IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
KUMASI - A.D 2019
THE REPUBLIC - (Plantiff)
GEORGE ODIASE & FIVE OTHERS - (Respondent)
EX PARTE: GLORIE OSAFO AGYEMANG-DUAH & ANOTHER- (Applicant)
DATE: 16TH JULY, 2019
SUIT NO: MISC /22/2019
JUDGES: LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE, HIGH COURT JUDGE
LAWYERS: AKWASI AFRIFA FOR THE APPLICANTS ACE ANAN ANKOMAH WITH GOLDA DANYO ESI QUAGRAINE
This ruling is in respect of a contempt application filed on behalf of the Applicants herein against the Respondants herein. The Applicants are praying this Honourable Court for an order committing the Respondents for contempt of court for bringing the administration of justice into disrepute by their deliberate conduct in disregarding an order of interim injunction imposed by the Court on the 7th of May, 2019.
The background facts leading to this application are as follows:
On the 6th of May, 2019, the Applicants issued a writ against five (5) defendants in a suit entitled:
1. GLORIE OSAFO AGYEMANG-DUAH
2. OSEI AGYEMANG-DUAH
1. WATCH AND DINE LTD, KUMASI CITY MALL
2. KWABENA OBENG
3. NANA OBENG BRENTUO
4. AKOSUA ADUTWUMWAA OBENG
5. STEPHEN KOFI OPOKU
with SUIT NO. P/OCC/06/19.
The Plaintiffs therein and Applicants herein sought the following reliefs:
(a) 1st Plaintiff seeks a declaration that she is entitled in law and fact to be paid all service charges pertaining in the civil engineering industry for the work done from 4th April, 2017 to 28th February, 2018 in relation to the designing and construction of the 1st Defendant.
(b) 1st Plaintiff seeks a further order lifting the veil of incorporation of the 1st defendant with a view to making the 2nd Defendant personally liable for the indebtedness due and owed her by the 1st defendant and which has remained unpaid in spite of several demands.
(c) 1st Plaintiff also seeks an order of the Court compelling the 1st Defendant to pay the full value of her 15 percentage shares in the 1st Defendant which the 2nd Defendant has deprived her of since 6th April, 2018.
(d) A declaration that by reason of the repeated pattern of utter disregard for the rules governing the running and operation of an incorporated entity the 2nd Defendant is personally liable for all damage losses and other pecuniary liabilities suffered by the Plaintiffs in relation to their formation and association with the 1st Defendant.
(e) The 2nd Plaintiff seeks a declaration that the concealed fraud perpetrated by the 2nd Defendant at the Registrar General’s Department in particular and his dealings relating to the 1st Defendant in general culminating in the alteration of the share structure of the 1st Defendant is fraudulent, unlawful, illegal and calculated to overreach the 2nd Plaintiff and thus the 2nd Plaintiff is entitled to general special punitive and exemplary damages occasioned him by reason of the fraud.
(f) Recovery by the 2nd Plaintiff of the full value of his 15 percent shares in the 1st Defendant company.
(g) A declaration that the purported appointments of the 3rd and 4th Defendants as officers of the 1st Defendant by the 2nd Defendant is wrongful, illegal and not sanctioned by sound and hallowed corporate practices and ought to be declared null and void by the Honourable Court.
(h) A declaration that the conduct of the 5th Defendant who is the accountant of the 1st Defendant in diverting corporate funds into the account of a different corporate entity owned/run by the 2nd Defendant allegedly upon the instruction of the 2nd Defendant is wrongful, unlawful and contrary to hallowed corporate practices.
(i) SUCH FURTHER ORDER(S) as the Honourable Court may deem fit.
On the 7th of May, 2019, the Honourable Court presided over by His Lordship Justice Kofi Akrowiah granted an order of interim injunction in the following terms:
“IT IS HEREBY ORDERED that, the 2nd, 3rd, 4th and 5th Defendants, their Agents, Assigns, Privies, Workmen and any other person or entity acting upon their behest, instructions and/or directions are hereby restrained from in any manner continuing the running, operation and administration of the 1st Defendant pending the determination of this matter, PROVIDED that, this Order shall be served on the Defendants with the Writ of Summons and shall be repeated on Notice after ten (10) days upon service on the Defendants in default of which the Order shall lapse.”
On 9th May, 2019, the Applicants filed the instant application contending that Respondents have disobeyed the injunction Order and are seeking their committal for contempt.
The Applicants’ case is that the 1st, 4th and 5th defendants therein were immediately served with the order of injunction (when the same was issued) as well as the writ of summons and statement of claim which they duly brought to the attention of the 2nd and 3rd Respondents in the presence of the 2nd Applicant. They assert that when the service was done, the 2nd and 3rd Respondents asked that the interim injunction order be disregarded and business conducted as usual. That true to the instruction of the 2nd and 3rd Respondents, the other Respondents herein with full knowledge of the said order of injunction continued to conduct brisk business on the very day that the order was granted by the Honourable Court.
The Applicants also allege that Respondents in further disregard of the Honourable Court’s order of injunction caused falsehood to be peddled on social media to the effect that no injunction has been granted and that they are at liberty to administer run and operate the entity known as WATCH AND DINE LTD. That the disrespect and contumacy of the Respondents continued in flagrant disregard of the order of the Honourable Court and have since operated, ran and administered the business with abject impunity.
It is also the Applicants’ case that the Respondents have openly boasted that there will be no consequence for their contemptuous conduct because the 2nd Respondent in particular is rich, powerful and well-connected.
In sum, the Applicants are saying that Respondents have deliberately conducted themselves in a bid to spite the Honourable Court and render the order of interim injunction ineffectual and otiose. That the contumacy exhibited by the Respondents is willful and an affront to the administration of justice.
The Respondents are opposed to the application. Their case is that the Applicants are not entitled to the order they seek, as they have not satisfied the legal requirements for obtaining an order for the committal of a person for contempt. They contend that the Applicants have failed to show that they have done anything that is contrary to the injunction order.
It is also the case of the Respondents that the 2nd, 3rd and 6th Respondents have not been served with the injunction Order and that the injunction Order did not restrain the 1st and 6th Respondents. The Respondents also contend that 4th and 5th Respondents upon service of the injunction Order ceased their involvement in the running and operations of the 1st Defendant. It is also their case that the Respondents have not been served with a penal notice that they would be liable to contempt if they disobeyed the injunction.
The Respondents add that the Applicant have not been able to show exactly how they disregarded the court’s order. Based on the aforesaid, they are inviting the court to dismiss the contempt application.
PRELIMINARY LEGAL OBJECTIONS
When the matter came up for hearing on 19th of June, 2019 counsel for the Respondents raised the following preliminary legal objections to the application:
That 2nd, 3rd and 6th Respondents have not been served with the 7th May Order and the application should fail in respect of them because Applicants had not obtained a court order dispensing with personal service of the 7th May Order on them;
Applicants should have sought leave of the court before filing a supplementary affidavit in support of their application, urging new grounds having failed to do this, their supplementary affidavit is void and the grounds contained therein ought to be expunged; and Attached to Applicants’ affidavits as Exhibit J and Exhibit R, are privileged confidential lawyer-client communication that ought to be expunged from the record.
The Court ordered both counsel to expatiate on the preliminary legal points in their written submissions. The court deferred its ruling on the preliminary legal objections for the same to be incorporated into the ruling of the substantive application.
In this ruling, I shall first determine the 2nd and 3rd preliminary legal objections. The 1st preliminary objection would be tackled when the case against the Respondents is analysed.
Second, I shall go into the requirements of the law of contempt and flowing from the law, I shall assess the liability or otherwise of the Respondents herein.
Should the Applicants’ Supplementary Affidavit be disregarded?
In a written address filed on behalf of the Respondents, Counsel for the Respondents submitted that the Applicants’ supplementary affidavit filed on 25th May, 2019 is void as the same was filed without leave of the court. Counsel cited Order 50 Rule 3(3) together with Order 16 Rule 7 and argued that an applicant seeking to have someone committed for contempt should rely solely on his affidavit in support of his application, unless he has sought and obtained the court’s leave to amend the affidavit in support. According to counsel, this is necessary because a party charged with contempt ought to know beforehand, the grounds upon which the application is based, and which they are expected to answer.
In a rebuttal, counsel for the Applicants described the objection as misconceived. He submitted that Order 16 Rule 7 of CI 47 deals with the trial of a substantive suit and not an application like the instant one. He further submitted that on the 24th of May, 2019, at 2.30pm 2ndRespondent filed a SUPPLEMENTARY AFFIDAVIT in this very proceeding and since the supplementary affidavit was prepared by the self-same Counsel for and on behalf of the said 2nd Respondent, the 2nd preliminary objection smacks of an attempt to mislead the Court.
Order 50 Rule 3(3) of CI 47 provides:
“Without prejudice to the powers of the Court under Order 16 rule 7 no grounds except the grounds set out in the affidavit in support of the motion shall be relied upon at the hearing of an application for an order of committal.”
Order 16 Rule 7 also provides that:
“(1) For the purpose of determining the real question in controversy between the parties or of correcting any defect or error in the proceedings, the Court may, at any stage of the proceedings either of its own motion or on the application of any party, order any document in the proceedings to be amended on such terms as to costs or otherwise as may be just and in such manner as it may direct.
(2) This rule shall not apply in relation to a judgment or order.”
A contempt application is an originating motion on notice. It is supported by an affidavit stating the grounds of the application. A respondent in a contempt application is at liberty to file an affidavit in opposition to the application. The depositions contained in these affidavits are akin to pleadings and the same can be amended with leave of the court. A supplementary affidavit is an amendment to an affidavit. The court may sanction such amendment when it meets the general standards for amendments as set out in Yeboah & Another v Bofour  2 GLR 199, that (i) no surprise results, (ii) a party is not seeking to set up an entirely new case or change completely the nature of their case, (iii) is not sought to add new parties, (iv) the amendment will not do any injury to the opponent’s case or prejudice them in some way which cannot be compensated by costs or otherwise, (v)the application be made bona fide, and (vi) the proposed amendment will not cause undue delay or is irrelevant or useless or would merely raise a technical point.
When you read Order 50 Rule 3(3) and Order 16 rule 7 together, there is no doubt that the Applicants required leave of the court before filing the supplementary affidavit on 24th May, 2019. Failure to obtain leave of the court makes the process irregular. Interestingly, the 2nd Respondent has also fallen into the same problem – he also filed a supplementary affidavit on 24thMay, 2019 without leave of the court. These opposing parties are in pari delicto.
I have perused the Applicants’ Supplementary Affidavit and it is my considered opinion that it does not seek to set up an entirely new case or change the nature of the Applicants’ case. It is a rehash of the same allegation against the Respondents albeit with additional documents in support of the fact that the 1st Defendant company operated after the injunction order. These documents are similar in form and substance to the documents attached to the affidavit in support of the motion filed on 9th May, 2019. In the interest of substantial justice, I am minded to treat Applicants’ noncompliance with the rule as mere irregularity which will not nullify their supplementary affidavit within the meaning of Order 81 Rule 1 of CI 47. Consequently, the Applicants’ supplementary affidavit is hereby adopted.
Likewise, the 2nd Respondent’s supplementary affidavit.
Adoption of courts processes filed without leave is not an unusual step taken by the court. It is done to ensure speedy and effective justice, as dictated by the objectives of our civil procedure rules which are captured in Order 1 rule 1(2) of CI 47.
Privileged lawyer-client communication: Should Exhibit J and Exhibit R be expunged?
Counsel for the Respondents has submitted that Exhibit J and Exhibit R attached to Applicants’ affidavits are privileged confidential lawyer-client communication between some of the Respondents and their lawyers and therefore should be expunged from the record. Counsel charged that a close look at the two exhibits shows a valiant, and yet failed attempt by the deponent to redact, i.e. censor or obscure parts of the documents to conceal other details from the Court particularly the fact that it is a confidential document. The document in question is an email communition.
Counsel argued that communication between lawyers and their clients are privileged, unless a person seeking to rely on the communication can show an exception under the law. Counsel quoted section 100 of the Evidence Act, 1975 (NRCD 323) as well as the Commentary/Memorandum on NRCD 323 to buttress the point. Counsel also cited the case of Sam Jonah v Yoni Kulendi & Anor [Unreported,
Suit No. Acc13/09, 24/08/09] which was upheld in Jonah v Kulendi & Kulendi [2013-2014] SCGLR 272, Tanko J (as he then was) held:
“Since the relationship between lawyer and client is one regulated by law and information shared being privileged, in order to be part of that equation, masquerading is not an acceptable formula. In other words, the relationship between a lawyer and client is not and ought not to be one of speculation nor of some complex jurisprudential analysis. Being a relationship regulated by law it is also fiducial in nature. It must be apparent from the conduct of the parties from the time instructions are received by the lawyer and concluded or withdrawn (Emphasis added)”
It was further submitted that the exceptions provided in section 101 of NRCD 323 do not apply to Exhibit J and Exhibit R. Counsel has, therefore, invited the court to expunge the exhibits, as Respondents are seeking to prevent their use or disclosure.
Section 100 of NRCD 323 provides:
100. Lawyer-client privilege
(1) For the purposes of this section and of sections 93, 101 and 102,
(a) a client is a person, including a public entity, an association or a body corporate, who or which directly or through an authorised representative seeks professional legal services from a lawyer;
(b) a representative of the client is a person having authority from the client to make to, or receive from, a lawyer confidential communications relating to professional legal services sought by the client;
(c) a representative of the lawyer is a person having authority from the lawyer to assist the lawyer in rendering professional legal services sought by the client;
(d)a communication is confidential if it is not intended to be disclosed, and is made in a manner reasonably calculated not to disclose its contents, to third persons other than those to whom disclosure is in furtherance of the client’s interest in seeking professional legal services, or those reasonably necessary for the transmission of the communication.
(2) A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, a confidential communication, reasonably related to professional legal services sought by the client, and made
(a) between the client or a representative of the client and the lawyer or a representative of the lawyer, or
(b) between the lawyer and a representative of the lawyer, or
(c) between the lawyer or a representative of the lawyer and a lawyer representing another person, in a matter of common interest with the client or a representative of the lawyer.
(3) A client’s privilege under subsection (2) may be claimed by
(a) the client; or
(b) the client’s guardian or committee; or
(c) the personal representative of a deceased client; or
(d) the successor in interest of a client who was an artificial person; or
(e) the person who was the client’s lawyer at the time of the communication, or the representative of the lawyer, but that person may not claim the privilege if there is no other person in existence who is authorised by paragraph (a), (b), (c) or (d) of this subsection to claim the privilege, or if that person is otherwise instructed to permit disclosure by a person so authorised.
The Commentary/Memorandum on NRCD 323 had this to say on lawyer-client communication:
“Section 100(1)(d) defines confidential information as one ‘not intended to be disclosed’. That confidential intention must be manifested in the choice of a manner of communication ‘reasonable calculated’ to preserve confidentiality. Since section 100 (2) gives the client the privilege to ‘prevent any other person from disclosing a confidential (lawyer-client) communication,’ this section gives a client the privilege to prevent an eavesdropper from disclosing a confidential lawyer-client communication which he overhead. The manifestation of a ‘reasonable’ method of confidential communication assures that the scope of this privilege will not be unduly wide. But in an age when small microphones can listen in on conversations in the most private of places, some express protection is required to prevent these intruders from subverting the policies behind the privilege. Thus whilst the law may not concern itself with the side issue of whether the evidence it hears was lawfully obtained, a client whose confidential communication with his lawyer was wrongfully or unintentionally overheard may prevent the eavesdropper from disclosing the communication.”
Communication between a lawyer and client is privilege unless it falls within any of the exceptions provided in section 101 of NRCD 323 as follows:
101. Exceptions to lawyer-client privilege A person does not have a privilege under section 100
(a) if, apart from the communication, sufficient evidence has been introduced to support a finding of fact that the services of the lawyer were sought or obtained to enable or aid a person to commit or plan to commit a crime or intentional tort; or
(b) as to a communication relevant to an issue between parties who claim an interest in property through the same deceased client of the lawyer; or
(c) as to a communication relevant to an issue of breach of duty by a lawyer to a client of the lawyer, or a client to the lawyer of the client; or
(d)as to a communication relevant to the formalities of the execution of a writing by a client, where the lawyer or a representative of the lawyer is an attesting witness to the execution of the writing; or
(e) as to a communication relevant to a matter of common interest between two or more clients, if the communication was made by any of them to a lawyer sought by them in common, when offered in a proceeding between any of the clients.
It is clear from the foregoing that lawyer-client privilege covers communications between lawyer and client for giving or obtaining of legal service. It is lawyer-client privilege which ensures that a client cannot be required to reveal the content of any discussions between himself and his legal advisors. A client also stands in pole position to prevent such a disclosure by a third party. In Mywill Ltd v Issah Abdulai & Another [Unreported, Suit No. E12/38/07, 25/02/2008] the court stated:
“It was held that ‘any information given by the client to the lawyer thereby becomes privileged which the lawyer cannot disclose to any person without approval and which information cannot also be used at a later date against the client in respect of the same subject matter… A client had a privilege under section 102(1) of the Evidence Decree, 1975 (NRCD 323) to refuse to disclose and to prevent any other person from disclosing information obtained by his lawyer when rendering professional legal services sought by his client.”
Indeed, this time honoured legal professional privilege does not extend to communications made with the intention of furthering a criminal purpose among other exceptions provided under section 101 of NRCD 323.
Counsel for the Applicants’ response to this legal objection is that a Barrister has an overriding duty to the court to act in the interests of justice by disclosing all relevant information to the court in the administration of justice. He stated that Exhibit J and Exhibit R are clearly relevant to a determination as to whether the Respondents are in contempt in line with Section 51 of the Evidence Act 1975, NRCD 323. Counsel charged that:
“It is deeply disturbing that Counsel faced with unimpeachable evidence and pictorial evidence of contempt of Court, would in breach of his duty to the Court as Counsel seek to mislead the Honourable Court by recourse to questionable and unfounded submissions aimed at perverting the cause of justice.”
Exhibit J which was reproduced in a different form in Exhibit R all contain the same information. The message speaks for itself – it is a communication between a lawyer and a client in respect of a pending action. The content of the exhibits falls within the ambit of section 100 of NRCD 323 on lawyer-client privilege and it does not fall within the exceptions provided under section 101.
Lawyer-client privilege is a jewel in the crown of legal practice. It is a fundamental human right long establish in the common law tradition and deeply rooted in our constitutional right to privacy. Lawyers are expected to protect this right because the essence of the legal profession also depends on it.
I would not go into how the Applicants managed to obtain copies of the document and allegedly redacted certain aspects of it before attaching same to their affidavits. All I can say is that the Applicants’ procurement and use of the exhibits are extraordinary. Applicants’ move defies the rules on lawyer-client privilege as demonstrated above. We must always remember that a court proceeding is not a no rule game. Parties are expected to conform with the applicable rule of law.
From the evidence on record, Respondents have not given Applicants permission to use Exhibit J and Exhibit R. Respondents are therefore entitled to prevention of its use. The result is that Exhibit “J” and Exhibit “R” are expunged from the record.
THE LAW ON CONTEMPT OF COURT
Merriam-Webster’s Dictionary of Law (16th Printing Harrisonburg VA January 2014) defines contempt as:
“willful disobedience or open disrespect of orders, authority, or dignity of a court or a judge acting in a judicial capacity by disruptive language or conduct or by failing to obey the court’s orders.”
In the case of Republic v High Court ex parte Laryea Mensah [1997-98] 2GLR 1002 the Supreme Court explained contempt as follows:
“A person committed contempt and might be committed for contempt to prison for willfully disobeying an order of a court requiring him to do any act other than the payment of money or to abstain from doing some act. The order sought to be enforced should however be unambiguous and had to be clearly understood by the parties concerned, for the court would only punish as contempt a willful breach of a clear court order requiring obedience to its performance.”
The Supreme Court in OPOKU v LIBHERR FRANCE SAS & ANOR 2012 1 SCGLR 159 at 160 Holding 1 has held that:
“it was well-settled that there were different forms of contempt. Underlying all of them, however, was one basic notion, that the path of public justice should at all times be free from obstruction. Conduct which tended to create such an obstruction would constitute contempt. Thus interfering with witnesses or jurors; frightening off parties to litigation; refusing to answer questions in court; commenting on pending proceedings in such a manner as to prejudice the outcome; running down the courts and the judges; refusing to obey an order of the court … any of those, if calculated to, or tend to; impede or obstruct the course of justice would constitute contempt. REPUBLIC v MENSAH-BONSU; EX-PARTE ATTORNEY-GENERAL 1995-96 1 GLR 377 at 403, SC cited”.
From the definitions above, there are two types of contempt namely civil and criminal contempt. In his book: “The Law of Chieftaincy in Ghana” at page 452, Justice S.A. Brobbey defined contempt as follows:
“in its simplest form contempt means any conduct that interferes with or undermines the administration of justice and this definition covers criminal as well as civil contempt.”
Criminal contempt are acts done in respect of the Court or its processes which obstruct the administration of justice or tend to bring the court into disrespect. See Republic v Numapau, President of the National House of Chiefs and Others; Ex parte Ameyaw II (No.2) [1998-99] SCGLR 639, Holding 1.
Civil contempt consists of willful disobedience to a judgment, orders or decrees by a court.
Since an application for committal for civil contempt is based on the premise that the alleged contemnor has willfully disobeyed an order of the court, it is vital that the applicant establishes that the contemnor was aware of the court’s order and despite the said knowledge, willfully disregarded the order.
The Supreme Court, in the case of Republic vrs SITO I, ex-parte Fordjour [2001-2002] SCGLR 322, laid down the essential elements to be established to make out a prima facie case of civil contempt:
(1) There must be a judgment or order requiring the contemnor to do or abstain from doing something.
(2) It must be shown that the contemnor knows what precisely he is expected to do or abstain from doing.
(3) It must be shown that he failed to comply with the terms of the judgment or order and that disobedience is willful.
Counsel for the Respondent rightly stated that a charge of disobeying a courts injunctive order, is a charge of civil contempt as opposed to criminal contempt. Civil contempt proceedings amount to enforcement of injunctive orders of the court, and those proceedings are regulated by Order 43 of CI 47. Order 43 Rule 5(1)(b)(cc) provides:
“where… a person disobeys a judgment or order requiring the person to abstain from ding an act the judgment or order may subject to these Rules be enforced by one or more of the following means… an order of committal against that person or, where that person is a body corporate against any director or other officers.”
Thus, a committal proceeding cannot be brought for the disobedience of a court order unless a copy of the order has been personally served on the person against whom the mandatory or prohibitory injunction is directed, provided that the court may dispense with personal service where the justice of the case so demands.
Order 43 rule 7(2) also provides:
“Subject to Orders 21 rule 14(2) and 22 rule 6(3) and subrule (6) of this rule, an order shall not be enforced under rule 5 unless:
(a) a copy of the order has been served personally on the person required to do or abstain from doing an act in question, and
(b) in the case of an order requiring a person to do an act, the copy has been served before the expiration of the time within which the person was required to do the act.”
On the legal effect of Order 43 Rule 5(1)(b)(cc) and Order 43 rule 7(2) of CI 47, the Supreme Court speaking through Atuguba JSC in Republic v High Court (Commercial Division) Accra; Ex Parte Millicom Ghana Limited & Others (Superphone Co. Ltd – Interested Party)  SCGLR 41 stated:
“…that specifically relates to the enforcement of (a) judgment or order to do or abstain from doing an act and therefore governs the application in this case… As the applicant chose enforcement by means of committal, the relevant provision is, particularly on the facts of this case Order 43 rr 5(1)(b)(cc) and 7 and (2). It is plain that under these rules, without service on the relevant directors or officers, as in this case, committal cannot lie…I say this not oblivious to the fact that the word ‘may’ is used in the rule 5(1)(b)(cc) of Order 43…”
As rightly pointed out by counsel for the Respondents, the courts have applied this principle of requiring service of an order before a person may be cited for contempt even before the enactment of CI 47. In Republic v Bekoe & Ors; Ex Parte Adjei [1982-83] GLR 91, Osei-Hwere, J (as he then was) held as follows:
“It was a legitimate defence to a charge of contempt that the person charged had had no notice of the order; a person could not be guilty of an order of the court of which he had had no notice. The application had failed to satisfy the court that the Respondent had notice of the order of the judicial committee prior to the date of the alleged contempt, either because they were present in court when the interim orders were made or that they were subsequently served on them. Although, on the evidence, Respondent were represented by counsel before the committee, in matters of contempt, which would deprive the liberty of a subject, actual, but not imputed, notice of the specific terms of the orders must be proved.”
Also, in Okai v Mawu (1976) 1 GLR 265, the court held that the alleged contemnor could not be convicted for breach of an order of injunction when he had no knowledge of the existence of the order.
What is the standard of proof required to sustain liability in an application for contempt?
In the cases of Kanga v Kyere (1979) GLR 458 and Republic v Numapau; ex parte Ameyaw II and Others [1999-2000] 1GLR 283 the court settled the standard burden of proof in contempt matters as proof beyond reasonable doubt whether it is civil or criminal contempt.
Also, in Agyenim Boateng & 27 Ors v S. K. Boateng  SCGLR 154, Dotse JSC stated 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 prima facie case of contempt before the court considers the defences put up by the Respondent.”
DECISION OF THE COURT
I now turn my attention to the determination of the central issue relating to this application i.e. whether the Respondents are liable for contempt of court?
2nd, 3rdand 6thRespondents
The 2nd Respondent is the majority shareholder, Chief Executive Officer and Chairman of the 1st Defendant company. The 3rd Respondent is the Managing Director of the 1st Defendant Company and the 6th Defendant is the Floor Manager of the 6th Respondent Company.
The Applicants allege that the 2nd and 3rd Respondents disregarded the interim injunction order and conducted the business of1stDefendant as usual. They allege that all the Respondents have boldly and unequivocably declared that no court can stop them from continuing to administer, operate, manage and run the 1st Defendant among other allegations.
The result of searches conducted and shown as Exhibit KO 1, Exhibit NB 1 and Exhibit DA 1 show that service of the injunction order was not effected on the 2nd, 3rd and 6th Respondents respectively.
Counsel for the Respondents’ submission is that the contempt application cannot be maintained against the 2nd, 3rd and 6th Respondents due to Applicants’ failure to serve the injunction order on them and that not having been serve with the order, 2nd, 3rd and 6th Respondents cannot be said to have disregarded the order for them to be committed for contempt.
Counsel for the Applicants, however, maintained that absence of knowledge of pendency of a court proceeding or an order of the court is no defence to a contempt charge. It is my considered opinion that counsel’s submission is only applicable to criminal contempt where any conduct that tends to bring the dignity of the court into disrepute or obstruct the administration of justice is contemptuous whether the contemnor is aware of the pendency of a court proceeding or not. From the authorities above, it is palpably clear that civil contempt focuses on disobedience of court orders and in our law such orders must have been served on the respondents before they could be rightly convicted for their disobedience. I am not oblivious of the fact that the Applicants have made some serious allegations against the Respondents and these allegations border on criminal contempt. However, beside the bare assertions, Applicants failed to establish those allegations. They failed to corroborate the allegation that the Respondents boasted that no court can stop them from operating the 1st Defendant company among the litany of allegations. Multiple allegations cannot translate into conviction for contempt if there is no cogent evidence to support them. The Applicants have failed to proof beyond reasonable doubt the allegations that border on criminal contempt against the Respondents. More so, since the 2nd, 3rd and 6th Respondents were not served with the injunction order they cannot be held liable for contempt.
4th and 5th Respondents
The 4th Respondent is an executive director of the 1st Defendant company whilst the 5th Respondent is the accountant of the company.
From the record, both of them were served with the injunction order as shown in the proof of service, Exhibit E and Exhibit F.
In determining whether the Respondents have disobeyed the court’s injunction order, it is important to ascertain the meaning of the order and what was expected of the persons mentioned in the said order.
For the sake of brevity, the important part of the injunction order is reproduced as follows:
“IT IS HEREBY ORDERED that, the 2nd, 3rd, 4th and 5th Defendants, their Agents, Assigns, Privies, Workmen and any other person or entity acting upon their behest, instructions and/or directions are hereby restrained from in any manner continuing the running, operation and administration of the 1st Defendant pending the determination of this matter ...”
From the plain meaning of the Order, the named persons and their agents were restrained from running, operating and administering the affairs of the 1st Defendant company. Per my understanding, the order did not require the named persons or their agents to ensure that the company is shut down. If the court wanted that to happen it would have said so. The order only kept them at bay in the affairs of the company when the same was in force. The affidavit evidence does not show that 4th and 5th Respondents continued with their involvement in the running of the 1st Defendant. In fact, 4th and 5thRespondents deposed to the fact that they stayed away from the 1st Defendant company after the order was served on them and this fact was not controverted. Let us remind ourselves that proof of willful disobedience of a court order requires a high standard of proof in proof beyond reasonable doubt. After a review of the evidence on record, I conclude that the Applicants have failed to show that 4th and 5th Respondents disobeyed the court’s injunction order.
The 1st Respondent is the Business Manager of the 1st Defendant company. He is not a party to the aforementioned suit that led to the injunction order but he was served with the order and he has been cited for contempt in a fallout of the order.
I agree with counsel for the Applicants’ assertion that a stranger to a suit can be cited for contempt. to buttress his point, counsel cited the case of INTERIM EXECUTIVE COMMITTEE OF APOSTOLIC DIVINE CHURCH OF GHANA v INTERIM EXECUTIVE COUNCIL & ORS (NO. 2) 1984-86 2 GLR 181 at 182 Holdings 2 and 3:
“Any conduct which tended to bring the authority and administration of the law into disrespect or interfere with any pending litigation, like the instant case, was contempt of court. There was ample evidence on record that the respondents were laboring under a misconception that they were not party to the suit and so they could do as they liked despite the court’s order. The order was directed to all the respondents in the suit and any one taking instructions from them, so that if both A and OW took instructions from OS, they were committing contempt as agents of OS. Taking away the keys to the offices of the church was a flagrant disrespect of the court’s order. Even if A and OW had no knowledge of the pendency of the said order, absence of such knowledge could not be a defence, if that conduct was in fact in contempt of court. Lack of knowledge of the pendency of the said order could only be taken into consideration when passing sentence. It would be of no avail to A and OW that they were not parties to the suit and that they had not been served with the writ. R v ODHAMS PRESS LTD; EX-PARTE ATTORNEY-GENERAL 1957 1 QB 73; BALOGUN v EDUSEI 1958 3 WALR 547 dictum of Akufo-Addo CJ in OHENE v ATANKO, Court of Appeal, 8 August 1967; digested in (1968) CC 51;
REPUBLIC v MOFFAT; EX-PARTE ALLOTEY (1971) 2 GLR 391 and KANGAH v KYEREH (1979) GLR 458 cited.”
“The court had jurisdiction to punish for contempt, a person who, though not a party to the action, as in the instant case, chose to assist others in the doing of that which he well knew was prohibited by an order of the Court. Such willful disobedience of no court’s order by a stranger to the litigation constituted criminal contempt, because each was a stranger to the proceedings in which then order of injunction was made. Each of the respondents was therefore guilty of contempt. However, in view of the remorse of the respondents - each of them pleading for leniency and also of the plea of their counsel for leniency with every lawyer in court associating himself with counsel for the respondents they would not be imprisoned outright but instead, given an option of a fine even though the breach of the order by them was considered by the court to be serious. SEAWARD v PATTERSON 1897 1 ChD 545, CA; dictum of Lord Romer LJ in HADKINSON v HADKINSON 1952 2 ALL ER 567 at 569, CA and TETTEYGA II v SAPPOR 1973 2 GLR 277, CA cited.”
Again, in the case of the 1st Respondent, the Applicants failed to show that he willfully disobeyed the injunction order. The affidavit evidence did not show that he was involved in the running, operation and administration of the 1st Defendant company after the order was served on him. The 1st Respondent alleged disregard to the authority of the court when the processes were served on him has also not been proven. From the affidavit in support, the alleged contemptuous behaviour happened in the presence of the bailiff. Surprisingly, the bailiff was not called upon by the Applicants to corroborate that allegation.
In conclusion the applicants are not entitled to the order sought, as they have failed to prove that the Respondents willfully disobeyed the injunction order of the court dated 7th May, 2019 and that they (Respondents) have acted in a way that brings the court into disrepute. Consequently, I dismiss the application.
Costs of GHC 8,000.00 awarded against the Applicants.
DR. RICHMOND OSEI-HWERE
JUSTICE OF THE HIGHCOURT