JUDGMENT

DECISION ON APPLICATION FOR COMMITTAL FOR CONTEMPT

Introduction:

[1] Any conduct which interferes with or undermines the authority of the Courts and administration of justice is contempt of court. Oswald on Contempt 3rd Edition defines contempt of court at page 6 as:

“…..Any conduct that tends to bring the authority and administration of the law into disrespect or disregards, or to interfere with or prejudice parties, litigants or their witnesses during litigation”.

[2] In National Union of Seamen Vrs. TUC [1982-83] GLR 943, it was held that:

“a refusal or neglect to do an act required by a court order within a specified time or the disobedience to an order requiring a person to abstain from doing a specified act amounted to a civil contempt.”

[3] The power of the High Court to punish for contempt is provided in S.10 of the Criminal Offences Act, 1960 (Act 29) and Articles 19(12) and 126 of the 1992 Republican Constitution of Ghana.

[4] Although Article 19(11) enacts that no person shall be convicted of a criminal offence unless the offence was defined and the penalty thereof prescribed in a written law, Clause 12 of Article 19 nevertheless stipulates that the superior courts reserve the power to punish a person for contempt notwithstanding that the acts or omissions constituting it, is not defined in a written law and the penalty thereof is not so prescribed.

[5] What constitutes contempt has been considered in legion of decided cases. It was judicially articulated in IN RE: EFFIDUASE STOOL AFFAIRS (No.2) EX PARTE AMEYAW II (1998-99) SCGLR 639 @ 660 where the Supreme Court speaking through ACQUAH JSC (as he then was) summed up the law in an apt and concise manner as follows:

“In brief, contempt is constituted by any act or omissions 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] Now, upon a Motion on Notice filed in this registry on October 23, 2015 the Applicant family seek an order of this court committing the Respondents (by their Directors/Officers)  cited herein  for contempt as per the grounds set out in the accompanying affidavit. The thrust of the application as premised on the averments contained in the supporting affidavit is that notwithstanding the refusal of the Court presided over by Elizabeth Ankumah, J to grant permission to  mobilize material to a site and commence constructional works on a piece of land, the subject matter of a decision in suit No. BL231/07, the Respondents herein who are 5th and 7th Defendants in that suit have since October 2015 gone ahead to start construction works on the land and thereby interfere with the subject-matter of the proceedings.

Background:

[7] The material allegations of facts according to the Applicants are that the Respondents adhered to the Court’s ruling until sometime in October 2015 when the Applicants, upon a visit to the site, observed that in flagrant disrespect of the Court’s decision not to permit the mobilization and construction, the Respondents violated the Court’s order. The Applicants attached photographs of a container placed on the property, and workers excavating foundation trenches and as well as constructing buildings as exhibits and they were marked as Exhibits NDA2 – NDA17.

[8] It is the case of the Applicants that whilst the case with Suit No. BL231/07 is still pending before this Court for final determination the Respondents/Contemnors herein have regardless gone ahead with the construction works in obvious disregard for the authority of the Honourable Court. The Applicants strongly submitted that it was clear that the conduct of the Respondents in constructing and building on the land was contemptuous and a calculated plot intended to prejudice the outcome of the suit pending before the Honourable Court. They therefore by the application urged on the court to attach and commit the Respondents for contempt

[9] However, in separate affidavits in opposition sworn to by the Respondents herein the allegations were flatly denied. The 2nd Respondent denied mobilizing and constructing any building on any portion of the disputed land and they have also denied the authenticity of the photographs. The 1st Respondent also denied constructing on the disputed land or ever willfully disobeying the orders of the court and also engaging in any contemptuous conduct to bring the dignity of the Honourable Court into disrepute.

[10] In the face of the divergent positions of the parties and having regards to the allegations and the denials it became necessary that an independent person be appointed to assess and report on  the true state of affairs. Therefore, on December 16, 2015 the court with the consent of all the parties appointed the Registrar of this Court to visit the disputed area of the subject matter and submit a written report.

The Registrar’s Report after the Visit:

[11] Pursuant to the Court Order, the Registrar provided a report to the Court. It was accepted and marked as “Court Exhibit 1”. The parties had the opportunity to cross-examine the registrar as a

Court Witness.

[12] For clarity and emphasis, I produce below what in my respectful view is the important part of the report dated January 29, 2016 as follows:

…The disputed area being contested in court is an undeveloped bare stretch of land. There is a portion of the disputed area that has been fenced with roofing sheets. There is about a forty-foot metal container painted blue which has been placed on the disputed land just after where the fencewall has been constructed.

Some portions of the disputed area of the land have been pegged around with wood and dug out, having placed in them iron rods as pillars supposedly earmarked for building or constructional purposes.

An employee of Messrs. Agu Resources admitted or confessed before the undersigned and the representatives of the parties present that  some  workers  of  the  company undertook that exercise but they did so long before the injunction was placed on the land and that it was not something they undertook recently as it is being alleged but this was countered by one of the representatives on the other side who claimed that he and some of his people stopped them from going ahead with the exercise and that this was done not long ago.

And from the careful observation of the undersigned on the dugout portions of the land, the dugout were done not quite long…..

I also saw some concrete pillars that have being erected on the disputed land and painted blue. There were some buildings put up on the far sides of the disputed land.

[13] I note the following exchange in the cross examination of the Registrar on 14 March, 2016, regarding the Report :

“Q. By your own testimony, the presence of the forty-footer container could determine whether it was placed on the land of the land of the 1st respondent or 2ndrespondent.

A. No, I cannot tell.

Q. You also stated that some portions of the disputed area have  been  pegged  around  with  wood and dugout  having  placed  in  them  iron  rod  as  pillars  for  building  or constructional purposes, is that correct?

A. Yes, my Lord.

Q. But your Exhibit EXH1, you cannot tell when the said pegging and digging out were done?

A. As to when, ‘No’ but this was something that was recently done.

Q, If you said recently done, can you give us as to the date by your own reckoning?

A. As to date,’ No’. I cannot tell….

Q. Do you know when the order that is alleged to  been defied was delivered; the injunctive  order?

A. No, my Lord.

[14] In a nutshell, the above is the evidence before the court and which the Applicants herein contend demonstrate that the Respondents have willfully disobeyed the Court order previously made and urge on the Court to commit them for contempt.

Analysis & Court’s Opinion:

[15] To begin with, it is a settled rule that the offence of contempt of court is quasi-criminal, thus the standard of proof required is that of proof beyond reasonable doubt1. For,  it  is  provided in S.13(1) of the Evidence  Act,  1975  (NRCD  323)  that  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 reasonable doubt.

[16] Based on the nature of contempt and the policy rationale for the strict proof of same, Osei Hwere J. (as he then was) in R v. BEKOE & ORS; EX PARTE ADJEI (1982-83) 1 GLR 91 opined that a civil contempt partook of the nature of a criminal charge because conviction might entail imprisonment. As a result, His Lordship posited that, 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.

[17] As a general rule, a contempt is said to have been committed where: a) there was a judgment or order which required the contemnor to do or abstain from doing something; b) that   the contemnor knew what precisely he was expected to do or abstain from doing; c) that he failed

KANGAH v KYERE SUPRA and R v HIGH COURT, ACCRA EXPARTE LARYEA MENSAH

SUPRA to comply with the terms of that judgment or the order and that his disobedience was willful. See: R v SITO I EXPARTE FORDJOUR (2001-2002) SCGLR 322.

[18] I have critically studied and scrutinized the motion paper and the affidavit evidence filed in this case and the photographs, both in support of, and as against the contempt application. I have equally given active consideration to the testimony of the Court appointed witness and the report tendered. Upon a deep introspection of the facts and careful consideration of the issue raised in this application I hold the respectful view that I am not convinced that the Respondents together have embarked on an enterprise to undermine the sanctity of the administration of justice and therefore the charge of contempt, if at all, has not been sufficiently made against the Respondents.

[19] To reiterate the principle laid down above, the charge of contempt is quasi criminal and therefore the Respondent’s guilt ought to be established beyond reasonable doubt. A doubt that logically arises based on the evidence. It is not enough for the Court to conclude that “probably” the Respondents have acted in a manner which is in flagrant disregard of the court action and aimed at prejudicing the outcome of the pending suit. There must be evidence to prove that the pursuant to the order of the Court, the Respondent have mobilized, dug out and are constructing trenches and building on a portion of the disputed land.

[20] Based on the evidence, it is difficult for the Court to verify and confirm when the trenches and the dugouts were constructed in the face of the denials by the Respondents. The best the Court appointed witness could provide under the circumstances was that they were “recently done.” The question is how recent is “recently done” when unfortunately there was no means at the locus in quo to establish with certainty the exact timeline of construction vis-à-vis when the injunctive order was made.

[21] Further, in the opinion of the Court even though the photographs have dates indicated on them, it is difficult to verify, authenticate and conclude when the construction took place on the on the subject matter of the suit without more. The court also takes judicial notice of the fact that dates indicated on digital photos are based on the settings of the device used in acquiring those images and thus those dates are not conclusive evidence of when the imagery was acquired. All that in my opinion raises doubt as to whether the trenches and dugouts were constructed before or after the Court Order. The doubt, certainly ought to inure in favour of the Respondents. The effect therefore is that the Applicants have failed to prove the charge of Contempt beyond the reasonable doubt because as earlier stated this is a matter in which the standard of proof is a ‘proof beyond reasonable doubt’ and not on balance of probabilities.

[22] Overall, based on the law and the evidence in the instant case, I am satisfied that the guilt of the Respondents have not been proved beyond reasonable doubt. In the result, I acquit and discharge the Respondents on the charge of Contempt of Court.