IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
ACCRA - A.D 2019
THE REPUBLIC - (Plaintiff)
JOSEPH NII MENSAH ASHONG - (Respondent) EX PARTE: MAGNUS AL DE SOUZA - (Applicant)
DATE: 25TH JANUARY, 2019
SUIT NO: CR/641/2017
JUDGES: HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO
NII AKWEI BRUCE THOMPSON FOR THE APPLICANT –PRESENT
THEOPHILUS DONKOR FOR THE RESPONDENT – PRESENT
APPLICATION FOR COMMITTAL FOR CONTEMPT
 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.
 The denial of liberty of any citizen of our Republic resulting from a charge of contempt is effected in accordance with the principles of fundamental justice. Even though there is no specific law on contempt in Ghana, the absence of codification of the law of contempt in Ghana does not in itself violate the principle that there must not be crime or punishment except in accordance with fixed or pre‑determined law. This is because the charge of contempt of court in Ghana rests in the concept of the public defiance that accompanies the charge of contempt. To establish contempt in Ghana the Applicant must prove beyond a reasonable doubt that the accused defied or disobeyed a court order, with intent, knowledge or recklessness as to the fact that the public disobedience will tend to undermine and attenuate the authority of the court.
 As previously stated by this Court ‘contempt of court is the big stick of civil litigation and 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 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’.
 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 Applicant has mounted this application under Order 50 of the High Court (Civil Procedure) Rules, C.I. 47 seeking an order of committal for contempt against the Respondent. The grounds for the application have been catalogued in the supporting affidavit that accompanied the application filed.
ii. The Instant Application:
 By a Motion on Notice filed in this court on 31 August 2017 by the Applicant, the Applicant is praying for an “order committing the Respondent to prison for contempt of Court on the grounds set out in the accompanying affidavit”. Before outlining the issues raised in the instant contempt application, it is appropriate to provide the background of the case.
iii. Background, Affidavit Evidence and Position of the Parties:
 The Applicant through his lawful attorney says that he commenced an action against the Defendant/Respondent at the Land Division of the High on June 21, 2017 seeking certain reliefs. A copy of the Writ of Summons is attached as Exhibit “B”. The Applicant has averred that on the same day of June 21, 2017 the Plaintiff filed a motion for interlocutory injunction against the Respondent and another person, their agents, workmen, labourers, family members and/or anyone remotely connected with them from interfering with the Plaintiff’s enjoyment of the land or trespassing on the land. A copy of the motion was also attached as Exhibit “C”.
 It is the case of the Applicant that the Respondent herein filed an affidavit in opposition to the injunction application and admitted that he is the one building on the land. A copy of the said affidavit is attached as Exhibit “D”. According to the Applicant the “the ruling of the application was fixed for 10th October 2017 but whilst pending the Respondent went onto the land to continue with the building. Photographs depicting the various stages of the building work have been attached as Exhibits “E”, “F”, “G” and “H”.
 In moving the application Learned Counsel for the Applicant after rehashing the facts submitted that the Respondent continued to build on the land whilst the injunction was pending to be heard. To that extent Counsel submitted that the Respondent did the exact thing the motion was intended to prevent even though by the affidavit in opposition filed the Respondent conceded that he was the one who was building on the land.
 The Applicant’s counsel further submitted that even though the application was filed on June 21, 2017 the photographs attached all show construction on the property continued between August and October 2017. To that Counsel submitted that the Respondent has undermined the authority of the Court. Counsel relied on AYITEY v. AGBOFI [1994-95] GLR 250 and REPUBLIC v MOFFAT; EX PARTY ALLOTEY  2 GLR 391 to support the submission.
 In responding to the affidavit in opposition by which the Respondent says the writ was dismissed and therefore he should not be held responsible based on the application founded upon it, Counsel submitted that the dismissal was on November 21, 2017 and therefore the contempt took place before the dismissal. In further reaction to the affidavit in opposition Counsel submitted that the allegation that the photographs are forged should be dismissed because it is misconceived. Counsel submitted that the Applicant has put his evidence before the Court and therefore the Respondent does not rebut same by just saying that it is forged. He should do so by cogent evidence. Counsel submitted that the Respondent’s actions are contumacious and undermines the Court’s authority and over-reached the Court. Counsel therefore prayed the Court to commit the Respondent for contempt of Court.
 However, in a 14 paragraph affidavit in opposition sworn to by the Respondent he says “I have been served with an application to commit me for contempt of court by the Applicant and I am vehemently opposed to the application as it is vexatious, misconceived and brought in bad faith”.
 According to the Respondent when the processes were served on him, “my lawyer advised that we should ceased all form of development on the land which we have since adhere to his advice and we have since then not undertaken any constructional work on the land till date”. He also deposed that when the Applicant served the writ of summons together with the application for interlocutory injunction, he gave the processes to his lawyer who opposed the injunction application and subsequently filed a motion to dismiss the Applicant’s writ and statement of claim. He attached as Exhibit “JA” the application to dismiss the Applicant’s writ and statement of claim.
 The Respondent further deposed that “the High Court Land Court 7 Presided by His Lordship Justice Emmanuel Amo Yartey J on the 21st day of November, 2017 dismissed the Applicant’s writ of summons together with the accompanying statement of claim as a result the Applicant’s application for interlocutory injunction was never moved”. A copy of the order was attached as Exhibit “JA1” by the Respondent.
 The Respondent also further deposed that “after the writ of summons and the statement of claim was dismissed the Applicant issued another writ of summons on the 23rd day of November, 2017 and we are in court contesting the new writ. Attached and marked as Exhibit “JA2” is the writ issued on the 23rd November, 2017. According to the Respondent even though the writ of summons and all subsequent processes have been dismissed and the Applicant after filing Exhibit JA2 did not repeat his application for an interlocutory injunction because “the lawyer advised that we should not work on the land we have since not visited the land in dispute”.
 The Respondent further deposed that “the entrance to the land in dispute has been locked since the Applicant filed his application for interlocutory injunction and was served on me and the lawyer advised that we should not work until the final determination of the matter”. The Respondent further deposed that he does not know the persons in Exhibit E, F, G and H and therefore they cannot be persons who are working for him. He also deposed that “the pictures in the Exhibits are the deeds of the Applicant and his agents and that the date on the pictures cannot be correct since the first floor of the building was completed before I was served with the application for interlocutory injunction”. He finally deposed that “I am advised and verily believe same to be true that I have not done anything to bring the administration of justice to disrepute to warrant the court to commit me for contempt”. He therefore prays the Court to dismiss the application.
 Responding to the application, learned Counsel for the Respondent first submitted that the Respondent is vehemently opposed to the application because the Applicant has failed to prove beyond reasonable doubt as required by law, this being a quasi-criminal matter the standard of proof is one beyond reasonable doubt. According to Counsel the Applicant has not been able to prove that between the time the writ of summons was filed and served the Respondent continued to build on the land. Counsel submitted that the position of the Respondent is that immediately he became aware of the application he stopped building on the land. Counsel cited the Supreme Court case of REPUBLIC v. CONDUAH: EX PARTE AABA (Substituted by) ASMAH [2013-2014] 2 SCGLR 1032 to support his submission.
 According to Mr. Donkor the basis for the contempt was a nullity because the Writ of Summons and the Injunction were all dismissed for want of capacity, to that extent Counsel submitted that there is no basis for the instant application. Counsel further submitted that the dates on the photographs attached are self-serving and therefore the Respondent wanted to cross-examine the deponent to discredit him but the Applicant failed to produce him. Counsel further submitted that the persons in the photographs are not known to the Respondent and therefore they cannot be his agents.
 Learned Counsel further submitted that because the writ of summons on which the instant application is anchored does not exist presently the instant application should not have proceeded. Counsel relied on such cases as MACFOY v. UAC LIMITED  AC 152 and the celebrated case of MOSI v BAGYINA (1963) 1 GLR 337. Based on all of the above, Counsel submitted that the Applicant has woefully failed to prove beyond reasonable doubt the Respondent’s guilt and therefore the application should be dismissed with costs.
 In a reply submission Mr. Bruce-Thompson implored the Court to assess the Applicant’s case in the light of the EX PARTE AABA (Substituted by) ASMAH SUPRA and also the Supreme Court case of REPUBLIC v ADAMAH-THOMPSON & OTHERS; EX PARTE AHINAKWA II (substituted by) AYIKAI (No. 2) [2013-2014] 2 SCGLR 1396 and rule in favour of the Applicant.
iv. Opinion of the Court & Analysis:
 Having laid out the cases of the parties in the application, I start my analysis by considering what constitutes contempt in Ghana? In R v SITO I; EX PARTE FORDJOUR SUPRA the Supreme Court 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.
 Also, in IN RE: EFFIDUASE STOOL AFFAIRS (No.2); EX PARTE AMEYAW II (1998-1999) SCGLR 639 at 660 Acquah JSC (as he then was)gave an apt summary of the definition of contempt. He said:
“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.”
 In the 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 many 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”
 Before considering the issues stated above in this application, I wish to state that I think it is very simplistic for the Respondent’s Counsel to argue that because this is a quasi-criminal matter “the standard of proof is high” and the Applicant has failed to meet the standard because it is a proof beyond reasonable doubt. I think the time has come to remind learned Counsel and those with the same mindset and to re-state the fact that when the law speaks of reasonable doubt it is not a fanciful doubt. To paraphrase the Supreme Court of Canada in R. v. VILLAROMAN,  1 SCR 1000, 2016 SCC 33(CanLII) at p. 1023, “A reasonable doubt is a doubt based on ‘reason and common sense’; it is not ‘imaginary or frivolous’; it ‘does not involve proof to an absolute certainty’; and it is ‘logically connected to the evidence or absence of evidence’ (see also R. v. LIFCHUS,  3 SCR 320, 1997 CanLII 319 (SCC). In other words, the reasonable doubt threshold does not require a fantastical suspension of disbelief. It is a doubt that logically arises from the evidence, or the lack of evidence based on common sense and reason.
 The bone of contention in this application is whether or not the Respondent disobeyed the order of injunction by carrying out or caused to be carried out the act alleged by the Applicant against him?
 The burden of persuasion is on the Applicant to establish or prove the allegations raised against the Respondent beyond reasonable doubt. In the present application, it is clear that all the depositions of fact made by the Applicant were denied by the Respondent. The question though is, is the Respondent’s denial supported by the evidence, in particular the exhibits filed including the affidavit in opposition filed by the Respondent against the application for injunction which is the fulcrum of the instant contempt motion? I note that at the hearing of December 11, 2018 Counsel for the Respondent submitted that the photographs attached by the Applicant are self-serving and therefore he wanted to cross-examine the deponent of the affidavit but he was not produced. The Court’s response to Counsel at the time which is repeated here is that no such application to cross- examine the deponent was made to the Court. The photographs attached by the Applicant therefore remain part of the record.
 The other contention of the Respondent is that he does not know the persons in the photographs and so they could not be working for him. He also deposed that “the pictures in the exhibits are the deeds of the Applicant and his agents and that the date on the pictures cannot be correct since the first floor of the building was completed before I was served with the application for interlocutory injunction”. In effect according to Respondent he had completed the first floor of the building before he was served with the application. Curiously, no explanation is given by the Respondent to explain away how the photographs taken on “17/07/2017” and marked as Exhibit AA3 attached to his affidavit filed on 29 July 2017 to the injunction which were building materials including iron rods and cement metamorphosed into the building shown in Exhibits “E, F, G and H” which are photographs taken on “17/08/2017” about two months after the application was filed. Though the Applicant’s photographs are printed in colour while that of the Respondent attached as Exhibit “AA3” series are in black and white, the difference in the state of the land/building is clear.
vii. Conclusion & Disposition:
 I have critically and analytically studied the motion paper and the supporting affidavits as well as the annexures vis-à-vis the affidavits in opposition and the exhibits attached thereto and equally considered the arguments of Counsel both in support of and against the application. Upon a deep introspection of the facts and careful consideration of the issue raised in this application I hold the respectful view that a case of contempt has been properly made against the Respondent/Contemnor herein both under common law and statute, that is S.13(1) of NRCD 323.
 In my view, the Applicant has met his onus of proving the Respondent’s guilt beyond reasonable doubt based on the materials filed. In this case, to my mind the resolution of the case turns on the Exhibits attached by the Applicant including the affidavit filed by the Respondent to oppose the application for injunction and the exhibits attached. Even though the Respondent says the state of the building was as depicted in the photograph exhibited by the Applicant because according to him he completed the first floor before he was served with the application, in the opinion of the Court there is a unique feature he has failed to explain away. The date embossed on his photographs is “17/07/2017” and that of the Applicant is “17/08/2017”.
 Even though the Court is mindful that dates on digitized imagery can be manipulated in this time and age, there is no explanation as to how the building materials all of a sudden evolved into a building at an advanced stage of construction within a month after the Respondent took the initial photographs. Certainly, that is incongruous and it is incumbent on the party introducing this evidence to rationalize the detail to the target audience. In the Court’s opinion, in the absence of any explanation to the contrary, it is my finding that a logical inference can be drawn that the photograph taken on July 17, 2017 represent the true depiction of the state of the land/building and that of August 17, 2017 also truly represent the state of the building after the Respondent had become aware of the application for injunction as sworn to by the Respondent. I note that even though there is no direct evidence as to when the Respondent was served with the application filed on June 21 2017 by the Applicant the statement of case which was attached to the affidavit in opposition filed was signed on July 17, 2017. To my mind therefore the Respondent was served earlier in time than the photographs attached as Exhibit “D” herein were taken.
 Clearly, the building in the photographs as shown in Exhibits “E, F, G and H” is one which is at an advanced stage of construction totally different from the “iron rods and stack of cement” the Respondent relied on to oppose the application for injunction when he averred that he had the materials already and should therefore be allowed to build. Based on my conclusion above, it is also logical to accept the Applicant’s averment that after the filing of the application and after the Respondent became aware of same he continued to build as now shown in the photographs dated August 17, 2017 attached and same is the handiwork of the Respondent.
 Finally, I wish to remind the Respondent that the fact that the writ of summons was later struck out is immaterial. The Respondent had an obligation to respect the process of the Court served on him, Based on the evidence before me I do not believe his depositions that since he became aware of the application and until now he has not been on the land. His denials are not anchored on facts and as found above they are exposed by the other pieces of evidence to be untrue. It is my finding that the Respondent continued to build even though he knew that the case was sub judice. It is my holding that after he became aware of the Court process (injunction application) which was served on him, the continuation of the building on the land prejudiced and interfered with the fair trial of the case despite the absence of an order of the Court.
 As matter of common law and as restated by the Supreme Court per Akamba JSC (as he then was) in EX PARTE AABA (Substituted by) ASMAH SUPRA at holding 4 “it is worth reiterating that it is not the business of litigants or their Counsel to determine which orders or processes of the Court are lawful and deserving of obedience, and if not, must be disobeyed”.
 In this case I am of the respectful opinion that the fact that the writ of summons was later declared a nullity may only be considered when it comes to the issue of sentence and not in regards to the substantive application as submitted by Counsel for the Respondent.
 Consequently, I hold the Respondent in contempt of court and convict him accordingly.
 The Court has taken the circumstances of this case into consideration and (the apology rendered by learned Counsel for the Respondent into consideration) I am of the opinion that a fine is appropriate in this case; Consequently the Court imposes a fine of GH¢1,500 against the Respondent; in default he will serve 7 days in jail.
No Order as to Cost.
KWEKU T. ACKAAH-BOAFO, J
(JUSTICE OF THE HIGH COURT)