[2] The power of the High Court to punish for contempt is provided in Articles 19(12) and 126 of the 1992 Republican Constitution of Ghana, and re-enacted in S 36 of the Courts Act, 1993 (Act  459)  as amended; S10 of the Criminal Offences Act, 1960 (Act 29) and Order 50 of the High Court (Civil Procedure) Rules, 2004 (CI 47). Order 50 of CI 47 sets the parameters by which an Applicant may move the court for an order for an attachment for contempt of court.

[3] There is no codified legislation in Ghana that defines the act or omission that constitute the offence of contempt unlike the United Kingdom Contempt of Court Act [1]. Ghanaian courts therefore resort to case law to resolve any issue regarding contempt when confronted with one.

[4] A succinct and frequently quoted definition of contempt is found in R v SITO I; EX PARTE FORDJOUR [2], where the Supreme Court offered the following as constituting the offence of contempt:

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.

[5] Also, in IN RE: EFFIDUASE STOOL AFFAIRS (No.2); EX PARTE AMEYAW II (1998-1999) SCGLR 639 at 660 Justice Acquah (as he then was) offered the following definition of contempt. He opined that:

“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.”

[6] The most recent in the line of cases which deals with the definition of contempt of court in Ghana is the 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”.

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

“Contempt may 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”

[8] Conducts which constitute contempt have been judicially articulated by the apex Court in many cases. For instance in the case of Republic v. Mensa-Bonsu and Others; Ex Parte Attorney-General (1995-1996) 1 GLR 377 at 403 and cited in OPOKU v. LIBHERR FRANCE SAS [2012] 1 SCGLR 159 at 162 the Court stated:

“There are different forms of contempt. Underlying all of them, however, is one basic notion, that the roadways and highways of public justice should at all time be free from obstruction. Conduct which tends to create such obstruction constitutes contempt. …And any conduct complained of therefore must be viewed and assessed against the backdrop of this basic principle”.

The above statement of law in my respectful view ought to be the starting point in the assessment of any complaint that an individual has committed contempt.

[9] Generally and based on the law, 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 KANGAH v. KYERE (1979) GLR 458 and EX PARTE LARYEA MENSAH (1998-99) SCGLR 360. See also the Canadian case of BHATNAGER v. CANADA (MINISTER OF EMPLOYMENT AND IMMIGRATION), [1990] 2 SCR 217, 1990 which confirms a similar position in another Common Law jurisdiction.

[10] 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 or unintentional. 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 a Hobbesian state of anarchy and chaos.

ii. The Instant Application:

[11] By a Motion on Notice filed in this court on 31/12/2018 on behalf of the Applicant, the Applicant is “praying the Honourable Court to commit and sentence the Respondent to prison for contempt of the Court and to restrain him from interfering with peaceful possession of the Applicant upon grounds stated in the accompanying affidavit”. Before outlining the issues raised in the instant contempt application, it is appropriate to provide the background of the case.

iii. Background – Affidavit in Support & Against the Application:

[12] In the supporting Affidavit to the application the Applicant stated that he is the Lawful Attorney for the Okpong We family of Teshie with the powers to manage all Okpong We family     lands, portion of which is in dispute in this case. He attached as Exhibit “A”, a copy of the Power of Attorney. He further stated that his principals, being the Okpong We family are the owners of a     piece or parcel of land situate, lying and being at Dzornman in the Greater Accra Region of Ghana   and he gave the appropriate dimension to the land.

[13] The Applicant further deposed that the High Court presided by Yaw Appau JA (as he then  was ) sitting as an additional High Court Judge on the 25th day of March 2011 delivered judgment in Suit No. AL/25/2004 entitled: Al- Hassan v Lands Commission & 3 Others, in favour of his principal’s family. A copy of the judgment was attached as Exhibit “B”. He further stated that “my principals obtained orders for demolition and possession of their land from the High Court, Land Division, Accra. See Exhibit “C” and “C1”

[14] According to the Applicant with the assistance of the Greater Accra Regional Police Command of the Ghana Police, the Sheriffs of the Court were assisted in the execution of the judgment and he together with the Okpong We family were put into possession of the land. Attached Exhibits “D”,    “D1” and “D2”

[15] The Applicant further deposed that despite the fact his principals and himself were put in possession of the land by the Honourable Court with the assistance of the Ghana Police Service, Police personnel, particularly, “men from the East Legon Police Station have constantly been harassing me and my principals’ family members and have been interfering in our peaceful possession and development of our land”. According to the Applicant, “the Officers and men from the East Legon Police Station have prompted the prosecution of my principals, their grantees and myself by prosecuting us for entering our land based on our subsisting valid court judgment and ordered, see Exhibit “E”

[16] He further deposed that “I cited officers and men of the Respondent’s police station for contempt in Suit No. E12/97/2018 entitled - The Republic v Supt. Mr. Cephas Arthur & 3 others and were convicted for contempt and further restrained”. He attached as Exhibit “F”, a copy of the  Court’s ruling.

[17] The Applicant further deposed that the Respondent herein, who took over from Commander Cephas Arthur and his men have been served with all the processes including judgment and orders and all other relevant documents in respect of Suit No. AL/25/2004, which service on them has been proved by the bailiff of this court. Exhibit “G” was attached to support the contention. It is the case of the Applicant that despite the service of the processes and orders in Suit No. AL/25/2004 on Respondent and his men, he and his men have been going unto the land of the Applicant’s principals and have been giving protection to encroachers to develop the land and threatens to arrest the principal’s family members and their grantees from entering and developing of their land. Based on  all of the above deposition, the Applicant deposed that the conduct of the Respondent and his officers have interfered with the execution processes of the Court, and thus have undermined the authority of the Court and the smooth administration of justice. To that extent it is the case of the Applicant that the Respondent as the Commander’s conduct is contemptuous.

Affidavit in Opposition:

[18] In a 19 paragraph Affidavit in Opposition filed on February 5, 2019 the Respondent deposed that “I have been served with an application at the instance of the Applicant seeking a committal of contempt against me and I am vehemently opposed to it as same is frivolous, vexatious and a gross abuse of the court’s process calculated to embarrass the East Legon Police Command”. According to him, he assumed office as the Commander of the East Legon District on 15th October, 2018 and a few weeks after his assumption of office, his attention was brought to a pending contempt proceedings against his predecessor and three others at the High Court 2, Tema.

[19] DSP Asare further stated that “I wrote to the High Court 2, Tema to demand copies of the record of proceedings concerning the suit entitled: In the Matter of Application for contempt, Supt. Mr. Cephas Arthur, DSP. Abena Benewaa, D/Inspr. Daniel Adodo & D/Sgt. Prosper Ntumi vrs. Ibrahim Jajah where upon I received a copy of the ruling from the Honourable Court. Attached and marked as Exhibit GA & GA1 are copies of the said request letter and ruling of the High Court 2, Tema respectively”. He said that the suit number exhibited in Exhibits GA & GA1 is Suit E12/97/2018.

[20] It was further deposed that on 4th December 2018, “I was served with a notice of judgement plan of land covered by injunction in suit no. AL/25/2004 (attached to the notice was a site plan) which is supposed to be a judgment that Plaintiff has against a company known a A1-Hassan Ltd. over  certain lands in Dzornman. I was further served with an entry of judgment in respect of suit No. LD/1020/2018 entitled: In the Matter of Application for Contempt, Supt. Mr. Cephas Arthur, DSP. Abena Benewaa, D/Inspr. Daniel Adodo & D/Sgt. Prosper Ntumi vrs. Ibrahim Jajah. Attached and marked as Exhibit GA3 are copies of the said processes I received from the Court”. Further, according to the Respondent “the Applicant’s own Exhibit G attest to the fact that the only processes that were served on me were the entry of judgment in suit number LD/1020/2018 and a notice of judgment  plan of land covered by injunction in Suit No: Al/25/2004. That apart from the processes stated in my immediate preceding paragraph, I deny having received all the processes in respect of suit number AL/25/2004 as contained in paragraph 10 of the applicant’s affidavit in support”.

[21] DSP Asare said upon receipt of the processes stated above, he realized that the suit number in the contempt case was remarkably different from the one he received earlier from the court as they were Suit number E12/97/2018 and Suit number LD/1020/2018 respectively. He said he was baffled by the two contradictory suit numbers so he reached out to the Applicant and prevailed on him to assist him with his “court processes and other relevant documents including a copy of his purported Power of Attorney and the judgement which his judgment plan covers in suit number Al/25/2004”.

[22] According to the DSP he further informed the Applicant that since he was a lay person “it will be difficult for him to decipher from the judgment plan the extent to which the land reaches. Therefore, it will be prudent for us to get an expert to determine the boundaries of the judgment plan”. He said the Applicant refused his invitation and rather threatened to “deal with me”.

[23] DSP Asare further deposed at paragraph 16 of the affidavit that “since I assumed office, I have never been to any land within the said Dzornman area neither have I ordered any of my personnel to give protection to encroachers to develop any land nor threatened anyone with arrest as contained in paragraph 11 of the affidavit in support”. He therefore denied having acted in any manner that constitutes disrespect to this Honourable Court. He also stated that “I have not by any conduct imaginable conducted myself in any manner calculated to interfere with the administration of justice by any stretch of imagination”.

Supplementary Affidavits:

[24] Upon receipt of the Affidavit in Opposition, the Applicant filed a supplementary affidavit on March 13, 2019 and stated that “paragraph 16 of the affidavit in opposition is vehemently denied”.   The Applicant attached photographs he said were taken on the 7th day of March, 2019 to show “men from the East Legon Police Station, including, Major John Sovor, Osei Anthony and Evans Castro, aiding the encroachers to develop portions of the land covered by the orders of the Court.  See Exhibits “H”, “H1” and “H2”

[25] The Applicant further deposed that “the Respondent became aware of the judgment, orders and the execution processes in Suit No. AL/25/2004 as same was the subject matter of the orders in Exhibit “F”, which application the Respondent applied for its proceedings. See Exhibit “J”. According to the Applicant the Respondent is in breach of the Ruling/Orders of the Tema High Court dated the 15th day of November, 2018.

[26] Further, according to the Applicant, his workers on the land were also arrested by officers from the East Legon Police Station beaten and detained without statements taken from them. To the Applicant therefore, the supplementary affidavit in opposition is not a defence to the contempt acts of the Respondent and his men.

The Respondent’s Reply:

[27] The Respondent sought the Court’s leave to file a supplementary affidavit and duly filed same on March 4, 2019. The Respondent stated that further to the filing of the affidavit in opposition he had come across “some information which I want to draw the Honourable court’s attention to”.

[28] He stated that the Applicant stated in his affidavit in support that he is the Lawful Attorney for the Okpong We family of Teshie, the alleged owners of the disputed land and attached a Power of Attorney ostensibly made by a certain Enoch Francis Annan Tetteh who described himself as the head of the Okpong We family. The Respondent stated that “that I am advised and verily believe same to   be true that the Power of Attorney displayed as Exhibit A is defective”.

[28] DSP Asare further deposed that he has been “advised and verily believe same to be true that a head of family alone cannot purport to handover the power of alienation and management of a family land to a stranger without the consent and concurrence of the principal members of the family”. He also said his attention had been been drawn to a Daily Guide newspaper publication dated 23rd April 2018 which contains a Revocation of Power of Attorney given to the Applicant. He attached as Exhibit GA4 as a copy of the said publication.

[30] The Respondent further stated that “the announcement in the newspaper publication further stated that on 30th March 2011 the Applicant’s Principal, Enoch Francis AnnanTetteh, an elder of the Okpong We family was given a Power of Attorney by Nii Kofi Adjei the then head of family to act for and behalf of the family. That the said Enoch Francis Annan usurped the head of family’s position of Nii Kofi Adjei and wrongly used that position to appoint the Applicant as his Lawful Attorney for the purposes for which he was appointed so to act. Based on all of the above the Respondent stated that the Applicant lacks capacity to initiate this application.

Counsel Legal Arguments:

[31] The Court ordered Counsel to file their legal arguments and they duly complied. The Court wishes to express its gratitude to both Counsel. In his written legal submission, Mr. Kwame Fosu Gyeabour rehashed the facts as contained in the affidavits filed by the Applicant and submitted that   as a result of the conduct of personnel at the Respondent’s Police Station, being the East Legon Police Station the Applicant earlier on in Suit No. E12/97/2018 entitled: The Republic v Supt. Mr. Cephas Arthur & 3 Ors, cited the predecessor of Respondents among other officers for contempt of court and they were convicted for contempt and cautioned and all officers from the East Legon police station including the Respondent herein were restrained from any further interference with the court’s orders as per Exhibit F.

[32] Learned Counsel further submitted that the Respondent has been served with all the processes including judgment and orders and all other relevant document in respect of suit No. AL/25/2004 and also the order in Exhibit “F” which service on him has been proved by the bailiff of this Court.    See Exhibit G. Despite the service of the processes and orders in Suit No. AL/25/2004 and Suit No. E12/97/2018 the Respondent and his officers have been going unto the land of Applicant’s principals and have been giving protection to encroachers to develop the land and have been threatening to arrest the Applicant’s principal’s family members and their grantees from entering and developing their lands.

[33] According to Mr. Fosu Gyeabour the conduct of the Respondent and his officers in interfering with the due execution processes of the court and the fragrant breach of the further restraining orders of the court in Exhibit “F” has undermined the authority of the Court and the smooth administration of justice and is therefore contemptuous. Counsel submitted that by the Respondent’s conduct, he is guilty of both civil and criminal contempt. Counsel referred to the Supreme Case of In Re Effiduase Stool Affairs (No. 2); Republic v Numapau, President of the National House of Chiefs & Others; Ex  Parte: Ameyaw II (No. 2) (1998-99) SCGLR 639 for the submission.

[34] Mr. Fosu Gyeabour further submitted that “it is the case of the Applicant that the Respondent and his officers have been unduly interfering with the due execution processes of the orders of the court in Suit No. AL/25/2004 entitled: Al-Hassan v. Lands Commission & 3 Others. despite the knowledge of the execution processes and the further restraining orders of the Tema High Court. Counsel referred to Exhibit “H” series, being the photographs attached to the supplementary affidavit of the Applicant and submitted that they show police officers namely, Major John Sovor,  Osei  Anthony and Evans Castro all from the East Legon Police Station under the command of the Respondent aiding encroachers to develop portions of the land covered by the orders of the court.

[35] Responding to the capacity argument of the Respondent, Counsel submitted that “the Respondent filed a supplementary affidavit on the 4th day of March, 2019 seeking to challenge the Power of Attorney of the Applicant. This is not a defence to a contempt application. In any case, Exhibit A1, the order preventing the Respondent from interfering with the execution processes was duly procured by the Applicant herein in his capacity as the Attorney of the Okpong We family which order has not been set aside by any court of competent jurisdiction and could be enforce against the Respondent through the instance contempt application”.

[36] Counsel further submitted that it is criminal contempt on the part of the Respondent and his officers to interfere with the execution processes in Suit No. AL/25/04. It is also a civil contempt against the Respondent for interfering with the orders of the Tema High Court restraining Respondent and his men from further interference with the execution processes in Suit No. Al/25/04. Mr. Fosu Gyeabour further submitted that the orders of the Tema High Court are orders of a court of competent jurisdiction which has not been set aside and which the Respondent has adequate knowledge of but has deliberately breached same and is therefore guilty of civil contempt in addition to the criminal contempt. Counsel referred to the case of Republic v. Sito I; Ex Parte: Fordjour (2001- 2002) SCGLR 322. Based on all of the above Counsel prayed the Court to convict the Respondent for contempt.

Respondent Counsel’s Submission:

[37] Counsel for the Respondent focused much of his submission on the capacity of the Applicant to initiate this action as a preliminary objection to the application and submitted that “it is our respectful opinion that the Applicant lacks the requisite capacity to institute this action on the basis that the power of attorney that he relies on is defective. Our rationale for this position stems from the fact that the applicant’s power of attorney was executed by a certain Enoch Francis Annan Tetteh, who described himself as the head of Okpong We family, applicant’s principal. It is this same Okpong We that has allegedly been adjudged by the High Court as the owners of the Dzornaman lands. It is instructive to note here that the applicant is not a member of the said family”. Counsel continued that:

“Thus, the property being a family property, the head of family alone cannot execute a power of attorney for the benefit of a stranger without the consent and concurrence of the principal elders. The learned author and distinguished professor emeritus, Prof. Justice A.K.P. Kludze at page 103 of this book “Ewe Law of Property” second edition emphasized this point by stating that “The head of family alone though acting purporting to represent the family cannot bind the family unless authorised in that behalf by the family”.

[38] Counsel further submitted that ‘it is trite learning that where the family head is unable to sue the mantle may fall on any family member who desires to represent the family in that in that  capacity’. Counsel referred to such decisions like Kwan v Nyieni [1959] GLR 67 where the Court stated that “if the head of the family is unable or unwilling to defend or assert the right of the family, any other member of the family may in such exceptional circumstance be authorised to prosecute or defend the action on behalf of the family”. He also stated that “as a matter of fact, Order 4 rule 9(3) of the High Court (Civil) Procedure Rule, 2004 (C.I. 47) has codified the general rule in Kwan v Nyieni (Supra) in these words:

“If for any reason the head of family is unable to act or if the head of family refuses or falls to take actions to protect the interest of the family, any member of the family may subject to this rule sue on behalf of the family”

[39] Counsel further stated that “we are of the considered opinion that a family may delegate the right to sue to a total stranger provided the head and the principal elders consent to it. A head of family alone, cannot in his own volition sub-delegate the right to litigates to a stranger without the consent and concurrences of the principal members of the family. After all, the property is not the self- acquired property of the head of family but a family property in which every member of the family   has a shared interest in that property” In other words, a stranger; qua stranger has no locus to bring an action on behalf of a family unless he is validly authorised by the head of family with the consent and concurrences of the principal members of the family. Therefore, it is our contention that the Applicant being a stranger to the Okpong We family and having obtained his power of attorney from only the alleged family head. Enoch Francis Tetteh has no capacity to institute this contempt proceedings.

[40] Counsel further submitted that Applicant’s capacity to institute this action on behalf of the Okpong We family is further whittled away by reason of the fact that the principal members of the Okpong We family have expressly revoked the purported Power of Attorney executed by Enoch Francis Annan Tetteh for the benefit of the Applicant. Reference was made to the Daily Guide Newspaper publication of April 23, 2018. Counsel stated that “Therefore, assuming without admitting that the power of attorney was regular, the subsequent revocation by the principal elders of the Okpong We family makes it null and void and of no legal significance”.

[41] On the merits of the application Counsel submitted that the affidavit evidence presented fails to assist the Court to commit the Respondent for contempt. According to him this is because, firstly, nothing shows from Exhibit H that the police men were on the land said to be the disputed land. Secondly, Counsel submitted that the dates on the photographs are self-generated as it did not come with the photographs but printed and attached to them and therefore the Court ought to disregard them. Counsel also said there is no evidence that the “Respondent was on the disputed land”. Also, according to Counsel “contrary to claims made by the Applicant that the police were on the land to   aid encroachers, Exhibit H shows divergent conclusion”. The other submission of Counsel are captured in his legal submission filed together with the cases cited. Based on all of those, Counsel prayed the Court to dismiss the application because the Applicant has failed to prove beyond reasonable doubt the guilt of the Respondent.

vi. Opinion of the Court:

[42] This is a trial under Order 50 of C.I. 47. It is a civil action partaking of a criminal trial as it is said to be quasi-criminal. Though there is no obligation to set down issues for determination, based on the preliminary objection raised by the Respondent and in order to achieve an ordered and simple determination of the application, I hereby pose the question:

Whether or not the Applicant has capacity to institute the action?

[43] In my respectful opinion, contempt of court is the big stick of civil litigation. 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 valid 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. With that said, it is essential for the proper administration of justice that a clear message is sent to litigants that the Court process cannot and will not be frustrated when a clearest cut case is established and a penalty imposed.

[44] In this case, the Respondent has challenged the Applicant’s capacity to mount the instant action. The Respondent’s main ground is that the Power of Attorney which is the basis of the Applicant’s capacity is defective. In the Respondent’s view the Donor could not on his own issue the Power of Attorney when he himself was acting on behalf of a Head of Family to the Applicant who is not a member of the Okpong We family.

[45] The Applicant did not answer the capacity argument in an affidavit, rather it is his Counsel who in his submission stated that it is no defence to the Respondent and also that the conviction of the Respondent’s previous colleague Commander for contempt has not been set aside by a Court of competent jurisdiction. But is that good enough to answer such a crucial issue as capacity and is the Respondent right to raise such an issue in a Contempt application?

[46] In REPUBLIC v. HIGH COURT, ACCRA; EX PARTE DR. KWABENA APPENTENG [2010] 29 MLRG 59, it was held at holding (1) that:

“A contempt application is a substantive matter standing on its own as a separate cause or matter”

[47] The Supreme Court arrived at the same conclusion in REPUBLIC v. HIGH COURT EX PARTE YALLEY (GYANE & OTHERS INTERESTED PARTIES) [2007-2008] 1 SCGLR 512. Accordingly, in my respectful opinion an Applicant ought to show his capacity before he can be heard on the merits, in the same way as any substantive case.

[48] The law requires the issue of capacity to be raised first and foremost and a Plaintiff or as in this case an Applicant will be required to prove same failing which he cannot be heard on the merits of his case. In AMISSAH-ABADOO vs. ABADOO [1974] GLR 110, Wiredu J (as he then was) hit the nail right on the head when he said that:

“The only occasion that a Plaintiff would be relieved of the duty of establishing his capacity was where his capacity had not been put into issue.”

And in SARKODEE I vs. BOATENG II [1982-1983] GLR 715, the court held that:

“It was elementary that a Plaintiff or Petitioner whose capacity was put in issue must establish it by cogent evidence. And it was no answer for a party whose capacity to initiate proceedings had been challenged by his adversary, to plead that he should be given a hearing on the merits because he had a cast-iron case against his opponent.”

See also ASANTE-APPIAH v. AMPONSAH [2009] SCGLR 90

[49] The settled rule of law is that the capacity of a party to mount an action may be challenged at any time, and even on appeal. The case, YORKWA v DUAH (1992-93) GBR 278 C/A illustrates the principle that where a person’s capacity to initiate an action was in issue it is no answer to give him a hearing on its merits even if he had a cast-iron case. See also the Supreme Court case of FOSUA & ADU-POKU v. DUFIE (Deceased) & ADU-POKU MENSAH [2009] SCGLR 310 where His Lordship Dotse JSC opined that “Want of capacity is a point of law which, if raised, goes to the root of the action”.

[50] Based on the law as stated above and having reviewed all of the facts as presented in the affidavit evidence before me, I am of the respectful opinion that the instant application ought to fail  on the grounds of the Applicant’s capacity because the Applicant failed to establish with cogent evidence and to convince the Court that the allegations made by the Respondent as a preliminary objection is not sustainable

vii. Conclusion & Disposition:

[51] Even though the instant application is to fail without going into the merits of the application, I cannot conclude this decision without commenting on the depositions made by the Respondent as a defence in this application. In my respectful view it is startling that the Respondent had the audacity  to depose at paragraph 14 of the affidavit in opposition as follows:

“That I further informed him that since I was a lay person it will be difficult for me to decipher from the judgment plan the extent to which the land reaches. Therefore, it will be prudent for us to get an expert to determine the boundaries of the judgment plan”.

[52] With respect to the DSP, police officers do not get experts to interpret Courts’ judgments and orders. If he was in quandary he needed to come back to the Courts. Also, I find it unacceptable despite his knowledge that DSP Cephas Arthur and others had been convicted of contempt and cautioned, he claims to have been baffled by “differences in suit numbers”. Again, an Officer of his stature ought to know that a contempt being a separate suit would have a different suit number from the substantive suit. In any case he could have consulted the legal department of the Ghana Police Service for clarification and not call the Applicant to assist with explanations under the guise that he  is a “lay person”. So is the Applicant. I must say I was not impressed with the tone and posture of the affidavit filed. To my mind, the depositions clearly show that there is some substance and truth in the complaint of the Applicant.

[53] A court of competent jurisdiction has given possession of land to a family and yet, the Police is unable to protect the peaceful enjoyment of that property but rather appears to give succor to the faction disturbing that peaceful enjoyment. This is an indictment on the role of the Police to protect property rights of citizens as envisaged under the 1992 Constitution and herein lies the motivation of many to resort to self-help when it comes to law enforcement and property rights, with deleterious consequences for society. In my respectful opinion it was important that based on the circumstances and the facts the police should have treated the Applicant and his principals with some respect as holders of a valid judgment of the Court. The police owe the Applicant and the State that duty.

[54] I think that as a country with a history of abuse of constitutional rights of citizens by persons in uniform who loved to “show citizens where power lies”, at this time of our democratic dispensation  the police are expected to comply with the law especially the Constitution in the discharge of their duties. I make these comments not as a matter of condemnation but in my capacity as a judge alive to the function of the judiciary in a democracy. If the rule of law functions well, it benefits all including law enforcement officers and the judiciary. The Courts, as representatives of the community, cannot be seen to condone such blatant and unequal application of police power of protecting the citizens of this Country. The only way the court can effectively distance itself from that conduct is by  commenting on same and trusts that it shall not be repeated.

[55] On the subject matter of the Contempt application, overall, based on the law and the evidence in the instant case, I am satisfied that the Applicant failed to establish his capacity and therefore the application is DISMISSED. No order as to Costs.

(SGD) KWEKU T. ACKAAH-BOAFO, J

(JUSTICE OF THE HIGH COURT