ACCRA - A.D 2019
THE REPUBLIC -(Plaintiff)

DATE:  14 TH JUNE, 2019
SUIT NO:  CR/186/2019



i. Introduction:

[1] The Applicant has brought this application on his own behalf and on behalf as the Head of Tsie-We Family of Teshie against the Respondent 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.


[2] The Black’s Law Dictionary, the 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.”


[3] 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.


[4] 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.


[5] 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”.


[6] 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.”


[7] 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.


 [8] The latest in the line of cases which deals with the definition of contempt of court in Ghana is the 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”.


[9] 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 [1971] 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”


[10] 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.


ii. The Instant Application:

[11] By a Motion on Notice filed in this court on 9/01/2019 the Applicant herein seeks an order to commit the Respondent herein for Contempt of this Court. Before outlining the issues raised in the instant contempt application, it is appropriate to provide the background of the case.


iii. Background:

[12] The instant application according to the Applicant has been brought against the Respondent Kelvin Ofori Atta in respect of a piece of land situate and lying at Okpoi Gonno, Airport East in Accra which the Applicant says belongs to his family. The Applicant says the subject matter land is a subset of a larger portion of land covered by a number of judicial decisions including judgments of the Supreme Court. It is the case of the Applicant that the Respondent has blatantly denied the existence of the judgments of the Courts covering the lands in dispute hence the instant application for contempt of court.


[13] The Applicant concedes that the Respondent has never been a party to the actions which resulted in the judgments he and his family relies on. However, in as much as the judgments affect the persons through whom he claims his acquisition, he is bound by the judgments because he sat by and did nothing against the judgments. The Applicant further contends that the Respondent has become aware of the judgments because there have been running battles between himself, his servants and the Applicant’s agents etc. culminating in a police report filed by the Respondent at the Baatsona Police Station and which time the Applicant exhibited before the District Police Commander a copy of the judgment in support of the ownership of the land of his family.


iv. The case of the Applicant & Respondent

[14] In this application, the Applicant has deposed in an initial 17 paragraph supporting affidavit filed on January 9, 2019 and an 8 paragraph Supplementary Affidavit also filed on April 29, 2019 that he is the current Acting Head of the Tsie-We Family of Teshie, having substituted Nii Nortey Sedua who in turn substituted Abraham Adjei Kwei as Head of the Teshie We Family who has passed, pursuant to an order of this Honourable Court dated the 25th day of April 2018. He attached as Exhibit AS”1” in support of that contention.


[15] According to the Applicant on the 13th day of October 2017, His Lordship K. A. Ofori-Atta delivered Judgment in favour of the said Abraham Adjei Kwei, as substituted by Nii Nortey and the Applicant herein and in that judgment stated at page 25 as follows:

“Subject to the above the Defendants whether by themselves, their servants, agents, privies or persons claiming through or by them are restrained from in any manner interfering with the possession, ownership and enjoyment of the plaintiff and Co- Plaintiff of the disputed land.

From the foregoing the Defendants counterclaims are all dismissed”.

A copy of the judgment was attached as Exhibit AS “2”).


[16] The Applicant further contends that “the Area being worked on unlawfully and in contemptuous disregard for the authority of this Court is covered by the following judgments”:


(ii) KORANTENG II & ORS VRS. KLU –SUIT:8/92, GLR 1993-94 VOL. 1





[17] The Applicant says “the Respondent, Kelvin Ofori Atta is a private Developer who sometimes develops Properties for sale i.e. through himself or through a company, Coupbay Company Limited    of which he is the Chief Executive   and Owner and is feverishly working in one of the areas covered   by the Judgment ( Please see Exhibit AS “3” AS “4” AS “5”)”. According to the Applicant the Respondent’s claim to the area of Land where he is currently operating is unsustainable because the area indeed belongs to the Applicant per the various Judgments mentioned and exhibited in this application. The Applicant further says the Respondent’s Mother’s purported acquisition of that self- same Land is false.


[18] The Applicant further deposed that “although the Respondent’s Mother Francisca Ofori Atta (deceased) not having legitimately acquired the land from the Applicants herein however purported   to convey this self-same Land to one Mercy A. Adjorkor and this fact is very well known to the Respondent herein. (Please see Exhibit AS “6’ and AS “7”) showing evidence of the sale of the Land by Respondent’s Mother to the said Adjorkor to the knowledge of the Respondent herein”.


[19] The Applicant further deposed that “yet again I say that the Respondent is aware of all these Judgments affirming the age-old ownership of the Applicant of the Land but has brazenly, and with scant regard, for the judicial pronouncement, continued to develop the land despite several repeated warnings to him by the applicant to desist therefrom”. According to the Applicant “the Respondent is vigorously pursuing constructional activity on the lands which the Court has adjudged does  not belong to any one of them but the Tsie-We Family. (Please see Exhibit AS “8” Series)”. It is the case of the Applicant that “several repeated warnings for him to keep off the site and respect the  Judgments of the Courts Affirming Tsie-We ownership of the Land have been ignored”.


 [20] The Applicant further deposed that “prior to the Judgment of the High Court aforesaid, there has been a Supreme Court Judgment in the case of NII ARMAH KWANTENG of Amartse-We and 5 others Vs. NII ADJEI NKPA KLU substituted by NORTEY ADJEIFIO, Suit No. 8/92, dated the 19th day of April, 1994 on the same Land, and there had also been Orders of Prohibition and  Certiorari all in favour of the Applicant’s family i.e. the Tsie-We Family herein but the Respondents have ignored these with impunity (Please see Exhibits AS “9”, as “10”)”


[21] The Applicant attached photographs of what he said are the construction activity on the land as Exhibit AS 11”. According to the Applicant they are dated 16-12-2017. After the Respondent filed an Affidavit in Opposition, the Applicant filed a Supplementary Affidavit and deposes that “I humbly seek Leave to file a Supplementary Affidavit in support of the Motion for Committal for Contempt in view of certain deposition made in the affidavit in Opposition above referred to. In response to paragraph 5 of the Affidavit in opposition I say the Land, the subject matter in dispute was acquired  by the said Francisca Ofori-Atta from Nii Ago Mensa who in turn acquired it from the Numo Mensah Nmashi Family of Teshie through her Grantor and Counsel shall seek Leave to refer to all processes as filed”.


[22] The Applicant further deposed that “although the Judgement delivered by the High Court, presided over by Ofosu Quartey J, as he was adjudged the said Francisca Ofori-Atta (deceased) as the Owner of the Land against the Lands Commission, a subsequent Judgement of the High Court per Ofori-Atta J, and making references to the Supreme Court Judgement of Kwanteng II & Ors. Vrs Klu (1991) 2 GLR 93 and exhibited herein ruled that the Grantors of the said Francisca Ofori-Atta had no Land in the area of the subject-matter or dispute and could not have granted same as I am advised  and verily believe same to true”.


[23] Mr. Ashong Sowah Din further deposed that “apart from this I also say that despite this the said Francisca Ofori-Atta (deceased) had in her life time disposed of the subject-matter in dispute to Mansco Limited and Mercy Adjorkor and there was no land to have been granted to COUPBAY LTD per any Letters of Administration as I am advised and further verily believe same to be true. (Please see Exhibit AS “9” and AS “10”)”. Based on all


[24] The Respondent for his part, in a fifteen (15) paragraph Affidavit in Opposition filed on April  2, 2019 denied all the allegations of contempt of Court levelled against him. The Respondent has deposed in the affidavit in opposition that that his deceased mother Francisca Ofori-Atta “on 2nd  May, 2006 acquired a parcel of land measuring 4.62 acres or 1.87 hectares situate, lying and being at Airport East, Okpoi Gonno, Accra from Nii Ago Mansa and had been in quiet and undisturbed possession of same until her death on 6th August, 2009 without any encumbrance. Attached and marked Exhibit KOA 1 is a copy of the Deed of Conveyance given to my deceased mother”.


[25] The Respondent further deposed that “on 21st July, 2008 His Lordship D. K. Ofosu Quartey J delivered judgment in the case titled Francisca OforI-Atta v Lands Commission and Anor – Suit No. BL/221/08 for the Plaintiff, my mother, declared the Plaintiff the owner of the land acquired on 2nd May, 2002. Attached marked Exhibit KOA 2 is a copy of the judgment dated 21st July, 2008”. The Respondent further deposed that “upon the death of my mother, on 29th October, 2009 I was granted letters of administration to the estate of my deceased mother and I have since administered the estate in accordance with the Laws of Ghana. Attached marked Exhibit KOA 3 is a copy of the letters of administration”.


[26] The Respondent further deposed that “I say further again that on 15th March, 2010, portion of the land which forms part of the estate of my deceased mother was duly granted to  Coupbay  Company Ltd and Land Certificate was duly given to the Company. Attached and marked Exhibit KOA 4 is a copy of the land certificate given to Coupbay Company Ltd”.Mr. Ofori Atta  further deposed that “I say that neither my deceased mother nor her predecessors in title were parties to the Suit of which I am being cited to have acted in contempt of. I say that I have no knowledge at all of the orders or the judgment I am being cited to have disobeyed or disregard therefore bringing the authority of this Honourable Court and the administration of justice into disrepute.


[27] I say that Applicant’s alleged judgment cannot and does not cover any portion of my late mother’s remaining parcel of land or the one assigned to Coupbay as these lands have their own subsisting title documents in Exhibit KOA1 and KOA3 covering lands that differ from what was the subject matter of the Applicant’s substantive case.


[28] The Respondent also deposed that “I am again advised and verily believe same to be true that, this application has been improperly brought due to the Applicant’s failure to satisfy the statutory requirements of the Limitations Act, 1972, NRCD 54 as the Applicant is statue barred from claiming any interest in the land lawfully acquired by the Respondent’s mother”.


[29] Finally, the Applicant deposed that “save as herein before admitted. I deny each and every allegation of fact contained in the Applicant’s affidavit in support of this application as if the same as been set out in extensor and denied seriatim. Based on all of the above, the Respondent prayed the Court to dismiss this present application with punitive cost.


v. Submission of Counsel:

[30] On the 24th of April the Court ordered both Counsel to write and file their legal argument and serve same on each other. Both Counsel complied. Counsel for the Respondent filed his submission on May 13, 2019 and Counsel for the Applicant also filed on May 22, 2019 after seeking an extension of time to do so on May 17, 2019.


Applicant’s Counsel:

[31] Mr. Addo Atuah for the Applicant submitted that the Applicant finds support in the Supreme Court case of OKLIKAH VRS AMUZU (1998-99) SCGLR 141 AT 143. Counsel opined and referred to Holden (2) in which Atuguba JSC, as he then was made references to fraud in a transaction that:

“In this case, fraud has not distinctly been pleaded as the practice requires; but in view especially of the provisions of section 5, 6 and 11 of the Evidence Decree, 1975 (NRCD 323) regarding the reception of evidence not objected to, it can be said that where there is clear but unpleaded evidence of fraud, like any other evidence not objected to, the court cannot ignore the same, the myth surrounding the pleading of fraud notwithstanding”.


[32] Relying on that statement of law, learned Counsel submitted that “we thus respectfully and in extreme humility urge upon this Honourable Court to rely on the Amuzu vrs Oklikah Case and to declare the Exhibit KOA 4 is a patently fraudulent document, thus null and void and cannot thus provide a defence to the Application for Contempt in the light of the foregoing. Mr. Atuah further stated that “respectfully, my Lord we are mindful of the obligation of the Applicant as stipulated by  the legal position of Contempt of Court and which position is in your bosom. Permit us however to make further references to One more decided Case from the Supreme Court on the standard of proof required of an Applicant such as this in Contempt Application apart from the Effiduase Affairs Case (Supra).


[33] My Lord it is the case of IN RE KWABENG STOOL, REPUBLIC V BRONI; EX PARTE KARIKARI and Another (2005-2006) SCGLR 35 at holding (i) also stated as follows:

“(i)  Civil Contempt partakes of the nature of a criminal charge.   The defendant may be liable to a   term of imprisonment. The requisite degree of proof of civil cases in which crime is alleged against a party, (including civil contempt), is proof beyond reasonable doubt in terms of section 3 of the Evidence Decree, 1975 (NRCD 323)”.


[34] Making reference to some of the cases relied upon by the Applicant, Counsel submitted that “yet again, the Orders for Prohibition and Certiorari made by the High Court presided over  by  Aryetey J in the case of ‘the REPUBLIC VRS THE CHIEF REGISTRAR OF LANDS, EX-PARTE NII NORTEY ADJEIFIO AND TWO OTHERS, SUIT NO. MISC 1108/97 also excluded any other ownership of the Land apart from the Applicant’s Family. Additionally, Ofori-Atta J’s Judgement of 13th October 2017 also further knocked out the spurious Claims of the Respondents mother’s Grantors. In sum it is thus respectfully submitted that the Respondent has nothing to fall on and has no valid claims to the Land he claims was passed on to him and thus to COUPBAY per Exhibit KOA “4”.


[35] Mr. Atuah further submitted that “the position of the Law, my Lord with respect is that you cannot put something on nothing: Respondent’s purported claim is predicated on nothing, we submit. Yes, my Lord the respondent rightly says he was not a party to the Actions but these are Judgements affecting his interest and there was a previous Judgement on the Land which assuming for the sake of argument, which we deny though that he was not aware of, previously he became aware of the Judgements at least when the appellant warned him and exhibited their documentation. This culminated in a report he himself filed at the Baatsona Police Station and which resulted in the detainment of the Applicant herein”. According to Counsel it was during the said time period that the Respondent continued the Constructional Works with impunity after he had become aware of the Judgement.


[36] Learned Counsel posed a rhetorical question as follows: “has he purged himself of the Contempt perpetrated by the engagement of Constructional activity on the Land covered by Judgements establishing that the Lands does not belong to him? (Please see Exhibit AS “3”, AS “8”, Series and Exhibits AS “9”). Based on all of the above and the other submission made, Counsel submitted that “one would have thought that from the foregoing and in all these, the Respondent would have apologised for his conduct that clearly and disdainfully brings the administration  of justice into disrepute; but has been rather flagrantly contumacious in his reprehensible conduct”. Counsel concluded his submission by stating that “My Lord this is on all fours with the Case of RE: KWABENG STOOL; REPUBLIC VRS BRONI, EX PARTE KARIKARI AND ANOTHER Supra in which the same conduct was exhibited and the Supreme Court punished the Respondent”. Counsel therefore prayed the Court to commit the Respondent for Contempt of Court and punish him accordingly.


Counsel for the Respondent’s Submission:

[37] Counsel for the Respondent stated in his submissions as follows:

“My Lord, the requirement that the disobedience needs to be wilful simply means that the Respondent must have had notice of the court’s order or judgment. The Applicant bears the duty of proving that the Respondent had notice of the judgment or orders he is being committed for disobeying.

It is our humble submission my Lord, that on the totality of the evidence before the Court, the Applicant has failed to prove that the Respondent and his predecessor had notice of the judgments or orders and that the orders or judgements were unambiguous”.


[38] Learned Counsel continued that my Lord, there is an additional settled requirement for citing and holding people in contempt of court of judgments relating to land. As stated by Ollennu JSC in ANANE v DONKOR [1965] GLR 188 at p 192.


“Where a court grants declaration of the title to land or makes an order for injunction in respect of land, the land the subject of that declaration should be clearly identified so that an order for possession can be executed without difficulty, and also if the order for injunction is violated, the person in contempt can be punished. If the boundaries of such land are not clearly established, a judgment or order of the court will be in vain. Again, a judgement for declaration of title to land should operate as res judicata to prevent the parties re-litigating the same issues in respect of the identical subject matter, but it cannot so operate unless the subject matter thereof is clearly identified. For these reasons a claim for declaration of title or an order for injunction must always fail if the Plaintiff fails to establish positively the identity of the land to which he claims title with the land the subject matter of the suit.”


[39] Learned Counsel further submitted that, the Applicant from his own application has failed to disclose the exact identity and acreage of his land for which judgment was given to enable the court know the limits of his land and whether the Respondent’s land even falls within same. Counsel stated “My Lord, what the Applicant seeks the court to do is to embark on an exercise of speculation to wit sitting on the bench, to determine the beginning and ending of the Applicant’s land so as to hold the Respondent in contempt”. Counsel further submitted that a careful look at the application before the Court with the annexed judgment that the Applicant relies upon will clearly show that the cases have no nexus with the land the Respondent herein inherited from his late mother.


[40] Mr. Amenuvor further submitted that “it is our humble submission that the Respondent has no notice of the judgments relied upon by the Applicants for this application and that there is no   proof that these judgments even covered or related to the land occupied by the Respondent and his predecessors since 2006. To that extent, Counsel submitted that “Your Lordship, how can the Respondent who was never a party to an action or aware of a judgment willfully breach what he is    not aware of? We humbly refer to the case of REPUBLIC v  HIGH  COURT  ACCRA;  EX  PARTE  LARYEA MENSAH (Supra)”.


[41] Based on all of the above submission, Learned Counsel opined that, “it is our humble submission that the Applicant has woefully failed to discharge the standard of proof required in applications of this nature and his application must fail and he must be mulcted in heavy costs for this action”.


vi. Opinion of the Court & Analysis:

[42] 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.


[43] 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”.


[44] 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.


[45] Before dealing with what in my respectful opinion is the main issue, I wish to state that the law as I understand it is 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. 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 or judgment. See the case of IN SEAWARD V PATERSON [1897] 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.


[46] Now dealing with this case and 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 all of   the judgments including the one by K.A. Ofori Atta, J (as he then was) which form the foundation of the instant application, the Respondent herein, Kelvin Ofori Atta 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 any of the actions which resulted in the judgments of the Courts the Applicant and his family rely on in this application, the law requires that he (the Respondent) 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. Kelvin Ofori Atta with a copy or copies of the Judgments he relies on together with a penal notice.


[47] 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) 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

(b) 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.

(2) 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 also been served personally on the person required to do or abstain from doing the 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.

(4) 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

(a) 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;


[48] In the instant case all that the Applicant through Counsel is saying is that the Respondent is aware of the judgment because when a report was made to the police at Baatsona a copy of the judgment was given to the District Commander and various repeated warnings have been given to him. The problem is that what was the nature of these warnings? With the greatest respect and with due deference to the Applicant and Counsel that is not the law. The law provides that when a person   is not a party to a suit he/she ought to be served with a copy of the Court order/judgment together with a penal notice. It should be noted that a conviction for contempt of Court cannot be based on such an inference, conjecture and speculation that because the Applicant gave a copy to a Police District Commander then he is aware of same. With respect, the process of drawing inferences from evidence is not the same as speculating even where the circumstances permit an educated guess. To my mind, it is also important to point out that supposition or conjecture is no substitute for evidence and cannot be relied upon as the basis for a reasonably drawn inference in this case which is to find the Respondent guilty of contempt. A reasonably drawn inference requires an evidentiary foundation which in this case is lacking.


[49] Also, based on the evidence, one nagging question that begs for an answer is whether the land the Applicant’s family land for which the various judgments were obtained is the same land the Respondent is developing since the Respondent has averred that the land his mother obtained is different. In my view only a Court seized with jurisdiction to deal with that issue can resolve same   and pronounce on it after hearing from witnesses and verifying the supporting documents of the parties. That cannot be done in the instant application before me, which is for contempt.


[50] Based on the law the Applicant was required to serve the Respondent with a copy of the judgment (s) as a non-party and a notice informing him that if he disobeyed the judgment (s) 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.


[51] Before I conclude I wish to state that I have been wondering as to whether or not based on the facts presented if this is an appropriate case for contempt of Court. It seems to me that based on the rival judgments the parties rely on it is important that a final determination is made as to who has a better title to the land, that is if the land is the same. With respect to the Applicant it seems to me that this is a clear case where the Court’s contempt power is being used by the Applicant as a sword or scarecrow against his adversary and that is unfortunate. To that extent, I can only reiterate a statement I made few years ago in another case that “litigants ought to know that the denial of liberty resulting from conviction for contempt ought to be effected only in accordance 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 litigants to settle personal scores. Contempt is against the Court and not the hurt or feelings of litigants”.


[52] 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.