IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
THE REPUBLIC - (Defendant/Respondent/Appellant)
MRS. VIVIAN AKU BROWN AND 9 OTHERS - (Respondents)
EXPARTE: ODWUMA LAKES FARMS AND RURAL ESTATES LTD AND 1 OTHER - (Applicants)
DATE: 27 TH FEBRUARY, 2018
SUIT NO: H3/453/2017
JUDGES: FRANCIS KORBIEH J.A. (PRESIDING), BARBARA ACKAH-YENSU (MS) J.A, HENRY A. KWOFIE J.A.
BAFFOUR A. GYIMAH FOR THE 1ST APPLICANT
COL.KOFI DANSO (RTD) FOR THE 2ND APPLICANT
ADJEI MENSAH ALFRED FOR THE 1ST, 2ND , AND 4TH RESPONDENTS
THOMAS HUGHES FOR THE 10TH RESPONDENT
HENRY KWOFIE J.A.
This is the ruling in respect of an application by the applicants herein Odwuma Lakes Farms and Rural Estates Ltd and Baffour Assasie-Gyimah praying for an order committing the respondents to prison for “their contempt of the honorable Court of Appeal’s orders of interlocutory injunction.
The 2nd applicant Baffour Assasie-Gyimah is the Managing Director of the 1st applicant Company Odwuma Lakes Farms and Rural Estates Ltd. The 1st Respondent Mrs. Vivian Aku Brown is the Head of the Adutso family of Osu whilst the 4th Respondent Alhaji Ibrahim Jaja was at all material times the holder of a Power of Attorney from the 1st Respondent and acted on behalf of the Adutso family of Osu in respect of large tracts of the Adutso family land.
The grounds upon which the application rested are set out in various paragraphs of the affidavit in support as follows:
“6). On the 19th day of August 2015, the applicants sued out a writ against the first four respondents for a number of reliefs among which were possessory title of parcels of land based on the legal principle of adverse possession.
8. It would be recalled that an Osu family the Odartey Sro family had granted applicants the parcel of land described in paragraphs 9 and 13 of the statement of claim as in (Exhibit BAG 1) in 1986.
9. It would also be recalled that on the 20th day of November 2014, the Court of Appeal had upheld an appeal of another Osu faming the Adutso family that the Adutso family was the rightful owners of a larger parcel of land including the land of applicants. As at the time of the issuance of the writ, the Odartey Sro family had also appealed to the Supreme Court, but they subsequently lost that appeal too.
10. On the 13th of January 2016, the High Court dismissed applicant’s (then plaintiffs) writ as in paragraph 6 above on grounds that they were privies Exhibit BAG 2. Applicant’s have since appealed to the Court of Appeal (Exhibit BAG 2A)
11. It would be recalled also that the Supreme Court on 11 February 2015 had then granted a stay of execution of the Court of Appeal judgement in the case between the two Osu families Exhibit BAG 3 and the Apex Court had on 4th of November 2015 granted extended stay of execution pending the determination of the appeal (Exhibit BAG 3A).
12. On the 10th day of October 2016, the Honourable Court of Appeal granted applicant’s application for injunction to restrain the 1st to 4th defendant and their agents, servants, and assigns. The order specifically entailed that from that day “no new development ought to be carried out on the land in dispute” and there should be no sale of any parcel of land in dispute. Exhibit BAG 4 is a copy of the Court of Appeal’s order of interlocutory injunction.
13. On the 7th day of February 2017 the Court of Appeal (Full Bench) also dismissed 1st to 4th Respondent’s application (Exhibit BAG 5) to set aside the Court of Appeal order of injunction of 10th October 2016 as in Exhibit BAG 4.
14. Inspite of these clear, unambiguous orders of the two highest Courts of the Land i.e the Supreme Court and the Court of Appeal as contained in Exhibit BAG 3, 4 and 5, the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th and 10th Respondents have with impunity set themselves to disobey, disrespect and have indeed disobeyed and disrespected the orders of the apex Courts including this Honourable Court.
15. I repeat paragraph 14 above and state that the ten respondents have sold, built and or used land guards to supervise the construction of buildings day and night with force of arms claiming always that they will not respect the Honourable Court’s Orders. The 2nd, 4th and 6th “Respondent are the major culprit – see Exhibit BAG 6 series.
In the case of the 10th Respondent the grounds upon which the application against him rested were set out in the 2nd applicant affidavit in support as follows:
“28. In the case of the 10th respondent, a diplomat, he has shown utter disrespect for the orders of the Honourable High Court which on the 30th day of November 2010 granted 1st applicant a declaration of title against him in a suit over a parcel of land in issue and a copy of Entry of judgment as marked (Exhibit BAG 11).
30. Without respecting the judgments of the Honourable High Court and possession having been granted the plaintiff, the 10th respondent has entered the land in December 2016 and repossessed by force, the building on the land that had been adjudged as belonging to the plaintiff by the Court and a writ of possession issued to the benefit of the plaintiff.
31. The 10th respondent further aggravated his contemptuous disposition towards orders of Superior Courts of judicature when he further ignored clear orders of the Honourable Court of Appeal when copies of the injunction order as in Exhibit BAG 4 and 5 had been posted again on the building. He drove away by force plaintiff’s workers staying in the house and he is now trying to put another storey to the building, ownership of which he had lost in 2010 by Court judgment (Exhibit BAG 11) claiming that he has re-possessed the property on authority of the 1st to 4th respondent, even though the order of injunction covers the 1st to 4th respondents, their agents and privies.
32. As at now the 10th respondent has forcibly put a land guard in the house who is supervising the construction of another storey in total disrespect of the Honourable Court of Appeal’s Order of injunction a copy of which has been posted on the walls of the building to his knowledge. Exhibit BAG 14 is the storey he has added”
In her affidavit in opposition the 1st Respondent deposed as follows in paragraphs 2, 4, 10, 11, 12, 13, and 14 as follows:
“2. That I am the Head of the Adutso Family of Osu and depose to the facts as set out in the affidavit which has come to my knowledge and belief.
4. That in as much as I have consciously and deliberately not conducted myself in any manner so as to bring the administration of justice into disrepute, I wish to pray for the Honourable Court to deal leniently with me if despite my ailing state, I may have acted in any manner contemptuous of the Court.
10. That save for the 2nd respondent who is a principal member of the family and 4th Respondent who holds Power of Attorney on behalf of the family, the 3rd, 5th, to 10th respondents are unknown to the 1st respondent and the Adutso family.
11. That the 4th respondent was given power of Attorney to defend and prosecuted the family’s land interest especially in suits affecting the subject matter at the High Court, Court of Appeal and the Supreme Court involving the applicant’s grantors the Odartey Sro family of Osu and lately applicant
12. That I am advised and believe same to be true that the applicants have failed to demonstrate before the Honourable Court that the averments contained in the affidavit in support and accompanying attachments disclose any recognisable grounds for attaching me for contempt of Court.
13. That I am aged and poor in health and since granting Power of Attorney to the 4th Respondent, rarely visit the area applicants claim to have been attacked on the 24th of January 2017 and have neither instructed any such persons to disobey the orders of the Honourable Court nor stated that I will not respect the orders of the Honourable Court.
15. That I have not acted with any other person to dispose of land covering an area of one acre which applicant contends fall within the area showed on Exhibit BAG 7A attached to applicant’s affidavit in support of the instant applicant nor at my age provided physical help to any stranger on the land in contention.
The 4th Respondent opposed the application and in paragraphs 10,11, 12 and 13 deposed as follows:
“10. That I have at all material times relevant acted on behalf of the family and state that 1st and 2nd respondents have had no active dealings with the land since my appointment and depend on me for any information regarding same and have had no interaction with the applicants.
11. That the family has taken judgments in respect of large tracts of land including the subject matter in the case before the Court of Appeal Mrs. Vivian Aku Brown Dankwa Vs. Samuel Lanquaye Odartey- Civil Appeal H1/123/2013; 27th November 2014 and Mrs. Vivian Aku Brown Dankwa Vs. Samuel Lanquaye Odartey: Civil Appeal No. J/4/2016 S.C. for which I prosecuted as Attorney and Judgments was entered on behalf of the family as well as action before the High Court subsequently. Copies of judgments as exhibits A1J and A1J2
12. That aside the defeat of the grantors of the applicants before the Court of Appeal and the Supreme Court of Ghana, applicants instituted an action before the High Court titled Odwuma Lake Farms and Rural Estate Vrs. Mrs. Vivian Aku-Brown Dankwa and 3 others Suit No. BMISC 1097/2015 and lost on grounds of res judicata
13. That I am advised and believe same to be true that the quality of exhibits BAG 8, BAG 8A, BAG 8B for evidential purposes while they appear graphic on the face value do not for purposes of discharging the applicants burden disclose any particular victim nor date nor circumstances of the injury which should have for the purposes of the application been verified by medical report from a person properly qualified to do so”
The 10th respondent also denied having ever knowingly or intentionally disobeyed and or disrespected any orders of this Court.
It is necessary to give an account of the events leading to this application. The applicants herein Odwuma Lake Farms Ltd and Baffuor Assasie-Gyimah are the grantees of a tract of land at Abokobi in the Greater Accra Region. Their grantors were the Odartey Sro family of Osu. The 1st Respondent Mrs. Vivian Aku Brown is the head of the Adutso family also of Osu. By an amended Writ of Summons, the 1st Respondent as Head of the Adutso family commenced an action against the Head of the Odartey Sro family for a declaration of title and injunction amongst other relief in respect of the family land at Abokobi. The Odartey Sro family denied the plaintiffs claim and also counter-claim for declaration of title, recovery of possession, perpetual injunction amongst others. After hearing evidence from both parties the trial High Court judge dismissed the plaintiff’s claim and gave judgement for the defendant Odartey Sro family on their counter-claim.
The Adutso family’s appeal to the Court of Appeal was allowed and the judgement of the High Court was set aside and judgement was entered in their favour by the Court of Appeal. A further appeal by the Odartey Sro family to the Supreme Court against the decision of the Court Appeal was dismissed. Thus, the 1st Respondent herein as Head of the Adutso family was adjudged owner of the land. It is worth recalling that the Odartey Sro family who had lost the Suit at the Court of Appeal and the Supreme Court were the grantors of the applicants herein Odwuma Lake Farms and Rural Estates and Baffour Assasie-Gyimah.
After the Supreme Court judgment against their grantors, the Odartey Sro family, the applicants instituted an action in August 2015 at the High Court against the 1st Respondent the Head of the Adutso family and the 2nd and 4th Respondents for a declaration of title and perpetual injunction amongst others in respect of their land which forms part of the land adjudged by the Court of Appeal and the Supreme Court as belonging to the Adutso family. A motion filed by the Respondents (as defendants) seeking to set aside the applicants (as plaintiff’s) action on grounds of Res judicata/estoppel was granted by the High Court which proceeded to dismiss the applicants (as plaintiffs) action. The applicant filed a Notice of Appeal against the decision of the High Court and subsequently filed an application for an order of interlocutory injunction to restrain the Respondents as defendants. On the 10th of October 2016, the Court of Appeal presided over by a single judge granted an order of interlocutory injunction in the following terms:
“I will in the circumstance grant the application and restrain all the parties herein from doing anything now on the land the subject matter or the disputed land as described by the applicant. In that effect the parties are all restrained from engaging in any new development or sale of the land or any part of it till the dispute is resolved by the Court or pending the determination of the appeal. In injuncting all the parties I apply the Supreme Court case of Odonkor Vs. Amarkai. The application for injunction is thus granted against the defendant’s, their servants and assigns pending the appeal. This order entrails that with effect from today no new development ought to be carried out on the land in dispute No order as to costs”
This is the order the applicants allege that the Respondent have wilfully disobeyed.
In the case of Boamah and Ansah Sikatuo Vrs. Amponsah (2012)1 SCGLR 58 relying on the English case of Bramblevale Ltd Re (1970) 3 All ER 1062 at 1063 held with regard to the standard of proof for the offence of contempt as follows:
“The basic principle regarding the standard of proof for the offence of contempt of Court was well settled. Since contempt of Court was quasi-criminal and the punishment for it might take various forms, including a fine or imprisonment, the standard of proof required was that of proof beyond reasonable doubt. There was no proof by showing that the person charged with the offence of contempt of Court had told lies when asked about it. There must be some further evidence to incriminate him. Once some evidence was given, then his lies could be thrown into the scales against him. But there must be some other evidence….”
In Oswald’s Contempt of Court (3rd ed) page 6 the learned author state:
“To speak generally, contempt of court may be said to be constituted by any conduct that tends to bring the authority and administration of the law to disrespect or disregard or to interfere with or prejudice parties, litigants, or their witnesses during the litigation”.
In the case of Republic Vs. Sito I ex-parte Fordjour (2001-2002) SCGLR 322 it was held in holding 1 as follows:
“the essential elements of the offence of contempt of court are:
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 and
iii. It must be shown that he failed to comply with the terms of the judgment or order and that his disobedience is wilful. In the instant case, no order was breached by the appellant”.
Also in the case of In Re Effiduase Stool Affairs (No.2); Republic Vs. Numapau and others ex-parte Ameyaw II (1998-99) SCGLR 639 it was held in respect of the standard of proof in contempt case as follows in holding 2.
“2 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 defence put up by the respondent…….”
Apart from the 1st, 2nd, 4th and 10th Respondents who appeared in Court and vehemently opposed the applicant’s application, the other respondents namely the 3rd, 5th, 6th, 7th, 8th and 9th Respondents were not in court. They were described by the applicant mostly as land guards. The 1st, 2nd, 4th, and 10th respondents denied knowing any of them. They are in effect not affected by this ruling.
Although the applicants have accused the respondent of wilfully disobeying the order of this Court, it is obvious that they have failed to discharge the burden imposed on them. As the authorities show, Contempt is clearly quasi-criminal and the standard of proof is proof beyond reasonable doubt. Although the applicants have attached several photographs and pictures to their affidavit in support and the supplementary affidavit, none of those photographs have any nexus or connection to the respondents. For example, Exhibits BAG 6, 6A and 6B are pictures of uncompleted buildings, but there is no evidence whatsoever to show that the 1st and 2nd and 4th respondents are the people carrying out the construction. Indeed, Exhibit BAG 6A and 6B each shows an individual at the construction sites, the persons in the 2 pictures were not identified by the applicants. But certainly, those people are not the respondents. Exhibit BAG 8 are pictures of human legs and arms with severe cutlass wounds on them. But who were the people who had suffered such severe wounds, and in any case who were the people who had inflicted these wounds on these nameless persons? As counsel for the 1st, 2nd and 4th Respondent rightly suggested, these pictures have no bearing or nexus whatsoever to the Respondents and counsel for the applicants could not even remotely link the respondents to these injuries inflicted on the nameless persons. Exhibit BAG 10A is even more bizarre. It is a photograph of the 2nd applicant Baffour Assasie-Gyimah in a military-style dress at a building site. What that Exhibit is meant to portray is baffling!
The 1st respondent maintained that she is old and weak and since giving a Power of Attorney to the 4th Respondent to act on behalf of the Adutso family in connection with the family land, she has not visited the area the applicants claim to have been attacked. She also denied having executed any documents of sale in respect of the disputed land.
The applicants could not produce any lease or document executed by the 1st respondent in respect of the disputed land since the order of interlocutory injunction was granted. In my view no credible evidence was provided by the applicants in their affidavit to show that the 1st, 2nd, 3rd, and 4th respondents have wilfully disobeyed the order of this court or done anything to bring the authority of the Court and the administration of justice into disrepute.
In respect of the 10th Respondent, the case of the applicants is that on the 15th day of June 2011 the High Court Accra entered judgment against him in favour of the 2nd applicant for a declaration of title in respect of the land described in the applicant (as plaintiff’s) amended Writ of Summons. It is the further case of the applicant that the 10th Respondent was perpetually restrained from interfering with or further trespassing unto the applicant’s land.
An Entry of judgment was also served on the 10th Respondent. The applicants contend that inspite of the service of the Entry of judgment on him, the 10th Respondent has entered unto the land and is continuing with the construction including adding a second storey to the original building as depicted in Exhibit BAG 14.
Counsel for the 10th Respondent opposed the application on the grounds that the 10th Respondent had not wilfully disobeyed the orders of this Court and in any case contended that this Court has no jurisdiction to hear the instant contempt application as the order the 10th Respondent is alleged to have disobeyed is an order of the High Court and not the Court of Appeal and referred to the case of the Republic Vrs. High Court Judge Kumasi. Exparte Hansen Kwadwo Koduah - Applicant:
Paregon Investment Ltd – (Interested Party) Supreme Court-J5/10/2015 of 4th June 2015 (Unreported)
Indeed from the supporting affidavit, it is clear that the Order of perpetual Injunction the 10th Respondent is alleged to have wilfully disobeyed is an Order of the High Court and not an Order of this Court. It is the contention of counsel for the 10th Respondent that the Court of Appeal has no power to punish for contempt where the Orders complained of were made by the High Court.
In Rep. Vs. Liberty Press Ltd (1968) GLR 123 an issue arose as to whether contempt committed before the Court of Appeal could properly be heard by the High Court. It was held that there was one Supreme Court of Judicature which consisted of the High Court and the Court of Appeal and the Court of Appeal not being different from the High Court, contempt of one Court amounted to contempt of all the Courts constituting the Superior Court of Judicature.
In exparte Hansen Kwadwo Koduah (Supra) the Supreme Court held per Her Ladyship Vida Akoto Bamfo JSC. as follows:
“The position in the Liberty Press case has however changed with the coming into force of the 1992 Constitution article 126(1) which provides:
126(1) The Judiciary shall consist of:
a. The Superior Court of Judicature comprising
i. The Supreme Court;
ii.The Court of Appeal; and
iii. The High Court and the Regional Tribunals.
b. Such lower Courts or tribunals as Parliament may by law establish.
2. The Superior Courts shall be Superior Court of record and shall have power to commit for contempt to themselves and all such powers as were vested in a court of record immediately before the coming into force of this constitution.
Therefore unlike the position in the Liberty Press case era in which there was one Supreme Court of Judicature comprising of the Court of Appeal and High Court and which the Supreme Court was vested with the authority to commit for contempt of itself, Article 126(1) clearly demonstrates that there are several designated Superior Court of Judicature; each Court being vested with the Power to commit for contempt to itself. This was clearly depicted by the use of the word THEMSELVES as opposed to ITSELF that the power was not intended to belong collectively to the creature known as the Superior Court but to each Court that has the designation of a Superior Court.
The Courts comprising the Superior Court were clearly set out, the Supreme Court, Court of Appeal and the High Court.
The words are clear and admit of no ambiguity that each of the Court set down under article 126(1) has the power to commit persons whose conduct tends to bring it into disrepute.
If the orders complained were made by the Court of Appeal, which under Article 126(1) has the power to commit for contempt to itself; then it follows that the High Court which committed the applicant had no such power and therefore acted without jurisdiction and in contravention of the express provisions of the article 125(2) of the 1992 Constitution.
The proceedings were therefore a nullity”
There is no doubt that the order complained of in respect of the 10th respondent was made by the High Court and in line with the Supreme Court decision in exparte Hansen Kwadwo Koduah this Court has no jurisdiction to hear the application for committal of the 10th respondent.
In my view the applicants have failed to discharge the evidential burden which requires that they prove beyond reasonable doubt that the 1st, 2nd, 3rd, and 4th Respondents have wilfully disobeyed the orders of the Court.
Accordingly, the application is dismissed against the 1st, 2nd, 3rd, 4th, and 10th Respondent.