counsel filed his written submission on the 27th May 2024 while counsel for the Respondents filed on the 30th May 2024. THE APPLICANT’S CASE The details of the Applicant’s case is that, on the 22nd September 2023, he and his company caused a Writ to be issued at the Registry of the Circuit Court, Accra against the Respondents herein for Declaration of Title to some parcel of land situate at Asylum Down in the Greater Accra Region. The purchase of which his company had made payments to both the Accra Metropolitan Assembly (AMA) and the Korle Klottey Municipal Assembly (KoKMA). The Applicant also applied for the reliefs of Recovery of Possession as the Respondents had allegedly trespassed unto parts of their land and had begun building on same, as well as a perpetual injunction to restraint the Respondents and their successors in title from having anything to do with the land in issue. A fact deserving attention in this application is the fact that the Applicant herein had in addition to the Writ issued, also applied to the trial Court for an Interlocutory Injunction to restrain the Respondents herein from further building on the disputed Page 2 of 22 land. Attached hereto the application are the said application for injunction and the subsequent ruling of the trial Court as Exhibits B and D. Exhibit D indicates that the application was refused on a preliminary legal point raised by the Respondents herein. The basis of which was that, the Applicant had earlier filed a Writ and an application for Injunction and had later withdrawn same unconditionally without any notice of liberty to reapply. The Court ruled therefore that in failing to indicate “with liberty to reapply”, the Applicant was estopped from re-litigating the same claim. It is evident from the very pendency of the suit at the Circuit Court that the action itself was not dismissed. Notwithstanding, the dismissal of the injunction application and with no order preventing the Respondents from continuing with their construction, the Applicant maintains that, the Respondents further building on parts of the disputed land constitutes aggravated Contempt of Court. The Applicant’s counsel explains further that the continuous action of the Respondents, affects the very subject matter of the suit which tends to prejudice or interfere with the fair trial of the case. In his Written Submission, counsel for the Applicant supports his arguments strongly with the Supreme Court case of THE REPUBLIC VS. THE BANK OF GHANA, THE GOVERNOR (BANK OF GHANA) AND 4 ORS, EX-PARTE: BENJAMIN DUFFOUR, CIVIL APPEAL NO. J4/34/2018 DATED 6TH JUNE 2018. In further support, counsel makes reference to the understated quotes from the case as follows: “Contempt of Court may rise where a party knowing that a case is sub judice, engages in an act or omission which tends to prejudice or interfere with the fair trial of the case despite the absence of an order of the Court” Also quoted was the holding of the Court thus: Page 3 of 22 “a party to the proceedings will be in Contempt of Court if he engages in an act, subsequent to the filing of the case, which will have the effect of interfering with the fair trial of the case to undermine the administration of justice.” In applying the law to the facts of this case, in resolving what the Applicant’s counsel term “the sole issue” he states in his submission as follows: “The facts disclose that the Respondents are building on subject matter of undetermined Court litigation. The building as stated is still being constructed during the pendency of the suit. The Respondents’ action of building on the land during the pendency of suit is tantamount to the Respondents/Contemnors looking the Applicant in the face and yelling at him thus “forget your Court case, we are above the law, the Court cannot do anything to us”. This loud shout of “forget your Court case, we are above the law” is what we humbly submit undermines the administration of justice in that it erodes confidence in the Courts who appear weakened and thus unable to act in the matter.” The Applicant therefore submits and prays this Court to take action and preserve the dignity of the Court by committing the Respondents to custody till they purge themselves of the contempt. The Respondents have put up a very sharp and stiff opposition to this application. The Respondents in their affidavit in opposition have confirmed that the Applicant did apply for an Interlocutory Injunction before the trial Court and had the application dismissed. The Respondents depose that by virtue of the said dismissal, their “hands had not been fettered” from continuing with their construction. Paragraph 7 of the Respondents’ affidavit states clearly that: “The Respondents are exercising their rights to use and enjoy their property since the Circuit Court refused the application to restrain the Respondents from developing the land. With no order of injunction pending, the Respondents deny flouting any orders of the trial Court.” Page 4 of 22 The Respondents therefore pray that the application be refused and dismissed as unmeritorious, vexatious and an abuse of the Court process. They support their response with several annexes. These are: 1. The Writ of Summons and Claim filed by the Applicant at the Circuit Court, 2. The 1st application of Interlocutory Injunction filed on the 19th September 2023 which was later withdrawn, 3. Notice of Entry of Conditional Appearance, 4. The Notice of Discontinuance of Action by the Applicant and 5. The affidavit in opposition filed in response to the application for injunction exhibited as Exhibits 1-3A and 4. Also annexed are: 6. A Notice of Appeal filed by the Applicant herein against the decision of the trial Court on the injunction application 7. An application for Stay of Execution of the decision on the injunction, 8. The 2nd application filed for Interlocutory injunction filed on the 20th November 2023 which as dismissed, 9. A Motion for Judicial Review by way of Certiorari filed by the Applicant herein to quash the decision of the trial Court on the dismissal of the injunction application, they are all exhibited as Exhibit 5-8. From the annexures, it is apparent that the Applicant has been extremely aggrieved by the decision of the trial Court by refusing the injunction application and has been busy using all means possible to have the decision of the trial Court against the injunction application set aside, which of course is not necessarily frowned upon. However, apart from the decision of the trial Court and that on the application for Judicial Review which were both dismissed as per their rulings as attached, there has been no evidence provided before me of the outcome of the Interlocutory Appeal Page 5 of 22 and Stay of Execution. Be that as it may, it is apparent by the mere filling of this application that the appeal did not also succeed. In his viva voce submission, counsel for the Respondents opposes the application and states that the application does not establish the elements required for a contempt application. In response to the principle on contempt as espoused in the Ex-parte Duffour case forcefully cited by the Applicant, the Respondents’ counsel submits that the facts in that case can be distinguished from that of the application herein. He asserts that in the Ex-parte Duffour case, the trial Court granted the order of interlocutory application whilst in the instant case the trial Court dismissed same. He submits further that with no order requiring the Respondents from carrying on with the construction, the traditional requirements of contempt have not been proved by the Applicant. Finally, it is the argument of the Respondents in contrast to that of the Applicant as stated at page 12 of his submission that the trial Court is better placed to determine if the continued actions of the Respondents in construction are acts which will interfere with or prejudice the fair trial of the case and states inter alia: “the Circuit Court had the opportunity to restrain the continued building of the structure hence the application for Interlocutory Injunction as brought before it. The Circuit Court exercised its discretion by refusing the application. The Circuit Court would not have refused the application for interlocutory injunction if the continued building of the structure interferes with or prejudices the fair trial of the action.” THE LAW ON CONTEMPT In appreciating this application and its relevance, I will explain the law of contempt and state that the basis of the law of contempt in Ghana is both Constitutional and Statutory. The power to punish for contempt as a common law offence has been saved Page 6 of 22 by the Constitution of Ghana and reserved for the Superior Courts. See Article 19 (2) and 126 (2) of the 1992 Constitution, Section 36 of the Courts Act, 1993 (Act 459 as amended by the Courts (Amendment) Act, 2002 (Act 620). What will constitute Contempt? Merriam – Webster’s Dictionary of Law defines Contempt of Court as follows: “Willful disobedience or open disrespect of the orders, authority, or dignity of a Court or a judge acting in a judicial capacity by disruptive language, or conduct or by failure to obey the Court’s orders.” In his book, Contempt of Court (2nd Ed.) (1895), Oswald defined same as follows: “Contempt of Court may be said to be constituted by any conduct that tends to bring the authority and administration of the law into disrespect or disregard, or to interfere with or prejudice parties, litigants, or their witnesses during the litigation.” The Supreme Court defined contempt of Court in THE REPUBLIC VS. HIGH COURT, EX-PARTE: LARYEA MENSAH (1998-99) SCGLR 360 at page 368 and states: “By definition, a person commits contempt and may be committed to prison for willfully disobeying an order of Court requiring him to do any act other than the payment of money or abstain from doing some act, and the order sought to be enforced should be unambiguous and must be clearly understood by the parties concerned.” The main objective and purpose of the law on contempt is aptly stated by Lord Morris in the English case of ATTORNEY GENERAL VS. TIMES NEWSPAPERS LTD (1974) AC 273 AT 302, when he said: “in an ordered community Courts are established for the specific settlement of disputes and for the maintenance of law and order. In the general interest of the community it Page 7 of 22 is imperative that the authority of the Courts should not be imperiled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity, it is because the very structure of ordered life is at risk if the recognized Courts of the land are so flouted that their authority wanes and is supplanted” The jurisdiction of the Courts in Ghana in contempt proceedings is properly invoked under the Rules of Court by (i) Order 50 which provides the procedure for the application and (ii) Order 43 of C.I. 47 depending on the nature of the Application. The procedure is, however, not exhaustive. Order 50 Rule (1) of C.I. 47 under which the Applicant mounted his application provides: (i) Order 50 Rule 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. (3) The application shall be supported by an affidavit stating inter alia the grounds of the application.” (ii) Order 43 Rules (5) and (7) of C.I. 47 It is respectively stated in C.I. 47: Order 43 rule 5: “5. (1) Where Page 8 of 22 (a) a person required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time or within that time as extended or reduced under Order 80 rule 4; or (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 or, where that person is a body corporate, against any director or other officer. Order 43 rule 7 “7. (1) in this rule references to an order shall be construed as including references to a judgment. (2) Subject to Orders 21 rule 14 (2) and 22 rule 6 (3) and sub rule (6) of this rule, an order shall not be enforced under rule 5 unless (a) a copy of the order has been served personally on the person required to do or abstain from doing the act in question; and (b) in the case of an order requiring a person to do an act, the copy has been served before the expiration of the time within which the person was required to do the act.” The 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 VS. HIGH COURT ACCRA, EX-PARTE: LARYEA MENSAH (1998- 1999) SCGLR 360 IN RE EFFIDUASE STOOL AFFAIRS (NO.2) Page 9 of 22 REPUBLIC VS. NUMAPAU, PRESIDENT OF THE NATIONAL HOUSE OF CHIEFS AND OTHERS; EX-PARTE: AMEYAW II (NO.2) (1998-99) SCGLR 639 REPUBLIC VS. JAFRO MENSAH LARKAI & 4 OTHERS (2012) 48 GMJ 112, CA Again 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 VS. HIGH COURT, EX-PARTE: LARYEA MENSAH (Supra) YOURI VS. ABOAGYE & ORS (2013) 67 GMJ 49 CA AGBLETA VS. THE REPUBLIC (1977) 1 GLR 445 CA 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 great importance to society. By the exercise of the power of 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 VS. MENSAH BONSU AND OTHERS; EX-PARTE ATTORNEY GENERAL (1995-1996) 1 GLR 377 SC REPUBLIC VS. LIBERTY PRESS LTD & OTHERS (1968) GLR 123 REPUBLIC VS. HIGH COURT (LAND DIVISION) ACCRA, EX-PARTE KENNEDY OHENE AGYAPONG (2020) 170 GMJ 1 SC Page 10 of 22 CLASSIFICATION OF THE LAW OF CONTEMPT The law on contempt as found in the constitution and in Statutory provisions and Rules aforementioned have not been classified. However, textbook writers and case law have over the years provided the Courts with some classification which have aided in the determination of contempt cases. The renowned S.A Brobbey JSC (Retired) in his book “THE LAW OF CHIEFTANCY IN GHANA” incorporating, inter alia Contempt of Court, has stated at page 461 the different types of accepted classification as “direct and indirect” on one hand and “civil and criminal” on another. This classification is supported by cases such as THE REPUBLIC VS. NUMAPAU, PRESIDENT OF THE NATOINAL HOUSE OF CHIEFS, EX-PARTE: AMEYAW 11 (NO.2) (1998-1999) SCGLR 639 which espoused the classification as follows: Contempt of Court might be classified either as direct or indirect or civil and criminal. Direct contempt were those committed in the immediate view and presence of the Court (such as insulting language or acts of violence) or so near the presence of the Court as to obstruct or interrupt the due and orderly course of proceedings. Indirect or constrictive contempt were those arising from matter’s occurring in or near the presence of the Court which tends to obstruct or defeat the administration of justice, such as failure or refusal of a party to obey a lawful order, injunction or decree of the Court laying upon him a duty of action or forbearance. Civil contempt’s were these quasi contempt’s consisting in failure to do something which the party was ordered by the Court to do for the benefit or advantage of another party to pending proceedings, while criminal contempt’s were acts done in respect of the Court or its processes or which obstructed the administration of justice or tended to bring the Court into disrespect.” Page 11 of 22 See also the case of THE REPUBLIC VS. GEORGE ODIASE & 5 ORS, EX-PATE: GLORIE OSAFO AGYEMANG–DUAH AND ANOR DATED 26TH JULY 2019, DR. RICHMOND OSEI-HWERE, HC In the case of THE REPUBLIC VS. THE MANAGING DIRECTOR, STATE HOUSING CO. LTD., EX-PARTE: MRS. M.Y. N ACHIAMPONG (2018) JELR 65309 CA, the Court of Appeal confirmed that: “a civil contempt, consists in the refusal of a party to do something which it is ordered to do for the benefit or advantage of the opposite party, and the punishment is intended to satisfy the party whose interest has been injured.” See also THE REPUBLIC VS. OPANIN F.O. OSEI AND OTHERS, EX-PARTE: ABUSUAPANIN SAMUEL ODOI & OTHERS (2017) JELR 655901, CA THE ELEMENTS OF CONTEMPT Upon reliance on the 1992 Constitution, Statutory provisions and Rules on contempt, the Courts have developed the elements or ingredients of contempt for an Applicant to fulfil in the case of an alleged disobedience or disrespect to a Court order or decision. In the case popular case of THE REPUBLIC VS. SITO 1, EX-PARTE: FORDJOUR (2001-2022) 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. Page 12 of 22 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. BURDEN OF PROOF The burden of proof in the sense of the burden of establishing the guilt of a Respondent is always on the Applicant. To obtain a Committal Order for Contempt, the Applicant must strictly prove beyond reasonable doubt that the Respondent had willfully disobeyed and/or violated the Court’s Order and/or the conduct of the Respondent tends to bring the authority and the administration of the law into disrepute. In the absence of such evidence, the Respondent cannot be guilty of Contempt of Court. See REPUBLIC VS. S.K. BOATENG & ORS, EX-PARTE: AGYENIM BOATENG & ORS (2009) 25 MLRG 34; (2009) SCGLR 154 AGBLETA VS. THE REPUBLIC (1977) 1 GLR 445 C.A In the Evidence Act, 1975 (NRCD 323), Section 15 (1), the same principle is put thus: “unless and until it is shifted, the party claiming that a person is guilty of a crime or wrongdoing has the burden of persuasion on that issue.” STANDARD OF PROOF The Standard of Proof required in the case of a quasi-criminal case like Contempt is proof beyond reasonable doubt and has been amply stated in Section 13 (1) of the Evidence Act, 1975 (NRCD 323) as follows: “in any 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.” Page 13 of 22 Thus a quasi-criminal case cannot be proved on a balance of probabilities. On the Standard of Proof required to ground Contempt of Court, it was held in the REPUBLIC VS. S.K. BOATENG & ORS, EX-PARTE AGYENIM BOATENG & ORS (2009) 25 MLRG 34 @ 39 as follows: “Since Contempt of Court was 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 considers the defenses put upon by the Respondents.” The principle was also stated by the Supreme Court in the case of AKELE VS. COFFIE & ANOR (CONSOLIDATED) (1979) GLR 84-90 as follows: “…in order to establish contempt of Court even when it was not criminal contempt but civil contempt, there must be proof beyond reasonable doubt that a contempt of Court had indeed been committed…” THE ANALYSIS BY THE COURT I have carefully read the application and its annexures as well the affidavit in opposition also with its various annexures. Consideration has also been given to both the viva voce and written submissions of both counsel. It is evident so far that as the counsel for the Applicant has stated in his submission, the sole issue of the Court to determine is whether by the continuous building on the subject matter of the undetermined Court litigation, (and I choose to add) in the absence of any injunction, the Respondents have committed contempt. From this issue it is obvious that there is no pending Court order. This therefore does not put this application in the arena of civil contempt and the consequential effect is that the traditional elements to be established in a civil contempt as stated above will not be applicable. Page 14 of 22 As is evident, this does not warrant a termination of the power of this Court in seeking to determine the culpability of the Respondents in a criminal contempt action or not. It will rather put this case in the realm of criminal contempt. This is because as has been stated severally in this decision, contempt can also lie against a party to an action who, knowing the case is before a Court or judicial body, nevertheless engages in acts or omissions that tends to prejudice or interfere in the eventual outcome of the determination of the case. In the case THE REPUBLIC VS. JEHU APPPIAH AND ORS EX-PARTE: FORSON (1981) GLR 398 HOLDING 1 as follows: “the test for contempt was not confined to cases where the conduct of the Respondent did prevent the Court from enquiring into specific matters raised in the pleadings in the suit before it. It was still contempt even when the Court could go into the matter but the end product of the exercise of that jurisdiction would be marred by some act of interference done during the pendency of the action…” This explanation of contempt provided by this case would seem like the kind that could capture the Respondent in his case, however, there could be more variations to the issue. It is based on this that I would state that it is not entirely accurate for counsel for the Respondents to state as he did so generally, that at page 9, paragraph 2.32 of his written submission as follows: “in Ghana, the building of a structure on a land during the pendency of an action has not been held to amount to contempt in the absence of an order of interlocutory injunction.” Meanwhile, this application cannot be determined without reference to the all popular “Super structure” (as counsel for the Respondent puts it), upon which this application is built. That is the case of THE REPUBLIC VS. BANK OF GHANA AND ORS, EX- PARTE DUFFOUR (2018) by the Supreme Court on contempt. Page 15 of 22 As both sides have given their different versions of the facts as well as the ratio of this case, I will choose to give some brief on the facts as stated by the Supreme Court as well. In this case, the facts are that, the Applicant, Mr. Benjamin Duffour was a senior staff of the Bank of Ghana and by his employment had been allocated an apartment by the Bank. That the Bank in 2011 wrote to all it staff occupying its bungalows and apartments to vacate their places to be relocated new places of residence, since the Bank needed to redevelop the facilities for other purposes. The facts indicate that unlike the other occupants of the said premises, Mr. Duffour failed to vacate his premises on the basis that he had a right to live on the premises as a valid licensee of the Bank. The Bank therefore frustrated by the actions of Mr. Duffour not to vacate, took steps to eject him, asking the Court to declare the continuous stay of Mr. Duffour on the premises as a trespass. The Bank in addition applied for an Order of Ejection amongst others. With that action pending, he brought an action against the Bank to prevent his eviction and in addition, he brought a further action by way of injunction to prevent the Bank from ejecting him until the final determination of the case. Mr. Duffour also applied for another injunction to prevent the Bank from proceeding against him with any disciplinary proceedings during the pendency of the suit. The trial Court failed to grant the application against his eviction from the premises of the Bank but granted the other injunction to prevent any disciplinary action taken against him during the pendency of the suit. With the failure to grant an injunction against his eviction, the Bank proceeded to evict him from their premises and subsequently summarily dismissed him from their employment for “gross misconduct”. Not satisfied with the decisions and actions of the Bank, Mr. Duffour filed an application at the High Court, seeking to cite the Bank for Contempt for ejecting him and also seeking to be reinstated. The High Court failed to hold the Bank for Page 16 of 22 Contempt for his eviction (this is the relevant aspect of Contempt to this present application). Being still aggrieved, the Applicant further appealed to the Court of Appeal on both the Contempt application and the action for reinstatement. The Court of Appeal agreed with Mr. Duffour that the Bank was in Contempt by ejecting him when the case was pending and convicted the Bank’s officials for contempt but only cautioned and discharged them by way of punishment. The action praying for reinstatement was however dismissed. The case now went up to the Supreme Court when the Applicant, Mr. Duffour again appealed against the punishment of the Court of Appeal for the contempt application and the failure to reinstate him. The Bank also cross appealed the decision of the Court of Appeal on their conviction for contempt. The two issues raised before the Supreme Court were whether or not the Bank (the Respondent) by summarily dismissing the Appellant were in contempt of Court and whether or not the Respondent’s acts of evicting the Appellant from the apartment while an action was pending had committed contempt. This second issue is what is relevant for our purposes. The Apex Court in resolving the 2nd issue of forcible ejectment stated inter alia: “it is our considered opinion that the Court of Appeal got it wrong when it found the Respondents to be in contempt by taking steps to eject the Applicant. After all, the Applicant’s application to have the Court restrain the Respondents from ejecting him had been specifically refused. The Respondents in their statement of case aver that in the absence of an order of the Court restraining them from ejecting the Appellant and relocating him, they acted well within their right when they relocated the Appellant….” The Court had earlier said: “still on the contempt, the next issue to determine is whether the Respondents in ejecting the Appellant were in contempt of Court. In the instant case, there is no order Page 17 of 22 which prevents the Respondents from ejecting the Appellant from the apartment. In fact the Appellant’s application for interlocutory injunction to restrain the Respondents from ejecting him from the apartment was refused.” The Court went ahead and determined the rights of Mr. Duffour, the Applicant as a licensee in relation to his application for a perpetual injunction to restrain the Bank from ejecting him. The Apex Court determined that a license in land will not pass as an interest in land and subsequently held that there was no transfer property in land and decided that it was wrong for the Court of Appeal to found the Respondents for contempt for ejecting the Applicant. The Court said: “having been found in contempt for summarily dismissing the Applicant, the cross appeal fails…” The Supreme Court also made some pronouncements which must be juxtaposed with those made above and quoted supra, these are the following: “when a Court is seized with jurisdiction to hear a matter, nothing should be done to usurp the judicial power that has been vested in the Court by the Constitution of Ghana. In effect the state of affairs before the Court was seized with the matter must be preserved until the Court gives its judgment. This is so whether or not the Court has granted an order to preserve the status quo or not.” This quote aptly states the case of the Applicant. It was also stated: “The Respondents in their statement of case have said that not a single one of the Respondents have engaged in any acts which have the effect of bringing the administration of justice into disrepute and or scandalizing the Court. They further state that for an act to constitute contempt it has to be a willful disobedience of an order of a Court. True as their contention may be, we believe the Respondents miss a very Page 18 of 22 important aspect of contempt of Court, the fail to consider the fact that contempt of Court may arise when a party knowing that case is sub judice engages in an act or omission which tends to prejudice or interfere with the fair trial despite the absence of an order of a Court’’ On the other issue before the Court on the contempt committed by the Bank, the Supreme Court explained the contemptuous action of the Bank inter alia: “the Court of appeal was of the view that the acts of the Respondents’ in dismissing the Appellant without placing him before the disciplinary committee was to make a mockery of the proceedings of the Court and the order emanating from the said proceedings. The Court therefore held that the Respondents had willfully disobeyed the Court order and were therefore in contempt. We think that this conclusion by the Court of appeal is correct.” Reading and juxtaposing the two (2) different sides of the statements referred to above in relation to the issue on eviction, the decision of the Court may seem confusing. The question is, if the Apex Court has stated that even in the absence of a Court Order contempt may still arise (that if a person knowing a case is sub judice still engages in acts that tend to prejudice or interfere with the fair trial of the case), then does it matter in the same case if an earlier application to prevent a party from doing the very act had been specifically refused? It is my considered opinion that it does matter. A distinction has been made between a general rule and an exception. It is a trial Court that is seized with all the facts and is confronted with all the circumstances of a case and will determine the final outcome of a case. It is also the same trial Court that has the discretion and prerogative to determine at 1st instance an interlocutory application brought before it. If the trial proceeds “ordinally”, for want of a better word, with no applications brought to restrain any action of a party on Page 19 of 22 any aspect of the subject matter of the suit then, it is my considered opinion, that the general rule will apply, to allow the status quo to remain. The general rule being for to all the parties not to do any act that will interfere or prejudice the final outcome of the case. However, if in the course of a trial, a specific application is brought before the Court by a party in relation to a specific act of another party that is deemed to have an effect on any aspect of the case especially on the subject matter, to restrain the performance of such act, and the trial Court in its wisdom does not deem it fit to prevent such acts, and refuses same, it becomes unreasonable, absurd and unfair for another Court not exercising either an Appellate or Review jurisdiction to punish the other party for apparent contempt for doing acts which a trial Court has failed to restrain him from doing. It will be confusing and ambiguous for the parties in such a case as to which of the Court’s orders they must respect and obey, the trial Court’s or the one with the powers of contempt?. Again it will mean another Court, indirectly controlling the proceedings of the ongoing trial Court. That in my opinion, is the import of the decision of the Supreme Court in the case cited above. Counsel for the Respondents’ assertion that the facts and decision in the Ex- Parte Duffour’s case is distinct from this case and that in that case the injunction was granted whilst in this case it was not, is not entirely accurate. This is because in that case as I have carefully reproduced, there were two decisions on contempt to be resolved at the Supreme Court. One was the decision of the wrongful eviction and other on the dismissal for gross misconduct and application for reinstatement. The decision of the trial High Court not to restrain the Bank from ejecting Mr. Duffour was upheld both by the Court of Appeal and the Supreme Court, so that contempt did not lie against the Bank for his wrongful eviction. On the other hand, the Bank was held for contempt for having dismissed the Page 20 of 22 Applicant, whilst the case was pending. Counsel therefore gave only one side of the case and left the other. Similarly, in this case as in the Duffour case, though a person can be punished for contempt even in the absence of an Order of a Court, however when there has been a specific refusal of trial Court to restrain the Respondents from doing the very acts they are said to be in contempt of, it is difficult for this Court to find the actions of the Respondents contemptuous. In addition, it becomes more difficult as an appeal against the said ruling of the trial Court has also not been successful. As I have stated already, I have not been provided with the judgment of the Appellate Court as the reasons for the failure of the appeal, but however I consider it, is apparent that both the appeal and a certiorari application earlier filed against the decision not to restrain the Respondents have both failed and there must be good reason for those decisions. There is therefore an indication by the trial Court itself as stated by counsel for the Respondents that the Court would not have refused to restrain the Respondents from building if the continued building will interfere with or prejudice the fair and eventual outcome of that pending action. I do share in the frustrations of the Applicant as the case progresses and the Respondents continue their building but meanwhile, the avenue for appeal have not been fully exhausted and the Applicant is at liberty to exhaust same. From the considerations made above, I conclude that the Applicant has not established beyond reasonable doubt, any willful and intentional act of the Respondents that constitutes contempt for which reason this Court must find them guilty. In the circumstances, the Respondents are acquitted and discharged. Cost of GHC5,000.00 is awarded in favor of the against the Respondents Page 21 of 22 JUSTICE MARIE-LOUISE SIMMONS (MRS) (JUSTICE OF THE HIGH COURT) COUNSEL: ANTHONY LARTEY FOR THE APPLICANT AURELIUS AWUKU WITH KWABENA NTRAKWA FOR THE RESPONDENT Page 22 of 22