THE REPUBLIC vs JUSTICE ANIN YEBOAH & OTHERS EX PARTE; FRANCISECA SERWAA BOATENG
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (GENERAL JURISDICTION DIVISION 7)
    ACCRA - A.D 2018
THE REPUBLIC - (Plaintiff)
JUSTICE ANIN YEBOAH AND OTHERS EX PARTE FRANCISCA SERWAA BOATENG - (Defendants)

DATE:  29 TH MARCH, 2018
SUIT NO:  CR/60/17
JUDGES:  HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
LAWYERS:  APPLICANT IN PERSON
NANA YAW NTRAKWAH, ESQ WITH WITH AKOSUA AKOMAH ASIAMAH FOR THE 1ST, 2ND, 3RD, 4TH AND 6TH RESPONDENTS
RULING

 

The need to uphold legal professional standards, the administration and supervision of legal education, among others, were some of the lofty goals that precipitated the establishment of the General Legal Council (hereinafter simply referred to as the GLC) under the Legal Profession Act, Act 32 of 1960.

 

 

 

The 1st Respondent, a Justice of the Supreme Court and the chairperson of the Disciplinary Committee of GLC, the 2nd Respondent a Justice of the Court of Appeal whilst the 3rd to 5th Respondents are lawyers of renown within the jurisdiction and members of the Disciplinary Committee of the GLC. The 6th Respondent on the other hand is an office clerk of the GLC. The Respondents have been hauled before this court on a quasi-criminal charge of contempt wherein the Applicant, a lawyer in private practice is seeking an order for committal of the Respondents for contempt in what she claims that the Respondents have acted in a manner that is disrespectful of the court and calls for their punishment.

 

 

 

A background to this application would suffice to illume ones appreciation of this proceedings. The Disciplinary Committee being the statutory body mandated to investigate petitions and complaints from the public against lawyers to the GLC, one David Morrell claiming to be acting on behalf of its principal, VPS International Bv of Netherlands filed a complaint on the 22nd of January, 201 against the Applicant for overcharging his principal in terms of legal fees in a suit conducted by the Applicant before the High Court. As part of its routine procedure for investigating petitions filed against lawyers the Disciplinary Committee wrote to the Applicant for her response to the petition filed by Davis Morrell.

 

 

 

Applicant responded to the complaint on the 3rd of March, 2015 challenging the capacity of David Morrell to file the complaint on the ground that David Morrell had never been her client. VPS International BV subsequently issued a writ in Suit No CM/0066/15 at the Commercial Division of the High Court which suit is still pending. Desirous of performing its statutory duty by investigating the allegations made by David Morrell, the Disciplinary Committee invited the Applicant to appear before it whereupon the Applicant initially declined the invitation on the ground that in view of the pendency of Suit No CM/0066/15 before the court she was unable to appear before the Committee. From the exhibits attached to the application it appears that the Applicant made an appearance before the Committee on the 23rd of February, 2017, 27th of April, 2017 and the 1st of June, 2017. Applicant however, failed to appear before the Disciplinary Committee on the 6th of July, 2017.

 

 

 

The Applicant piqued by the process of the Disciplinary Committee on that same date of 6th of July, 2017 filed before the High Court an application for judicial review seeking declarations and an order for prohibition against the Respondents claiming among others that David Morrell did not have capacity to petition the Disciplinary Committee, want of jurisdiction on the part of the Disciplinary Committee to entertain the petition of David Morrell and an order of prohibition directed against the Respondents from proceeding to investigate the complaint. To Applicant the Respondents have been served with her application for judicial review and yet per a letter delivered to her by the 6th Respondent as well as an EMS courier service, she was invited to appear before the Disciplinary Committee on the 27th of July, 2017 and threatening her with criminal sanctions. And as if that was not enough, Applicant further claim that these were followed by another letter signed on behalf of the 1st Respondent inviting her to appear before the Disciplinary Committee which said letter failed to refer to her application for judicial review pending before the Court and thus precipitating her to file for an order of injunction to restrain the Respondents from proceeding with the hearings till the application for judicial review had been determined.

 

 

 

To Applicant notwithstanding the pendency of the applications for injunction and the judicial review the Respondents have caused yet another hearing notice to be issued and served for her to appear before them on the 26th of October, 2017. This she claim is calculated to prejudice the fair hearing of the two applications and that the conduct of the Respondents have brought the administration of justice into disrepute and hence this application before me praying for the Respondents to be punished for contempt. The application has been opposed by the Respondents in two separate affidavits. First is one filed by the 5th Respondent and another deposed to by the 2nd, 3rd, 4th and 6th Respondents for themselves and on behalf of the 1st Respondent. The essence of the affidavit deposed to by 2nd, 3rd, 4th and 6th Respondents is this: that one the Applicant has failed to make a prima facie case. Two that Applicant was unable to furnish the Disciplinary Committee with the documents it requested in its sitting on June, 2017 and for which Applicant failed to appear at its subsequent sitting on 6th July, 2017 and to validate her refusal to appear before the Disciplinary Committee filed an application for judicial review, which application has since been abandoned by the Applicant as she had ignored to even apply for hearing notice after statements of case had been filed. Three that the application for injunction had been struck out on the 12th of January, 2018 as withdrawn and on the whole that they have not acted in any manner that is contemptuous of the court. The 5th Respondent also in his affidavit in opposition filed on the 21st of November, 2017 depose to factual matters not dissimilar to the rest of the Respondents have stated and captured supra.

 

 

 

THE LAW ON CONTEMPT

 

Merriam-Webster’s Dictionary of Law defines contempt of court as follows:

 

“Wilful 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) at page 6, Oswald states 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.’

 

 

 

See in RE EFFIDUASE STOOL AFFAIRS (NO.2); REPUBLIC v. ODURO NUMAPAU, PRESIDENT OF THE NATIONAL HOUSE OF CHIEFS & OTHERS; EX –PARTE AMEYAW II (NO.2),(1998-99) SCGLR 639; REPUBLIC v BOATENG & ANOR; EX PARTE AGYENIM BOATENG [2009] SCGLR 154

 

 

 

It is worthy of note that contempt is the only common law offence that has been maintained under our Constitution and statute laws. Article 126(2) of the Constitution, section 36 of the Courts Act, Act 459 and states this, thus making an exception to the provisions of article 19 (11) of the Constitution and section 8 of the Criminal and Other Offences Act, 1960, Act 29 that establishes the principle of nullum crimen, nulla poena sine lege praevia lege poenali and states that:

 

“No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law”.

 

See the case of TSATSU TSIKATA v ATTORNEY-GENERAL [2003-2004] SCGLR 1068.

 

 

 

Contempt may partake in the nature of a criminal contempt or civil contempt. Contempt in facie curiae or contempt ex facie curiae. For some instances of criminal contempt see sections 222, 223, and 224 of the Criminal and Other Offences Act, Act 29 of 1960. And these include acts such as disturbing court whiles proceedings is ongoing, insulting the court, exciting prejudice against the court etc. In Ex Parte Ameyaw supra the court noted the following as amounting to criminal contempt:

 

“criminal contempts are acts done in disrespect of the court or its process, or which obstruct the administration of justice or tend to bring the court into disrespect”.

 

 

 

It is also the communis opinio within the legal fraternity that contempt may also be committed even when there is no specific order of the court that has been violated as long as a party has acted in a manner that is prejudicial to a pending matter before the court or a conduct that is prejudicial to the res litiga. See REPUBLIC v AKENTEN II; EX PARTE YANKYERA [1993-94] 1 GLR 246 CA; REPUBLIC v TOTOBI QUAKYI C/M 45/94 dated 26/7/94; REPUBLIC V. EHA II AND OTHERS; EX PARTE TOGOBO & OTHERS (2003-2005) 1 GLR 328 C.A.

 

 

 

Civil contempt on the other hand consists in wilful disobedience to the orders, judgments decrees or directions of a court requiring a Respondent to do an act or refrain from doing an act. In civil contempt the order that is alleged to have been disobeyed should be clear. Indeed the ingredients that needs to be established in a civil contempt of this nature has been spelt out in the case of REPUBLIC v COURT OF APPEAL; EX PARTE SITO [2001-2002] 1 GLR 319 @ 336-337 Adzoe JSC noted as follows:

 

“The type of contempt charged against the appellant involves willful disobedience to the judgment or order, or other process of a court; it must import a demand to do or abstain from doing something … Indeed, three essential elements in the offence appear to be identified by the authorities, namely: (1)There must be a judgment or order requiring the contemnor to do or abstain from doing something. (2) It must be shown that the contemnor knows what precisely he is expected to do or abstain from doing. (3)It must be shown that he failed to comply with the terms of the judgment or order, and that his disobedience is wilful.

 

 

 

Similar rendition was also expressed by Adade JSC in the REPUBLIC V. MENSA-BONSU AND OTHERS; EXPARTE ATTORNEY-GENERAL (1995-1996) 1 GLR 377 at 403 thus:

 

“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 times be free from obstruction. Conduct which tends to create such an obstruction constitutes contempt. Thus interfering with witnesses or jurors; frightening off parties to litigation; refusing to answer questions in court; commenting on pending proceedings in such a manner as to prejudice the outcome; running down the courts and the judges; refusing to obey an order of the court – any of these, if calculated to, or tend to, impede or obstruct the course of justice will constitute contempt. And conduct complained of therefore must be viewed and assessed against the backdrop of this basic principle.”

 

 

 

Therefore the conduct alleged against the Respondents will be assessed against these basic principles. But before this assessment I find it necessary to touch on the standard of proof that a trial of this nature must meet and the burden that lie on the shoulders of the Applicant. There is no gainsaying in the fact that this is a quasi-criminal action the standard of proof cast by law on the Applicant is one beyond reasonable doubt. In the English case COMET PRODUCTS UK LTD v HAWKES PLASTICS LTD [1971] 1 ALLER 1141 @1143, Lord Denning that:

 

“Although this is a civil contempt it partakes of the nature of a criminal charge. The defendant is liable to be punished for it. He may be sent to prison. The rules as to criminal charges have always been applied to such a proceeding… it must be proved with the same degree of satisfaction as in the criminal charge”

 

See also IN RE EFFIDUASE STOOL AFFAIRS supra, wherein the Supreme Court noted on the standard as follows that:

 

“Since contempt of court is 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 could consider the defence put up by the respondents”

 

Section 13(1) of the Evidence Act, NRCD 323 states 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’.

 

And there seems to be a further emphasis under section 22 of the Act which states that:

 

‘in a criminal action, a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond reasonable doubt…’

 

 

 

It is for this reason therefore that the two affidavits in opposition have called for the need for the Applicant to establish a prima facie case. Indeed that is the rule as the defence of the Respondents would only be considered by the court after the Applicant has scaled the hurdle of establishing a prima facie case against the Respondents.

 

 

 

Did the Applicant do that?

 

 

 

EVALUATION OF THE EVIDENCE

 

From the application, the affidavits in support and the attachments, I glean that the essence of this application is that with the pendency of the Applicant’s motion for injunction and judicial review before the High Court the invitation extended to her to appear before the Disciplinary Committee constituted contempt of court. To come to a finding that the Applicant has made out a prima facie case of contempt would necessitate the court to carefully examine the basis of the action of the 1st to 5th Respondents as members of the Disciplinary Committee of GLC. The Disciplinary Committee is a body known to the law by virtue of section 17 of Act 32 as substituted by section 1(a) of the Legal Profession (Amendment) Decree, AFRCD 53. Any complaint or petition received by the GLC is supposed to be referred to the Disciplinary Committee. The law set out in section 19 (2) and (3) some of the powers of the Disciplinary Committee as follows:

 

“(2) The Disciplinary Committee shall have the powers of the High Court to summon witnesses, and to call for the production of documents, and to examine witnesses and parties concerned on oath; and may  be administered for that purpose by any member of the Disciplinary Committee.

 

(3) All persons summoned to attend and give evidence, or to produce documents, at any sitting of the Disciplinary Committee in an inquiry under this Act shall be bound to obey the summons to attend as fully in all respects as witnesses are bound to obey subpoenas issued from the High Court, and every person failing without reasonable excuse to attend at the time and place mentioned in the summons served on him, or withdrawing without the permission of the Disciplinary Committee, or refusing without reasonable excuse to answer any question put to him in the course of the inquiry, or to produce any documents which he has been required to produce shall be liable on summary conviction to a fine not exceeding £G50”.

 

 

 

Where the Respondents have issued the invitations to the Applicant to appear before them for the purposes of performing their statutory mandate, then I think that notwithstanding the pendency of the motions of the Applicant in court, that cannot amount to contempt of the High Court. Why? The courts as servants of the legislature cannot preclude a body set up by statute with its functions spelt out by the a statute and which said functions can and is exclusively performed by the Disciplinary Committee alone from performing them and this is without prejudice at all to the pendency of the application for judicial review. The power to investigate complaints against lawyers is vested solely in the Disciplinary Committee of GLC.

 

 

 

The Disciplinary Committee is not a court but in dealing with its functions of investigating complaints and petitions against lawyers, it has the same powers of a High Court in summoning witnesses, compelling attendance, production of documents etc. This summary power under section 19(5) of Act 32 is provided as an aid for the expeditious determination of complaints before the Disciplinary Committee. And it cannot be correct that the Applicant who has flouted the orders of the Disciplinary Committee to appear before it for which an offence may be laid against the Applicant would rather turn round and accuse members of the Committee for being in contempt of court. If this conduct was encouraged then many lawyers hauled before the Disciplinary Committee and apprehending the consequences of the investigations will exploit the judicial process as a Trojan horse to escape their appearance before the Disciplinary Committee. The faithful and dutiful discharge and performance of a statutory duty is not one of the grounds that can give rise to contempt of court.

 

 

 

The invitation to appear before the Disciplinary Committee cannot be a basis for any apprehension that the prosecution of the applications the Applicant has filed before the courts together with her writ will in anyway be prejudiced. It is even more startling the inclusion of the 6th Respondent who Applicant states to be an office clerk at the GLC. His crime is that he dutifully delivered a letter to Applicant which was handed over to deliver in the performance of his daily office work. When there is even no scintilla of evidence that he knew the contents of the letter. When did the delivery of a letter by a clerk or a messenger constitute contempt? With the failure to discharge the essential elements of this quasi criminal offence and thereby failing to establish a prima facie case, it is needless to examine the essence of the defence of the Respondents. The charges remain unproved and the Application is dismissed. The Respondents are accordingly acquitted and discharged.

 

 

 

AWARD OF COST

 

It is only fair that I exercise my discretion to award cost to the Respondents for the expenses they have incurred to hire lawyers to defend them personally rather than defending this action by the lawyer for the GLC as the action was against them personally. I award an amount of GH¢10,000.00 against the Applicant in favour of all the Respondents.