THE REPUBLIC vs JUSTICE HAGAN & EXPARTE; KWADWO KANPORDIMA & SARAH KANPORDIMA.
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT
    ACCRA - A.D 2019
THE REPUBLIC - (Plaintiff)
JUSTICE HAGAN - (Respondent)
EXPARTE: KWADWO KANPORDIMA AND SARAH KANPORDIMA -(Applicants)

DATE:  11TH APRIL, 2019
SUIT NO:  CR/568/2018
JUDGES:  HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO
LAWYERS:  AGYABENG G. AKRASI FOR THE APPLICANTS
ABENA DUMA AIDOO HOLD BRIEF SOMUAH ASAMOAH FOR THE RESPONDENT
DECISION

APPLICATION FOR COMMITTAL FOR CONTEMPT

i. Introduction:

[1]    The denial of liberty of any citizen of our Republic resulting from a charge of contempt is effected in accordance with the principles of fundamental justice. Even though there is no specific law on contempt in Ghana[1], the absence of codification of the law of contempt in Ghana does not in itself violate the principle that there must not be crime or punishment except in accordance with fixed or predetermined law. This is because the charge of contempt of court in Ghana rests in the concept of the public defiance that accompanies the charge of contempt. To establish contempt in Ghana the Applicant must prove beyond a reasonable doubt that the accused defied or disobeyed a court order, with intent, knowledge or recklessness as to the fact that the public disobedience will tend to depreciate the authority of the court.

 

[2]. As previously stated by this Court[2] ‘contempt of court is the big stick of civil litigation and because of the serious nature of a contempt finding, a finding should be made sparingly and only in the clearest cut of cases. A direct intention to disobey a Court order or an act to prejudice a pending application is required and it ought to be a willful disregard of the order or prejudice the outcome of a pending suit in the Court’[3].

 

[3] By a Motion on Notice filed at the registry of this court on October 2, 2018, the Applicant herein is praying the Court to use the “big stick” against the Respondents, “for an order to commit the Respondents herein for Contempt of this Honourable Court”.

 

 [4] Black’s Law Dictionary 8th Edition defines contempt as “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) also defines contempt of court as “the crime of refusing to obey an order made by a court; not showing respect for a court or judge.”

 

ii. So what constitutes contempt in Ghana?

[5] In R v SITO I; EX PARTE FORDJOUR (2001-2002) SCGLR 322 the Supreme Court gave the elements constituting the offence of contempt as that:-

a) there should have been a judgment or order which required the contemnor to do or abstain from doing something;

b) the contemnor knew what precisely he was expected to do or abstain from doing;         and

c) that he failed to comply with the terms of that judgment or the order and that his disobedience was willful.

 

[6] Also, in IN RE: EFFIDUASE STOOL AFFAIRS (No.2); EX PARTE AMEYAW II (1998-1999) SCGLR 639 at 660 Acquah JSC (as he then was)gave an apt summary of the definition of contempt. He said:

“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.”

 

[7] In a recent unreported decision of the Supreme Court titled THE REPUBLIC v. BANK OF GHANA & 5 OTHERS; EX PARTE BENJAMIN DUFFOUR Civil Appeal No. J4/34/2018 Delivered on June 6, 2018 the apex Court speaking through Baffoe-Bonnie, JSC stated that:

“A respondent to a contempt proceeding may be found guilty in many ways. The party may be found guilty of direct contempt or indirect contempt which may be proved depending on the facts of the case in several ways. The proof of direct contempt seem not to be as burdensome as proof of indirect contempt. In most cases direct contempt such as insulting the judge or a party to a proceeding, or committing acts of violence in court, the judge has the advantage of having a firsthand view of the act constituting contempt. The opposite can be said of indirect contempt where the Court will have to rely on the testimony of third parties to prove the offense of contempt”.

 

[8] His Lordship further stated after examining the standard of proof in a contempt proceeding that:

“Contempt many be committed intentionally or unintentionally. It is no defence to a charge of contempt for a party to prove he did not intend to commit contempt of Court. In Republic v Moffat; Ex parte Allotey [1971] 2 GLR 391, it was held that it was no defence for a party facing attachment for contempt to swear to an affidavit deposing that he did not intend to commit contempt of court. Intentional contempt may arise in two ways:

·         Where a party willfully disobeys an order or judgment of a court, and

·         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”

 

[9] By definition and based on the principles articulated in the cases above, a person commits contempt of court if he has willfully and/or intentionally disobeyed an order of Court requiring him   to do an act other than the payment of money or to abstain from doing some act. See also the Supreme Court case of REPUBLIC v. BOATENG & ODURO; EX PARTE AGYENIM-BOATENG & OTHERS [2009] SCGLR 154.

 

[10] But to hold a party liable in contempt, the rule is that the order sought to be enforced should be unambiguous and the party must be aware of the order and must be clearly understood by the party concerned. See R v. HIGH COURT ACCRA, EX PARTE LARYEA MENSAH (1998-99) SCGLR 360

 

[11] In sum, therefore, any act or omission done to prejudice the fair trial or outcome of a case, or likely to bring the administration of justice into disrepute or interfere with any pending litigation and or to scandalize a court even after the trial of a case is contemptuous of the court. Also, wilfulness is required in the sense that the conduct alleged to be contemptuous must be deliberate and not accidental. Contempt of court therefore serves the primary function of protecting the sanctity and integrity of the court and court proceedings and it also serves to sustain the rule of law, a check on conduct that potentially renders civilized society vulnerable to the dynamics of a Hobbesian state of anarchy and chaos. I take the liberty to add that the feature of contempt does not serve the ends of judicial aggrandizement. Rather, it is a safeguard to ensure that might is not right. Without contempt as a Sword of Damocles, bullies in our society will run roughshod over the marginalised.

 

 iii. Background & Affidavit Evidence of the Application:

[12] By a Motion on Notice filed in this court on 30/07/2018 by the Applicants they pray for “an order committing Respondent, JUSTICE HAGAN for contempt of court and punishing him by imprisonment”. Before outlining the issues raised in the instant contempt application, it is appropriate to provide the background of the case.

 

[13] The Applicants accuse the Respondent of committing perjury and also disrespecting the order of this Court. As per the affidavit in support attached to the application the Applicants story is as follows:

 

]14] According to Ernestina Appiah, who is the Lawful Attorney of the Applicants, this Court differently constituted on 14th August 2014, court granted an order of interlocutory injunction against the Defendant in the suit titled Kwadwo Kanpordima & Another v. Felix Edward Arthur (Suit Number FAL/672/2014) and service of the order was effected on the Defendant on 19th September 2014. She attached Exhibits A3 and A4 to support the deposition. Madam Appiah further deposed that “the trial High Court struck out the Suit in November, 2017 for want of prosecution” and she attached Exhibit A5, an official search result conducted by the Applicant’s Counsel herein.

 

[15] The further case of the Applicants is that on February 2, 2018, a motion on notice for relistment was filed and same was granted by the court and thus the matter was restored to the Court’s list on April 10, 2018. Exhibit A6, being another search report was attached to confirm the relistment.

 

[16] The Applicants’ Lawful Attorney further deposed that “per the advice by Counsel, notwithstanding the history of the suit, massive encroachment was observed as taking place on the subject matter land. That Plaintiff suspected none other than Defendant in the named High Court suit as the one responsible for the disrespectful conduct towards the court. That on 29/03/18 therefore, a motion on notice for committal and contempt was filed against the aforesaid Defendant (please see Exhibit B and B1)”

 

[17] According to the Deponent, the Defendant in the substantive High Court suit could not be found for personal service of the contempt application to be made on him, and therefore an ex-parte motion for substituted service was filed for consideration by the court. She attached as Exhibits B2 and B3 to confirm the application.

 

[18] Further, the Applicants’ Attorney deposed that “before the court could be moved in respect of Exhibit B2 however, the Respondent herein, on 9/05/18 filed a motion on notice for an order that he be joined to the substantive suit No. FAL/672/14 aforesaid “as a Defendant” (Exhibit B4 and B5)”.  The Applicants contend that “the Respondent perjured in the affidavit in support for joinder by making false depositions in paragraph 3, 4, 5, 6 and 7 of the affidavit in support, per the advice by counsel. That for example, although the Moree family of Ashiyie has sold out the subject matter land to Applicants who were in possession thereof and had further had t heir lawful title to the property duly plotted by the Survey and Mapping Division of the Lands Commission in their names. Respondent falsely alleged in paragraph 5 of Exhibit B5 that he had had the land regularised by the grantor family for his benefit without providing my documentary evidence (Exhibit B6 and B7)”

 

[19] The deponent has further stated that “the Applicants are advised by counsel that the Respondent is further exposed by his false claim in paragraph 5 of his affidavit in support that he has a “dwelling house on the said plot of land and occupy same with family since the year 2012” (Please  see Exhibits B8, B9 and B10) being picture of the land taken on 16/01/18 and 5/02/18) That the Respondent is rather busily developing the subject matter in utmost contempt of the court, per the advice by Counsel (Exhibit B11 to B14). That the Applicant are advised that the Respondent’s Conduct amounts to willful disobedience of court order i.e. Exhibit A2 and interference with the administration of justice since he has admitted under oath in paragraph 3 of Exhibit B5 that “he got to know of the instant suit”

 

[20] It is also deposed that “per the further advice by counsel, the Respondent has for all intents and purposes abandoned his application for joinder which he has shown no interest therein, but is rather contemptuously determined to stealing the match against Applicants (Exhibit B15 and B16). That Applicant are advised that the only way to instil in the Respondent any respect for the administration of justice in the country is for the court to commit him for contempt and to imprison him to maintain the blaze of glory surrounding the court”.

 

[21] The Applicants further contend through Counsel’s submission that the combined effect of paragraphs 3 and 6 of Exhibit B5 is that, the Respondent had notice that the High Court was seised with jurisdiction to make a determination of the dispute of which he sought to join. According to learned Counsel, “the Applicant had an obligation to the Court not to do anything in relation to the subject matter to spite its authority and dignity to exercise its judicial function. He did not restrain himself and thus became liable to be cited for contempt of court”.

 

[22] Relying on the writing of the learned jurist, Mr. Justice S.A. Brobbey a retired justice of the Supreme Court in his book “The Law of Chieftaincy in Ghana” at page 481 Counsel quoted Justice Brobbey as follows “Whichever way one considers it, the established rule is that after a court case has been filed, any action, omission or conduct that is likely to prejudice the fair trial of the case or interfere with the due administration of justice will be tantamount to contempt of court. A number of cases have been decided by the superior courts which clearly demonstrate this well settled  principle…”. According to Mr. Agyabeng Akrasi the conduct of the respondent must be measured against the firm state of the law, in determining whether or not he is in contempt of the Court. In the opinion of Counsel the Respondent is “squarely caught by the law”.

 

[23] According to Counsel by the Respondent’s own deposition that he got to know of the instant suit when the Applicants’ substituted service application was posted on his property on March 17, 2018. To that extent it is the submission of Counsel that having become aware of the suit the Respondent had no authority to “engage in the unlawful contemptuous activities on  the  subject matter land”. Counsel further submitted that the Respondent is estopped by his own statement or conduct to justify his action because in the affidavit sworn to support the joinder application he conceded that he was aware of the pending suit. Counsel stated that the Respondent is estopped by  his conduct not to say he has notice of the suit. He relied on the statement of Dotse JSC in OBENG v. ASSEMBLIES OF GOD [2010] SCGLR 300 to support the argument.

 

[24] The Applicants’ counsel further submitted that the Respondent even perjured himself by paragraphs 4 and 5 of his affidavit in support of motion for joinder. The said depositions are to the effect that he purchased the land in 2009 and has occupied the land with his family since 2012. According to Counsel the statement that the Respondent has occupied the land with his family “is utterly false, hoax and perjurious”. Counsel says the said claim of occupation and possession with family is exposed by the photographs attached as Exhibits B8 to B14 some of which were taken in January 2018.

 

[25] According to learned Counsel, the conduct of the Respondent “has the effect of interfering with the pending suit, including the application for relistment which has been served on him”. The other submissions of learned Counsel including the case law cited are contained in his written submission filed March 15, 2019. Based on all of the above learned Counsel submitted that the Respondent’s actions are contumacious and prayed the Court to commit him for contempt of court.

 

[26] However, in a 20 paragraph affidavit in opposition sworn to by the Respondent he contends that he has done nothing wrong to warrant his committal for contempt. According to him the deponent of the affidavit has not demonstrated that she has capacity to bring this application. The Respondent denied knowledge of the depositions in paragraph 1 to 6 of the affidavit in support of the application. He also denied paragraph 7 of the affidavit in opposition and in answer stated that “I cannot encroach on my own land which I lawfully acquired from the rightful owners”.

 

[27] The Respondent further denied the Applicants’ paragraphs 8, 9, 10 and 11 of the affidavit in support and said “I was not part of the suit as at the time the said committal and contempt application was filed. That in further response to the said paragraphs it was when the applicant posted the said application on my building that I made an application to the court to join the suit on the 9th day of May, 2018. That in further response to the above said joinder application was granted to me on the 23rd day of October, 2018 and I served the order through my lawyers on the Applicant on the 1st day of November, 2018. Attached and marked as Exhibit JH1 is a copy of the said service.

 

[28] The Respondent further deposed that “unfortunately the Applicant on the 8th of November, 2018 served on me a writ of summons without a statement of claim. Attached and marked as Exhibit JH2 is a copy of the said process. That I deny paragraphs 12 to 15 of the affidavit in support and say that all that I deposed to in my application for joinder in that suit were the truth. That in further response I am advised by Counsel and verily believe same to be true that the applicant filed no affidavit in opposition to my application for joinder and Counsel for Applicant, on the day of the hearing of same told the court they had no opposition to same. Attached and marked as Exhibit JH3 is a copy of the notes of the court dated 23rd October, 2018 when the order was made. The Respondent has further deposed that “I am further advised by Counsel and verily believe same to be true the Applicants, having conducted themselves in the manner described in paragraph 10 above it is abysmally ill-conceived and misleading for them to make cases of perjury against me in the instant application”.

 

[29] The Respondent has further deposed that “I am advised by Counsel and verily believe same to be true that, to further demonstrate that this application is ill-conceived, malicious and is brought in bad faith, on the 7th day of November, 2018 when the Applicants obtained an order of substituted service from this court to served notice of the instant application on me, I was already a known party to Suit No. FAL/672/14 as at the 23rd day of October, 2018 and the building on which the processes were posted is where I have lived at all material times with my family. That I moved in with my    family when the building was uncompleted and we have been in our own small  way  making  additions to same with the hope that one day we will be able to fully complete same. Attached and marked as Exhibit JH4, 4a, 4b, 4c and 4d are copies of photos on my building”.

 

[30] The other depositions of the Respondent including allegations of fraud against the Applicants and searches conducted at the Lands Commission and the circumstances of the Respondent’s answers and defence are well deposed in paragraphs 15 to 20 of the affidavit together with the attached Exhibits HJ5 to JH8 of the affidavit in opposition to the application. Based on the affidavit filed, the Respondent has prayed the Court to dismiss the application.

 

[31] Responding to the application, learned Counsel for the Respondent in his written submission first indicated that he wishes to abandon the issue of preliminary objection which the Respondent indicated in his affidavit that he would raise. Counsel stated that he is opposed to the application. Counsel then rehashed the facts as contained in the Applicant’s affidavit in support of the application with the exhibits and then submitted that based on the facts as per the affidavit evidence the Applicants’ case is that their suit was relisted and therefore the writ of summons and the earlier order of injunction were both restored. It is that order in the opinion of Counsel that the Applicants say the Respondent has willfully disobeyed.

 

[32] Counsel referred to Order 43 Rule 5 (1)(a)(b) and (cc) of C.I. 47 to submit that because the Respondent was not a party to the suit when the order of injunction was granted, the Applicants should have complied with the above enforcement of judgment/ order as contained in the Rules of Procedure. This is because according to Counsel Exhibit A3 is directed at Edward Felix Arthur and not the Respondent herein. Counsel further submitted that Exhibit B” which is also a motion on notice of committal for contempt was made against the said Edward Arthur and not the Respondent herein. Relying on such cases as EX PARTE AMEYAW II and EX PARTE FORDJOUR SUPRA Learned Counsel submitted that there is nothing on record to demonstrate that the Respondent knew there was a pending injunction order against the land in issue. Also Counsel submitted that there is   no evidence that the Respondent has failed to comply with the terms of any order and that he did so willfully to warrant his committal.

 

[33] According to Counsel, the Respondent is yet to be served with the Plaintiffs writ of summons and statement of claim in the suit he was recently joined. Counsel reiterated the Respondent’s deposition that he completed the construction of his house in 2012 and has since occupied same with his family. He denied that the Respondent recently constructed a building on the land in issue. Based on all of the submissions above, Counsel submitted that the Applicants have woefully failed to prove beyond reasonable doubt the Respondent’s guilt and therefore the application should be dismissed.

 

iv. Opinion of the Court & Analysis:

[34] Undoubtedly, this case is in a very narrow compass. The issue turns on:

i) whether the Applicants have met their onus to be successful ;

 

[35] It is roundly agreed upon by the authorities that contempt of court being quasi-criminal, the standard of proof required is proof beyond reasonable doubt. See EX PARTE LARYEA MENSAH SUPRA.

 

[36] The concept of proof beyond reasonable doubt is not an easy one to define because it is clearly more rigorous than the balance of probabilities standard applied generally in civil cases. The balance of probabilities requires a party who bears the onus to establish that the proposition he or she advances is “more likely than not”. In other words it is more probable or likely or better than 50/50 scenario.

 

[37] I wish to state that my statement above that because this is a quasi-criminal matter “the standard of proof is one beyond reasonable doubt” and more rigorous does not mean that it cannot be met. Indeed in my respectful opinion when the law speaks of reasonable doubt it is not a fanciful doubt. To paraphrase the Supreme Court of Canada in a case called R. v. VILLAROMAN, [2016] 1  SCR 1000, 2016 SCC 33 (CanLII) at p. 1023, “A reasonable doubt is a doubt based on ‘reason and common sense’; it is not ‘imaginary or frivolous’; it ‘does not involve proof to an absolute certainty’; and it is ‘logically connected to the evidence or absence of evidence’ (see also R. v. LIFCHUS, [1997] 3 SCR 320, 1997 CanLII 319 (SCC). In other words, the reasonable doubt threshold does not require a fantastical suspension of disbelief. It is a doubt that logically arises from the evidence, or the lack of evidence based on common sense and reason.

 

[38] The presumption of innocence along with the standard of proof beyond reasonable doubt required in a charge of contempt are important safeguards to ensure that no person should be deprived of his liberty or found guilty of the charge of contempt based on wrong or unproven facts in   a free and democratic society.

 

[39] Osei Hwere J. (as he then was) in the case of R v. BEKOE & ORS; EX PARTE ADJEI (1982-83) 1 GLR 91 opined after considering the nature of contempt and the policy rationale for the strict proof of same that because civil contempt conviction might entail imprisonment, the principle of law was quite clear that where a person is charged with contempt of court, his guilt should be proved with the same strictness as required in a criminal trial of proof beyond reasonable doubt.

 

[40] I understand the Applicants case to be grounded on two main pillars. First that further to the relistment of the suit together with the earlier application for interlocutory injunction, the Respondent has disobeyed the order by undertaking massive construction on the land. Second, that though the Respondent has conceded that he is aware of the pending matter, he has nevertheless undertaken construction on the land whilst the matter is pending. To the Applicants the Respondent’s action is prejudicial to the pending suit hence contemptuous.

 

[41] Now, dealing with the issue set out above, it is significant to note that the Respondent was not  a party to the suit when Exhibit A3, the order for interlocutory injunction was made by the Court. The question is does the fact that he was not a party to the suit mean he cannot be found guilty for contempt of Court? To my mind the simple answer is he can based on the law. This is because even though an order of a Court ordinarily binds the parties to the action, a third party can be found guilty of contempt, if with knowledge of the order, he aids or abets a party in breaking the order, or in other ways do anything that obstructs or frustrates the said Order. See the case of IN SEAWARD V PATERSON [1897] 1 Ch 545.

 

[42] In that case an injunction was granted against Mr. Paterson alone but he violated the order with other persons who were not parties to the suit. Paterson and the non-parties were all convicted   of contempt. See also the local cases of INTERIM EXECUTIVE COMMITTEE OF APOSTOLIC DIVINE CHURCH OF GHANA v. INTERIM EXECUTIVE COUNCIL AND OTHERS (No.2) [1984- 86] 2 GLR 181 Holdings 2 and 3.

 

[43] In this case it is my respectful opinion that because the Respondent was not a party to the suit, the law requires that he be made aware of the order and the consequences for disobeying same. That is the law and it is expressed in imperative terms per Order 43 of C.I. 47. What it means is that the Applicants should have served Mr. Hagan with a copy of the Order for Interlocutory Injunction together with a penal notice.

 

[44] The High Court Civil Procedure Rules, 2004 CI 47 by Order 43 entitled Enforcement of Judgments and Orders by Rules 5 and 7 provide as follows:

Enforcement of judgment to do or abstain from doing an act

5. (1) Where

(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

(cc) an order of committal against that person or, where that person is a body corporate, against any director or other officer.

 

Service of copy of judgment before enforcement under rule 5

7. (1) In this rule references to an order shall be construed as including references to a judgment.

(3) Subject as stated, an order requiring a body corporate to do or abstain from doing an act shall not be enforced as provided in rule 5 sub-rule (1) paragraph (bb) or (cc) unless

(a) a copy of the order has also been served personally on the officer against whose property leave is sought to issue a writ of sequestration or against whom an order of  committal is sought;

 

[45] In the instant case all that the Applicants through their Counsel are saying is that the “combined effect of paragraph 3 and 6 in exhibit B5 is that, the Respondent had notice”, that is the Applicants rely on the Respondent’s affidavit in support of the application for joinder as the basis for his knowledge. With the greatest respect and with due deference to Counsel that is not the law. A conviction for contempt of Court cannot be based on such an inference, conjecture and speculation. Also, the process of drawing inferences from evidence is not the same as speculating even where the circumstances permit an educated guess. To my mind, it is also important to point out that supposition or conjecture is no substitute for evidence and cannot be relied upon as the basis for a reasonably drawn inference in this case. A reasonably drawn inference requires an evidentiary foundation which in this case is lacking.

 

[46] The Applicants were required by law to serve on the Respondent a copy of the order for injunction and a notice informing him that if he disobeyed the order he shall be liable to the process of execution. It is reiterated that the combined effect of Order 43 rules 5 and 7 of CI. 47 is that for the order or judgment upon which the application for committal was brought to be enforced, the Respondent ought to have been served with a copy of the order or judgment indorsed with what is called the penal notice. It is noted that the indorsement of the penal notice is a necessary precondition for the enforcement of an order by way of committal before the Court’s jurisdiction to enforce is invoked. The procedure rules uses “shall”, and therefore it is trite learning that it is imperative and not optional. Because there is no evidence of the Applicants complying with the law, the application fails on that ground.

 

[47] On the next leg of the application the Applicants again accuse the Respondent of undermining the authority of the Court by engaging in construction after he became aware of the law suit on or about March 17, 2018. Again, in the Court’s respectful opinion the Applicants fell short of what is required of them. While I accept the evidence of the Applicants including the photographs as a fact; I note that the Respondent in his affidavit in opposition has positively averred that he has not engaged in any construction on the land. According to him he has been on the land since 2012. He also said the postings made by the Applicants were posted on his dwelling house and not on a building under construction. As to whether or not the depositions are true I have no means of verifying. Clearly, the Respondent by that positive averment has not only raised a doubt but has denied the Applicants’ averment. But what did the Applicants do? Nothing! Rather Counsel in his written submission attempted to respond. Again, with respect Counsel’s submission is not evidence.

 

[48] As the Supreme Court per Anin Yeboah JSC stated in the case of BOAMAH & ANSAH SIKATUO v. AMPONSAH [2012] 1 SCGLR 58 @ page 63-64 in a case where the affidavit evidence presented rival depositions and there were two equally possible situations, the apex Court stated “The Court must be satisfied beyond all reasonable doubt that they had done so based solely on  the affidavit evidence. There is no room for conjecture and evidence is required to be placed before the Court to enable it come to a decision on the matter. By evidence, we mean proof beyond reasonable doubt. We would add that it was not enough for the purposes of the application for contempt of court with which we are concerned in instant application, to have left the serious depositions of fact at   large, as it was not possible to say which of the two versions of the matter was correct. In the absence of further evidence”.

 

[49] To my mind, because the Respondent has denied the allegation that he is the one constructing on the land the Applicants have the onus to prove the truth of their allegation that it is the  Respondent undertaking the construction on the land. That is what the Supreme Court called “further evidence”. For instance, the Applicant could have sought the Court’s leave to cross-examine the Respondent on the depositions and/or obtained a supplementary affidavit to rebut the Respondent’s deposition but failed to do so. I cannot accept the Applicants’ version as correct in the face of the Respondent’s denial. Without further explanation from the Applicants in rebuttal to the denial the Court is left to make a finding as to which affidavit it prefers and is correct. All that in my opinion raises doubt as to whether the Respondent’s guilt is established beyond a reasonable doubt. The effect therefore is that the Applicants have failed to prove the charge of Contempt beyond the reasonable doubt.

 

v. Conclusion & Disposition:

[50] Based on all of the evidence before me therefore, I can only come to one conclusion and it is that the Applicants have failed to meet the evidential burden on them. Consequently, the Application for Contempt is DISMISSED. In the result, I ACQUIT and DISCHARGE ALL the RESPONDENTS on the charge of Contempt of Court.

Cost of GH¢2,000 awarded to the Respondent.