IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
HO - A.D 2018
JUDITH AMA AMENYA - (Plaintiff)
AUGUSTIN KOSI DZORMEKU AND YVONNE AKOSUA DZIFA ADJEI - (Defendants)
DATE: 15 TH NOVEMBER, 2018
SUIT NO: E1 2/5 2 / 2018
JUDGES: (SGD) MATHEW KYEREMATENG (JUSTICE OF THE HIGH COURT)
EBENEZER KWESI HAIZEL FOR PLAINTIFF/APPLICANT
ERNEST GAEWU FOR DEFENDANT/RESPONDENT
The Applicant's motion on notice dated 22nd May, 2018 prays for an order committing the Respondents for contempt and for further orders as the Court deems fit.
The motion was supported by an affidavit deposed to by the Applicant. There were no annexures.
An affidavit in opposition was filed by the Respondents on 7th June, 2018.
SUBMISSIONS BY COUNSEL
The application was argued by Counsel for the parties on 18th October, 2018.
Counsel relied on the supporting affidavit. According to Counsel, the Court ordered the 1st and 2nd Defendants (Respondents) to stop any activities on the disputed land until final determination of the suit. Counsel contended that the Respondents in blatant disobedience of the said order have sold palm trees to palm wine tappers and gone ahead to farm on the land through a third party. Counsel argued that the Respondents cleared and sowed maize on the land in May, 2018 and are currently harvesting same. He further submitted that the matter was referred to Alternative Dispute Resolution (ADR) and the Mediators warned the Respondents not to farm on the land until the Court decides on the ownership of same. And notwithstanding the Court's caution the Respondents continued to show gross disrespect to the Court by farming on the land. Counsel argued that the Respondents by their acts then reduced the honour of the Court. He prayed the Court to exercise its discretion to punish the Respondents, to serve as a deterrent to parties who disobey Court's Orders in the interest of justice.
Counsel cited the following cases to buttress his argument.
REPUBLIC VRS. SITO EX-PARTE FORDJOUR (2001-2002) SCGLR 322.
REPUBLIC VRS BEKOE AND ORS. EX-PARTE AGYEI (1982-83) GLR 85 per OSEI HWERE J.
Counsel relied on all the dispositions in the affidavit in opposition. He prayed the Court to dismiss the application as frivolous, vexatious and abuse of Court process.
He argued that contempt being quasi-criminal the standard of proof is proof beyond reasonable doubt which the applicants have failed so to do. Counsel further submitted that there is no order made by the Court to injunct the Respondents. And that any such order should have been exhibited by the Applicant. He posited that the Respondents have been in actual possession of the land prior to the instant action. Counsel contended that the ADR Mediators do not have the authority to injunct the Respondents once the settlement broke down, ADR had no business in the case. He reiterated that the Respondents could not disobey any order of this Court and prayed that the application be dismissed with heavy cost. Counsel cited the following Rules of procedures to buttress his submission:
Order 43 rules 5, 6 and 7 of HIGH COURT (CIVIL PROCEDURE) RULES, 2004 C.I 47.
It is upon the basis of the arguments for and against the grant of an order to commit the Respondents for contempt of Court, that I have been called upon to give my opinion.
The power of the Superior Courts to commit for contempt to themselves is guaranteed under Article 126 (2) of the 1992 Constitution and Section 36 of the Courts Act, (1993) Act 459. The Procedure for Committal for contempt have been amply stipulated in Order 50 of the High Court (Civil Procedure) Rules, 2004 C. I. 47.
The Applicant brought this application to vindicate the law and its sanctions. She accused the Respondents of breaking the law by disrespecting a binding order of the Court and thereby bringing the administration of justice into disregard and disrepute.
“The law must be obeyed no matter the circumstances”. As Lord Denning MR puts it in BRADBURY VRS. ENFIELD LONDON BOROUGH COUNCIL (1967) 1 W. L. R. 1311 at 1324
"Even if chaos should result, still the law must be obeyed”.
According to OSWALD on Contempt of Court (3rd Edition)
"To speak generally, contempt of Court may be said to be constituted by any conduct that tends to bring the authority and administration of the Court into disrepute or disregard or to interfere with or prejudice the parties, litigants or their witnesses during litigation”.
See: IN RE: EFFIDUASE STOOL AFFAIRS (NO. 2); REPUBLIC VRS. NUMAPAU, PRESIDENT OF NATIONAL HOUSE OF CHIEFS AND ORS. EX-PARTE AMEYAW II (NO. 3) (1998-99) SCGLR 639.
Counsel for both parties cited the case of REPUBLIC VRS SITO: EX-PARTE FORDJOUR (Supra) in which the following were set down as constituting elements for contempt.
There must be a judgment or order requiring the contemnor to do or abstain from doing something.
It must be shown that the contemnor knows what precisely he is expected to do or abstain from doing.
It must be shown that he failed to comply with the terms of the judgement or order and that his disobedience was willful. It is instructive to note that contempt may arise by one's conduct even in the absence of a specific judgment or order so long as the conduct complained of interferes with or undermines the proper administration of justice or brings the administration of Justice into disrepute or disregard. Contempt of Court is a quasi - criminal offence in Ghana. In the Effiduase Stool Affairs case (supera) at page 560, Acquah JSC confirmed in these words:
"My Lords, Contempt of Court is the only common law offence known to our law as same is saved by Article 19(2) 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 a case law".
The Common Law rule applicable to Ghana is that Contempt should be proved as any criminal charge. In other words, proof must be beyond reasonable doubt.
IN RE: EFFIDUASE STOOL AFFAIRS (supra). The Supreme Court held:
“Since Contempt of Court is quasi – criminal and the punishment for it might include a fine or imprisonment the standard of Proof was proof beyond reasonable doubt. An Applicant must therefore, first make out a prima facie case of contempt before the court would consider the defence put up by the Respondent”.
IN REPUBLIC VRS. HIGH COURT (ACCRA) EX-PARTE SPEEDLINE STEVE DOORING CO.
LTD. (DOLPHYNE, INTERESTED PARTY) (2007-2008) SCGLR 102 it was held in holding 1:
“A Court order or judgment subsists unless varied or set aside by a Court of competent jurisdiction. This can be done in several ways including appeal and resort to supervisory jurisdiction as one of such way”.
This is a trial under Order 50 of C. I. 47. It is said to be quasi – criminal.
Accordingly, there is no obligation to follow the rules under C. I. 47.
However, the pertinent questions raised by the case are set down to facilitate the determination of the instant application viz:
Whether or not there exists or existed any Judgment or order which the Respondents violated.
Whether or not the Respondents had knowledge of the order or judgment.
Whether or not the Respondents engaged in any act that violated the terms of the order or judgment.
Whether or not any such act if at all was wilful or intentional defiance or disobedience.
WHETHER OR NOT THERE EXIST OR EXISTED ANY ORDER OR JUDGEMENT WHICH THE RESPONDENTS ALLEGEDLY DISRESPECTED.
The Applicant's Counsel submitted that the Court ordered the Respondents to stop any activities on the disputed land. Additionally, he argued that the ADR Mediators cautioned the Respondents not to farm on the disputed land until the determination of the ownership of the land. Counsel contends that the Respondents have disobeyed or disregarded the Court's orders by selling palm trees on the land and cultivating maize on same.
Before I proceed, permit me to chronicle some of the events that preceded the instant application. On 23/10/2018, Counsel for the Applicant filed a Request for Court order dated 11th October, 2017.
I wish to reproduce the Court Notes for 11th October, 2017.
MR. KPORBLE: My instructions are that 1st Defendant is down with stroke hence his absence.
Case is adjourned to 24/10/2017 for Defendants to file a defence and also correct the various mistakes in their affidavit of 5/10/2017. Also the Defendants to desist from any alienation of the lands. The issue of cost is differed.
N. C. A. AGBEVOR
(JUSTICE OF THE HIGH CORUT)
On the same 23/10/2018 the Applicant filed Notice to Desist from Alienation of the Land. The Notice was served on the Respondents on 25/10/2018. I have painstakingly reproduced these events to satisfy myself whether indeed there existed a Court order which was disobeyed or disregarded by the Respondents. Assuming without admitting that part of the Court notes which reads – “And the Defendants desist from alienation of lands" constituted a Court order, the follow up question is was the order granted on an oral application by the Applicant or the Court suo moto?
Order 19 rule 1 of C. I. 47 provides:
“Every application in pending proceedings shall be by motion”.
Moreover, in the case of MICHELLETI POLLA LTD. VRS. CRABBE  1 GLR 108 C. A. - it was held by SOWAH J. A. that:
“The Court was wrong in giving judgement to the Plaintiffs upon an oral application by Counsel because Order 52 LN 140A 1954 now order 19 rule 1 of C. I. 47, which stated that an application to a Court or Judge authorized by the rules should be made by motion was clearly mandatory and the Court had no competence or jurisdiction if the application was made in an open Court to waive the provision especially in the teeth of strenuous opposition.
Additionally, granted that the Court notes quoted (supra) amounted to an order of Interlocutory injunction, did the applicants comply with the provisions of Order 25 rules 1 (1) and (3) of C. I. 47. The Rules provide:
Rule 1 (1) - The Court may grant an injunction by an Interlocutory order in all cases which it appears to the Court to be just or convenient to do so and the order may be made conditionally or upon such terms and conditions as the Court considers just.
Rule (3) The Applicant shall attach to the motion paper and supporting affidavit, a statement of case setting out fully arguments including all relevant legal authorities in support of the application.
Certainly these provisions were not complied with by the Applicant.
The Applicant accused the Respondents of selling palm trees to palm wine tappers, farming on the disputed land through third parties and sowing maize.
The Respondents did not challenge any of these assertion.
The law is settled that an allegation that is not denied nor challenged in anyway is deemed admitted so as to demand no further proof. The absence of any affidavit in opposition left the trial Judge in the Court of Appeal with no option than to accept the affidavit in support.
See: FRANCIS ASSUMING & 640 ORS. VRS. DIVESTITURE IMPLEMENTATION COMMITTEE & ANOR. (2008) 3 GMJ 35 SC.
Does any of the acts complained of by the Applicant amount to alienation of lands.
Alienation is defined as the voluntary and absolute transfer of title and possession of real property from one person to another. (Ghana Law Dictionary) With respect, I do not think those acts amounted to alienation of lands in the strictest sense of the word. From the above analysis, I do not find any order of this Court the violation of which amounted to Contempt of Court.
The caution by the ADR Mediators who could not settle the matter, in my candid opinion was an advice to the parties but not an order so to speak.
WHETHER OR NOT THE RESPONDENTS HAD KNOWLEDGE OF THE ORDER OR JUDGMENT
The Applicants in an application for Committal for Contempt has a duty to establish that the Respondents were aware of the Court order requiring them to act or abstain from acting or the fact that the conduct was likely to undermine the administration of justice or to bring it into disrepute or disregard. The absence of knowledge of the order may exonerate the Respondent.
See: REPUBLIC VRS. SITO EX-PARTE FORDJOUR (supra) REPUBLIC VRS. BOATENG AND ODURO EX-PARTE AGYENIM BOATENG & OR (CMJ) 8/08/09.
With respect, I have not found any evidence that the Respondents who are in actual possession of the disputed land had knowledge of any Court order restraining them from interfering with the disputed land. The Court notes date 17/10/2017 by no stretch of imagination qualifies as a Court
WHETHER OR NOT THE RESPONDENTS ENGAGED IN ANY ACTS THAT VIOLATED THE TENETS OF THE COURT'S ORDER OR JUDGMENT.
As I have indicated elsewhere in this ruling, the Respondents are in actual possession of the disputed land and until injuncted by a Court order or judgment they would continue to exercise their rights of possession of the land.
WHETHER OR NOT ANY SUCH ACT (S) IF AT ALL WERE WILLFUL OR INTENTIONAL
It is trite that to constitute a contempt of Court the act must constitute a willful or intentional disobedience of a Court order or judgment or process.
IN ABLATA VRS. THE REPUBLIC (1977) 1GLR 44J CA. It was held:
“The Appellants failure to comply with the order of the Court was prima facie contempt of Court. But to be punishable there must be contempt which implied an intentional or willful disobedience of the Courts orders.
See also: GBADAMOSHIE VRS. MOHAMMADU (1991) IGLR 283. LAGUTERAH VRS. NORTHERN ENGINEERING COMPANY LIMITED (1980) GLR 62 AKELE VRS. COFIE & ANOR. (CONSOLIDATED) (1977) GLR 84.
From the evidence I am unable to conclude that the Respondents willfully and intentionally disobeyed any Court order which brought the administration of justice to disrepute or disregard to constitute contempt.
As stated already, the Respondents who had not been injuncted by a Court order are in actual possession of the land and could therefore cultivate same.
From the above analysis, I conclude that the Applicants could not prove her case beyond reasonable doubt, being the standard of proof required by law in application for contempt of Court. The defence put up by the Respondents were strong enough to knock of (undermine) the prima facie case of contempt against the Respondents.
The application for Contempt of Court against the Respondent therefore fails and same is dismissed accordingly.
I order cost of GH€500.00 against the Plaintiff/Applicant. Applicant is ordered to file pre-trial check list from today.