1. This is an appeal from the judgment of His Lordship Justice Uuter Paul Dery, Justice of the High Court, Sekondi dated 16th March, 2015 in which the Appellants were convicted for Contempt of court.  The Application for the attachment/committal for Contempt of the Appellants was filed on   31st December, 2014 before a differently constituted court. The reasons given by the Applicants, per their Affidavit in Support and accompanying Exhibits are that they the Applicants, sometime in May 2013 issued a Writ of Summons and Statement of Claim against the Electricity Company of Ghana (ECG) claiming inter alia, a declaration that the intended route for the construction of the 33KV overhead line from Kwame Nkrumah Circle to the Paa Grant Circle is wrongful.

The Applicants then applied for an Interlocutory Injunction to restrain the ECG in the following terms:

An order of the court to restrain “the defendant, whether by itself, its agents, assigns, privies, servants etc howsoever from routing the 33KV over-head lines between 10 - 25 meters from the plaintiff’s boundary on plot No. I0, Cape Coast Road, Takoradi. “And for further order restraining the defendant, whether by itself, its servants, agents, privies, assigns howsoever from constructing  an electric pylon within 10 - 25 meters radius of the plaintiff’s plot No. 10 Cape Coast Road, Takoradi.”

2. The application was opposed and at the end of the arguments for and against same, the High Court, as differently constituted, granted the application for interlocutory injunctions in these terms on 24th July, 2013.

“… the application for injunction against the Respondent is granted and the defendant, whether by itself, agents, servants, privies etc howsoever are restrained from routing the 33KV overhead lines between 10.6 meters from the plaintiff’s boundary on Plot No. 10, Cape Coast Road, or doing any act in that regard (sic) in Takoradi until the matter is determined as per the motion paper.

For obvious reasons, it is ordered that copies of this order and or the ruling be served on the

S.T.M.A. and Mechanical Lloyd who have been joined to this suit for their attention.”

3. After this ruling of 24th July, 2013, the parties tried to settle the matter out of court but were not successful. The Applicants deposed in their Affidavit in Support of the Application for Contempt that in utter disregard of the orders of the court, ECG and Mechanical Lloyd and in a clear attempt to prejudice the pending case in the court started re-routing the path of the cables by digging underground. According to the Applicants, all attempts to stop them from digging proved futile. The Applicants therefore sought to attach the 1st Appellant who according to them was the Regional General Manager of ECG directly responsible for the digging and laying of the cables underground  and the 2nd Appellant, the Managing Director of Mechanical Lloyd who permitted his yard to be used for the digging and laying of the cables underground.

The Appellants, as Respondents therein vehemently opposed the Application for Contempt. They  were however found guilty of same by Justice Uuter Paul Dery on 16th March, 2015 and convicted accordingly. The Respondents/Appellants herein were dissatisfied with this judgment of  His  Lordship Justice U.P. Dery and they according filed individual Notices of Appeal against same.

4. The 1st Respondent/Appellant filed his Notice of Appeal on 22nd April, 2015 relying on as many as fifteen grounds of appeal. These are:

a. The learned judge erred when he heard an Application to commit an officer of a Company for an alleged Contemptuous conduct of the Company without satisfying himself that the said officer had been served with the order allegedly disobeyed in accordance with the rules of court before hearing  the application.

b. The learned judge erred when he heard an Application to commit an officer of a Company for an alleged Contemptuous conduct of the Company which application in its title neither disclosed that the alleged Contemptuous conduct originated from a suit involving the Company nor disclosed that the conduct complained of was that of the Company.

c. The learned judge erred when he held that the 2nd Applicant/Respondent had the capacity/locus standi to bring the application.

d. The learned judge erred when he relied on an affidavit sworn to by Percy Botchway, who together with his employers had no interest in (sic) the order of the Court being sought  to  be enforced.

e. The learned judge erred when he relied on Exhibits that have not been properly exhibited in accordance with the rules of Court but merely annexed to the Applicant’s affidavit.

f. The learned judge erred when he relied on the Applicant’s attachment, Exhibit B although same was an outcome of an attempted settlement.

g. The learned judge erred when he committed the 1st Respondent/Appellant an officer, for the conduct of the Company.

h. The learned judge erred when he interpreted the Order of the Court attached to the Application as Exhibit ‘A’ restraining the Electricity Company of Ghana (ECG from laying  its  overhead lines to include a restraint from laying underground cables.

i. The learned judge erred when he committed the 1st Respondent/Appellant for Contempt without taking any cognizance of the fact that the Order alleged to have been defied gave a limiting distance of 10.6 meters from the Applicant’s boundary.

j. The learned judge erred when he committed the 1st Respondent/Appellant for Contempt although the Applicants/Respondents failed woefully to prove that anything was done by the 1st Respondent/Appellant or his employers within the 10.6 limiting distance of the Order, Exhibit ‘A’

k. The learned judge erred when he shifted the burden of proof on to the 1st Respondent/Appellant to prove beyond reasonable doubt that he was not at post in Takoradi when  the alleged Contemptuous conduct was undertaken.

l. The learned judge erred when he held that the routing of the cables underground was a violation of the Court’s order.

m. The learned judge erred when he sentenced the 1st Respondent/Appellant on 22nd April, 2015 pursuant to his erroneous committal and / or conviction

n. That the decision of the Court was against the weight of evidence.

o. Further grounds of appeal would be filed on receipt of the judgment.

No further grounds of appeal were filed.

In the Written Submission filed on behalf of the 1st Respondent/Appellant on 14th February, 2017, Counsel indicated in the unnumbered page 5 thereof that grounds d, e and f have been abandoned. Accordingly, the said grounds d, e and f are struck out as abandoned.

5. The 2nd Respondent/Appellant on his part, filed his Notice of Appeal on 4th May, 2015. He relied on twelve grounds of appeal. These are: -

i. That the learned judge failed to appreciate that the whole application for committal for Contempt was procedurally irregular, incompetent, not properly before the Court and fraught with grievous errors of law.

ii. The learned judge erred in law when he proceeded with and convicted the 2nd Respondent

/Appellant.

iii. That the trial Court further lacked jurisdiction to proceed to hear the application.

iv. That the conviction of the 2nd Respondent/Appellant is against the weight of the affidavit evidence.

v. That the learned trial judge erred in law and in fact when he failed to consider the issue of whether or not the 33KV overhead cables were laid underground less than or outside the limit of the order of injunction dated 24th July, 2013

vi. That the learned trial judge misconstrued and misconceived the meaning of “land” and failed to appreciate that the cables were laid underground in Mechanical Lloyds yard outside the limit imposed by the injunction order.

vii. That the learned trial judge failed to consider the case of the 2nd Respondent/Appellant.

viii. That the learned trial judge failed to appreciate that an order grounding the basis of a Contempt application ought to be unambiguous without any interpretation and that an order subject to various interpretations cannot be the basis for Contempt.

ix. That the conviction of the 2nd Respondent/Appellant is contrary to law.

x. That the learned judge grievously erred in law in convicting 2nd Respondent/Appellant having regard to the subsequent ruling of the court on 1st April, 2015.

xi. That the ruling has occasioned a miscarriage of justice.

xii. Additional grounds of appeal would be filed upon receipt of the record of proceedings. No additional grounds were subsequently filed.

6. The 1st Respondent/Appellant is seeking to set aside the judgment of the High Court convicting him for Contempt as well as any subsequent order sentencing him. Similarly, the 2nd Respondent/Appellant is also seeking a reversal of the ruling of the High Court and an order setting aside his conviction as well as the costs awarded. Per Rule 8 (1) of the Court of Appeal Rules, 1997, C.I.19 crystallised in several decided cases (too trite to cite here), every appeal is by way of rehearing.

The case of the 1st Respondent/Appellant:

7. By way of preliminary remarks, we must say that the Applicants/Respondents did not proffer any answers to the Submissions of the 1st Respondent/Appellant. In the Written Submission filed on behalf of the Applicants/Respondents on 11th April, 2017, Counsel for the Applicants/Respondents submitted that in their view, it appears that the 1st Respondent/Appellant had abandoned his appeal because he failed to file his Written Submissions within the statutory period and had not done so as the date of filing their Written Submissions on 11th April, 2017. Therefore, as stated at the unnumbered page 3 of the Written Submission of the Applicants/Respondents, their response would be to the arguments of the 2nd Respondent/Appellant only. The Record however indicates that the 1st Respondent/Appellant filed his Written Submission on 14th February, 2017, more than two months before the Applicants/Respondents filed their Written Submissions on 11th April, 2017. The basis of thus submitting that the 1st Respondent/ Appellant has abandoned his appeal is therefore false as same is not borne out by the Record.

8. We shall therefore evaluate the arguments of the 1st Respondent/Appellant in the light of the relevant law and the evidence on Record and come to our own conclusion as directed by the Decided cases cited supra.

GROUND a.

The learned judge erred when he heard an Application to commit an officer of a Company for an alleged Contemptuous conduct of the Company without satisfying himself that the said officer had been served with the order allegedly disobeyed in accordance with the rules of Court before hearing the Application.

The 1st Appellant’s complaint is that he was not personally served with the order of the Court that is alleged to have been disobeyed. He submitted that this is a pre-requisite to invoking the Court’s jurisdiction in Contempt proceedings. Order 43 rule 7(3) of the High Court (Civil Procedure) Rules, 2004 C.I.47 which regulates the enforcement of an order of the Court to abstain from doing an act provides as follows: -

“7 (3) subject as stated, an Order requiring a body corporate to do or abstain from doing an act shall not be enforced as provided in rule 5 sub rule 1 paragraph (bb) or (cc) unless

A copy of the Order has also been served personally on the officer against whose property leave is sought to issue writ of sequestration or against whom an order of committal is sought…” (Emphasis added)

In the instant case, the injunction was against the Electricity Company of Ghana (ECG) a limited liability Company under the laws of Ghana which has a distinct legal personality of its own. The 1^st Respondent/Appellant herein was only an officer of the Company and in that capacity, he may have had knowledge of the injunction Order. This can however not be equated to personal service on him, which is a mandatory pre-requisite, to ground Contempt proceedings against him. We have combed through the entire ROA and there is no indication that the 1st Respondent/Appellant was personally served with the injunction order. Contempt proceedings are quasi criminal in nature and they can affect the liberty of the individual, hence the insistence on complying with the processes on which the proceedings are grounded. For failure to ascertain and ensure that the 1st Respondent/Appellant had been personally served with the injunction order, the trial judge erred in proceeding to hear the Contempt proceedings against the 1stRespondent/Appellant.   Ground (a) of the grounds of appeal is upheld.

GROUND b.

9. The learned judge erred when he heard an Application to commit an officer of a Company for an alleged Contemptuous conduct of the Company which application in its title neither disclosed that the alleged Contemptuous conduct originated from a suit involving the Company nor disclosed that the conduct complained of was that of the Company.

The title of a Case or an Application is one of the factors that invokes the jurisdiction of the court.   This is so crucial that in cases where proceedings have been initiated with defective titles, the originating parties have been non-suited on account of same. In the case of THE REPUBLIC V KEN RAY PORTER, EX PARTE WILLIAM KWAKYE AND ALICE KWAKYE Civil Appeal No. H1/99/07 dated 22-1-2009, where the Court of Appeal considered a case with a defective title, this  is  what Apaloo J.A. (as he then was) (presiding) said:

“Procedurally the appropriate title ought to have been adopted by the Applicants who initiated the action. … It was the duty of the High Court to have non-suited the Applicants when they first appeared in court for using a defective title. I have taken this position because committal proceedings are quasi-criminal in nature and might terminate in imprisonment. … . In view of my findings, I have come to the conclusion that the High Court fell in error in entertaining the Contempt proceedings against the Appellant in the form in which it was initiated. Accordingly, I shall set aside the entire proceedings and the sentence imposed by the High Court for being incompetent and they are accordingly set aside…”

10. The 1st Respondent/Appellant contends that the KEN RAY PORTER case cited supra has squarely caught the Applicants/Respondents and therefore since the trial High Court failed to non- suit them, the whole proceedings should be set aside. At page 1 of the Record of Proceedings, this is the title used by the Applicants/Respondent in their Application for the Contempt proceedings:

“IN THE MATTER OF AN APPLICATION FOR CONTEMPT OF COURT IN THE MATTER OF

THE REPUBLIC VRS

1. D.V. KOFI AFEWU

REGIONAL GENERAL MANAGER ELECTRICITY COMPANY OF GHANA

WESTERN REGION, TAKORADI

………RESPONDENTS

2. TERRY DARKO MANAGING DIRECTOR

MECHANICAL LLOYD CO. LTD ACCRA

EX-PARTE     1. TAKORADI FLOUR MILLS LTD

                             PLOT NO 9

                             CAPE COAST ROAD TAKORADI

                        2. MANTRAC CO. LTD        ………APPLICANTS

                             PLOT NO. 10

                              CAPE COAST ROAD, TAKORADI”

Per the judgment in the KEN RAY PORTER case cited supra, the correct title should have been: -

“THE REPUBLIC

VRS

1. ELECTRICITY  COMPANY OF GHANA            )

PER THE MANAGING  DIRECTOR OR PER

THE REGIONAL MANAGER D.V. KOFI AFEWU   )

: RESPONDENTS

2. MECHANICAL  LLOYD COMPANY LTD )

 PER THE MANAGING DIRECTOR, TERRY DARKO)

EX-PARTE:

1. TAKORADI FLOUR MILLS LTD  )

PLOT NO 9    )

CAPE COAST ROAD)

TAKORADI    )           :           APPLICANTS

2. MANTRAC CO. LTD)

PLOT NO. 10 )

CAPE COAST ROAD)

TAKORADI”)

It is patent on the face of the Record that the Application was initiated with the wrong title. Ground (b) of the grounds of appeal is upheld.

GROUND c.

11. The learned judge erred when he held that the 2nd Applicant/Respondent had the capacity/locus standi to bring the application.

The 1st Respondent/Appellant contends that in Suit No. E2/50/13 which formed the basis of the Contempt Application, Mantrac Ghana Ltd. was the 1st Plaintiff/Applicant (not 2nd Plaintiff as indicated by Counsel). He said in the Contempt proceedings itself, i.e. Suit No. E9/31/15, the 2nd Applicant/Respondent is Mantrac Co. Ltd and that this is a completely different entity from the party in Suit No. E2/50/13. Counsel submitted that Mantrac Co. Ltd not being a party in suit No. E2/50/13 lacked the capacity to commence the Contempt proceedings to enforce the order which emanated from suit no. E2/50/13. Counsel submitted that if the differences  in name was a misnomer, then the proper approach was for an amendment to rectify the misnomer but that as this was not done, Mantrac Co. Ltd lacked the capacity to initiate the Contempt proceedings.

12. Counsel for the 1st Respondent/Appellant may have been technically correct in the Submission he made.  However, in our consideration of his Submission, we find that no miscarriage of justice has been occasioned by the differences in name. We are fortified in this opinion by the fact that both Mantrac Ghana Ltd in Suit No. E2/50/13 and Mantrac Co. Ltd in Suit No. E9/31/15 have   the same address as Plot No. 10, Cape Coast Road, Takoradi. We are cautioned not to rely on technicalities or the slightest slip thereof to defeat the ends of justice. Even the 2nd Applicant has also been described as Mantrac Ltd in the course of the proceedings in E9/31/15. (see the proceeding of  the Court held on 13th January, 2015 at page 31 of the ROA).

Ground c. of the grounds of Appeal is dismissed.

13. GROUNDS d., e. and f.

d. The learned judge erred when he relied on an affidavit sworn to by Percy Botchway, who together with his employers had no interest in (sic) the order of the Court being sought to be enforced.

e. The learned judge erred when he relied on Exhibits that have not been properly exhibited  in accordance with the rules of Court but merely annexed to the Applicant’s affidavit.

f. The learned judge erred when he relied on the Applicant’s attachment, Exhibit B although same was an outcome of an attempted settlement.

As stated earlier on, these grounds have been struck out as abandoned.

14. GROUND g.

The learned judge erred when he committed the 1st Respondent/Appellant an officer, for the conduct of the Company.

The 1st Respondent/Appellant, still relying on the undeniable fact that the injunction order was directed at the Electricity Company of Ghana, maintains that the High Court should have established that he was directly involved in the disobedience of the Court Order before committing him for the Contempt and for failure to do so, the High Court judge erred. Counsel submitted that his client was convicted merely because he was Head of the ECG in the Region and not because he was directly involved in the alleged disobedience of the Court Order. Indeed at pages 26–27 of the ROA., the 1st Respondent/Appellant, per paragraph 9, 11 and 12 of his Affidavit in Opposition to the Application     to attach and commit him for Contempt, deposed that he was not the proper party to be brought before the court for Contempt in relation to an Order directed at ECG; that at the time of re-routing the cables underground, he was neither at post as Regional General Manager nor was he even in Takoradi; that he gave no instructions in relation to the re-routing of the cables or had anything to do with the same. He deposed that at the time the cables were laid he had been transferred from his post as the Western Regional General Manager of ECG and exhibited his Transfer Letter. With all these depositions, the Applicants did not see it fit to file a supplementary affidavit in response to debunk these depositions.  The trial judge obviously erred by glossing over these matters and indeed not giving them the required weight in his judgment.

Ground g. of the grounds of appeal is upheld.

15. GROUNDS h, i, j. and l.

h. The learned judge erred when he interpreted the Order of the Court attached to the Application as Exhibit ‘A’ restraining the Electricity Company of Ghana (ECG) from laying its overhead lines to include a restraint from laying underground cables.

i. The learned judge erred when he committed the 1st Respondent/Appellant for Contempt without taking any cognizance of the fact that the Order alleged to have been defied gave a limiting distance of 10.6 meters from the Applicant’s boundary.

j. The learned judge erred when he committed the 1st Respondent/Appellant for Contempt although the Applicants/Respondents failed woefully to prove that anything was done by the 1st Respondent/Appellant or his employers within the 10.6 limiting distance of the Order, Exhibit ‘A’

l. The learned judge erred when he held that the routing of the cables underground was a violation of the Court’s order.

These grounds have been argued together and will be considered as such. All these four grounds of appeal border on the interpretation of the Injunction Order that the trial judge found to have been disobeyed. The 1st Respondent/Appellant’s complaint is that the trial judge misconstrued the Injunction Order and or failed to ascertain that the various aspects of the order were indeed disobeyed. We reproduce the Injunction Order verbatim since that is the anchor of the Contempt proceedings: -

“… the application for injunction against the Respondent is granted and the defendant, whether by itself, agents, servants, privies etc howsoever are restrained from routing the 33KV overhead lines between 10.6 meters from the plaintiff’s boundary on Plot No. 10, Cape Coast Road, or doing any act in that regard (sic) in Takoradi until the matter is determined as per the motion paper.

For obvious reasons, it is ordered that copies of this order and or the ruling be served on the

S.T.M.A. and Mechanical Lloyd who have been joined to this suit for their attention.”

16. Four essential ingredients need to be established or proved beyond reasonable doubt before an application for Contempt can be successful. These were summarised in the case of REPUBLIC V SITO 1, EX-PARTE FORDJOUR [2001-2002] SCGLR 322 as follows;

i. There must be a judgment or order requiring the contemnor to do or abstain from doing something.

ii. It must be shown that the contemnor knows what precisely he is expected to do or abstain from doing

iii. It must be shown that he failed to comply with the terms of the judgment or order and

iv. That the disobedience is willful.

All these four ingredients must be established. If any of them is absent, then a Contempt application cannot be sustained nor can it succeed. Item (1) has been established. There was an Order of Interlocutory Injunction directed at the ECG granted on 24th July, 2013. The observation we make on this Order is that the Applicants asked for a specific and limited injunction order but the High Court judge granted a very wide injunction which renders the Order unreasonable and indeed perverse.    The Applicants wanted the court to restrain the defendant ECG from routing the 33KV overhead lines between 10-25 meters from the plaintiff’s Plot No. 10, Cape Coast Road, Takoradi; they also wanted a further order restraining ECG from constructing an electric pylon within 10-25 meters radius of the plaintiff’s plot No. 10, Cape Coast Road, Takoradi. The Court granted the injunction restraining the ECG from routing the 33KV overhead lines between 10.6 meters from the plaintiff’s boundary on Plot No. 10, Cape Coast Road, Takoradi. Then the court did the unthinkable by restraining the “doing of any act in that regard in (sic) Takoradi until the matter is determined as per the motion paper.” In other words, the Court halted any other activity of ECG in the whole of Takoradi as if the whole of Takoradi belonged to the Applicants. The unreasonableness and or perverse nature of this further Order on Takoradi will be seen shortly. Be that as it may, there was indeed a court order.

17. Did the contemnor know precisely what he was expected to refrain from doing? As S.A. Brobbey in his book Law of Chieftaincy in Ghana noted at pages 489-490 therein, “It is important that the wording of the order should be clear and unambiguous.   Where the wording is uncertain   or doubtful, the court will not be anxious to interpret the order to found Contempt.” This Court is of the opinion that the first part of the injunction was indeed clear. It concerned overhead lines and the construction of pylons. The maxim expressio unius est exclusio alterius (mention of one thing implies exclusion of another) comes into play here. Any activity not related to overhead lines and the constructions of pylons are excluded.

18. The Applicants themselves saw these clear delimiting factors and that was why after they initially agreed to the laying of underground cables, known to be the safest mode of laying electrical cables, they sabotaged the settlement process by boycotting the subsequent meetings and applied at the eleventh hour for leave to amend the endorsement in the Writ of Summons and Statement of Claim to include the construction of electric lines underground. This Application was granted but the actual amendment did not extend to the Application for injunction which remained unchanged. The trial judge sought to overcome this limitation by his interpretation of the word “land”.

At page 97 of the Record of Appeal, the trial judge stated as follows;

“It is agreed by all the parties that the routing of the cables is over the Casurina Belt which is land. Land is defined by Black’s Law Dictionary, Fourth Edition of page 432 as follows:

‘An immovable and indestructible three dimensional area consisting of a portion of the earth’s surface, the space above and below the surface…’ with the above definition in mind, the phrase “or doing any act in that regard” would include routing the cables underground, that is the space below the earth surface.”

19. It is true that land is three dimensional in nature. Each dimension however has its own characteristics. i.e. the earth’s surface is different; the space above is different, and below the surface  is also different. The injunction was limited to the space above the land. For the injunction to cover below the surface of the earth, this should have been clearly and unambiguously stated to cover all   the three-dimensional aspects of the land. This demonstrates, together with the conduct of the conduct of the Applicants in amending the reliefs in their Writ, that the order was not sufficiently precise and therefore a, mandatory pre-requisite for Contempt to succeed was not met.

20. Again, the injunction prohibited the laying of cables less than 10.6 meters from Plot No. 10, Cape Coast Road, Takoradi. At page 27 of the R.O.A., the 1st Respondent/Appellant deposed at paragraph 14 of his Affidavit in Opposition that the cables were not laid less than the 10.6 meters from the said plot no. 10, Cape Coast Road, Takoradi. There is nothing on record to demonstrate that the learned trial judge ascertained the veracity of this deposition before convicting the 1st Respondent/Appellant herein. Grounds h, I, j, and l are sustained and thus upheld.

21. GROUND k.

k. The learned judge erred when he shifted the burden of proof on to the 1st Respondent/Appellant to prove beyond reasonable doubt that he was not at post in Takoradi when the alleged Contemptuous conduct was undertaken.

The Applicants/Respondents cited the 1st Respondent/Appellant for Contempt on the basis that he was the Regional General Manger of the ECG for Western Region. They therefore had the duty to prove this since “he who allege must prove.” Contempt being a quasi-criminal proceeding, the standard of proof required is beyond reasonable doubt. The 1st Respondent/Appellant is not obliged to prove anything.  He only needs to throw a reasonable doubt into the case of the Applicants. This   the 1st Respondent/Appellant did by exhibiting his Transfer Letter from the Western Region with effect from 29th August, 2014. The trial judge turned the order of procedure upside down by  requiring the 1st Respondent/Appellant to prove beyond reasonable doubt that he had assumed duty  at his new station by 1st September, 2014 as directed in the Transfer Letter; and that since he did not do so, he was deemed to be the Regional General Manager for the Western Region in the face of the letter which relieved him of his duties in that Region with effect from 29th August, 2014. This is what the trial judge said in his judgment at page 97-98 of the R.O.A.:

“The explanation of the 1st Respondent is that he had been transferred to Accra and he was not aware or responsible for the routing of the cables underground. He exhibited his transfer letter (Exhibit 1) dated 23rd July, 2014. The evidence of the re-routing, the pictures showing on-going  work (Exhibit C) are dated 15th October, 2014. However, by Exhibit 1 the 1st Respondent was expected to hand over as Regional Manager on 29th  August, 2014 and assume duty at his new  station in Accra on 1st September, 2014. So if indeed the 1st Respondent assumed duty in Accra on 1st September, 2014, he would have been the wrong person to have been cited for Contempt.

It is the duty of the 1st Respondent to introduce evidence to persuade the court that there is reasonable doubt that he was still in charge of ECG in Takoradi, see Sections 11(3) and 13(2) of NRCD 323.” So far, the trial judge got the analysis right. Then he took the erroneous step thus:

“The question is whether the 1st Respondent has discharged this burden? In Exhibit 1, it is stated thus: ‘The Director of Operations is by copy of this memo required to inform the undersigned    when you assume duty.’ Obviously the 1st Respondent can only discharge the burden of proof on  him if he introduces evidence to show that the Director of Operations has informed the signatory     to Exhibit 1, that is, Lawrence Osei Kuffour, that he (1st Respondent) assumed duty on 1st September, 2014 as directed.  The 1st  Respondent has not shown any such evidence.  He thus fails   to discharge the burden of proof imposed on him by Sections 11 (3) and 13 (2) of NRCD 323. It follows that he was still the Regional Manager of ECG in the Western Region as at October 15, 2014 when the pictures captured ECG re-routing the cables underground in disobedience of the court’s order of 24th July, 2013. The 1st Respondent was thus in Contempt of court.”

22. What is not comprehensible in this line of reasoning of the trial judge is the basis on which he held the 1st Respondent/Appellant liable for the duties of another officer i.e. the Director of Operations. As argued by his counsel what if the Director of Operations derelicts his duties and failed to inform the signatory to the transfer letter, would that change the fact that the 1st Respondent/Appellant had been relieved of his duties in Takoradi with effect  from  29th  August, 2014? The answer is definitely no. Even if the 1st Respondent/Appellant had failed and or refused to report at his new post in Accra as directed, that would not have change the position that he was relieved of his duties in the Western Region with effect from 29th August, 2014. Ground (k) of the grounds of appeal is upheld.