IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
THE REPUBLIC - (Plaintiff/Respondent)
THE MANAGING DIRECTOR, STATE HOUSING CO. LTD. - (Respondent/Respondent) EX PARTE MRS M.Y.N. ACHIAMPONG (Applicant/Appellant)
DATE: 19 TH APRIL, 2018
CIVIL APPEAL SUIT NO: H1/36/2018
JUDGES: GYAESAYOR J.A. (PRESIDING), ACKAH-YENSU J.A., SUURBAAREH J.A.
MRS. M.Y.N. ACHIAMPONG FOR APPELLANT
MR. KWABENA OWUSU MENSAH FOR RESPONDENT
This is an appeal against the ruling of the High Court, Accra, dated 5th May, 2016.
The appeal has been mounted on the following grounds, filed on 6th June, 2016:
“(a) The Ruling is against the weight of the evidence provided.
(b) The judge misdirected herself as to the applicable law to the case.
PARTICULARS OF DISDIRECTION
i. The trial judge misdirected herself by ruling that the trial judge’s order in the Judgment of 25th April, 2012 that ‘An order to the defendant to provide roads, drains and “any other necessary infrastructure to be provided by a Real Estate Developer by law to facilitate the development of No. 4 School Street, Teshie-Nungua Estate within six months upon the service on the defendant of this judgment.” is uncertain/ambiguous.’
ii. Again the trial court misdirected herself as to the applicable law to the case when she ruled to the effect that ‘partial’ performance of the order of the court is sufficient to satisfy the order for the application to be dismissed.”
The facts giving rise to this appeal are not in any dispute. The applicant/appellant, to be referred to hereinafter as the appellant, in 1981 applied to the State Housing Company Ltd. and was granted a piece of land for the operation of a school. According to the appellant, she paid development charges but the company failed to provide roads, drains and coverts to enable access to the land and for which she took an action against it for enforcement amongst other reliefs. Her account shows that she obtained judgment on 25th April 2012 whereby the company was ordered to “provide roads, drains, and any other necessary infrastructure to be provided by a Real Estate Developer by law…”
The appellant, who caused the judgment to be entered and served on the company on 7th May, 2012, also sent a reminder about the order but the company failed to do anything upon which she mounted the application to have its Managing Director committed for contempt but to her chagrin the application was dismissed giving rise to the present appeal.
The respondent/respondent, who will be called respondent hereafter, apart from denying any willful or deliberate disobedience of the court’s order of 25th April, 2012, also deposed that he was neither a party to that action personally nor was he the Executive Director of State Housing Company Ltd., having been appointed a few months before the contempt application. The respondent then went on to explain how he was answerable to the Board of the company and that compliance with the order of 25th April, 2012 involved technical and procedural acts all requiring the approval of certain agencies and the sourcing of funds from government. He concluded that despite these technical, procedural and financial hurdles, efforts were made and some work carried out.
The trial court, in dismissing the application for contempt, not only held that the company had purged itself of the contempt by the partial compliance with the order, but also that the alleged non-compliance was in respect of the ambiguous portion of the court’s order.
Before dealing with the appeal on its merits, it is necessary to deal with the issue raised by the respondent about not being personally involved in the action resulting in the order of 25th April, 2012 nor being the Executive Director of State Housing Company Ltd. until a few months to the application. State Housing Company Ltd. being a legal entity, has perpetual succession and any officer in the position of the respondent inherits all liabilities and assets of the company on being appointed to that position. In this case, the appellant could pursue State Housing Company Ltd. as an entity upon which if found liable, the company would be sentenced to a fine. The appellant however chose to proceed against the respondent, as the directing mind of the company. See order 43 r. 5(1) of the High Court (Civil Procedure) Rules 2004, C.I.47. It was perfectly within her right to do so after personally serving him with a reminder, exhibit E, in accordance with order 43 r.7 (1)(a) of C.I.47 and she could indeed proceed against any director or officer of the company. The company itself cannot be committed to prison but its officer(s) can. See Supreme Court Practice 1967 page 680 and the case of R. v. Hammond & Co. Ltd.  2KB 218 cited therein. Also, see the local cases of Nene Dugbartey Tetteyga II v. Sappor  2 G.L.R. 277 at 282 and Deep-sea Division of National Union of Seamen & Ors. v. Trades Union Congress & Others [1982-83] G.L.R. 941, holding (1) in the headnote.
The grounds of appeal complain about the judgment being against the weight of the evidence and misdirection on the part of the trial judge with the particulars of misdirection clearly stated. That an appeal is by way of rehearing has been given judicial pronouncement in many decided cases up to the highest court of the land and has also been given statutory backing in R.8(1) of C.I.19 as well as R.6 of the Supreme Court Rules C.I.16. For some decided cases see Praka v. Ketewa  G.L.R.6 and Assibey v. Gbomittah & 1 or  S.C.G.L.R. 800.
In Amponsah v. V.R.A. [1989-90] 2 G.L.R. 28 S.C., the court held that where an appellant alleges that a judgment is against the weight of evidence, the presumption was that the judgment was correct and the appellant therefore assumes the burden of demonstrating, from the evidence on record, that the judgment is indeed against the weight of the evidence. The appellant on such a ground of appeal, must therefore point out pieces of evidence on record which were either applied against him or were ignored to his disadvantage. See Djin v. Musah Baako [2007-2008] S.C.G.L.R. at holding (1) in the headnote.
In her bid to demonstrate to the court that the ruling of the trial judge should not be allowed to stand, the appellant, who appeared in person, and who described the ruling as shocking and incredible, submitted that as the disobedience was in respect of an order of a court, the trial court should have determined the matter under Order 43 r.1 of the High Court (Civil Procedure) Rules 2004, C.I.47. In the view of the learned appellant, the court failed to realise that there was a contractual obligation on the part of the State Housing Company to create an access to the school, which obligation required full and not partial compliance.
Arguing the point about the misdirection on the part of the trial judge, the learned appellant submitted that there was nothing ambiguous about any part of the court’s order of 25th April, 2012. According to her, since the company was in the business of estate development and had indeed provided similar infrastructure in the 1st and 2nd phases of its project, it knew exactly what was to be provided. In the view of the appellant, to give judicial blessing to partial performance of court orders will not only amount to an interference with the administration of justice, but also an aberration of the law.
In response, it was contended on behalf of the respondent that from the ingredients of contempt as well as the definition of “infrastructure” the respondent could not fathom what amount of infrastructure that was to be provided. According to learned counsel for the respondent, once some infrastructure had been provided in compliance with the court’s order which the trial court found to be sufficient, it could not in earnest be said that there was a wilful breach of the court order as brought out in Republic v. High Court, Accra; Ex Parte Laryea Mensah [1998-99] S.C.G.L.R. 360.
It was also submitted on behalf of the respondent that contempt was penal in nature requiring strict proof; i.e. proof beyond reasonable doubt as held in Re Effiduase Stool Affairs (No. 2); Republic v.
NumaPau, President of the National House of Chiefs and Others; Ex Parte Ameyaw I (No. 2) [1988/89] S.C.G.L.R. 639 at holding (2) in the headnote.
In dealing with this appeal, a number of issues fall for determination before the court can come to a decision as to whether to interfere with the judgment of the trial judge or not. These issues in my respective view are:
(i) Was the order of 25th April, 2012 certain as to what State Housing Company was required to provide;
(ii) Was the order capable of performance within the stipulated time; and
(iii) Was there a wilful or deliberate disobedience of the order.
In Miller v. Know  132 E.R.910 Williams J. defined contempt as follows:
“… It is defined or described to be a disobedience to the court, or opposing or despising the authority, justice or dignity thereof. Its commission consist in a party doing otherwise than he is enjoined to do or not doing what he is commanded to do or required, by the process, order or decree of the court.”
In Republic v. Sito I; Ex Parte Fordjour [2001-2002] S.C.G.L.R. 323 cited by counsel for the respondent, the following were set down as the ingredients of contempt:
a. There must be a judgment or order requiring the 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.
c. It must be shown that he failed to comply with the terms of the judgment or order and that his disobedience is wilful.
Now to the first issue of whether or not the order of 25th April, 2012 was certain as to what State Housing Company was required to do. From the definition of infrastructure quoted from Collins Dictionary in the submissions on behalf of the respondent, I agree that it is a legitimate question to ask what type of infrastructure was the company required to provide upon the order made by the court.
In my considered opinion, the order of 25th April, 2012, as couched, was ambiguous or uncertain as to what State Housing Company was required to do.
The next issue is whether the order was capable of performance within the time stipulated by the court. Apart from the fact that it was difficult to fathom what exactly the company was expected to provide, the question of whether this could be done within the six months period given also raises some questions. In the affidavit in opposition on behalf of the respondent, it is contended that the respondent works with the Board of Directors of the Company and that compliance with the order involved technical and procedural matters which also require approval from some agencies and the sourcing of funds from Government. As the evidence show, the company, despite these serious hurdles did try to comply with the order of the court which the trial court found sufficient not to make the respondent liable for contempt.
In Baah v. Baah  2 G.L.R. 8 at 12, the court referred to The Annual Practice 1964 p.1074 about disobedience of a court order being refusal to honour rather than failure so to do. The court, per Annan J.A. (as he then was), went on to point out the distinction in an intentional unwillingness to do what the court ordered to be done even though one is able so to do and on the other hand inability to comply with the order even if one wants to do it. In this case, not only was the order of 25th April, 2012 incapable of performance within the time given, and even at the time of the application for contempt, but also that the company made attempts to comply but was constrained by the hurdles in carrying out the order.
In Republic v. Sito I (supra) at 326, the court quoted a passage from Sekyi v. Owusu  G.L.R. 201 C.A., where the court held that if it was shown that the applicant could not by the date of the court order had been in possession of the money, there could be no case of wilful disobedience which merited an attachment. In the view of the court, mere inability to pay could not ground penal proceedings for contempt. The Supreme Court per Atuguba JSC, then concluded at page 326 that there was no difference between inability to obey an order due to poverty, and inability to obey an order due to the inherent impossibility of performance.
Now to the final issue of whether or not there has been a wilful or deliberate disobedience by State
Housing Company of the order of 25th April, 2012. From what has been demonstrated from an analysis of the first two issues, not only was the order uncertain on what exactly the company was required to do, but also that it was inherently not capable of performance within the time stated in the order. Apart from the many hurdles that have to be cleared to carry out this “uncertain” order, the company did try to comply by providing some infrastructure which the appellant admits, but thinks it did not meet what was required.
Contempt proceedings being penal in nature, the authorities show that proof required is proof beyond reasonable doubt. See Republic v. Osei Bonsu II [2007-2008] S.C.G.L.R. 566 and the case Republic v. Sito I (supra). Agbleta v. Republic  1 G.L.R. 445 at 447 held that a wilful disobedience must be established before a person can be held guilty of contempt.
In this case, the uncontroverted evidence is that State Housing Company did undertake the construction of roads, drains and coverts and it will therefore be unfair to hold the respondent liable in contempt despite the fact of the appellant not being satisfied with what was done or that same has fallen into disuse.
As has been cautioned, the process of contempt should be lightly employed, and not especially with a civil remedy where some other method of achieving justice is available. See the Supreme Court Practice 1967 Vol. 1, page 679.
As has been demonstrated above, the complaints of the appellant about the trial judge’s ruling are not justified. Not only was the trial judge justified in her ruling upon the applicable law, but also that her ruling was supported by the affidavit evidence. Accordingly, the appeal is dismissed as unmeritorious and the ruling/judgment of the trial judge dated 16th May, 2016 is hereby affirmed.
(JUSTICE OF APPEAL)
BARBARA ACKAH-YENSU (Ms.) J.A.:
I have had the opportunity to read in advance the lucid opinion of my brother His Lordship Suurbaareh, JA, and I entirely agree that this appeal be dismissed. However, on my part, I am of the considered opinion that the Appellant ought to have brought the contempt proceedings against the company, State Housing Company Ltd and the Managing Director, and not the Managing Director alone.
It is common knowledge that a limited liability company is considered to be a legal person with an existence independent of that of its members, yet it remains an artificial person; its policies can be formulated and decided upon only by individual human beings and human agencies. “The company itself cannot act in its own person, for it has no person, it can only act through directors, and the case is, as regards those directors, merely the ordinary case of principal and agent.” (Per Cairns L.J. in Ferguson v Wilson (1866) LR 2 Ch 77 at 89).
In practice the initial Regulations of the company will provide for the appointment of a board of directors and expressly delegate all powers of management to it. In such circumstances the theory seems to be that the company, as such, has in its Regulations, appointed its agents and clothed them with authority. It will be observed that authority to exercise the company’s powers is delegated, not to individual directors, but only to the directors as a board; but it may be sub-delegated by the board to individual manager directors and to other officers.
Thus, as aforesaid, one consequence of the artificial nature of a company as a legal person is that inevitably decisions for and actions by it has to be taken for it by natural persons. Hence by virtue of section 138 of the Companies Act, there is the provision of the delegation of the powers of the board of directors to managing directors.
I will here refer to the judgment of Denning L.J. (as he then was) in H. L. Bolton (Engineering) Co.
Ltd v T. J. Graham and Sons Ltd  1 Q.B. 159, C.A. where he said as follows:
“A company may in many ways be likened to a human body. It has a brain and nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company, and control what it does. The state of mind of these managers is the state of mind of the company and is treated by law as such.”
A company, being a person can thus be cited for contempt and be punished accordingly. It is trite learning that a company is even punishable in criminal cases. Many civil and criminal wrongs have a common law base or are in statutes that do not include express provision relating to the conditions for corporate liability to arise, so rules of more general application are also needed in order to ensure that companies are not above the law. On the historical development of corporate criminal liability, see R.S. Welsh; “The Criminal Liability of Corporations”  62 L.Q.R. 345.
For much of the twentieth century, when faced with issues that required action to be imputed to a company as its own, the courts turned to the “directing mind and will” test derived from the speech of Viscount Haldane L.C. in Lennard’s Carrying Co. Ltd vrs Asaitic Petroleum Co. Ltd  A. C. 705 HL. Lord Viscount Haldane defined a corporation as “an abstraction. It has no mind of its own any more than it has a body of its own ……..”. The distinguished New Zealand Judge, Sir John Salmond, stated in;
“Jurisprudence. By Sir John Salmon Ninth edition. By J. L. Parker M. A. Sweet & Maxwell Ltd , The Cambridge Law Journal 6 483”, that although corporations are deemed to be fictitious persons, the acts and interests, as well as rights and liabilities, attributed to those corporations by the law are in fact those of real and natural persons. If such is the case, then like human being’s corporations can similarly be convicted for both tortious and criminal offences.
The Lennard’s case was a civil one but Viscount Haldane’s words were subsequently applied in both civil and criminal cases “with no divergence of approach …. the authorities in each being cited indifferently in the other”. (See El-Ajou vrs Dollar Land Holdings Plc (No.1) (1994) 2 All E.R. 685 at 695 per Nourse L.J.). as interpreted in some cases, the directing mind and will formula which also came to be known as the identification doctrine or the alter ego principle, came to denote a metaphysical, abstract conception of the company as a “pulsating entity in action”. (Leigh, “The Alter Ego of a Company” (1965) 28 M. L.R. 584 at 585).
Criminal liability in Criminal Law simply outlines the extent to which a corporation as a legal body can be made liable for the wrongdoing of the natural persons it employs. The instant matter is however a civil one. A civil contempt, it is trite, consists in the refusal of a party to do something which it is ordered to do for the benefit or advantage of the opposite party, and the punishment is intended to satisfy the party whose interest has been injured.
If a company willfully disobeys a court order, the party whose interest has been injured can apply to the court to have it enforced. Should the company fail to comply with the order of the court, its directors and officers may be found personally liable for contempt.
Thus, in the case of Deepsea Division of National Union of Seamen and Others v. Trades Union Congress of Ghana and Others [1982-83] G.L.R. 941, TUC, a limited liability congress, was cited for contempt together with the General Secretary of the National Union of Seamen (NUS), the National Chairman of NUS, and the Maritime and Dockworkers Union (MDU) for breaching the interim orders of the court. It was held that any order against a corporation which is willfully disobeyed may be enforced by attachment against the directors or officers of the corporation. See also Nene Dugbartey Tetteyga II v. Sappor  2 G.L.R. 277, C.A. where Azu Crabbe C.J. stated thus:
“Where the contemnor is a corporation, the contempt is punished by the sequestration of its property, but the officers of the corporation responsible for the contempt and capable of remedying it may be committed, or the corporation, such officers, or both may be fined and ordered to pay the costs of the proceedings.”
In Halsbury’s Laws of England (4th ed.) Vol 9, at p. 37 appears this statement of law:
“Where the order is made against a company, the order may only be enforced against an officer of the company if the particular officer has been served personally with a copy of the order; and in the case of an order requiring the company to do an act within a specified time, the copy must be served on the officer before the expiration of that time.”
In the more recent famous “Montie 3” contempt case (Abu Ramadan & Anor vrs Electoral
Commission & Anor, In Re: (1) The Owner of the Station Montie FM, (2) Salifu Maase @ Mugabe, Alistair Nelson, (4) Godwin Ako Gunn (Civil Motion No. J8/108/2016 dated July 27, 2016), Network Broadcasting Company Ltd was ordered to pay a fine as owners of Montie FM. The Supreme Court stated thus:
“We summoned the directors and secretary of Network Broadcasting Co. Ltd because as owner of Montie FM, the company provided physical facilities for the contemptuous statement to be aired to the public. It is trite law that where a corporation is held in contempt of court; it is the directors and officers who answer for it, since they constitute the human face of the legal entity. Where the contempt is committed by an unincorporated body, then it is the members of the body that answer for it………………………………………………………
It appears that this aspect of law on corporate liability for contempt of court has been lost on media operators of this age”.
Clearly, it the owners of Montie FM, Network Broadcasting Co. Ltd that was held for contempt for the acts of its officers (albeit the officers were punished together with the company) together with three journalists.
So, the 1st contemnor in the instant case is the company, State Housing Company and ought to have been cited as such.
Nonetheless, as I stated at the beginning, I agree entirely that this appeal be dismissed.
(JUSTICE OF APPEAL)
GYAESAYOR, J.A. – I agree. P.K. GYAESAYOR
(JUSTICE OF APPEAL)