IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (GENERAL JURISDICTION DIVISION)
ACCRA - A.D 2018
THE REPUBLIC - (Plaintiff)
DR. (MRS) MAXWELL APEAGYEI-GYAMFI AND 2 OTHERS - (Respondents) EX PARTE: SUSAN BANDOH - (Applicant)
DATE: 5 TH FEBRUARY, 2018
SUIT NO: CR/157/2017
JUDGES: KWEKU T. ACKAAH-BOAFO JUSTICE OF THE HIGH COURT
JACOB NOYE HOLDS L.S.N. AKWETEY’S BRIEF FOR THE APPLICANT YAW OPPONG FOR THE 1ST RESPONDENT
ANTHONY BOATENG WITH CYNTHIA TAGOE FOR THE 2ND RESPONDENT MR. CHARLES BENTUM WITH MAVIS
KWAINOO FOR THE 3RD RESPONDENT
APPLICATION FOR COMMITTAL FOR CONTEMPT
 The denial of liberty of any citizen of our Republic resulting from the 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 depreciate 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’.
 By a Motion on Notice filed at the registry of this court on 15/03/2017, the Applicant herein is praying the Court to use the “big stick” against the Respondents, “for an order committing the Respondents to prison for Contempt of Court” and be committed to prison not to “ridicule the authority of the courts ever again”.
 The 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.”
ii. So what constitutes contempt in Ghana?
 In R v SITO I; EX PARTE FORDJOUR (2001-2002) SCGLR 322 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.”
 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. See the Supreme Court case of REPUBLIC v. BOATENG & ODURO; EX PARTE AGYENIM-BOATENG & OTHERS  SCGLR 154.
 But to hold a party liable in contempt, the rule is that the order sought to be enforced should be unambiguous and the party must be aware of the order and must be clearly understood by the party concerned. See R v. HIGH COURT ACCRA, EX PARTE LARYEA MENSAH (1998-99) SCGLR 360
 In 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 the dynamics of a Hobbesian state of anarchy and chaos. I take the liberty to add that the feature of contempt does not serve the ends of judicial aggrandizement. Rather, it is a safeguard to ensure that might is not right. Without contempt as a Sword of Damocles, bullies in our society will run roughshod over the marginalised.
iii. Background & Affidavit Evidence of the Application:
Before outlining the issues raised in the instant contempt application, it is appropriate to provide the background of the case.
 The Applicant had on February 3rd, 2000 issued a writ at the Land Division of the High Court “for a declaration of title to all that piece of land situate lying and being at New Nungua Town extension, Accra and bounded on the North-East by S. Agyeman’s property measuring 135 feet more or less on the South East by Nii M. Afotey mearing 135 feet more or less on the South East by Nii M. Afotey’s property measuring 105 feet more or less on the South West by Nungua Stool land measuring 35 feet more or less and on the North West by proposed road measuring 105 measuring 105 feet more or less and containing an approximate area of 0.33 Acre”. There were also reliefs for recovery of possession, general possession for trespass and for perpetual injunction.
 The Applicant has deposed that after trial, the High Court gave judgment in her favour and made an order for recovery of possession and well as an order for perpetual injunction restraining the Defendants therein from dealing with the disputed land in anyway. It is further deposed by the Applicant that the Defendants aggrieved by the decision of the High Court appealed to the Court of Appeal which set aside the judgment of the High Court and all the orders made. According to the Applicant she filed an appeal at the Supreme Court against the Court of Appeal decision and filed an application for stay of execution, which the Court of Appeal dismissed. The Applicant has further deposed that she repeated her application for stay of execution at the Supreme Court and same was granted on July 21, 2015. The Applicant attached as Exhibit “A” a copy of the apex Court’s order.
 The Applicant has further deposed that even though her appeal is still pending at the Supreme Court on November 15, 2016 when she visited the land in dispute she found men digging foundation and trenches on the land. It is the case of the Applicant that she lodged a complaint to the police whose investigation revealed that the “the men were carrying out the developments on the instructions of Mr. Agyekum (3rd Respondent herein). It is the further case of the Applicant that the 3rd Respondent refused to cooperate with the police as he refused to respond to the invitation. A copy of the police report is attached as Exhibit “B”. According to the Applicant the 3rd Respondent put a signboard on the disputed land with the inscription “Agyekum Presidential Villas” on the land. A copy of the signboard is also attached as Exhibit “C”.
 It is also the case of the Applicant that “five months after the Supreme Court order the Respondents have defiantly invaded the land and are carrying out developments with land-guards who threaten anyone who tries to stop them in utmost disregard of the Supreme Court”. The Applicant attached as Exhibits “D” five photographs depicting construction she contends are developments on the land.
 Also, according to the Applicant “the 1st and 2nd Respondents have connived and colluded with the 3rd Respondent to engage in this reprehensible conduct is not only an affront to the rule of law and justice, but is calculated to make a mockery of and show disdain to orders and proceedings of the Supreme Court of Canada”. The Applicant has also deposed that during the original trial at the High Court, the 1st and 2nd Respondents were twice convicted of contempt and were fined for their unlawful conduct. The Applicant contends that “the 1st and 2nd Respondents have demonstrated that they have absolutely no regard to the Superior Courts of the land and have extended their most reprehensible conduct to the highest court of the land by acting in concert with the 3rd Respondent to treat the Supreme Court with absolute contempt”.
iv. The Affidavit Evidence of the Respondents:
 All the Respondents have filed affidavits in opposition to the application and are vehemently opposed to the grant of same. The 1st Respondent has deposed and denied that she has engaged in any contemptuous act. It is the case of the 1st Respondent that the High Court refused to make a declaration of title in favour of the Applicant contrary to the depositions as contained in paragraphs 4 and 5 of the supporting affidavit in support. The 1st Respondent attached as Exhibit “MG1” a copy of the Court of Appeal Judgment. The Applicant has also deposed that “subsequent to my winning the case at the Court of Appeal, I disposed off a portion of same to the 3rd Respondent herein to enable me discharge the huge legal and other expenses I incurred”.
 The 1st Respondent has also deposed that the land in dispute forms a minute part of a larger tract she acquired from her grantors. It is also the case of the 1st Respondent that all the search reports from the Lands Commission shows that she is the owner of the in dispute. Report of searches from the Land Commission are marked and attached as Exhibits “MG2”.
 The 1st Respondent has also deposed that “since the Supreme Court issued the orders on 21st July 2015, I have not disposed off any portion of the land to which the Applicant is laying claim at the Supreme Court”. The 1st Respondent further denies that she has connived with anyone to flout the orders of the Court. According to the 1st Respondent she is a law abiding citizen and therefore she would not engage in any act or omission to bring the administration of justice into disrepute. It is also deposed at paragraph 13 of the affidavit in opposition by the 1st Respondent that she will never engage in any act with a view to make mockery of or show disdain to the Supreme Court “as the Applicant has woefully failed to demonstrate that I have ever flouted the said Supreme Court decision”. The 1st Respondent has therefore prayed the Court to dismiss the application as unproven.
 The 2nd Respondent in his affidavit in opposition filed on July 13, 2017 vehemently denies the Applicant’s allegations and contends that he has not disposed off any land. According to the 2nd Respondent in the initial 22 paragraph affidavit in support of the application he is only mentioned at paragraph 19 and no more. He therefore also prays the Court to dismiss the application.
 The 3rd Respondent in his affidavit in opposition filed on May 9, 2017 also vehemently denied the application. According to the 3rd Respondent, the 1st Respondent and her late husband entered into a purchase agreement with him for the “land described in the therein schedule to the said agreement” attached as Exhibit “1”. According to the 3rd Respondent he made a part-payment of USD 120,000 for the total price of USD440,000. He attached as Exhibit “2” the receipt issued for the part-payment.
 The 3rd Respondent details the circumstances as to how he entered into the agreement with the 1st Respondent and her late husband and the assurances given to him that they are the owners of the land and the fact that the property is not encumbered in anyway shape or form. According to the 3rd Respondent he has never done anything contemptuous of the Court but willing to give up the land pursuant to the Court’s order that the 1st Respondent refunds the money paid back to him.
v. The Rebuttal Affidavits
 The Applicant filed two separate supplementary affidavits to respond to the Respondents affidavits. In a Supplementary Affidavit filed by Mr. Jacob Noye, one of the Applicant’s lawyers on July 25, 2017 in response to the 1st and 3rd Respondent’s affidavits it was deposed that it is not true that 1st Respondent disposed of a portion of the land in dispute to the 3rd Respondent as “alleged in paragraph 8 of her affidavit in opposition and that is why she is unable to show to this Honourable Court any Deed of Transfer of title to any person”. It was also deposed that even though during the Supreme Court hearing of the motion for stay of execution the 1st Respondent alleged on oath that she had sold the land in dispute to a third party but when she was challenged she could not produce any document to substantiate her claim.
 It was also deposed by Mr. Noye that the 1st Respondent’s deposition in paragraph 9 demonstrates that the actions of the Respondents are deliberate because “as far as the 1 Respondent is concerned she is the owner of the disputed property so no matter what the Supreme Court says she would deal with the land in a manner she pleases no matter what”. It is also deposed that the 1st Respondent’s affidavit is contradicted 3 Respondent “to whom she claims to have sold the land”. In response to the 3rd Respondent’s affidavit it is deposed in rebuttal that it is not true that the land is lawfully transferred to him. According to the Applicant the Respondents have knowingly colluded and prepared Exhibit “1” attached to the 3 Respondent’s affidavit with a view to “undermining the orders of the Supreme Court and judicial process”.
 Also, according to Mr. Noye the “3rd Respondent knowingly and forcibly entered the land with the land guards after the orders of the Supreme Court, threatened the caretakers of the Applicant living on the land and started hurried developments of the land with a view to forcibly evicting the Applicant’s caretakers on the land when he has no title nor business interfering with the Applicant’s possession of the land”. Exhibit “H”, being an undated photograph was attached to support the contention.
 In a further Supplementary Affidavit filed on October 30, 2017 by the Applicant in response to the 2nd Respondent’s affidavit in opposition it was deposed that the 2nd Respondent has at all material times been a party to the suit from the High Court to the Supreme Court. It was also deposed that the 2nd Respondent represented the 1 Respondent at the trial and testified as the developer during the trial. Exhibit “G” was attached to support the contention. According to the Applicant, as the person who acted on behalf of the 1st Respondent, the 2nd Respondent cannot distance himself from the flagrant disobedience of the Supreme Court.
 Madam Bandoh further deposed that the Supreme Court order was clear that “the status quo needed to be preserved and therefore restrained both sides from disposing the land until the final determination of the appeal”. It is therefore the case of the Applicant that the 2 Defendant has not demonstrated that he has nothing to do with the sale of the land to the 3 Respondent and the subsequent developments carried out on the land in violation of the Supreme Court order. Based on all of the depositions which are well deposed in the original affidavit and the supplementary affidavits, the Applicant contends that the Respondents have committed contempt and ought to be punished.
vi. The Oral Submissions of Counsel:
 The Applicant in moving the application submitted that it is settled principle of law that whenever a person disregards an order of the Court, it is contemptuous. Learned Counsel therefore submitted that based on the facts of this case all of the Respondents should be committed for contempt. Counsel submitted that even though the first part of the order was for a limited period of six months the second part of the order restrained the parties until the final determination of the appeal.
 The Applicant in reacting to the affidavit in opposition submitted that the Court should reject the 1st Respondent’s affidavit because she admits disposing off the land and her Counsel also seem to argue the appeal in this application. With regards to the 3rd Respondent, Counsel submitted that the purchase and sale agreement filed should be rejected as having no probative value because it is not stamped and also there is a clause for vacant possession in 2014 but the order was made in 2015. Counsel also submitted that the 2nd Respondent is liable because she traces his right to the land through the other parties. The Applicant referred to the Supreme Court case of OPOKU v LIBHERR FRANCE SAS & ANOTHER  1 SCGLR 159, holding 1 and holding 4 of the case of ANARFI AND OTHERS v. SAMAPA  2 GLR 201-207. Based on all of the above, the Applicant prayed the Court to commit all the Respondents for contempt of Court.
Respondents’ Counsel Submission:
 Mr. Oppong, Counsel for the first Respondent in his submission stated that even though his client is innocent of the charge, should the Court find her guilty the Court ought to be lenient with her. Learned Counsel then referred to the second part of the Supreme Court order and submitted that “disposing off” means alienating, selling off etcetera and admitted that his client disposed off part of the land sometime in the year 2015 but submitted that same was done before the Court order. Counsel referred the Court to the receipts issued and the agreement signed and submitted that they all predates the July 21, 2015 order.
 Further, learned Counsel submitted that because the order was made subsequent to the disposition of the land, there was nothing to restrain the 1st Respondent from disposing of her own land. According to Mr. Oppong the 1st Respondent is not in any of the photographs attached by the Applicant and also the police report only says the Applicant suspects the 1st Respondent but no investigation was conducted. Learned Counsel referred to the case of IN RE: EFFIDUASE STOOL AFFAIRS (No.2); EX PARTE AMEYAW II SUPRA and submitted that there is no criminal allegation made against the 1st Respondent. Counsel also submitted that there is no evidence collusion as alleged by the Applicant.
 Finally, Mr. Oppong submitted that even if there is a case of contempt, the application is filed at the wrong forum because the Supreme Court is capable of dealing with its own contempt matters and therefore this Court lacks the jurisdictional authority to entertain the instant application. He therefore prayed the Court to dismiss the application.
 Learned Counsel for the 2nd Respondent, Mr. Boateng on his part first associated himself with Mr. Oppong on the jurisdictional ground and also prayed the Court to dismiss the application. Mr. Boateng also submitted that the acts complained of by the Applicant can never be a disobedience of the Supreme Court Order which was made after the alleged act. He further submitted that the application is incompetent and frivolous because according to him the only link of the 2nd Respondent to the application is the unsubstantiated allegation of collusion. Counsel further submitted that even though his client was the 2nd Defendant in the initial suit, he has not disposed of any land as the agreement and the receipts attached all mention only the 1st and 3rd Respondents. On that basis Counsel submitted that the application should be dismissed against his client because no prima facie case is made against his client.
 Mr. Bentum for the 3rd Respondent in his submission also stated that the Applicant has failed to prove beyond a reasonable doubt that his client has committed any contempt. Counsel submitted that the application is incompetent and unmeritorious and abuse of the Court process against his client. Learned Counsel submitted that Exhibit “A” does not show the 3rd Respondent as disposing off any property. Counsel also referred to the agreement signed and submitted that while it was signed in May 2015 and the receipts issued are dated April/May 2015 the Court order was made on July 21, 2015 and therefore the agreement signed could not have breached the order.
 Further, learned submitted that the Supreme Court order of July 21, 2015 was not served on the 3rd Respondent who was not a party to the suit at the apex Court. Counsel referred to the case of R v SITO I; EX PARTE FORDJOUR SUPRA and submitted that since his client was not aware of the order he cannot be said to have willfully disobeyed the order. Mr. Bentum also submitted that a search conducted at the Mapping Division of the Lands Commission as of December 22, 2016 showed that the parties who sold the land to the 3rd Respondent are the rightful owners of the land. To that extent, 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 quick rebuttal submission learned Counsel for the Applicant stated that the jurisdiction of the Court for contempt is concurrent and therefore there is nothing wrong with filing the application at this Court. In regards to the submission that the disposition of the land took place before the Court order, Counsel submitted the disposition has been on-going because “the 3rd Respondent says he has not received any document for the land yet but is developing the land”.
v. Opinion of the Court & Analysis
 Firstly, it is roundly agreed upon by the authorities that Contempt being quasi-criminal, the standard burden of proof required in all Common Law jurisdictions is proof beyond reasonable doubt. See KANGAH v. KYERE SUPRA and EX PARTE LARYEA MENSAH SUPRA in this jurisdiction. See also the Canadian case of BHATNAGER v. CANADA (MINISTER OF EMPLOYMENT AND IMMIGRATION),  2 SCR 217, 1990 which confirms a similar position in another Common Law jurisdiction.
 Also, in R v. BEKOE & ORS; EX PARTE ADJEI ADJEI [1982-83] GLR 91-96 Osei Hwere J posited that, the principle of law was quite clear that where a person is charged with contempt of court, his guilt should be proved with the same strictness as required in a criminal trial of proof beyond reasonable doubt.
I proceed to consider the application by posing the question: Is this the appropriate forum for the instant application for Contempt?
 Needless to emphasize, I have subjected the respective cases and arguments of parties to critical scrutiny and analysis. But, before going further to consider the application on its merits and answer the question posed above, it is extremely important to turn my attention to and address certain legal propositions made by both parties.
 Foremost, I wish to comment on a deposition contained in the Supplementary Affidavit of the Applicant filed on October 30, 2017 and reiterated by her Counsel. It is stated at paragraph 7 of the affidavit that “the 2nd Defendant on record he has not demonstrated that he has nothing to do with the sale of the land to the 3rd Respondent and the subsequently developments carried out on the land in violation of the Supreme Court”. I wish to state that I have no difficulty in dismissing that averment and argument of Counsel. With due deference, the argument is misconceived. It is settled law that it is the Applicant who has to prove the 2nd Respondent’s guilt beyond reasonable doubt. The 2nd Respondent has no burden to “demonstrate he has nothing to do with the sale and the subsequent development”. The onus is only shifted after the Applicant has successfully discharged the burden placed on her.
 I now turn to the issue of jurisdiction raised by the Respondents’ Counsel because the jurisdictional hurdle must first be surmounted before the Court can address the parent application. For it is trite learning that jurisdiction is fundamental issue in every matter. The law, therefore, is that even if it was not questioned by any of the parties it was still crucial for a court to advert its mind to it to assure itself of a valid outcome. The power or jurisdiction of the court to adjudicate is a creature of statute. In Ghana, Article 125(3) of the 1992 Republican Constitution vests judicial power in the Judiciary. The Constitution has prescribed the various courts and their power or jurisdiction and this has been reinforced by the Courts Act, 1993 (Act 459) as amended. It is the case of the Respondents and it is seriously contended by learned Counsel that the application is incompetent because even if it is case of contempt it is filed at the wrong forum because the Supreme Court has the powers to deal with the charge of contempt emanating from its own order. Consequently, this Court lacks jurisdiction to entertain the application.
 Now, even though Counsel did not support their submission with any case law, in my respectful view, the apex Court has already succinctly answered and settled the above issue. In the case of The Republic v. High Court Judge, Kumasi: Ex Parte Hansen Kwadwo Koduah; Paragon Investment Limited – Interested Party where the issue was whether or not an application for Contempt was properly before the High Court when the Order grounding it was made by the Court of Appeal, the Court speaking through Her Ladyship Akoto-Bamfo JSC after considering the earlier cases such as Republic v. Liberty Press Ltd. (1968) GLR 123 stated as follows:
“The position in the liberty case has however changed with the coming into force of the 1992 Constitution article 126(1) of which provides:
126 (1) The Judiciary shall consist of
a. The Superior Courts of Judicature comprising
i. The Supreme Court;
ii. The Court of Appeal; and
iii. The High Court and the Regional Tribunals.
b. Such lower courts or tribunals as Parliament may by law establish.
2. The Superior Courts shall be superior courts of record and shall have power to commit for contempt to themselves and all such powers as were vested in a court of record immediately before the coming into force of this constitution.
Therefore unlike the position in the Liberty case era in which there was one Supreme Court of Judicature comprising of the Court of Appeal and High Court and which the Supreme Court was vested with the authority to commit for contempt of itself, Article 126(1) clearly demonstrates that there are several designated superior Courts of Judicature; each court being vested with the power to commit for contempt to itself. This was clearly depicted the use of the word THEMSELVES as opposed to ITSELF that the power was not intended to belong collectively to the creature known as the superior courts but to each court that has the designation of a superior court.
The courts comprising the Superior Courts were clearly set out, the Supreme Court, the Court of Appeal and the High Court. The words are clear and admit of no ambiguity that each of the courts set down under article 126(1) has the power to commit persons whose conduct tends to bring it into disrepute.
If the orders complained were made by the Court of Appeal, which under Article 126(2) has the power to commit for contempt to itself; then it follows that the High Court which committed the applicant had no such power and therefore acted without jurisdiction and in contravention of the express provisions of the article 126(2) of the 1992 Constitution. The proceedings were therefore a nullity”
 Undoubtedly, Akoto Bamfo JSC’s elucidation of the law is a sound legal proposition which is backed by Article 126(2) quoted above. I am bound by it and I adopt same. In the result, I rule that whilst the High Court generally has jurisdiction to deal with Contempt applications, where the order alleged to have been breached as in the instant case is made by either the Court of Appeal or the Supreme Court, the application for Contempt ought to be filed before the said Court and not the High Court. Consequently, in the opinion of this Court the instant application ought to have been filed at the Supreme Court.
 Having come to the above conclusion I shall restrain myself from making definitive findings based on the merits and the other issues raised including the allegation that the 2nd Respondent was never served with the order and therefore had no knowledge of the order etcetera. To my mind, it is prudent and justified by the need to avoid inadvertent but, nevertheless, prejudicial findings of fact after dealing with a purely legal issue of law because while it can be argued that the alleged disposition of the land predated the Order of the Court, on the contrary it can also be argued based on the exhibited photographs that some of the developments on the land took place after the Court order if indeed, the land is the same piece of land which is the centerpiece of the litigation between the parties.
Conclusion & Disposition:
 From all of the above and having painstakingly and critically scrutinized the motion paper and the affidavit evidence filed in this case, both in support of, and as against the contempt application; and having given active consideration to the viva voce arguments of the Applicant and the Respondent’s counsel. Upon a deep introspection of the facts and careful consideration of the issue raised in this application I have come to one irresistible conclusion and it is that taking all of the evidence as a whole, guided by the legal principles and the statement of law laid out above therefore, I hold the respectful view that the instant Applicant is filed at the wrong forum and I answer the question posed elsewhere in this ruling that this is not the appropriate forum for the instant application. The application therefore fails on jurisdictional ground and it is so DISMISSED. Consequently, in the opinion of the Court, it is not necessary to consider the merits or otherwise of the application
I make no order as to Costs.