IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
THE REPUBLIC - (Defendant/Respondent/Appellant)
ANYETEI NUNO - (Respondet/Appellant) EX PARTE BENNET QUAROO - (Applicant/Respondent)
DATE: 1 ST MARCH 2018
CIVIL APPEAL NO: H1/148/2017
JUDGES: KUSI-APPIAH JA (PRESIDING), E. K. AYEBI JA, SIMON G. SUUREBAAREH JA
MR. KENNETH KUDJORDJIE FOR APPELLANT/RESPONDENT
MISS AFIA ACHEAMPOMAA DUA FOR THE APPLICANT/ RESPONDENT
This appeal emanated from the grant of the applicant/respondent’s motion for an order for committal of the respondent/appellant for contempt of court by the High Court. This motion was preceded by several ones, all against the respondent/appellant by the same group of people whom the applicant/respondent claimed he represents in this motion he filed against the respondent/appellant.
And the genesis of this motion and the earlier ones is this: Somewhere in 2002, the Ministry of Tourism and the La Traditional Council signed a Memorandum of Understanding (MOU) for the joint management of the La Pleasure Beach. In the suit No. 832/2012 instituted LA DADEKOTOPON YOUTH ASSOCIATION VRS NII KPOBI TETTEH
TSURU & 19 ORS., the plaintiff sued the defendants for their failure, refusal or neglect to account to the people of LA who are the stakeholders and beneficiaries as per the terms of the MOU.
During the pendency of the suit, the plaintiff filed an application for an order of interlocutory injunction to restrain the defendants from managing the beach. The court granted the order of interlocutory injunction and restrained the defendants therein. The court also went on to make orders for the running of the beach in the interim pending the determination of the suit. The order of the court states:
“It is hereby ordered that an Interim Management Committee comprising three (3) persons be established to manage the La Beach to be constituted by one person each from the plaintiffs, the GTDC and the La Traditional Council. The Committee is to as a matter of urgency set up the fund agreed to under the Memorandum of Understanding into which the proceeds meant for that purpose are to be deposited and utilized in realization of the objects of the creation of the said fund. The Committee is to furnish the Court with monthly returns of their operations. The Committee is to obtain value books (receipts) from the Ghana Revenue Authority. This order is to be carried out forthwith pending the speedy trial of the subject matter of the instant action.
It is hereby further ordered that the plaintiffs do provide an undertaking as provided for under Order 25 rule 9. Since they are to provide an undertaking, the chairman of the Committee is to be nominated by the plaintiffs. Decisions of the Committee are to be taken by a majority with the Chairman having a casting vote”.
This order was made on 3rd December 2013. The respondent/appellant was appointed by the plaintiff as their representative on the Interim Management Committee (IMC) and in accordance with the order of the court became the Chairman of the IMC. On 21st October 2014, the court delivered final judgment in the matter. The court observed that during period of operations of the IMC, the sum of GH¢89,000.00 was realized as being 30% of the 80% of the proceeds. Out of the total sum, 20% has been duly paid to the Traditional Council.
Being satisfied with the performance of the IMC, the court more or less made the Committee a permanent one by ordering them to continue in office. This is what the judge said:
“I believe the performance of the IMC is laudable, they are mandated to continue with their stewardship unless a reasonable cause be shown to the satisfaction of the court to the contrary, the nominative powers of the parties though remain unchanged”.
The court in restraining the defendants, ordered in particular the 17th to the 20th to render accounts of monies realized from the operations of the beach from 2003 to November 2011. The defendants therein, dissatisfied with the judgment filed a notice of appeal against it on 10th December 2014. On the same day that the appeal was filed, the defendants therein filed a motion in the High Court praying for an order withdrawing the mandate of the Interim Management Committee (IMC) and for account and for the restoration of the status quo ante. The ruling in that motion, TMISC 71/2014 is attached to the respondent/appellant’s affidavit in opposition to the motion for committal for contempt as Exhibit ST3.
A basis of the motion as averred to in paragraph 17 of the affidavit in support is that the “Chairman (respondent/appellant herein), the representative of the plaintiff has arrogated to himself ultimate powers and manages the beach without the involvement of other representatives”. I did not find from the ruling the reason the defendants therein gave for filing the motion with such a prayer when they have filed an appeal against the judgment and could have made that prayer a ground of appeal. In dismissing the motion, George Ato Mills-Graves J. at page 11 of his ruling (Exh. ST3) said:
“The court shall therefore not allow itself by this application to render the orders of the court (are) given by Abada J nugatory or to vary the said orders …”.
There were other motions filed by the defendants in that suit against the respondent/appellant. One was a motion to set aside the specific orders arising from the judgment made by the trial judge. And the other was a motion for stay of execution of the judgment itself pending appeal. All these were dismissed. From there onwards, the La Youth or individual members of La Youth Association entered the fray.
In suit No. AHR 10/2015, the La Concerned Youth Association sued the La Dade Kotopon Youth Association in the High Court alleging in sum that the Chairman of the IMC failed to comply with the orders of Abada J. They prayed the court for an order to the Chairman to render accounts for revenue generated from operations of the beach after the judgment of Abada J and a further order that the respondent/appellant herein be removed as Chairman of the IMC.
The defendants in that suit filed an application to dismiss the suit on the grounds that it is frivolous, vexatious and an abuse of the process of the court and did not disclose any reasonable cause of action. In support of the application, the defendants in that suit averred that the issue of accounts which is the basis of the plaintiff’s claim has been pronounced on by Abada J and there is an appeal pending thereon. In upholding the application to dismiss the suit, the court in its ruling, Exhibit ST2, referred to the Whitebook (without the year and edition) at page 347 where the learned authors discussed “relitigation” as a ground for striking out a writ or pleading by a court under its inherent jurisdiction. There the learned authors wrote:
“So if a party seeks to raise a new question which has already been decided between the same parties by a court of competent jurisdiction, this fact may be brought before the court by affidavit, and the statement of claim, though good on the face of it may be struck out and the action dismissed, even though a plea of res judicata might not strictly be an answer to the action; it is enough if substantially the same point has been decided in a prior proceedings”.
(See The Supreme Court Practice, 1997 Vol. 1 Part 1 at page 335)
Thus in dismissing the suit, the court page 8 of the ruling stated that:
“To allow the respondent to re-open the matter would in my view open the floodgates for every single person, group of individuals to file separate actions anytime they formed the view that certain acts are being performed contrary to the orders of the court”.
The above statement of his Lordship Justice Daniel Mensah was vindicated when in Suit No. AP 172/2015, one Daniel Lomotey alone cited the respondent/appellant and others for contempt for failure to account as ordered by the court. The motion was dismissed by Justice Mustapha Logoh J on the ground of lack of capacity and failure to prove the allegation amongst others.
Although the claims of the La Youth Association and or members of the Association were couched as a claim for accounts in the interest of the people of La after the formation of the IMC, the real intendment of the suits were to remove the respondent/appellant herein as the Chairman of the IMC and for that matter their representative on the IMC. The motion for an order for committal for contempt of court which has resulted in this appeal is ample proof as stated in reliefs (c) and (d) hereunder.
In the motion, Bennet Quacoo, applicant/respondent prayed for an order to commit to prison the respondent/appellant for failing to comply with or carry out the orders of the court, that is Abada J’s orders made in the judgment dated 21st October 2014. In the affidavit, the applicant/respondent accused the respondent/appellant of failing amongst others to set up the fund agreed to under the MOU between the La Traditional Council and the Ghana Tourist Development Company in 2002, to furnish the court with the monthly returns of their operations and to obtain value books (receipts) from the Ghana Revenue Authority.
The applicant/respondent asserted that the conduct of the respondent/appellant is not only objectionable and contemptuous, but also undermined the judicial process. The applicant/respondent therefore prayed the court to:
(a) Commit the respondent/appellant to prison for contempt.
(b) Order the respondent/appellant to account for his stewardship from 3rd December 2013, when he was appointed to date.
(c) Order the removal of the respondent/appellant from office forthwith, and
(d) Order Obodai Adjah Torto, the Director of La Dade Kotopon Youth Association to nominate a new person as the Chairman of the three-member IMC.
In a supplementary affidavit, the applicant/respondent drew attention to a letter dated 20th August 2014, Exhibit JAY3 addressed to the Chairman of IMC by the Chief Executive Officer of the Ghana Tourist Development Company Ltd. In the said letter, the GTDC demanded records of payment of lodgments of monies that had accrued from the operation of the La Pleasure Beach.
In an affidavit in opposition, the respondent/appellant rubbished the case of the applicant that it is a mere allegation without any evidence in support; that after Abada J’s judgment various suits were brought against him in his capacity as Chairman of the IMC. The said suits sought the same prayers as in the instant motion but they were all dismissed. These suits he has exhibited as ST1, ST3 and ST4 which I have already made reference to. According to the respondent/appellant since the present application is quasi-criminal, just as the suit in Exhibit ST4 which was dismissed, the court should dismiss the present suit on the principle of autrefois acquit. Finally, the respondent/appellant questioned the motive of the applicant/respondent for citing him alone for contempt when the orders of the court alleged to have been disobeyed by him were directed at the IMC and not him as the Chairman alone.
The trial judge Justice Robin Batu after perusing the address of the parties as ordered and reviewing the affidavit in support of the motion and the affidavit in opposition, as well as the annexures stated at page 16 (page 97) of his ruling that:
“The MOU and the court’s order have simply been ignored. Thus even if the accounts presented in September 2014 to the court were treated as genuine, there is no evidence that any effort has been made to comply with the MOU and the court order since the judgment. The court’s order has been treated as non-existent. This is in consonance with the respondent’s misconceived contention that the order of the court become moribund after the judgment”.
Unlike Justice Mustapha Logoh J who dismissed a similar application against the respondent/appellant, Robin Batu J held at page 98 of the record of appeal that:
“A good case has been made for the committal of the respondent for disobeying or refusing to comply with the orders of the court”.
Having so held, he however observed that since the purpose of the suit is to ensure that the orders of the court and the provisions of the MOU are complied with, no useful purpose will be served by imposing any harsh punishment. He then proceeded to grant all the reliefs claimed by the applicant.
Aggrieved by the judgment, the respondent appealed to us to reverse ruling, set it aside and quash his conviction. The grounds of the appeal are:
(a) The court erred by convicting the respondent of a non-existent breach of the Memorandum of Understanding and not of the orders of the court.
(b) The court erred by not applying the standard of proof required of the applicant in a contempt application.
(c) The court erred by using the contempt application to relitigate issues determined by Justice Abada in his judgment dated 21st October 2014 and Justice Ato- Graves in his ruling dated 19th day of December 2014.
(d) The court erred by entertaining a contempt application from the applicant who is not a party to the substantive suit (out of which arose the contempt application).
(e) The ruling is not sustainable having regard to the evidence before the court.
(f) The judge erred by varying the orders of Justice Abada based on a single evidence that has been predetermined by Justice Abada, Ato-Graves and Daniel Mensah in their judgment and rulings dated 21st October 2014 and 19th December 2014, 30th July 2015 respectively.
According to Halsbury’s Laws of England, 3rd Edition, Volume 8 at page 2, contempt of court is either criminal contempt consisting of words or acts obstructing, or tending to obstruct the administration or contempt in procedure, consisting of disobedience to the judgments, orders or other process of the court and involving a private injury. This second type of contempt is also called civil contempt.
A judgment or order requiring a person to do any act other than the payment of money, or to abstain from doing anything may be enforced by attachment or committal, and if a party fails to comply with an order to answer interrogatories or for recovery, he is liable to attachment, but in neither case will attachment be directed to issue immediately unless the failure to comply is willful.
As opposed to an order of a court strictu senso, when an order is made by consent staying an action on terms set out in a schedule to the order, and one of the parties fails to comply with the terms, the remedy of the injured party is to apply, not for attachment or committal, but for an order for specific performance or an injunction, and then to base proceedings for contempt on any subsequent breach.
In suit No. 832/2012, the La Dadekotopon Youth Association sued the La Traditional Council and 19 others for breach of the terms of the Memorandum of Understanding (MOU) entered into with the Ministry of Tourism. The orders of the High Court which the applicant/appellant (known as appellant for short) is alleged to have disobeyed were made when the court granted an interim order during the pendency of the suit and at the end of the suit, the orders were made permanent.
The MOU thus provided the basis of the complaint of the La Dadekotopon Youth Association against the La Traditional Council and 19 others. A Memorandum of Understanding also called a Letter of Intent in Black’s Law Dictionary (8th Edition) is a non-committal writing/statement preliminary to a contract. The courts do not ordinarily enforce it but they do recognize such a commitment has been made by the parties to it.
In ground one of the appeal, the appellant faulted the trial judge for convicting him on a non-existent MOU instead of the order of the court. Thus in the submission of the appellant on this ground of appeal, it is argued that Robin Batu J used the provisions of the MOU in particular clause 2:6 instead of violations of the orders of the court to convict him. According to him with orders of the court, the provisions of the MOU have become non-existent and therefore ineffectual. However, the applicant/respondent (respondent in short) countered that the orders of the court sought to give effect to the MOU and the IMC of which appellant is the head was to be guided by the terms of the MOU in respect of the disbursement of revenue operations of the beach.
This being the rival positions of the parties, the orders must be examined in detail in relation to the provisions of the MOU. One of the reliefs the La Dadekotopon Youth Association sought in suit No. 832/2012 was an order establishing an IMC during the pendency of the suit. Thus in granting a motion for an order of interlocutory injunction filed by the plaintiffs therein, the court ordered that a three member IMC be formed comprising a representative from the La Dadekotopon Youth Association, La Traditional Council and Ghana Tourist Development Company. Additional to that, the court specified duties of the Committee as follows
(a) The Committee is to as a matter of urgency set up the fund agreed to under the Memorandum of Understanding into which the proceeds meant for that purpose are to be deposited and utilized in realization of the objects of the said fund.
(b) The Committee is to furnish the court with the monthly returns of their operations.
(c) The Committee is to obtain value books (receipts) from the Ghana Revenue Authority.
These were the orders of the court on 3rd December 2013. Indeed in the Memorandum of Understanding mentioned in (a) above, there was an agreement between the parties therein to set up a fund. The full text of the Memorandum of Understanding is at page 8 of the record of appeal. In clause 2:6, the parties agreed that:
“The Ministry (of Tourism) shall set aside 30% of the remaining 80% net proceeds into a La Development Fund. The Ministry shall also undertake the infrastructural development of the Beaches”.
Mention must also be made of clause 2:5 of the MOU which says that:
“The Traditional Council shall enjoy a royalty of 20% of net monthly proceeds from the operations of the Beach”.
It is these two clauses in the MOU which direct how revenue generated from operations of the beach should be disbursed.
So by the orders of the court, what was required of the IMC was to set up the Development Fund agreed to under the MOU. Under the MOU that responsibility was on the Ministry of Tourism. But the orders of the court has categorically given it to the IMC. And apart from the management body of the beach, that is the only provision of the MOU the order of the court has interfered with. It is therefore not true as averred to in paragraph 6 of the respondent’s affidavit in support of the motion that the orders of the court incorporated the MOU. A similar averment was made in paragraph 14 of the affidavit. But the orders of the court were not made subject to or in addition to the provisions of the MOU.
The orders of the court were clearly distinct and different from the provisions of the MOU. The trial judge failed to appreciate this fact and make the distinction in his findings. For example at page 14 (i.e. page 95 of the record of appeal) of the judgment, in reference to the letter of the Ghana Tourist Development Company to the appellant he inferred that for about a year after the order of the court was made the provisions of the MOU were not being complied with …. With all due respect to the trial judge, the orders of Abada J did not include compliance with the provisions of the MOU as stated on pages 11 and 16 also. The law is that the order which the appellant has disobeyed for which he must be committed to prison must not be ambiguous – see Republic vrs Sito; Ex parte Fordjour [2001/02] SCGLR 322. The orders of Abada J were completely silent on the relevance or continued effectiveness of the provisions of the MOU. The trial judge therefore erred in convicting the appellant for non-compliance with any provision of the MOU.
Specifically in paragraph 17 of the affidavit in support, the respondent alleged that the appellant has refused to establish the various accounts or funds as agreed and ordered, make the prescribed deposits and is conducting the affairs of the 3 member interim committee as his private business, without consulting and involving the remaining members. The trial judge agreed with the respondent that he had made out a good case. But from reading the letter Exhibit JAY3 (p.33) the GTDC wrote to the appellant, the accounts have been opened at the La Community Bank except that no monies have been lodged into it. Again reading from the final judgment of Abada J, he was satisfied with the performance of the Committee based on the returns submitted to the court. He then converted the interim status of the Committee into a permanent one and mandated it to continue in office. Unless there is any evidence which contradicts the evidence in Exhibit JAY3 and the findings of Abada J, the basis of the respondent’s complaint against the appellant cannot be said to have been proved beyond reasonable doubt. So the trial judge cannot be right in convicting the appellant. Ground (a) of the appeal is allowed.
In grounds (c) and (f) the appellant faulted the trial judge for using contempt application to relitigate issues determined by Abada J and Ato-Graves J and then varying their orders based on a single evidence predetermined by three courts differently constituted. The counsel for the respondent in his submission denied the complaint as misleading and ill- conceived. From the record, Robin Batu J decided the motion not based on only affidavit evidence of both parties but also on the annexures of the judgments of his brothers in four courts as well as on the written submissions he ordered.
It stands to reason therefore that Robin Batu J had before him in determining the motion, all the judgments, the basis of the judgments and the orders made in them. All the judgments by their nature of orders were final judgments. Except for the judgment of Abada J against which there was an appeal which the appellants therein have neglected to prosecute, there was no appeal or review against the judgments or orders of Justices Daniel Mensah, Ato-Graves and Mustapha Logoh. On that score counsel for the respondents should have realized that by resorting or alluding to a plea of res judicata which he has not even pleaded amounted to digging respondent’s grave in readiness for his burial. It is a plea which has boomeranged on the respondent. If the rights of the parties in those suits have been completely determined as submitted by counsel for the respondent, what is the nature of jurisdiction in which Robin Batu J sat over the same matter?
Indeed, many infractions of the law and the practice have been revealed in this matter. The infractions did not escape the attention of Justices Daniel Mensah and Ato-Graves but the trial judge in this subsequent action refused to take a cue and be guided by their decisions. I stated that although there was an appeal against the judgment of Abada J, the appellants therein neglected to prosecute it. Rather, immediately after filing the Notice of Appeal, they applied to a court differently constituted to withdraw the mandate of IMC which Abada J extended in his final orders.
By that motion with that request, the appellant therein were litigating with the plaintiffs especially the IMC in two fora at the same time. The conduct of the defendants or appellants therein, in that application was indeed a clear case of abuse of the court process as by their conduct, their appeal could not be said to have been filed bona fide but only meant to vex and oppress the plaintiffs or IMC in the Abada J’s case – see Naos Holding Inc. vrs Ghana Commercial Bank Ltd  1 SCGLR 492. Rightly, the motion was dimissed by Ato-Graves J.
Then on 23rd January 2015, the La Concerned Youth Association sued the La Dadekotopon Youth Association and the IMC for accounts and to restrain the IMC from managing the beach. Justice Daniel Mensah upheld a motion to set aside the action on grounds of relitigating the same matter and dismissed the suit.
Finally, Justice Mustapha Logoh dismissed a contempt application filed by a self- acclaimed member of La Youth Association against the appellant herein in his capacity as the Chairman. The reason for the application as gleaned from the short ruling of the court is failure to account for revenue accruing from the operations of the La Beach. Contrary to the submission of counsel for the respondent, the motion dismissed by Justice Mustapha Logoh is not different in form, substance and consequence on the appellant in this motion.
It has to be reiterated that, the motions and substantive suits filed as a challenge to the judgment of Abada J were dismissed not on the ground of res judicata but principally on the ground that issues/matters which have already been determined were being relitigated. Justice Daniel Mensah’s ruling made that point very clear and supported it with the statement by learned authors of the White Book which I quoted earlier on. It is worth quoting it in extensor again:
“If a party seeks to raise a new question which has already been decided between the same parties by a court of competent jurisdiction, this fact may be brought before the court by affidavit and the statement of claim, though good on the face of it, may be struck out, and the action dismissed; even though a plea of res judicata might not strictly be an answer to the action; it is enough if substantially the same point has been decided in a prior proceeding”.
Indeed in all the previous suits as well as the present one, all the plaintiffs or applicants demanded not only accounts but also complained about management style of the appellant. The trial judge conceded this fact on page 10 of his ruling. Such a complaint would have been legitimate if it had come from a member of the IMC. But the complaints were made by one or other member of the La Youth Association whom the appellant represents on the Committee. These complaints are however contrary to the findings contained in the final judgment of Abada J, delivered on 21st October 2014. In his judgment, Abada J found the performance of the IMC laudable and mandated it to
“continue with their stewardship unless a reasonable cause be shown to the satisfaction of the court to the contrary; the nominative powers of the parties though remain unchanged”.
By these final orders, any of the parties to the suit can return to the court and show reasonable cause why the mandate of the Committee should be withdrawn. Similarly, any representative of the three bodies which constitute the IMC could be removed or replaced by the body the member represents upon a good cause shown to the court. By these orders the responsibility of the members of the IMC was collective and not individual as the trial judge sought to justify the several suits against the appellant. I note however that the submission of the respondent did support that justification.
Was any reasonable cause shown in the previous suits and this suit to warrant the removal of the appellant as the Robin Batu J has ordered? At page 14 of the ruling, Batu J inferred from the letter of GTDC, Exhibit JAY3 to the appellant to mean that since the order by Abada J about a year ago, the provisions of the MOU were not complied with. He catalogued the defaults as averred to in paragraph 17 of the affidavit in support of the motion. So on page 11 of the ruling he stated that a continuous breach of the MOU after the judgment will still entitle any aggrieved person to seek redress in court despite the previous decisions of Daniel Mensah J and Ato-Graves J.
That statement is perfectly in tune with the final orders of the court. But the evidence of breach must be in respect of the orders of the court as opposed to a breach of the provision of the MOU which I have shown do not bind the IMC. Was any such evidence of breach shown in the two previous suits, in the contempt application which Justice Logo dismissed and even in this application?
Going back to the appellant’s affidavit in opposition, he averred that the affidavit in support was full of allegations without any evidence. So in a supplementary affidavit respondent attached exhibit JAY3 as evidence of proof of breach of the orders of the court. In his submission, counsel for the appellant described the letter Exhibit JAY3 a recycled evidence. He is right for the following reasons:
Exhibit JAY3 was written by the Executive Secretary of GTDC during the pendency of the suit before Abada J. The letter was indeed copied to him. Notwithstanding the allegations against the appellant in that letter, Abada J found the work of the IMC commendable and mandated them to continue with their stewardship. The commendation meant that Abada J did not find the allegations proved.
In the motion to withdraw the mandate of the IMC determined by Justice Ato-Graves, he more or less affirmed the judgment of Abada J on this issue of accounts. Batu J noted in his ruling that the proceedings before Abada J were before Ato-Graves J. Thus the latter gave details of the contents of an affidavit filed by the appellant of the income and expenditure of the IMC from December 2013. Ato-Graves J also stated amounts paid by the IMC into the La Development Fund totaling GH¢89,000.00. Justice Batu was honest to admit that the proceedings before Abada J which Ato-Graves J had the benefit of seeing and analyzing were not before him. And yet Batu J disbelieved and doubted the conclusions reached by his two brothers earlier on. At page 16, he queried why the Ministry of Tourism was not aware of payment of monies into the account and if any payment were made, into which accounts were they paid. Batu J reasoned that if the accounts as rendered were true, Exhibit JAY3 would not have been written. On the same page, Batu J thereon concluded that “even if the accounts presented in September 2014 to the court were treated as genuine, there is no evidence that any effort has been made to comply with the MOU and the court order since the judgment”. The question still is, is there any evidence of failure to render accounts since the judgment? The answer is none was provided or alluded to by the trial judge.
I pause here to pronounce on the stand taken by Batu J on the conclusions reached by Abada J and Ato-Graves J. All the three judges sat in various divisions of the High Court. They are therefore courts of co-ordinate jurisdiction. As I indicated, Batu J in his ruling doubted the conclusions of his learned colleagues, criticized them, drew his conclusions and made orders at variance with theirs.
The law as stated in Republic vrs High Court, Kumasi; Ex parte Asare-Adjei (Anin- Mensah Intersted Party) [2007/08] SCGLR 914 at 921 is that, a High Court has jurisdiction to set aside a void order of another High Court. If the judgment or ruling is void, any court in principle, should be able to set aside the void ruling or judgment. Instances where one High Court can set aside the order or judgment of another High Court is where the earlier judgment or order was obtained by fraud, there was a breach of a rule of natural justice or total lack of jurisdiction over the matter.
Thus in Aniomega vrs Ahiabor  1 GLR 1 in holding one, the court held that:
“Where the mutual rights of two parties have been adjudicated on by a court of law, it is not open to one of the parties to go to a court of co-ordinate jurisdiction and re-open the whole matter, unless on the allegation of fraud, etc.”.
In law there is a world of difference between an erroneous judgment or order and a void order or judgment. While an erroneous judgment or order is valid subsisting until set aside on appeal by a higher court, void judgment or order can be set aside by the court suo motu or on application of a party affected by the order or judgment. In the instant case, it is clear to me that Batu J in one respect found the judgments of the Abada J and Ato- Graves J erroneous, hence his failure to sustain them. But then what about the ruling of Justice Mustapha Logoh which dismissed a similar application just about a month earlier and there has been no appeal? He erred gravely in law by assuming jurisdiction as a court of first instance over a matter which properly should have been appealed against. The ruling and the consequential orders he made cannot stand.
Another reason why the ruling cannot stand is that Batu J misdirected the burden of proof on the appellant. At page 16 in paragraph 3 of the ruling he observed that:
“A simple answer to the applicant’s accusation would have been to produce documentation to show that the provisions of the MOU and the court’s order been complied with …”.
As rightly pointed out by counsel for respondent in his submission, this is a quasi-criminal matter and the standard of proof is proof beyond reasonable doubt. For it is provided in section 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.
Since it is the respondent who has alleged that the appellant has disobeyed the orders of the court, the burden of proof lies on him to so prove. This is because, he who affirms must prove. All that is required of the appellant is to raise a reasonable doubt as to his guilt. The only evidence relied on by the respondent is Exhibit JAY3. But the appellant has produced credible evidence before the court that the respondent’s complaint supported by that Exhibit JAY3 has been determined by at least three courts differently constituted in his favour. The trial judge no doubt conceded this fact. And yet still he failed to pause and question why the respondent should invoke his jurisdiction over the same matter. Since this is a quasi-criminal matter, on the principle of autretois acquit, we have sufficient ground on which to set aside the ruling of Batu J, allow the appeal and discharge the appellant.
I noticed that ground (d) has not been argued and counsel for appellant was silent on its existence. It is struck out as abandoned. Ground (e) is to the effect that the ruling is not sustainable having regard to the evidence before the court. Having held that even if the respondent’s complaint is that since the judgment, the appellant has failed to account, there is no iota of evidence to support that conclusion reached by the trial judge. It stands to reason therefore that ground (e) of the appeal cannot also be sustained.
In In Re Effiduase Affairs (No.2); Republic vrs Numapau, President of the National House of Chiefs and Others; Ex parte Ameyaw II (No. 2) [1998/99] SCGLR 639, Acquah JSC (as he then was) defined contempt of court as any act or conduct that tended to bring the authority and administration of the law into disrespect or disregard or to interfere with, or prejudice parties, litigants or their witnesses in respect of pending proceedings.
He went on to classify contempt of court as either direct or indirect or civil and criminal. As regards civil contempt which this case exemplifies, they are those quasi-contempt consisting in failure to do something which the party was ordered by the court to do for the benefit or advantage of another party to pending proceedings.
Again as regards proof, the learned judge said in holding (2) that:
“Since contempt of court was 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 defences put upon by the respondents”.
And in Republic vrs Sito I, Ex parte Fordjour (supra), the court outlined the elements of contempt charge as that (a) there must be a judgment or order requiring contemnor to do or abstain from doing something; (b) it must be shown that the contemnor knows what precisely he is expected to do or abstain from doing, and (c) it must be shown that he failed to comply with the terms of the judgment or order and that his disobedience was willful.
As I have variously demonstrated from the ruling, the trial judge failed to appreciate the difference between the provisions of the MOU and the orders of the court. But the provisions of the MOU are not binding on the appellant or the IMC. In the absence of any evidence of disobedience of the orders of the court, the appellant is not liable to the charge. Further, although failure to comply with a court’s order will be prima facie contempt, to be punishable the contempt must be shown to be willful or intentional – see Agbleta vrs The Republic  1 GLR 445.
In this case, the order of the court was directed at the IMC made up of three members, not the appellant alone. Merely alleging that the appellant alone has failed to comply with the order of the court without more is not sufficient to ground conviction or liability. Respondent should have also shown that the appellant had the ability to comply but intentionally failed to do so if there was any breach at all – see Baah vrs Baah  2 GLR 8.
Now to the orders made by Robin Batu J. In Danchevsky vrs Danchevsky  3 All ER 934 the court held that if there was a reasonable alternative method available of ensuring that a court order was obeyed, which did not involve committing the contemnor to prison, that alternative should be taken. In this case in addition to an order committing appellant to prison, respondent also asked that he be removed from office, be made to render accounts and be replaced as the Chairman of the IMC.
The court however found that no useful purpose will be served by committing the appellant to prison upon conviction. This is because as he rightly observed, the whole essence of the suit is to compel appellant to account for his stewardship. So this application for committal for contempt without first a demand for accounts is therefore inappropriate. It is an inappropriate remedy to seek in the first instance because Justice Abada in his final orders has given direction what an aggrieved party must do should he/she find the stewardship of the IMC unsatisfactory. It is that the aggrieved party must come back to the court and show reasonable cause to its satisfaction why the IMC or a member should be removed from office. The failure of the trial judge to appreciate this directive led him to uphold the instant motion which three of his brothers had earlier dismissed.
And consequent upon upholding the motion, he amongst others ordered the appellant to step aside as Chairman of the IMC and yet again did not disqualify him from seeking re- nomination. These orders apart from being contradictory in terms, are also in direct conflict with relief (c) sought by the respondent from the court.
In the premises we uphold the appeal, quash the conviction of the appellant and consequently acquit and discharge him.
K. AYEBI (JUSTICE OF APPEAL)
I am constrained to put down a word having regard to the manner in which the trial judge approached the assessment of the evidence before him. The basic “facts” in this appeal have been sufficiently set out in the judgment of my brother Ayebi, J.A. All these being documentary (pleadings, motions, affidavits and rulings), cannot be in dispute, and I do not intend to repeat them except where necessary.
The question that interests me and to which I desire to direct attention is whether in the circumstance(s) of this case, Batu, J. was in order in assuming jurisdiction over the application that went to him, and in deciding it.
The problem has arisen in very chequered and interesting circumstances. Following the breach of Memorandum of Understanding (MOU for short) between the Ministry of Tourism and La Traditional Council by the six (6) member management committee, the said management were sued for mismanagement in Suit No. 823/2012 – entitled La Dadekotopon Youth Association vrs. Nii Kpobi Tettey Kpobi Tsuru II (La Mantse) & 19 Ors. in the High Court, Accra. The court presided over by Abada J., granted an application for interlocutory injunction which restrained the defendants in Suit No. 832/2012 from managing the affairs of the beach. The court then set up a three (3) man Interim Management Committee (I.M.C. for short) to manage the affairs of La Beach and mandated the I.M.C. to set up a La Dadekotopon Development Fund and deposit 30% of 80% into the said fund. The trial court (per Abada J.) in its final judgment dated 21/10/2014 extended the mandate of the I.M.C. to manage the La Pleasure Beach.
Dissatisfied with Abada J.’s judgment, the defendants filed Notice of Appeal on 10/12/2014 and followed it up with an application praying the High Court, Accra, presided over by Mills-Graves J. for an order withdrawing the mandate of the I.M.C. and for account and restoration of “status quo ante literm”. But the court after hearing arguments from counsel for the parties dismissed the application as unmeritorious and vexatious on 19/12/2014.
On or about 23/1/2015, a group describing themselves as LA CONCERNED YOUTH ASSOCIATION issued another writ in the High Court, Accra (Suit No. AHR 10/2015) against LA DADEKOTOPON YOUTH ASSOCIATION and THE CHAIRMAN OF I.M.C LA PLEASURE BEACH for an order of account of all revenue accruing from 2003 to 30th November, 2011 and an order of injunction to restrain the 2nd to 20th defendants by themselves, agents, assigns, etc. from having anything to do with the management and control of La Beach.
The court differently constituted by Daniel Mensah J., upheld a motion by defendants/applicants and dismissed the suit on the ground that the plaintiffs/respondents were relitigating issues already determined in Suit No. 832/2012 by Abada J.
On 31/7/2015, the High Court, Accra presided over by Mustapha Habib Logoh J. dismissed an application by one Daniel Lomotey per his solicitor, Mr. Garr against the respondent (Anyetei Nunoo, Chairman of I.M.C.) and other I.M.C. members for contempt of court in disobeying the orders of the court to open account in the name of La Development Fund into which a deposit of 30% out of 80% of its net revenue is to be paid into that Fund, failed to obtain value books (receipts) and furnish the court with monthly returns of its operations. That the respondent runs the La Pleasure Beach like his own business without the involvement of the other I.M.C. members.
The court refused the application because the applicant therein not only lacked capacity to represent a legally registered company but also failed to establish that the I.M.C. members have indeed failed to account for their stewardship. Whatever the merits of this ruling, it disposed of the application. Of course, if either party felt aggrieved by the ruling, he had every right to appeal, or to apply for review. Neither party appealed nor asked for review.
On 25/8/2015, exactly twenty-five (25) days after Logoh J.’s ruling, Justice Yakubu Abdulai Esq. filed in the High Court another contempt application in exactly the same terms and seeking the same remedies as the one which Logoh J. dismissed on 31/7/2015 against the chairman of I.M.C. – Anyetei Nunoo). The accompanying affidavit was the same as the earlier one word for word, paragraph for paragraph. This new application was put before a different Judge, Batu J.
The applicant/respondent herein (Bennet Quarcoo) was again represented by the same person, Justice Yakubu Abdulai Esq. Batu J. heard the application on 8/9/2015 and in a reserved ruling read on 28/9/2015, convicted the respondent/appellant (Anyetei Nunoo) for contempt and accordingly granted all the reliefs sought by the applicant/respondent herein as follows:
“1.The respondent will step aside as the chairman of the I.M.C. and representative of the La Dadekotopon Youth Association on the I.M.C.
2. Respondent will also be bonded to be of good behaviour for 12 months in breach of which he will serve six (6) months imprisonment.
3. Respondent is also restrained from interfering with the management and operation of the La Pleasure Beach unless his nomination is renewed by the Association.
4. The I.M.C. as constituted until today will render audited accounts of its operations of La Pleasure Beach from the date of the judgment until today. The Auditor-General is hereby ordered to appoint an officer or official to audit those accounts taking into consideration the M.O.U. of 29th April, 2002 and the orders of the court sealed by the Registrar of the court on 8th December, 2013.
5. The Director of the Dadekotopon Youth Association Mr. Obodai Nabi Adjah Torto suggested by the applicant but not objected to by the respondent is in the interim appointed to replace the respondent as chairman of the I.M.C. and representative of La Dadekotopon Youth Association on the I.M.C. The respondent to appropriately hand over to him by 1st October, 2015.
6. Each of the component bodies of the I.M.C., the La Traditional Council, the Ministry of Tourism and the La Dadekotopon Youth Association, by 21st December, 2015 exercise their nomative powers by either renewing the mandate of the present I.M.C. members or replace them with new nominees. For the avoidance of doubt the respondent is not hereby, subject to the wishes of the La Dadekotopon Youth Association, disqualified from seeking renomination.
The order for account to be complied with and the accounts filed in this court by 30th November, 2015. The nominees of the constituent bodies of the Management Committee to be filed on or before 21st December, 2015”
11. These orders (by Batu J.) were the exact opposite of what the same High Court (Logoh J.) had decreed on the same application 25 days earlier, on 31/7/2015. It is this ruling of Batu J. which passing through the High Court is now before us for scrutiny.
12. The question which arises is whether having regard to the subsistence of the ruling of Logoh J., Batu J. had jurisdiction to re-hear the same application. For some reason; not easily appreciated, the issue of jurisdiction as formulated above, so glaring on the face of the record, managed to escape the attention of the parties and their counsel. It was completely side-stepped, and never mentioned at all.
13. With Mr. Mohammed Sahnoon (counsel for the respondent therein), his failure to call the learned Judge’s attention to the ruling of Logoh J. in the similar and unsuccessful motion dated 31/7/2015 is in my view, unfortunate. It strikes me that if Batu J. had seen the ruling of Logoh J., his reaction in the application then might have been different. Be that as it may, the ruling dated 31/7/2015 to the effect that a charge of contempt could not be made out against the I.M.C. members including its chairman, Anyetei Nunoo, and being an order of the High Court in the same case, Batu J. in the same High Court lacked jurisdiction to hear the same application.
14. It is my view that since the ruling and/or order of Logoh J. on 31/7/2015 had not been set aside on appeal or otherwise, Batu J. lacked jurisdiction to hear and determine the fresh identical application field by Bennet Quarcoo, seeking the very reliefs which had been refused and dismissed earlier on. The impression must on no account be created that litigants and their lawyers can run from Judge to Judge until they get the ruling and orders they want. There can be no surer recipe for chaos and confusion in the courts. I will not subscribe to a precedent which points in that direction.
15. There can be no doubt that the Ruling of Logoh J. finally disposed of the application and the High Court , no matter how constituted, cannot and must not entertain an identical and similar application seeking the very reliefs which it had firmly and finally refused and dismissed. In my opinion, the hearing and determination of the application now on appeal before us by Batu J. was an exercise in futility, on the sole ground that the court lacked jurisdiction. On this ground I am of the opinion that the appeal be allowed. The decision of the High Court, Accra by Batu J. is a nullity and must be set aside. That the law in point is as I have stated above is supported by the case of Anane vrs. Efriyea  6 W.A.C.A. 169. At page 170 the court stated as follows:
“This is not a question of estoppel by ‘res judicata’ and not a question of giving in evidence a judgment in another case as ‘res judicata’. It is not a question of evidence at all. It is simply the blunt and inescapable truth that the commissioner’s court having given an interlocutory judgment in a particular suit that judgment stands unless in so far as it may be reviewed by the particular Judge who pronounced it or altered by a competent Appeal Court. No other Judge of the Provincial Commissioner’s court can come along and say either ‘ex proprio motu’ or on application of one of the parties.”
The court went further to state that:
“The defendant’s remedies, if dissatisfied with the judgment of Dickinson, Acting Assistant Chief Commissioner, were either to appeal as against an interlocutory judgment within the time provided ‘ad hoc’ or to raise the matter on appeal after final judgment.”
The present case is on all fours with Anane vrs. Efriyea supra. Like Anane vrs. Efriyea case, once the High Court have heard and determined the contempt application, the respondent’s remedies if dissatisfied with the ruling of Logoh J. were either to apply for review within the time prescribed by law or appeal against the decision and not a repeat application before a court of co-ordinate jurisdiction by the same party or parties and/or their privies.
A proper reading of the record indicates that Batu J. was obviously misled by applicants/respondents’ counsel that the respondents/ appellants had disobeyed the orders of the court to account for his stewardship in the management of La Pleasure Beach. In any case, the pieces of evidence which the trial judge Batu J. relied upon as establishing the applicant’s prayer are the provisions of the M.O.U. Exhibit JAY 1, the judgment by Abada J. dated 21/10/2014, Exhibit JAY 2, a letter by Ghana Tourist Development Company Limited to the respondent requesting for records of lodgement of monies from operation of La Pleasure Beach, Exhibit JAY 3. My brother Ayebi J.A. has ably demonstrated in his judgment that the above pieces of evidence do not establish the applicant’s contention that the appellant herein disobeyed the orders of the court and thus the charge of contempt was not made out against the appellant herein. And I agree with him.
It is pertinent to note that Abada J. in his judgment dated 21/10/2014 lauded the performance of I.M.C. at page 31 of the record when he said:
“During the period of the operations of the beach by the Interim Management Committee, the sum of GH¢89,000 was realised as being the 30% of the 80% of the proceeds. Out of the total sum 20% has been duly paid to the Traditional Council.
I believe the performance of the Interim Management Committee is laudable, they are therefore mandated to continue with their stewardship…”
Similarly, the ruling of Mills-Graves J. dated 19/12/2014 applauded the management of when it held at page 12 of his ruling that:
“I find no reasonable cause that the defendant/appellant/ applicant has shown to the court, to vary or to withdraw the mandate of the Interim Management Committee and additionally I am of the opinion that the chairman and/or the I.M.C. is rendering account in the manner as ordered by the court” (emphasis mine).
Indeed, the judgments of Abada J. and Ato Mills-Graves J. show substantial evidence of rendering proper and acceptable accounts by the I.M.C. which is empowered by the court to manage the La Pleasure Beach. But contrary to the overwhelming evidence on record in favour of the I.M.C., Batu J. strangely convicted the appellant of contempt for failing to render proper accounts on La Pleasure Beach as ordered by the court.
In the result, I find that:
(i) Given the ruling of Logoh J. on 31/7/2015, Batu J. had no jurisdiction to hear the motion again, and deliver the ruling of 28/9/2015.
(ii) The decision/ruling of Batu J. with all due respect to the trial Judge Logoh J., was patently perverse.
(iii) The order convicting the appellant for contempt together with its consequential orders are completely indefensible and manifestly unlawful.
Accordingly, I agree that the appeal be allowed, the ruling of Batu J. the subject matter of this appeal is hereby set aside together with its consequential orders.
(JUSTICE OF APPEAL)
S. G. SUUREBAAREH I also agree S. G. SUUREBAAREH
(JUSTICE OF APPEAL)