• IN THE SUPERIOR COURT OF JUDICATURE
  IN THE HIGH COURT
  HO - A.D 2018
  

THE REPUBLIC - (Plaintiff)

vs.

FRANCIS KWAME DUMENU AND FRANK NTUMI; EX PARTE AARON MORNY AND GODWIN MORNY -(Defendants)

RULING

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On 19/9/2018, the applicants filed the instant application for an order of committal to prison of the Respondents herein.

 

The applicants accused the Respondents of breaking the law by disrespecting a binding order of the District Magistrate Court, Kadjebi dated 16th July, 2018 (copy attached and marked EXHIBIT “AG 3") and hereby bringing the administration of justice into disrepute. The parties filed affidavits and a number of exhibits and annexures in support of their respective cases. It is instructive to note that the parties appeared in person. They had no legal representations. I proceed to summarize their cases.

 

 

APPLICANTS CASE

 

 

That the applicants instituted an action against the Respondents at the District Magistrate Court, Kadjebi on 2nd March, 2018.

 

That during the pendency of the action the applicants filed Motion on Notice for Interim Injunction restraining the Respondents, their agents or workers from further harvesting or destroying crops and economic trees on the disputed land. Copy of the motion paper and affidavit attached as EXHIBIT “AG2”.

 

That on 16th July, 2018 the District Magistrate Court, Kadjebi granted an order of Interlocutory Injunction restraining the Respondents, their agents and workers from entering the disputed land by way of harvesting or destroying crops and economic trees (copy of order of Interlocutory Injunction attached as EXHIBIT “AG 3”).

 

That notwithstanding the existence of order of Interim Injunction, the Respondents and their labourers entered the disputed land and harvested cocoa pods and caused massive destruction to the farm cottage. (Attached as EXHIBIT “AG 4” are photographs of broken cocoa pods and the farm cottage)

 

That the Respondents have deliberately disobeyed the orders of the District Magistrate Court, Kadjebi and thus brought the administration of justice into disrepute or disregard.

 

Applicants therefore prayed the court to severely punish the Respondents to serve as a deterrent to mould the offenders.

 

 

RESPONDENTS CASE

 

 

The case of the Respondents as borne out of their affidavit in opposition are as fellows:

 

That the Respondents are the Defendants in the Suit No. A2/48/2018 entitled AARON MORNY & ANOTHER VRS FRANCIS KWAME DUMENU & ANOTHER before the District Magistrate Court, Kadjebi.

 

That the applicants secured an order of Injunction against the defendants herein from harvesting crops or doing anything on the disputed land.

 

That the Respondents farm is distinct and separate from the disputed farm.

 

That the Respondents grandfather granted the disputed cocoa farm to his labourers to farm and share same.

 

That before the order was granted the applicants through their labourers who are Togolese nationals have been harvesting and smuggling cocoa beans to Togo to sell.

 

That on 26th August, 2018 and 12th September, 2018 respectively after the order had been granted, the Respondents had information that the applicants' farm labourers had harvested cocoa and were about to smuggle same to Togo.

 

That the Respondent made a report to the police at Ahamasu which detailed an officer to accompany him to the farm.

 

That at the sight of the policeman the applicants labourers bolted away with the cocoa beans.

 

That the Respondents have not flouted or violated any court order as alleged by the applicants. And that it was the applicants farm labourers who disregarded the court's orders.

 

 

 

Respondents therefore pray that the application is aimed at stultifying the substantive suit before the District Magistrate Court, Kadjebi and same must be dismissed. As indicated already, the parties had no legal representation. I would therefore, determine this application by analysing the affidavits, exhibits and annexures filed by the parties and apply the principles that govern the grant or refusal of application for committal for contempt of court.

 

As Lord Denning, MR BRADBURY VRS ENFIELD LONDON BORUGH COUNCIL [1967]1 WLR 1311 at 1324.

 

“The law must be obeyed no matter the circumstances even if chaos should result, still, the law must be obeyed”.

 

 

 

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 Court's 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. According to Oswald on Contempt (3rd Edition Page 6)

 

“To speak generally contempt of court may be said to be constituted by any conduct that tends to bring the authority and administration of justice into disrepute or disregard or to interfere with or prejudice parties, litigants or their witnesses during litigation”.

 

See:

 

BALOGUN VRS EDUSEI [1958] 3 W.A.L.R 547 AT 550.

 

INTERIM EXECUTIVE COMMITTEE OF APOSTOLIC DIVINE CHURCH OF GHANA VS INTERIM EXECUTIVE COUNCIL AND OTHERS [1984-86] 2 GLR 181.

 

IN RE: EFFIDUASE STOOL AFFAIRS (NO.2), REPUBLIC VRS NUMAPAU, PRESIDENT OF NATIONAL HOUSE OF CHIEFS EX PARTE: AMEYAW II [1998-1999] SCGLR 639.

 

IN THE CASE OF REPUBLIC VRS SITO I; EX-PARTE (FORDJOUR) [2001-2002] SCGLR 322.

 

 

 

The following were set down as constituting the elements of contempt of court.

 

There must be a judgement or order requiring the contemnor to do or abstain from doing something.

 

ii. It must be shown that the contemnor knew what precisely he was 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 is willful or intentional. It should be noted however that per the general definition of contempt by OSWALD etc. (supra) contempt may arise by one's conduct even in the absence of a specific judgement or order so long as the conduct complained of interferes with or undermines the proper administration of justice. Contempt of court remains the only non-codified quasi-criminal offence in Ghana.

 

 

 

In the EFFIDUASE STOOL case (supra) at page 660, Acquah JSC confirmed the rule in these words. "My Lord, contempt of court is the only common law offence still known to our law as same is saved by Article 19(2) of the 1992 constitution and the Criminal Code 1960 ACT 29. And unlike other countries where the law is codified like the English contempt of court Act of 1981 ours is still case law”.

 

In the above cited case the Supreme Court held in holding 2 as follows:

 

“Since contempt of court was quasi-criminal as the punishment for it might include a fine or imprisonment the standard of proof required was proof beyond reasonable doubt. An applicant must therefore first make out a prima facie case of contempt before the court could consider the defence put up by the Respondents”.

 

 

 

The Common Law rule applicable to Ghana is that contempt should be proved as in any criminal charge. IN COMET PRODUCTS UK LTD VS HAWKEX PLASTICS LTD. [1971] 1 ALL ER 1141 at

 

1143-1144. CA: It was held;

 

“Although this is a civil contempt, it partakes of the nature of criminal charge. The defendant is liable to be punished, he may be sent to prison. The rules as to criminal charges have always been applied to such a proceeding. It must be proved with the same degree of satisfaction as in a criminal charge”.

 

 

 

I will restrict in this ruling myself with the resolution of the following issues.

 

Whether or not there exists or existed any judgement or order which the Respondents allegedly disregarded or disrespected.

 

Whether or not the Respondents had knowledge of the order or judgment.

 

Whether or not the Respondents engaged in any acts that violated the tenets of the judgment or order.

 

Whether or not any such acts were willful or intentional defiance or disobedience.

 

 

ISSUE A

 

 

Whether or not there exists or existed any judgement or order which the respondents allegedly violated.

 

Exhibit ‘AG 3' is an order of the District Magistrate Court, Kadjebi restraining the Defendants/Respondents or their agents or workmen from harvesting crops or doing anything on the disputed land until the final determination of the suit.

 

The Respondents in their affidavit in opposition admitted (paragraph 6) that indeed there existed a court order. However, the Respondents contended that they have their own cocoa farm distinct and separate which is not part of the injuncted or disputed farm. The Respondents (per paragraph 10 and 12) of their affidavit in opposition averred that it was the applicants farm labourers, Togolese nationals who harvested and smuggled the cocoa beans to Togo. These facts were not challenged by the Applicants. The positon of the law is settled by a legion of authorities that when a party makes an averment and same is not denied or challenged no issue is found and no further evidence need to be led on that account.

 

See: FORI VRS AYEREBI [1966] GLR 622 SC

 

 

 

ISSUE B

 

WHETHER OR NOT THE RESPONDENTS HAD KNOWLEDGE OF THE ORDER OR JUDGMENT FROM THE AFFIDAVIT EVIDENCE THE RESPONDENTS HAD FULL KNOWLEDGE OF THE

 

ORDER. Albeit they denied ever violating or flouting same.

 

 

ISSUE C

 

 

WHETHER OR NOT THE RESPONDENTS ENGAGED IN ANY ACTS THAT VIOLATED THE TENETS OF THE JUDGEMENT OR ORDER.

 

The applicants alleged in (paragraph 7) of their affidavit in support that the Respondents and their agents disobeyed the court's order by harvesting cocoa and destroying the farm cottage. The applicants exhibited photographs of broken or cracked cocoa pods and a destroyed farm cottage. (EXHIBIT "AG 4”). Unfortunately, the applicants could not lead evidence to link the Respondents to the exhibits. The photographs did capture the Respondents or the cocoa farm or the farm cottage. I concede that Exhibit “AG 4” depicted split cocoa pods and a pulled-down farm cottage. But the begging question is who perpetrated such unlawful acts? Is it the Respondents or the Applicants' farm labourers. In my respectful opinion, if there are no positive proof facts from which inference can be made the method of inference fails and what is left is mere suspicion. I do not think that the applicants were able to establish that the Respondents and their agents, workmen etc. committed those acts.

 

 

 

ISSUE D

 

WHETHER OR NOT ANY SUCH ACT(S) IF AT ALL WERE WILLFUL OR INTENTIONAL.

 

As I have indicated elsewhere in this ruling, the applicants could into demonstrate that the acts which violated the court's order were committed by the Respondents. Therefore, the issue as to whether it was willful or intentional becomes moot. Before I conclude, permit me to dilate on contempt by stranger to the suit as alleged by the Respondents. It is the contention of the Respondents that it was the applicants’ farm labourers, the Togolese nationals who were engaged in those acts which constituted the contempt. The law is settled that an order of court ordinarily binds the parties to the suit; but a third party can be guilty of contempt if with knowledge of the order he aids or abets the defendants in breaking the order or frustrates the said order.

 

IN SEAWARD VRS PATERSON [1897]1 CA 545; an injunction was granted against Paterson. He violated the order with other persons not party to the suit. Paterson and the other parties were convicted for contempt of court. An appeal by one Murray a non- party contemnor was made to the court of Appeal.

 

The Appeal Court held by Lindley LJ at page 534

 

"He is bound like any other member of the public not to interfere with and not to obstruct the course of justice and the case if any made against him must be this, not that he has technically infringed the injunction which was not granted against him in any sense of the word but that he has been aiding and abetting others in setting the court at defiance and deliberately treating the order as unworthy of notice”.

 

 

 

If he has so conducted himself, it is perfectly idle to say that there is no jurisdiction to punish him for contempt as distinguished from the breach of injunction which has a technical meaning.

 

IN INTERIM EXECUTIVE COMMITTEE OF APOSTOLIC DIVINE CHURCH OR GHANA VRS INTERIM EXECUTIVE COUNCIL AND OTHERS [1984-86]

 

2 GLR 181. It was held in holding 2 ...

 

“There was ample evidence that the Respondents were labouring under a misconception that they were not party to the suit and so they could do as they liked despite the courts order.

 

The order was directed at all the Respondents in the suit and anyone taking instructions from them and therefore if any one took instructions from us they were committing contempt against us”.

 

 

 

The court has jurisdiction to punish for contempt a person who though not a party chose to assist others in the doing of that which he well knew was prohibited by an order of the court. Such willful disobedience of the court order by a stranger to the litigation constituted criminal contempt because each was a stranger to proceedings in which the order of injunction was made.

 

Each of the Respondents was therefore guilty of contempt.

 

 

CONCLUSION

 

 

From the preceding analysis I conclude that the applicants were not able to establish that the Respondents engaged in acts that violated the injunction order granted by the District Magistrate Court, Kadjebi. The defences put up by Respondents were strong enough to knock of the prima facie case established by the applicants.

 

I decree that the case of contempt against the Respondents fails and same is dismissed. I order cost of GHC500.00 against the plaintiff/applicants.