THE REPUBLIC vs ASP JOSEPH KOJO CHIPKA & 3 OTHERS, EXPARTE ALI DICKSON
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (GENERAL JURISDICTION DIVISION, COURT 6),
    ACCRA - A.D 2019
THE REPUBLIC - (Plantiff)
ASP JOSEPH KOJO CHIPKA AND 3 OTHERS -(Respondent)
EX PARTE: ALI DICKSON -(Applicant)

DATE:  10TH APRIL, 2019
SUIT NO:  CR/94/2019
JUDGES:  HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO
LAWYERS:  VINCENT LEO FRANK AIKINS - FOR THE APPLICANT -ABSENT
PATRICIA AYIREBI-ACQUAH (MS.) FOR THE RESPONDENTS
DECISION

 

APPLICATION FOR COMMITTAL FOR CONTEMPT

 

Introduction:

[1] Contempt of Court is the mechanism which the law provides for the protection of the authority of the court from improper interference. Contempt arises in many ways but includes a breach of a court order, an attempt to obstruct the administration of justice, a deliberate attack upon the integrity of a court or a judge that interferes with proceedings, or some other form of conduct not foreseeable. Contempt of court is part of a court's inherent jurisdiction and, as it is not precisely prescribed or enacted, should be exercised with scrupulous care and only when the circumstances are clear and beyond reasonable doubt.

 

[2] The power of the High Court to punish for contempt is provided in Articles 19(12) and 126 of the 1992 Republican Constitution of Ghana, and re-enacted in S 36 of the Courts Act, 1993 (Act  459)  as amended; S10 of the Criminal Offences Act, 1960 (Act 29) and Order 50 of the High Court (Civil Procedure) Rules, 2004 (CI 47). Order 50 of CI 47 sets the parameters by which an Applicant may move the court for an order for an attachment for contempt of court.

 

[3] There is no codified legislation in Ghana that defines the act or omission that constitute the offence of contempt unlike the United Kingdom Contempt of Court Act[1]. Ghanaian courts therefore resort to case law to resolve any issue regarding contempt when confronted with one.

 

[4] A succinct and frequently quoted definition of contempt is found in R v SITO I; EX PARTE FORDJOUR [2], where the Supreme Court offered the following as constituting the offence of contempt:

 

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.

 

[5] Also, in IN RE: EFFIDUASE STOOL AFFAIRS (No.2); EX PARTE AMEYAW II (1998-1999) SCGLR 639 at 660 Justice Acquah (as he then was) offered the following definition of contempt. He opined that:

“In brief, contempt is constituted by any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.”

 

[6] Generally and based on the law, 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 (1998-99) SCGLR 360. See also the Canadian case of BHATNAGER v. CANADA (MINISTER OF EMPLOYMENT AND IMMIGRATION), [1990] 2 SCR 217, 1990 which confirms a similar position in another Common Law jurisdiction.

 

[7] In sum, therefore, any act or omission done to prejudice the fair trial or outcome of a case, or likely to bring the administration of justice into disrepute or interfere with any pending litigation and or to scandalize a court even after the trial of a case is contemptuous of the court. Also, wilfulness is required in the sense that the conduct alleged to be contemptuous must be deliberate and not accidental or unintentional. Contempt of court therefore 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 vulnerable to a Hobbesian state of anarchy and chaos.

 

ii. The Instant Application:

[8] By a Motion on Notice filed in this court on 20/11/2018 by the Applicant prays for “an order  of committal for contempt against ASP Joseph Kojo Chipka, Corporal George, Detective Inspector Timothy Vigbedor and Emmanuel Dapaah the Defendants herein”. Before outlining the issues raised in the instant contempt application, it is appropriate to provide the background of the case.

 

iii. Background – Affidavit in Support & Against the Application:

[9] The Applicant accuses the Respondents of refusing to comply with the order of the District Court Wassa Akropong wherein the Court ordered them to return to the Applicants certain equipment seized from him. Specifically the Applicant says he instituted an action on November 27, 2015 against two Vietenamese, Tran Quang Vinh and Do Anh Tuah at the District Court, Wassa Akropong. From the record the Applicant and the two individuals had interest in a Mining Company called Moon Africa Company Limited. According to the Applicant whilst the suit was pending he received a telephone Call from the Ministries Police Station in Accra from the 3rd Respondent, Detective Inspector Timothy Vegbedor to the effect that “a case had been lodged against him by his Vietnamese partners”. According to the Applicant although he informed the Detective Inspector that the matter was before the Wassa Akropong Court “he was compelled to write a statement”.

 

[10] According to Mr. Ali Dickson upon his return to Wasa Akropong, the 3rd Respondent informed him that they were coming to conduct a search at the site at Jukwa, Wasa Akropng. He attached as Exhibit “AD 2” a search warrant. It was deposed that on “17th December 2015, the Plaintiff/Applicant met ASP Joseph Kojo Chipka, Corporal George, Detective Inspector Vigbedor and Emmanuel Dapaah and took them to the site for the said search, however to the surprise and shock of the Plaintiff/Applicant they unlawfully confiscated the following mining Equipment Excavator machines Nos. 330CL, 325DL, IVECO Truck with registration No. GE 5175-14 and a Toyota Hillux with registration no. GE 5174-14”.

 

[11] It is the further case of the Applicant that following the confiscation he filed a Motion Ex Parte for the return of the mining equipment and the Court granted same on February 16, 2016 and ordered that the Director General of the Legal and Prosecution Division of the Ghana Police Service, Police Headquarters, Accra should ensure that the named officers who took the Mining Equipment return same to the jurisdiction or release same to the Plaintiff/Applicant. A copy of the said order was attached as Exhibit AD 3.

 

[12] The Applicant has further deposed that the Order of the District Court at Wasa Akropong was taken to the High Court in Accra and same was duly served on the Director General of the Legal and Prosecution Division, Ghana Police Service, Police Headquarters in Accra. He attached as Exhibits AD4 and AD5 to support the deposition. He also attached as Exhibit AD6 a petition filed with the Police Intelligence Professional Standards Directorate (PIPS) and a copy of the PIPS report was also attached as Exhibit “AD7”.

 

[13] The further case of the Applicant is that “in open defiance and total disrespect for the order of the Court the Respondents have refused, failed and/or neglected to release the said equipment”. According to the Applicant the Respondents have demonstrated beyond every reasonable doubt, their utter contempt for the Court and have thus brought the administration of justice into disrepute and ridicule. He has therefore prayed the Court to commit them for contempt and punish them accordingly.

 

iv. Affidavit in Opposition:

[14] However, in an affidavit in opposition sworn to by Detective Inspector, Timothy Vigbedor, DSP Joseph Kojo Chikpa and Sergeant George Mawuenyegah on January 14, 2019 they collectively deny ever willfully disobeying the orders of the court and also engaging in  any  contemptuous  conduct to bring the dignity of the Honourable Court into disrepute. Even though each Respondent swore individually to an affidavit in opposition to the application, the content and meanings of the affidavits are the same. The Respondents have averred and conceded that a complaint was lodged against the Applicant by two Vietnamese at the Ministries Police Station in Accra.

 

[15] According to the 3rd Respondent, based on the Complaint he placed a call to the Applicant to assist with the investigation and cautioned him on the offence of defrauding by false pretences and upon interaction with him it became necessary for him to extend the investigation to Jukwa a suburb of Wasa Akropong in the Western Region. He has also deposed that in compliance with standard operating procedures of the Ghana Police Service, he applied for and obtained a search warrant from Accra Circuit Court Two on 10th December 2015. According to the 3rd Respondent, he sent the warrant to the Takoradi Circuit Court for same to be endorsed “since the search would be conducted outside the jurisdiction”. He said he proceeded with the 1st and 2nd Respondents to Wassa Akropong to execute the search warrant. According to him the 4th Respondent “was engaged by the Vietnamese complainants to transport the police team from Accra to Wassa Akropong/Jukaw”.

 

[16] Detective Inspector Vigbedor further deposed that the team assisted by the Wassa Akropong Police retrieved “CAT325DL excavator with chasis number CAT0325DEMCL00179, CAT330CL excavator with chasis number CAT 0330CTJNK00235, Iveco Truck with registration number GE 5175 -14, water pumping machine and 2 Missberg 500A12-GA pump action gun with serial numbers T076388 and T069794”. According to him he later recovered Toyota Hilux Pickup with registration number GE5174-14 at Suame Magazine in Kumasi. Detective Inspector Vigbedor said all the above equipment were brought to Accra because they were the subject matter of the investigation which was in Accra.

 

[17] Detective Inspector Vigbedor further deposed that “while the investigation was on going, the Divisional Police received a signal dated 20th January 2016 from the then Director-General/PIPS, DCOP David Nenyi Ampah-Bennin” and it was in regards to a petition filed by the Applicant herein with the PIPS. According to the 3rd Respondent the 1st Respondent and himself were requested to report to the Director of PIPS on January 21, 2016. It is the case of the 3rd Respondent that after the interaction with the PIPS Director he was instructed to release the equipment to the Applicant.

 

[18] According to the 3rd Respondent the Vietnamese complainants were dissatisfied with the Director of PIPS and so they petitioned the Director General of Criminal Investigations Department (CID) of the Ghana Police. Detective Inspector Vigbedor further deposed that following that petition he was instructed to forward the docket to the CID headquarters and he complied with that instruction on January 25, 2016. He further deposed that after submitting the docket to the CID headquarters on January 28, 2016 the Wasa Akropong district court ordered that the equipment be returned to Wassa Akropong. He said knowing that the equipment were no longer in his possession he forwarded the order to the Director/General/CID by a letter dated 3 February 2016. A copy of the order served and the letter dated February 3, 2016 were attached as Exhibits TV and TV1.

 

[19] The 3rd Respondent further deposed that he was called to appear before the Director of PIPS on and was questioned as to whether or not he had received the Order of January 28, 2016 and he responded that he had forwarded the order to the Director General of CID since the docket was no longer in his custody.

 

According to the 3rd Respondent on “19th February, 2016, the Ministries Police Station was served with an information copy of a second order from the Wasa Akropong District Court dated 16th February, 2016 addressed to the Director General/Legal & Prosecution of the Ghana Police service”. A copy of the order was attached as Exhibit TV 2. The Respondent further attached as Exhibit TV 3, a ruling dated 22 April 2016 by P. Bright Mensah, J sitting at the High Court in Sekondi which quashed the orders made by the Wasa Akropong District Court.

 

Based on all of the above depositions the 3rd Respondent has deposed that “I am no longer in charge of the matter thus the equipment are also not in my custody”. He further deposed that “I have not flouted any orders of the Court but have rather complied with all relevant standard operating procedures governing the exercise of my duty as a dedicated Officer of the Police force and have not flouted any orders of the Court”. He therefore prayed the Court to “dismiss the application with punitive cost against the Applicant as it is an abuse of the Court process”.

 

As earlier indicated even though DSP Joseph Kojo Chipka and Sergeant George Mawuenyegah filed individual affidavits, in my respectful opinion, in pith and substance their affidavits as well as   the exhibits are similar to Detective Inspector Vigbedor. To that extent, I do not see the need to rehash them as well. I shall make references to them if need be in my analysis. I note that in the individual affidavits filed both DSP Joseph Kojo Chipka and Sergeant George Mawuenyegah contend that the present application is frivolous, misplaced and vexatious and they therefore urged on the Court to dismiss the application.

In a nutshell, the Respondents say that they are law abiding members of the society and have therefore not done anything to disrespect the Court order and to bring the administration of justice into disrepute.

 

The Hearing of the Application & Submission of Applicants’ Counsel:

This application saw few adjournments because apart from February 6, 2019 when one Mr. Michael Opare Danso held the brief of Counsel for the Applicant, Mr. Vincent Aikins he failed to attend Court to enable Counsel provide viva voce legal arguments. Therefore on February 27, 2019 the Court refused to grant any further adjournment and adjourned to today (April 10, 2019) for ruling. The Court’s decision was based on the fact that the 1st to 3rd Respondents are serving Police Officers and therefore there was the need for an expedited hearing of the application. In any in the opinion of the Court the facts are not complex at all. Further, the Court observed that though the Applicant was always present he could not provide any cogent reason why his Counsel was absent. In adjourning    the matter for ruling, the Court offered Counsel the opportunity to provide any legal arguments if   they so wished. Miss Ayirebi-Acquah who was in Court was content that the Court makes its decision based on the filed affidavits. As of today, the Court has not received any written legal argument  and/or case law from the Applicant’s counsel. It is also important to note that the Applicant failed to serve the 4th Respondent, Emmanuel Dapaah with the application. Since he is presumed not to be aware of the instant application my decision does not concern him.

 

Opinion of the Court:

I proceed to address the main issue by posing this question: Is this a clear cut case of Contempt and has the Applicant proved the Respondents’ guilt beyond a reasonable doubt?

 

In my respectful opinion, contempt of court is the big stick of civil litigation. Because of the serious nature of a contempt finding, a finding should be made sparingly and only in the clearest cut  of cases. A direct intention to disobey a valid Court order or an act to prejudice a pending application is required and it ought to be a willful disregard of the order or prejudice the outcome of a pending  suit in the Court. With that said, it is essential for the proper administration of justice that a clear message is sent to litigants that the Court process cannot and will not be frustrated when a clearest cut case is established and a penalty imposed.

 

In this case, I have critically studied and scrutinized the motion paper and the affidavit evidence filed in this case, both in support of, and as against the contempt application. Upon a deep introspection of the facts and careful consideration of the issues raised in this application I hold the respectful view that taking all of the evidence as a whole, I am simply not persuaded that the charge   of contempt, if at all, has been sufficiently made against the Respondents. Why do I say so?

 

First, let us look at the orders the Applicants say the Respondents have flagrantly violated. The Order attached by the Applicant is dated 16th February 2016. It is an Ex Parte Order signed by ‘P.B. Dapileh’ District Magistrate. It clearly states the application made was a Motion Ex Parte. The Order then states:

 

“THIS COURT DOTH GRANT the application.

 

It is therefore hereby ordered that the Director General of the Legal and prosecution Division of the Ghana Police Service, police Headquarters Accra should ensure that the following Officers of the Ministries police station Accra, ASP Joseph Kojo Chipka, Corporal George, Detective Inspector Timothy Vigbedor and Emmanuel Dapaah who took the said mining equipment out of my jurisdiction without recourse to due process return same to my jurisdiction or release same to the Plaintiff to be conveyed here within one week from the date of this order. They are Excavator machines Nos: 330CL, 325DL, IVECO Truck with registration No: GE5175-14 and a Toyota Hillux with registration No: 5174. Copies of this order should be served on the Director General of the police Investigation and Professional Standards Unit of the Ghana police service, Accra and also on the Officer in Charge of the Ministries police station”.

 

The problem with the order is that even though it was said to be an ex parte order there was no time validity to it. There is also no evidence that same was repeated on Notice by the Applicant and granted by the Court. Be that as it may, the instant application was filed on November 20, 2018 and the basis for the application is the above order of February 16, 2016. To that extent, I have no difficulty is dismissing as frivolous the Applicant’s case based on the order as the record per Exhibit TV 3   shows that the Sekondi High Court presided over by my learned and respected brother, P. Bright Mensah on April 22, 2016 quashed the order(s) of the Wassa Akropong District Court dated February 16, 2016 on the grounds that the order “sinned against the hallowed rules of natural justice, audi alteram partem rules” and also the fact that the 2rd Order of February 16, 2016 was also obtained after an earlier order had been granted ex parte. The Court held that “the second ex parte application was without doubt, an abuse of the legal process and unwarranted in law. The order granted by the Court sinned against Order 13 Rule 1 (7) (8) of C.I. 59”, that is the District Court Rules.

 

What it means is that on November 20, 2018 when this application was filed that Order was not in effect because it had been quashed. It was therefore wrong and indeed unacceptable for the Applicant’s Counsel to attach and rely on same for the instant application.

 

In my respectful view this is a clear case where the Court’s contempt power is being used by  an Applicant who feels cheated by certain people and the police as an ill-disguised weapon to make  out his case. This Court can only reiterate a statement made in a case titled Republic v. Gifty Adjoa Amponsah and Another delivered on March 10, 2017 that “it is important that citizens/litigants ought  to know that the denial of liberty resulting from conviction for contempt, and even the weight of contempt proceedings are not to be trivialized and contempt sanctions must accord with the  principles of fundamental justice and not at the whim of a bitter litigant. The use of the Court’s contempt powers should not be an obsession by citizens to settle personal scores. Contempt is against the Court and not the hurt or feelings of individuals”.

 

Conclusion & Disposition:

But with all that said, I cannot conclude this decision without commenting on the actions or inactions of the 1st and 2nd Respondents with regards to how they handled and investigated the complaints they received in this matter. In my respectful opinion from the Police Intelligence Professional Standards Directorate (PIPS) report on the petition filed by the Applicant herein speak to the fact that the cardinal principles of equality and equity were ignored in this case by the two officers when they investigated the complaint lodged by the two Vietnamese against the Applicant. As part of its Findings, the PIPS stated among others that:

 

“It was established that the complainant made false representation to Police when he reported the case as he knew where the equipment and vehicles were and the fact that  he had to appear before Wassa Akropong District Magistrate Court on a Civil Suit brought against them by petitioner. If the Police were diligent in their work, they would have noted the fact that, the case had a civil flavor.

The seizure of the excavator’s, Iveco Truck and the Toyota Hillux Pick-up was clearly an abuse of Police Power.

The SPO failed to honour a Court order from Wassa Akropong District Court.

Investigation revealed that Emmanuel Dapaah was a civilian who led Police to Wassa Akropong.”

 

Paragraph 12 of the report titled “COMMENTS/RECOMMENDATIONS” stated as follows:

“i.         The Conduct of the Defendants,ASP/Mr. Joseph Chipka the investigator in the case, D/Inspr. Timothy K. Vigbedor, particularly, the seizure of vehicles and the damage caused to one (1) of the excavator’s is very reprehensible.

Their actions are likely to bring the image of the Service into disreputr, contrary to regulation 82 (1) (h)(iv) of the Police Service Regulation, 2012 (C.I. 76).

Consequently, it is recommended that disciplinary action by way of Service Enquiry should be held against them, please.

 

Signed – REV. DAVID NENYI AMPAH-BENNIN

Deputy Commissioner of Police Director-General/PIPS”

 

To my mind the above findings of the PIPS speak clearly and eloquently on how the 1st and 3rd Respondents performed their professional duties in the matter which has resulted in the instant application. The investigation findings is an indictment on the role of the two Police Officers and their duty to protect property rights of citizens as envisaged under the 1992 Constitution. In my respectful opinion it was important that the overall reasonableness of the decision to detain and arrest persons and properties be always assessed against all of the circumstances and the parties treated equally before the law. The police owe the parties and the state that duty.

 

I think that as a country with a history of abuse of constitutional rights of citizens by persons in uniform who loved to “show citizens where power lies”, at this time of our democratic dispensation  the police are expected to comply with the law especially the Constitution in the discharge of their duties. I make these comments not as a matter of condemnation but in my capacity as a judge alive to the function of the judiciary in a democracy. If the rule of law functions well, it benefits all including law enforcement officers and the judiciary. The Courts, as representatives of the community, cannot  be seen to condone such blatant and unequal application of police power of arrest and detention that the PIPS report speak to and as revealed by the affidavit filed by the Applicant.  The only way the  court can effectively distance itself from that conduct is by commenting on same and trusts that it  shall not be repeated.

 

On the subject matter of the Contempt application, overall, based on the law and the evidence in the instant case, I am satisfied that the guilt of the Respondents have not been proved beyond reasonable doubt. In the result, I ACQUIT and DISCHARGE the 1st, 2nd, and 3rd Respondents on  the charge of Contempt of Court. No order as to Costs.

 

Cases Referred to:

R v Sito I; Ex Parte Fordjour (2001-2002) SCGLR 322

In Re: Effiduase Stool Affairs (No.2); Ex Parte Ameyaw II (1998-1999) SCGLR 639 at 660

R v. High Court Accra, Ex Parte Laryea Mensah (1998-99) SCGLR 360

Kangah v. Kyere (1979) GLR 458

Bhatnager v. Canada (Minister of Employment and Immigration), [1990] 2 SCR 217,

Republic v. High Court Accra; Ex Parte Osafo [2011] 2 SCGLR 966

R v. Bekoe & Ors; Ex Parte Adjei (1982-83) 1 GLR 91

 

 

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