IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2017
HUMPHREY NII DJAATOR BOTCHWAY AND 2 OTHERS (RESPONDENTS/RESPONDENTS) EX PARTE AMON SAS (APPLICANT/APPELLANT)
DATE: 6TH APRIL, 2017
CIVIL APPEAL NO: H1/31/2016
JUDGES: F. KUSI APPIAH J.A. (PRESIDING), F.G. KORBIEH J.A., BARBARA ACKAH-YENSU (MISS) J.A
DOROTHY NEEQUAYE FOR THE APPLICANT/APPELLANT
OPODU ADJAYE FOR THE RESPONDENTS/RESPONDENTS
The facts leading to this appeal, as can be gleaned from the record of appeal, are quite simple and straight forward. The applicant/appellant herein had sued the first two respondents/respondents herein in the Circuit Court, Accra claiming, among others things, the following relief: a declaration of title to all that piece or parcel of land situate lying and being at Ngleshie Amanfrom, Accra and bounded on the north-west by the Accra-Winneba Road measuring there 400 feet more or less, on the south-east by the lessors land measuring 400 feet more or less, on the north-east by the Tuba road measuring there 210 feet more or less and on the south-west by the lessors land measuring there 210 feet more or less and containing an approximate area of 2.26 acres more or less or 0.82 hectares. The applicant/appellant, as plaintiff, had averred further, as follows: that he became owner of the land by virtue of a conveyance dated 10th February, 1994 between Nii Kwashie Gborlor and Djasetse Kwame Bosompem (on the one hand) and himself (Amon Sas) (on the other hand). He had also averred that he had been issued with receipts by the said Nii Kwashie Gborlor the last of which was in 1998 (27th November). The plaintiff had later obtained a Land Title Certificate No. GA 11955 Vol. 010 Folio 64. He had continued that the 2nd defendant trespassed unto the land and allocated 6 plots to the 1st defendant out of the 12 plots and that the 1st defendant was developing the land. The 1st and 2nd respondents/respondents, as 1st and 2nd defendants, had filed a common statement of defence. The 1st defendant had averred that he took his grant from the 2nd defendant who had in turn averred that the 6 plots had been allocated to him as the nephew of the chief, Nii Kwashie Gborlor. The two had therefore counterclaimed for title to the 6 plots. The trial circuit judge had given judgment in favour of the two defendants or the first two respondents/respondents herein for their counterclaim. Indeed the applicant/appellant herein was found “liable” and his Land Title Certificate No. GA 11955 Vol. 010 Folio 64 ordered to be revoked as having being obtained by fraud.
The applicant/appellant had proceeded to file a notice of appeal against the judgment but which he had later withdrawn. What is of moment however is that he also proceeded to file an entry of judgment for “Six  Plots i.e. the 1st  plots and the 2nd  plots demarcated to him and given to him by Nii Kwashie Gborlor.” After this things began to take a very murky turn, in my view. For reasons that are not apparent on the face of the record, the entry of judgment had to be served on the first two respondents/respondents by substituted service and the order was to remain posted for ten days instead of the usual 21 days. Then there was an order to issue a writ of possession and a demolition. The record did not include the motion paper and supporting affidavit that led to the issuance of that order. There was also a praecipe for a writ of possession in which the boundaries of the applicant/appellant’s land were described as follows: bounded on the north-west by the Accra-Winneba Road measuring there 216.9 feet more or less, on the south-east by the lessors land measuring 223.4 feet more or less, on the north-east by the Tuba road measuring there 159.8 feet more or less and on the south-west by the lessors land measuring there 178.4 feet more or less and containing an approximate area of 0.91acre. The record shows that the plaintiff/applicant/appellant was put in possession of some portion of the land in dispute.
It was also at this juncture, going by the record of appeal, that the plaintiff/applicant/appellant (hereinafter referred to only as the appellant) filed his application at the trial High Court in Accra asking that the three respondents be committed for contempt for the reason that they had interfered with the execution of “the trial judgment dated 17th November 2010, by recovering by force or fraud, after execution of writ of possession on 18th September, 2014…” The affidavit in support recounted in more detail the facts as narrated above but added that after the appellant had been put into possession, he was brutally attacked by the 1st and 3rd respondents and their thugs and land guards. It also alleged that all three respondents and their thugs forcibly resumed possession of the land he had been put in possession of. In their affidavit in opposition, the respondents/respondents (hereinafter referred to only as the respondents) denied ever receiving any entry of judgment. They also deposed as follows: that the appellant (applicant) had lost the suit in the Circuit Court and his application for stay of execution had been dismissed in both the Circuit Court and Court of Appeal; that the applicant had come one early morning and tried to destroy the
kiosks of their grantees who had stopped him; that the 1st respondent had only dealt with the land as his own and had actually instituted contempt proceedings against the applicant in the Land Division of the High Court and the present application was only a retaliatory one. In her ruling delivered on the 4/2/2015, the trial High Court judge peremptorily dismissed the application, saying that the respondents had not flouted any order of the court.
It is this ruling that the appellant has appealed against on the following grounds, to wit:
The ruling is against the weight of the evidence.
The learned judge erred in law when she decided that the respondents have not flouted any order of the court without assigning any reason, when there was ample evidence that the said respondents without any justification and/or lawful order removed the appellant from possession after the court had had put him into possession of the land.
The relief sought from this Court is to set aside the judgment (ruling) appealed against and to commit the respondents for contempt and in addition to order the immediate removal of all the illegal structures on the appellant’s land which were erected after delivery of possession to the appellant by the court.
Learned counsel for the applicant/appellant argued only ground b) which complains that the learned judge erred in law when she decided that the respondents have not flouted any order of the court without assigning any reason, when there was ample evidence that the said respondents without any justification and/or lawful order removed the appellant from possession after the court had had put into possession of the land. Learned counsel started his submission by giving a background to the case but in process imported quite a number of facts that are completely extraneous to the record into his argument. This practice ought not to be encouraged since whatever argument that is used to try to impugn the judgment appealed against ought to be found in the record of appeal. But be that as it may. He went on to concede that the land that the appellant had sued for was never partitioned between the appellant and the first two respondents; contending curiously that it was an error on the part of the judge but which nonetheless was legally correct as under the authority of Kwaku v. Ampofowaa  1 GLR 277, a land court has no power to order the partition of land unless partition was asked for as a relief. Counsel continued that the appellant had followed due process and had subsequently been put into “peaceful possession of the first 6 plots” of the land but was later bundled into a taxi by the respondents and conveyed to the Weija Police Station where an unspecified criminal charge was lodged against him. It was counsel’s argument that contempt had been committed because the conduct of the respondents undermined the general administration of justice. He submitted that the learned trial judge erred by saying that since no order of the court had been flouted then no contempt had been committed. Learned counsel cited a number of cases to support his contention that the respondents had indeed committed contempt of court.
In their respective written submissions, counsel for the 1st and 2nd respondents denied that the respondents were guilty of the charge of contempt, as indeed the respondents themselves had done in their affidavit in opposition. Both counsel insisted that the appellant had a duty to prove the guilt of the respondents to the same degree as in a criminal case, which he had failed to do, and therefore the appeal must fail.
I want to start my evaluation of the case and the respective arguments of the two sides by saying that there is a certain degree of uncertainty as to the identity of the land that is material to the alleged commission of the contempt. According to the appellant he was put into “peaceful possession of the first 6 plots” of the land. But which were the first 6 plots? By the confession of counsel for the appellant, the Circuit Court judge did not and could not have partitioned the land that was in dispute because partitioning was not one of the reliefs either the appellant or the 1st respondent (as counterclaimant) asked for. So therefore the land was not partitioned. How then could the appellant go into execution and take possession of the first six plots? I think this is where the problem started from. True enough the Circuit
Court judge granted the appellant “6 plots i.e. the 1st (4) plots and the 2nd 2 plots demarked to him by the DW1 and given to him by Nii Kwashie Gborlor” thus making “first 6 plots”. But how these translated into the first six plots in the overall scheme of the total land of 12 plots is what is in issue here. Whereas the appellant describes the “first 6 plots” in his praecipe for a writ of possession as land “bounded on the north-west by the Accra-Winneba Road measuring there 216.9 feet more or less, on the south-east by the lessors land measuring 223.4 feet more or less, on the north-east by the Tuba road measuring there 159.8 feet more or less and on the south-west by the lessors land measuring there 178.4 feet more or less and containing an approximate area of 0.91acre”, the 1st respondent in the affidavit in opposition deposed to the fact that he had obtained judgment against the appellant in the Circuit Court “on the same land” and which he and the other respondents had re-entered.
The 1st respondent’s said deposition cannot be said to be baseless because the Circuit Court had also granted him six plots of land on the same land in dispute. At worst he could have made a genuine mistake. As I said earlier, once no partition of the land had been made to create a clear boundary between the parties, it was very difficult for one party to impose his boundary on the other. What common sense dictated at this point in time was for the appellant, even before he filed his entry of judgment, to have applied to the court, for an order of partition so that the boundaries of the two lands would have been clearly demarcated. In his main written submission, on page 5 thereof, learned counsel for the appellant stated as follows:
“The Appellant thereby clearly approbated the otherwise erroneous partition of the 12 plots.”
As pointed out by learned counsel himself, the trial Circuit Court had no power to order the partition of the land since partition was not a relief asked for by either party to the suit. In Kwaku v. Ampofowaa (supra) it was held as follows:
(2) in the absence of fresh evidence and of a claim for partition, the order to divide the land equally between the parties was misconceived and contrary to authority. Foli v. Akesse (1934) 2 W.A.C.A. 46 at p. 51 cited. It also clearly showed that the commissioner himself was not satisfied that the plaintiff was entitled to succeed on his claim.
If the trial Circuit Court judge purported therefore to have partitioned the land, she was wrong since she had no such power and it was, as said earlier, for the appellant to have gone back to court for an order of partition. This would have created a clear boundary between the parties. Thereafter if the appellant had filed his entry of judgment and described the boundary of his land there would be very little chance of anyone disputing it. As things stood, the land remained single and intact and the result was that when he was put in possession doubt was created as to whether he was put in possession of his land or the respondents’ land.
This takes me to the next issue which is that in a contempt application the burden of proof is the same as in a criminal case. In other words, the appellant had a duty to prove the guilt of respondents beyond reasonable doubt just as in a criminal case. This is almost trite. And like in criminal cases, the appellant had the duty of establishing a prima facie case against the respondents before the latter could be called upon to open their defence. In the case entitled In re Effiduse Stool Affairs (No. 2) Republic v. Numapau, President of the National House of Chiefs and Others, Ex Parte Ameyaw II (No. 2) [1998-99] SCGLR 639 at holding 2 the Supreme Court held that:
Since contempt of court was a semi-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, first make out a prima facie case of contempt before the court could consider the defences put upon by the respondents.
In the case on hand the 1st and 3rd respondents deposed, in their affidavit in opposition, to several things that showed clearly that they were also making a bona fide claim to the same piece of land and were rather accusing the applicant of fraud. The defence put up by these respondents, in my view, amounted to a defence of claim of right. In his invaluable book titled “Criminal Law in Ghana”, P.K. Twumasi stated at page 381 that:
“A claim of right is a valid defence, no matter whether it is founded in law or in fact. The important thing is that it must be made in good faith.”
I also find support in an article titled “The Defence of Mistake of Fact and Claim of Right: Matters Arising From Republic v. Kwadwo II” by Prof. Henrietta Mensa-Bonsu published in the University of Ghana Law Journal, Volume XX, 1996-1999. On page 134 of the journal, the learned author writes as follows:
“The defence of claim of right is also a common law defence to a charge involving the infringement of the property rights of another – such as stealing, defrauding by false pretences and extortion.”
To the list of offences I would add contempt of court. I am adding contempt of court not because it belongs to the same genre of offences but because contempt of court, as stated earlier, is a quasi-criminal offense and needs to be strictly proven; defences open to a person charged with a criminal offence are, a fortiori, also open to a person charged with contempt of court. In the case of the 2nd respondent, he was not a party to the original suit and was not mentioned at all until the contempt proceedings were initiated by the appellant. He was only mentioned in connection with the fact that he had bought the land and was developing it. But nothing else was said about him that provided any evidence that he knew of any litigation concerning the land nor any execution process on the land and had therefore committed contempt of court. In Okai v. Mawu and Another  1 GLR 265 it was held that:
(2) There was contempt of court where a person who was or was not a party to a suit pending before the court had acted in a way which tended to obstruct the course of justice or amounted to disrespect to the court's authority. However, a court would convict a stranger for breach of an order made by it only if he had knowledge of its existence. In the instant case since the plaintiff was unable to prove that K. M. knew of the order at the time he purchased the land and, nonetheless, thereafter authorised building operations to be carried out on it by the workmen, neither K. M. nor the workmen could be held to have been in contempt of the order of interim injunction.
It cannot therefore be said that the appellant was able to discharge the burden of proof required of him by law to convince us that the trial High Court was wrong in dismissing his application to convict the respondents for having committed contempt of court. Implicit in the appellant’s ground of appeal is the complaint that no reasons were assigned by the trial judge when she held that the respondents had flouted no court order. The law is that an appeal is by way of rehearing hence this Court is in exactly the same position as the trial court and can therefore rectify whatever errors (if any) that the trial court may have committed. Besides, the law is that where a judgment is right but given for the wrong reasons, an appellate court can assign the correct reasons in upholding such a judgment. See the case of Mensah Larkai v. Ayitey Tetteh (substituted by Tetteh Quarcoo); Mensah Larkai v. Tetteh Quarcoo & Ayaa Cudjoe (Consolidated)  SCGLR 621. As we have demonstrated, there were good reasons why the trial judge ought to have dismissed the application brought by the appellant. The fact that she assigned no reasons for decision should not vitiate the ruling.
Flowing from the above reasons, I would dismiss this appeal entirely as being without merit.
(JUSTICE OF APPEAL)
SI APPIAH, J.A I AGREE F. KUSI APPIAH
(JUSTICE OF APPEAL)
KAH-YENSU (MISS),J.A. I ALSO AGREE BARBARA ACKAH-YENSU (MISS)
(JUSTICE OF APPEAL)