IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (GENERAL JURISDICTION DIVISION, COURT 6)
ACCRA - A.D 2019
THE REPUBLIC - (Plantiff)
JOSEPH NII MENSAH ASHONG - (Respondent)
EX PARTE: JONES QUAIN - (Applicant)
DATE: 15TH MAY, 2019
SUIT NO: CR/616/2018
JUDGES: HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO
LAWYERS: ROBERT YARTEY FOR THE APPLICANT ALHAJI FAROUK SEIDU FOR THE RESPONDENT
The Applicant has brought this application to vindicate the law and its sanctions. He accuses the Respondent of breaking the law by disrespecting a judgment of the court, thereby bringing the administration of justice into disrepute.
Black’s Law Dictionary 8th Edition defines contempt as “conduct that defies the authority or dignity of a Court or legislature. Because such conduct interferes with the administration of justice, it is punishable, usually by fine or imprisonment.” The Oxford Advanced Learner’s Dictionary of Current English by A.S. Hornby (7th Edition) also defines contempt of court as “the crime of refusing to obey an order made by a court; not showing respect for a court or judge.”
The power of the High Court to punish for contempt is provided in S.10 of the Criminal Offences Act, 1960 (Act 29) and Articles 19(12) and 126 of the 1992 Republican Constitution of Ghana.
There is no codified legislation in Ghana that defines the act or omission that constitute the offence of contempt. It therefore sounds to reason that Ghanaian courts resort to case law to resolve any issue regarding contempt when confronted with one.
The Supreme Court confirmed the non-codified nature of contempt in Ghana in the case of IN RE: EFFIDUASE STOOL AFFAIRS (No.2) EX PARTE AMEYAW II (1998-99) SCGLR 639 @ 660 when His Lordship Acquah JSC (as he then was) stated that:
“My lords, contempt of Court is the only common law offence still known to our law, as same is saved by article 19(12) of the 1992 Constitution and Section 10 of the Criminal Code, 1960 (Act 29). And unlike other countries where the offence is codified like the English Contempt of Court Act of 1981, ours is still case law”.
The Learned jurist, Acquah JSC (as he then was) in the same case EX PARTE AMEYAW II SUPRA further judicially articulated what constitutes contempt when he summed up the law in an apt and concise manner as follows:
“In brief, contempt is constituted by any act or omissions tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.”
In R v SITO I; EXPARTE FORDJOUR (2001-2002) SCGLR 322 the Supreme Court further gave yet another dimension to the definition of contempt. Their Lordships gave the elements constituting the offence of contempt as that:-
a) there should have been a judgment or order which required the contemnor to do or abstain from doing something;
b) the contemnor knew what precisely he was expected to do or abstain from doing; and
c) that he failed to comply with the terms of that judgment or the order and that his disobedience was willful.
In a recent unreported decision of the Supreme Court titled THE REPUBLIC v. BANK OF GHANA & 5 OTHERS; EX PARTE BENJAMIN DUFFOUR Civil Appeal No. J4/34/2018 Delivered on June 6, 2018 the apex Court speaking through Baffoe-Bonnie, JSC stated that:
“A respondent to a contempt proceeding may be found guilty in many ways. The party may be found guilty of direct contempt or indirect contempt which may be proved depending on the facts of the case in several ways. The proof of direct contempt seem not to be as burdensome as proof of indirect contempt. In most cases direct contempt such as insulting the judge or a party to a proceeding, or committing acts of violence in court, the judge has the advantage of having a firsthand view of the act constituting contempt. The opposite can be said of indirect contempt where the Court will have to rely on the testimony of third parties to prove the offense of contempt”.
His Lordship further stated after examining the standard of proof in a contempt proceeding that:
“Contempt may be committed intentionally or unintentionally. It is no defence to a charge of contempt for a party to prove he did not intend to commit contempt of Court. In Republic v Moffat; Ex parte Allotey  2 GLR 391, it was held that it was no defence for a party facing attachment for contempt to swear to an affidavit deposing that he did not intend to commit contempt of court. Intentional contempt may arise in two ways:
Where a party willfully disobeys an order or judgment of a court, and
Where a party knowing that a case is sub judice, engages in an act or omission which tends to prejudice or interfere with the fair trial of the case despite the absence of an order of the court”
By definition and based on the principles articulated in the cases above, a person commits contempt of court if he has willfully disobeyed an order of Court requiring him to do an act other than the payment of money or to abstain from doing some act. But to hold a party liable in contempt, the rule is that the order sought to be enforced should be unambiguous and the party must be aware of the order and must be clearly understood by the party concerned. See R v. HIGH COURT ACCRA, EX PARTE LARYEA MENSAH (1998-99) SCGLR 360.
In the respectful opinion of this Court, Contempt of court serves the primary function of protecting the sanctity and integrity of the court and court proceedings and it also serves to sustain the rule of law, a check on conduct that potentially renders civilized society liable to the dynamics of a Hobbesian state of anarchy and chaos.
The Instant Application:
By a Motion on Notice filed in this court on 17/08/2018 the Applicant herein seeks an order of committal against the Respondent herein for Contempt of Court. Before outlining the issues raised in the instant contempt application, it is appropriate to provide the background of the case.
The Applicant, Jones Quain commenced an action at the Land Division of the High Court against one Thomas Akpasu alias Taller for allegedly trespassing onto his land covered by a Land Title Certificate. Consequently, one Robert Nkansah Agyepong was also joined to the action as a 2nd Defendant. The reliefs endorsed on the writ of summons were an order for an injunction to restrain the Defendants, their agents, servants or anybody howsoever from entering or doing anything on the Plaintiff’s land, an order for ejectment of the Defendants, demolition or removal of all structures made by Defendants on the Plaintiff’s land, damages and for any other or further reliefs.
By a judgment delivered by my respected brother Anthony Oppong J on March 31, 2011 in favour of the Plaintiff he concluded and stated at page 7 as follows:
“I conclude by stating without any shadow of doubt that Plaintiff’s title to the disputed land is superior to that of the 2nd Defendant if he even has any title at all.
By an order of this Court, 2nd Defendant either by himself, his agents, servants or anybody howsoever described are hereby restrained from doing anything further on Plaintiff’s land described as per the endorsement on the writ of summons. I also order not only the ejectment of 2nd Defendant, his agents, servants from the land but also order demolition and removal of any structure made by 2nd Defendant on Plaintiff’s land at 2nd Defendant’s expense”.
The case of the Applicant & Respondent
The instant application for contempt against the Respondent, Joseph Nii Mensah Ashong is anchored on the judgment of Oppong J. In this application, the Applicant has deposed at paragraph 2 of the affidavit in support that judgment for declaration of title, possession and injunction was given in his favour by the High Court in the matter of Jones Quain v. Mr. Thomas Akpasu @ Taller, Mr. Robert Nkansah Agyepong Suit No. BL 98/2005 and he was put in possession of the land and started developing it. He contends that while his workmen were working on the land the Respondent who had been ejected by the Court came back to the land in the company of one Corporal Opoku from Legon Police station and ordered his workers to stop work and he then locked the gates and took away the keys and warned his workers not to step on the land again.
The Applicant further contends that the Respondent having been ejected by an order of the court cannot with the assistance of a policeman move back to the land and re-take possession of it contrary to the order of the court as contained in the judgment. According to the Applicant he has been advised and he believes same to be true that “the conduct of the Respondent is to reverse the execution carried out by the Court and same is an affront to the dignity of the Court that ordered the execution”. The Applicant attached as Exhibits JQ1 and JQ2 being the Judgment referred to supra and a certificate of possession signed by two bailiffs Samuel Hinson and Eric Botwey.
The Respondent for his part, in a fifteen (15) paragraph affidavit denied all the allegations of contempt of Court levelled against him. The Respondent averred that he acquired his land from Numo Adjei Kwanko II, Osabu and Ayiku Wulome and the Kle Musum Quarter and the Tsie We family of Teshie in the year 2000. In effect the Respondent contends that his grantor is different from the Applicant’s grantor as stated by Oppong J. According to the Respondent when he started developing the land the Applicant reported him to the police who invited him to the police station. Mr. Nii Mensah Ashong said at the police station, the Applicant claimed that he had judgment in respect of the land in his favour.
According to the Respondent when the Applicant produced the judgment, it was realized that ‘the said judgment was rather against a certain Robert Nkansah Agyepong and Thomas Akpasu. The Applicant was then advised to issue a writ against him, the Respondent if he so wished but he did not’. The Respondent says he was not given a copy of the judgment and thus continued with his development and constructed a two 3-bedroom apartments on portions of the land only for the Applicant to cause the buildings to be demolished under the guise of execution of the judgment that he obtained against Robert Nkansah Agyepong in the year 2011.
The Respondent further deposed that at the time the Applicant brought the officers of the court to the land to demolish his buildings the Applicant knew that the buildings were constructed by him and not Robert Nkansah Agyepong yet he misled the bailiff into believing that the buildings were put up by Robert Nkansah Agyepong. The Respondent further deposed that he has since commenced a legal action against the Applicant for wrongful demolition of his buildings. A copy of the writ of summons is attached to the affidavit as Exhibit “MNA1”.
Submission of Counsel:
On the 19th of November 2018, Counsel for the Applicant moved the application for contempt and reiterated the depositions in the affidavit that pursuant to Oppong J’s judgment the declaration of title and possession was awarded in favour of the Applicant. Consequently upon the judgment, a bailiff went onto the land to eject the Respondent and put the Applicant in possession but with the help of a policeman the Respondent went back onto the land to take possession from the Applicant’s workmen. Counsel submitted that the conduct of the Respondent is contemptuous as it implies that the Respondent is saying that he is capable of reversing the court’s judgment.
Counsel further submitted that the Respondent’s conduct is wrong and if encouraged it would bring the administration of justice into disrepute. He further stated that the Respondent has not purged himself of the contempt and is still in possession of the land. Also, Counsel submitted that the affidavit in opposition only justifies the bad conduct and does not answer the issue. According to Counsel ‘the respondent’s affidavit and the exhibit attached shows that the Respondent knows how to take steps to recover the land but chose the wrong route and therefore his conduct should be frowned upon’.
Respondent’s Counsel Submission:
In Counsel for the Respondent’s response to the motion he contended that contempt is quasi criminal and therefore the Applicant must prove beyond reasonable doubt the guilt of the Respondent. In his view the slightest doubt must inure to the benefit of the Respondent. Alhaji Farouk Seidu cited the case of EX PARTE AMEYAW II SUPRA to support his assertion. Counsel further submitted that between when the judgment was obtained in September 2011 and the time it was executed in 2018, many things happened and they are contained in the Respondent’s affidavit in opposition (specifically paragraph 7 to 15).
He further submitted that by paragraph 7 it was the Applicant who saw the Respondent on the land and reported him to the police and that it was at the police station that the Respondent first became aware of the judgment but he was not given a copy. Counsel submitted that the police advised the Applicant to issue a writ against the Respondent if he so wished but he did not.
Counsel also submitted that the Respondent acquired the land from a different grantor from that of the Applicant. According to Counsel the Respondent’s workers informed him that the Applicant had come to lock the door so he went to the police and it was the police who sent an officer to go and open the door, which was locked and not the Respondent. Counsel further submitted that the Respondent never became aware that court officers ejected his workers but he was told that some people removed the workers and that is why he informed the police who came to break the locks. Based on all of the above Counsel submitted that it is the case of the Respondent that he has not acted against any judgment of the court to be cited for contempt.
Applicant’s Counsel Written Submission:
After the oral hearing the Court granted both Counsel leave to file written submissions if they wished. The Respondent’s Counsel did not file further submission but the Applicant’s Counsel did. In the written submission filed on December 10, 2018 Counsel for the Applicant argued that first of all, in contempt proceedings it does not matter whether or not you were a party to the suit that gave rise to the contempt. According to Counsel Contempt of court is any conduct that affronts the dignity of the court. To that extent he submitted that the Respondent by ejecting the Applicant from the land given him by the court amounted to a conduct that affronts the dignity of the court. He went on further to explain the reason for contempt jurisdiction of the court by quoting Lord Morris and Diplock in AG v Times (1874) AC 273-308.
Secondly, Counsel submitted that ‘when the court by its power puts a person in possession it is expected that the person so put in possession of the property remains in possession without any hindrance and can only be removed by a lawful order. That in the instant case the Applicant was not removed by a lawful order. He further stated that the Respondent’s claim that he was not aware that it was the court, which put the Applicant in possession, means that if he knew that it was the court that put the Applicant in possession he could not have forcefully ejected the Applicant. According to Mr. Yartey that is a concession that the ejectment was unlawful but the Respondent pleads ignorance, which is not a defence in law.
The next argument of Counsel was that the Respondent’s claim that it was the police that informed him that he was not a party to the suit and based on that he proceeded to eject the Applicant is untenable. This is because according to Counsel the judgment of the Applicant could bind non- parties as well as parties. He stated that in the case of the applicant’s the judgment was to be enforced against the defendant their agents or “anyway howsoever” thus a non-party to the suit occupying the land can be ejected’.
Based on all of the above Learned Counsel submitted and implored the court to give effect to the judgment and commit the Respondent to prison for contempt or use its extensive powers to take a more lenient course of granting an injunction against repetition of the act of contempt. Counsel relied on Article 126(2) and (4) of the 1992 Constitution and Civil Procedure by Kwame Tetteh pg. 615 last paragraph respectively for the submission.
Opinion of the Court & Analysis:
It is roundly agreed upon by the authorities that contempt of court being quasi-criminal, the standard of proof required is proof beyond reasonable doubt. See KANGAH V. KYERE (1979) GLR 458 and EX PARTE LARYEA MENSAH Supra.
The instant application seeks an order of this Court to commit the Respondent for contempt of Court. Without doubt, a contempt application is a quasi-criminal relief. Section 13(1) of the Evidence Act, NRCD 323 provides that “In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt”.
The burden of persuasion is on the Applicant to establish or prove the allegations raised against the Respondent beyond reasonable doubt. The main issue in this application is whether or not based on the law the Applicant has established beyond reasonable doubt the guilt of the Respondent.
Before dealing with the main issue, I wish to state and to agree partly with Counsel for the Applicant that generally the fact that a person was not a party to a suit does not mean that he or she cannot be cited for contempt and be found guilty of same depending on the circumstances. This is because even though an order of a Court ordinarily binds the parties to the action, a third party can be found guilty of contempt, if with knowledge of the order, he aids or abets a party in breaking the order, or in other ways do anything that obstructs or frustrates the said Order. See the case of IN SEAWARD V PATERSON  1 Ch 545. See also the local cases of INTERIM EXECUTIVE COMMITTEE OF APOSTOLIC DIVINE CHURCH OF GHANA v. INTERIM EXECUTIVE COUNCIL AND OTHERS (No.2) [1984-86] 2 GLR 181 Holdings 2 and 3.
In this case, having reviewed all of the facts and the law I am of the respectful opinion that the instant application ought to fail on statutory grounds because the Applicant failed to comply with procedural rules of the Court. It is not in doubt that based on the judgment which is the basis for the instant application, the Respondent herein, Joseph Nii Mensah Ashong was not a party to the suit whose judgment this application is based on. In the opinion of the Court and based on the law because the Respondent was not a party to the action Oppong J delivered the judgment the Applicant relies on in this application, the law requires that he be made aware of the judgment/order and the consequences for disobeying same. That is the law and it is expressed in imperative terms per Order 43 of C.I. 47. What it means is that the Applicant should have served Mr. Mensah Ashong with a copy of the Judgment together with a penal notice.
The High Court Civil Procedure Rules, 2004 CI 47 by Order 43 entitled Enforcement of Judgments and Orders by Rules 5 and 7 provide as follows:
Enforcement of judgment to do or abstain from doing an act
5. (1) Where
a person required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time or within that time as extended or reduced under Order 80 rule 4; or
a person disobeys a judgment or order requiring the person to abstain from doing an act the judgment or order may subject to these Rules be enforced by one or more of the following means
(cc) an order of committal against that person or, where that person is a body corporate, against any director or other officer. Service of copy of judgment before enforcement under rule 5
7. (1) In this rule references to an order shall be construed as including references to a judgment.
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 copy of the order has also been served personally on the person required to do or abstain from doing the act in question; and 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.
There shall be indorsed on the copy of an order served under this rule a notice informing the person on whom the copy is served in the case of service under subrule (2) that if the person neglects to obey the order within the time specified in the order, or, if the order is to abstain from doing an act, that if the person disobeys the order, the person is liable to process of execution;
In the instant case all that the Applicant through Counsel is saying is that the Respondent was removed from the land and the Applicant put in possession. The problem with the submission is that the Respondent herein is not ‘Robert Nkansah Agyepong’ who the order directly affect and there is no evidence before the Court that the Respondent is an agent or a servant of Mr. Nkansah Agyepong and/or traces his interest in the land from him. Based on the evidence, one nagging question that begs for an answer is whether the land the Applicant obtained the judgment for is the same land the Respondent is developing since the Respondent has averred that his grantor is different. On a Court seized with jurisdiction to deal with that issue can resolve same and pronounce on it. Since that issue is not before me I dare not go into that inquiry.
Based on the law the Applicant was required to serve the Respondent with a copy of the judgment as a non-party and a notice informing him that if he disobeyed the judgment he shall be liable to the process of execution. It is reiterated that the combined effect of Order 43 rules 5 and 7 of CI. 47 is that for the order or judgment upon which the application for committal was brought to be enforced, the Respondent ought to have been served with a copy of the order or judgment indorsed with what is called the penal notice. It is noted that the indorsement of the penal notice is a necessary precondition for the enforcement of an order by way of committal before the Court’s jurisdiction to enforce is invoked. The procedure rules uses “shall”, and therefore it is trite learning that it is imperative and not optional. Because there is no evidence of the Applicant complying with the law, the application fails.
Finally, even though it is my holding that the application fails on procedural ground, in my view I cannot sign off without commenting on the so-called process of execution the Court officers (bailiffs) contend they carried out based on which the Applicant has built his case. Exhibit JQ 2, is titled “Certificate of Possession” and it states:
“Writ executed by Eric Botwey and Samuel Hinson at East Legon on the 8th day of June, 2018 at 6.00 a.m.. We ejected the Defendants from the Land and put Plaintiff in sound and peaceful possession.
Writ returned to Deputy Sheriff Land Court, Accra. Thank you.
Signed – Samuel Hinson & Eric Botwey”.
On November 26, 2018 pursuant to the Court’s earlier order Mr. Eric Kow Botwe, one of the bailiffs who executed the writ of possession was in Court to be questioned and both Counsel had the opportunity to cross-examine him as a Court Witness. The Respondent Counsel decided not to ask him any question but the Court and the Applicant’s Counsel did.
For clarity and emphasis, I produce here below part of what transpired in brief when Mr. Botwey went onto the land;
“Q. What do you know about this case?
A. On the 8th of June the order was referred to I and Sammy Hinson to execute at East Legon.
Q. Did you execute the order?
A. Yes, my Lord.
Q. How did you execute the order?
A. We went there about 6:00 o’clock in the morning, there was no body at the site, we put the Plaintiff into possession and we left.
Q. So after you left what did you do?
A. We came back to the office to write our report”
The above is what Mr. Botwey told the Court. I understood him to say that there was no one on the land when they went there. In the report he signed with his colleague, Mr. Hinson however, it is stated that “we ejected the Defendants from the land and put Plaintiff in sound and peaceful possession”. The question is since there was no one on the land who are the Defendants the bailiff ejected from the land? Clearly, the report is misleading and does not reflect what happened on the land based on what Mr. Botwe later told the Court. To my mind it is important that bailiffs as Court Officers ought to learn to execute their tasks by complying with the law and also to be candid. In this case based on the report the Applicant has maintained that the Respondent after he was removed from the land by the bailiffs came back even though he has always maintained that he did not see any Court officer on the land. I have no doubt in my mind the misleading report emboldened the Applicant to file the instant application. In my view the work of the two bailiffs certainly did not meet the standard required and as Officers of the judicial service they failed to acquit themselves as true ambassadors. I trust that going forward they shall do their work with diligence and candour.
Based on all of the evidence before me, I can only come to one conclusion and it is that the Application for Contempt is dismissed. In the result, I ACQUIT and DISCHARGE the Respondent on the charge of Contempt of Court.
Cases Referred to:
In Re: Effiduase Stool Affairs (No.2); Ex Parte Ameyaw II (1998-1999) SCGLR 639 at 660
R v Sito I; Ex Parte Fordjour (2001-2002) SCGLR 322
R v. High Court Accra, Ex Parte Laryea Mensah (1998-99) SCGLR 360
Okai v. Mawu and Another  1 GLR 265
R v High Court Ex Parte Afoda (2001-2002) SCGLR 768
Kangah v. Kyere (1979) GLR 458
Boamah & Ansah Sikatuo v. Amponsah  1 SCGLR 58 @ page 63-64