• IN THE SUPERIOR COURT OF JUDICATURE
  IN THE HIGH COURT (GENERAL JURISDICTION DIVISION)
  ACCRA - A.D 2018
  

THE REPUBLIC - (Plaintiff)

vs.

KWAME DOSSE AND 2 OTHERS - (Respondent)
EX PARTE: BEN KOOMSON PAYIN - (Applicant)

DECISION

---

 

 

 

APPLICATION FOR COMMITTAL FOR CONTEMPT

 

i. Introduction:

 

[1] The denial of liberty of any citizen of our Republic resulting from a charge of contempt is  effected in accordance with the principles of fundamental justice. Even though there is no specific law on contempt in Ghana, the absence of codification of the law of contempt in Ghana does not in itself violate the principle that there must not be crime or punishment except in accordance with fixed or pre‑determined law. This is because the charge of contempt of court in Ghana rests in the concept of the public defiance that accompanies the charge of contempt. To establish contempt in Ghana the Applicant must prove beyond a reasonable doubt that the accused defied or disobeyed a court order, with intent, knowledge or recklessness as to the fact that the public disobedience will tend to depreciate the authority of the court.

 

 

 

[2]. 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’.

 

 

 

[3] By a Motion on Notice filed at the registry of this court on October 2, 2018, the Applicant herein is praying the Court to use the “big stick” against the Respondents, “for an order to commit the Respondents herein for Contempt of this Honourable Court”.

 

 

 

[4] 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?

 

[5] 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.

 

 

 

[6] 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.”

 

 

 

[7] In a recent unreported decision of the Supreme Court titled THE REPUBLIC v. BANK OF GHANA & 5 OTHERS; EX PARTE BENJAMIN DUFFOUR Civil Appeal No. J4/34/2018 Delivered on June 6, 2018 the apex Court speaking through Baffoe-Bonnie, JSC stated that:

 

“A respondent to a contempt proceeding may be found guilty in many ways. The party may be found guilty of direct contempt or indirect contempt which may be proved depending on the facts of the case in several ways. The proof of direct contempt seem not to be as burdensome as proof of indirect contempt. In most cases direct contempt such as insulting the judge or a party to a proceeding, or committing acts of violence in court, the judge has the advantage of having a firsthand view of the act constituting contempt. The opposite can be said of indirect contempt where the Court will have to rely on the testimony of third parties to prove the offense of contempt”.

 

 

 

[8] His Lordship further stated after examining the standard of proof in a contempt proceeding that:

 

“Contempt many be committed intentionally or unintentionally. It is no defence to a charge of contempt for a party to prove he did not intend to commit contempt of Court. In Republic v Moffat; Ex parte Allotey [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”

 

 

 

[9] By definition and based on the principles articulated in the cases above, a person commits contempt of court if he has willfully and/or intentionally 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 also the Supreme Court case of REPUBLIC v. BOATENG & ODURO; EX PARTE AGYENIM-BOATENG & OTHERS [2009] SCGLR 154.

 

 

 

[10] 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

 

 

 

[11] 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. 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 for discussion in the instant contempt application, it is appropriate to provide the background of the case.

 

 

 

[12] The Applicant’s contention articulated in the affidavit in support of the application filed on October 2, 2018 is that as one of the Plaintiffs in Suit No. LD/0383/2018 he received a letter dated 3rd May 2018 from the Municipal Chief Executive of the 2nd Respondent Assembly herein by which the Plaintiffs “were asked to present their land documents for verification and further action”. A copy of the letter is attached as Exhibit BK1.

 

 

 

[13] According to the Applicant, the Plaintiffs through their lawyer complied with the request by a letter dated 8th May 2018. A copy of the response letter is also attached as Exhibit “BK2” in this application. It is the case of the Applicant that their lawyer further notified the Assembly that the matter was in Court.

 

 

 

[14] The Applicant has further deposed that the Plaintiffs obtained an Interlocutory Judgment dated 3rd May 2018 against the 1st Defendant who is the 1st Respondent herein. The Applicant has attached as Exhibit BK3 a copy of what he contends to be the interlocutory judgment with certain stated reliefs thereon. According to the Applicant a search conducted at the Registry of the Court dated 26th September 2018 a copy of which has been attached as Exhibit BK4, confirmed that “the Entry of Judgment was served on the 1st Defendant on September 15, 2018”.

 

[15] Further, the Applicant has deposed that the Plaintiffs received a letter dated 7th September 2018 a copy of which is attached and marked as Exhibit “BK5” from the Okaikoi North Municipal Assembly, after a visit by the Municipal Chief Executive, Nii Boye Laryea, the 3rd Respondent herein and the Municipal Coordinating Director, Samuel Amoah and one other person to Plaintiffs’ shop. The Applicant says, the said letter which was drafted immediately after the visit to the Plaintiffs’ shop stated at paragraph 1 that “… The Okaikoi North Spatial Planning Committee received a formal complaint (dated 30th August 2018) from a community member indicating that the closeness of your single story property is blocking their frontage of a portion of his shops”.

 

 

 

[16] The Applicant further contends that the letter further stated at paragraph 2 that “… the committee conducted site inspection on the premises on 7th September 2018 to ascertain the authenticity of the issues raised by the complainant. The inspection revealed that your property… is blocking the portion of the frontage of the complainant”

 

 

 

[17] It is the further case of the Applicant that the Plaintiffs responded to the letter dated 7th September 2018 on 13th September 2018 and same was served on the 2nd and 3rd Respondents on 14^th September 2018 and received by one Vincentia (SFO), on 14th September 2018. A copy of the letter and the initials of the person who received same is attached and marked as Exhibit “BK6”.

 

 

 

[18] It is the contention of the Applicant that all relevant documents especially the Interlocutory Judgment was brought to the attention of the Okaikoi North Municipal Assembly’s Chief Executive, Spatial Planning Committee, the Accra Metropolitan Assembly and others. That notwithstanding, it is the case of the Applicant that in the early hours of the day on 22nd September 2018 around 1:0.0. A.M. “despite knowledge of the existence of the Interlocutory Judgment of the Court the Respondents assisted by Policemen from the Tesano Police Station together with land guards Vi et armis willfully demolished the shop of the Plaintiffs without giving the Plaintiffs the opportunity to salvage their belongings.” The Applicant has attached as Exhibits ‘BK7” photographs to show the shop before and after the demolition. The circumstances of the Applicant’s further contentions including the cost of the properties destroyed are well deposed in paragraphs 14 to 21 of the affidavit in support of the application.

 

 

 

iv. The Affidavit Evidence of the Respondents:

 

[19] 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 he has engaged in any contemptuous act. It is the case of the 1st Respondent that he has been advised by counsel and believes same to be true that the present application seeking to commit him for contempt is highly incompetent, frivolous and scandalous and same should be dismissed with the contempt it deserves.

 

 

 

[20] He concedes that he was served with an interlocutory judgment and according to him “I instructed my counsel, lawyer Maurice Ampaw to file the necessary legal process to set aside the said judgment and given the opportunity to be heard on the matter, since the said judgment was a default judgment”.

 

 

 

[21] The 1st Respondent has further deposed that the Plaintiff/Applicant has failed to demonstrate to the court how “I disobeyed the orders of the Court”. According to him “I have not ordered or authorized the demolishing of any building and did not partake in any demolishing exercise carried on by the Municipal Assembly”. He also denied the allegation of the Applicant that he slapped the bailiff who served the entry of interlocutory judgment and deposed that “I will subject Plaintiff to strict proof”.

 

 

 

[22] According to the 1st Respondent, he is a law abiding citizen with full respect for the court and therefore he will not do anything contemptuous of the Court. Finally, he deposed that “Plaintiff has failed to attach any evidence of me ordering or partaking in the demolishing of the said structure”. Further, it is the case of the 1st Respondent that “I travelled to my home town and returned to see the demolition carried by the Municipal Assembly”. He has therefore prayed the Court to dismiss the application.

 

 

 

[23] The 2nd and 3rd Respondents filed a joint affidavit in opposition on November 6, 2018 to vehemently deny the Applicant’s allegations and contend that they have not committed any contemptuous acts. According to the 15 paragraph affidavit deposed to by Mr. Samuel Amoah, the Coordinating Director of the Okaikoi North Municipal Assembly the instant application is not properly before the Court and should be dismissed. The Deponent first says that he has been advised and verily believe that “this motion is not properly before this court, it is, misconceived, a misnomer, frivolous and vexatious, an abuse of process and same should be dismissed in limine with cost”.

 

 

 

[24] According to Mr. Amoah he has been further advised and he believes same to be true that “the motion paper and the supporting affidavit are defective. Although the High Court Land Division made an order belatedly to join the Okaikoi North Municipal Assembly to the suit, there is no indication that the order for joinder has been drawn up and no such order has been attached to the motion paper. Furthermore, there is no indication that the applicant has amended the Writ pursuant to an order for joinder. I attach hereto the Writ of Summons and the Statement of Claim marked as Exhibit “S.A1” to demonstrate that the Okaikoi North Municipal Assembly has not been joined, properly to the suit”.

 

 

 

[25] Mr. Amoah has further deposed that “I am advised and verily believe that the Applicant’s interlocutory judgment they obtained is unclear and very ambiguous albeit it was obtained against the 1st Defendant/ Respondent in the action before the High Court”. Further, he has deposed that “Indeed as I am advised and verily believe, there is no record of what reliefs were granted in the interlocutory judgment against the 1st Defendant/Respondent. And the entry of judgment attached and marked as Exhibit “BK3” is not a true representation of the order of the court dated 3rd May 2018, for Exhibit “BK3” is an entry of judgment”.

 

 

 

[26] The 2nd and 3rd Respondents have further deposed that “the order of the court was that “Counsel for the Plaintiffs is to cause a notice of interlocutory judgment to be served on the 1st Defendant” but what the Plaintiff served on the 1st Defendant was a bare ENTRY OF JUDGMENT which is not an “ENTRY OF INTERLOCUTORY” as I am advised and verily believe. Furthermore, I am advised that the order is not clear and totally ambiguous, and what is more the order which the Plaintiff/Applicant served was not ordered by the court and the court did not grant same”.

 

 

 

[27] It is also deposed that what is contained in the entry of judgment was not envisaged by the court and what was contemplated by the court does not include perpetual injunction which is contained in relief 2 of the Plaintiff/Applicant’s entry of judgment which does not also contemplate damages, otherwise the court will not add the sentence “The Registrar is to fix a date for Plaintiffs to prove their claim against the 1st Defendant”. Also, it is deposed by the 2nd and 3rd Respondents that “if the claim has been proved it cannot form the bases of an entry of judgment more so it is not a final order which can ground action in contempt”.

 

 

 

[28] The deponent has further stated that “paragraph 11 of the Applicant’s affidavit in support of the motion is an absolute falsehood, for what was brought to the attention of the Okaikoi North Municipal Assembly’s Chief Executive, Spatial Planning Committee, the AMA and others was an Entry of Judgment and not INTERLOCUTORY JUDGMENT as ordered by the court. And therefore I am advised and verily believe that what was served on the Municipal Assembly is self-serving prepared by Plaintiffs’ lawyer and it is not an order of the court and that so far as the interlocutory judgment has not been served on me I am not aware of same, and I cannot be said to be in contempt”.

 

 

 

[29] Finally, it is the case of the 2nd and 3rd Respondent that since they were not served with the said interlocutory judgment, at the time the demolition was carried out by the Municipal Assembly, they were not aware of any order of interlocutory judgment. Also, according to the deponent as of 5th November, 2018 when they were served with a motion for committal for contempt, they had still not been served with the interlocutory judgment. Based on all of the above, it is deposed that the Court should dismiss the instant application.

 

 

 

v. The Oral Submissions of Counsel:

 

[30] The Applicant’s Counsel, Ms. Friedlander in moving the application rehashed the facts as contained in the affidavit in support and submitted that it is a 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 referred to the case of R v SITO I; EX PARTE FORDJOUR SUPRA and submitted that all the conditions stated to be met are satisfied. According to learned Counsel the photograph Exhibit BK7 shows that only one part of the structure obstructed the shop and the demolition of the entire shop was willful. Counsel further submitted and prayed the Court to refer to Section 18 of the Evidence Act, NRCD 323 to draw conclusions based on all of the documents filed and prayed the Court to commit all the Respondents for contempt of Court.

 

 

 

vi. Respondents’ Counsel Submission:

 

[31] On his part, learned Counsel for the 1st Respondent, Mr. Osei Asamoah submitted that there is no indication as to what the 1st Respondent did or refused to do to warrant his committal for contempt. Learned Counsel submitted that the gravamen of their opposition is that the correspondence between the Assembly and the Applicant did not involve them and so they cannot be held accountable for the alleged act of the Assembly. Counsel referred to the Supreme Court case of BOAMAH & ANSAH SIKATUO v. AMPONSAH [2012] 1 SCGLR 58 and submitted that the Applicant’s case is based on pure conjecture on the grounds that because the 1st Respondent’s shop is closer to the Applicant’s shop he had a hand in the demolition.

 

 

 

[32] Mr. Ashie Neequaye, Counsel for the 2nd and 3rd Respondents in his submission also referred to all the depositions in the affidavit in opposition and submitted that to the extent that what the Applicant filed to be the Entry of interlocutory judgment was defective, the instant application is incompetent. Learned Counsel then referred Section 94 of the Local Governance Act, 2016 and the Land Use and Spatial Planning Act, Sections 117, 118 and 121 to submit that the Assembly exercised its statutory powers.

 

 

 

[33] The Court notes that Counsel conceded that those statutory powers cannot be exercised if there was a court order in place. In this case, Counsel submitted that there was no Court order in place and even if there was one, the 2nd and 3rd Respondents were not aware because they were not served. Based on all of the above Counsel prayed the Court to dismiss the application.

 

 

 

vii. Opinion of the Court & Analysis:

 

[34] 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), [1990] 2 SCR 217, 1990 which confirms a similar position in another Common Law jurisdiction.

 

 

 

[35] 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 the instant application competent and if so has the Applicant met his onus to be successful?

 

 

 

[36] 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.

 

 

 

[37] Now, with regards to the 2nd and 3rd Respondents, it is not disputed that they were not parties to the initial suit. Their affidavit seem to make reference to that fact. The question is does the fact that they were not parties to the suit mean they cannot be found guilty for contempt of Court? To my mind the simple answer is they can. 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. See the case of In SEAWARD V PATERSON [1897] 1 Ch 545.

 

 

 

[38] In that case an injunction was granted against Mr. Paterson alone but he violated the order with other persons who were not parties to the suit. Paterson and the non-parties were all convicted of contempt. 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 where it was held that:

 

(2) “There was ample evidence on record that the Respondents were laboring under a misconception that they were not a party to the suit and so they could do as they liked despite the Court’s orders. The order was directed to all the Respondents in the suit and any one taking instructions from them so that if both A and OW took instruction from OS, they were committing contempt against OS.

 

(3) The Court had jurisdiction to punish for contempt a person who, though not a party to the action, as in the instant case, chose to assist others in the doing of that which he well knew was prohibited by an order of the Court”.

 

In effect, the 2nd and 3rd Respondents herein can accordingly be found liable for contempt and punished in accordance with the law notwithstanding the fact that they were not parties to the initial suit on which this application is anchored if their guilt is proved beyond reasonable doubt.

 

 

 

[39] I also wish to state that I have no difficulty in dismissing the contention and denial of the 2nd and 3rd Respondents of their knowledge of Exhibit BK6 even though their officer, one Vicentia (SFO) received same and signed for it on 14/09/18. To my mind their denial is disingenuous and flawed and same is rejected.

 

 

 

[40] I now turn my attention to the merits or otherwise of the application. The thrust of the Applicant’s case as contained in the affidavit supporting the application is simply that the Respondents have failed to comply with the order of the Court. The Applicant relies on Exhibit BK3 to make his case. The Respondents, in particular 2nd and 3rd Respondents accuse the Applicant of producing a document different from what the Court ordered. For clarity and emphasis, I produce below the Court notes of 3rd May 2018 and what the Applicant’s Counsel prepared and served which is the anchor of the application. Both documents are exhibits BK3. The Court notes states as follows:

 

“COUNSEL FOR PLAINTIFFS:

 

I have before you an application for judgment in default of appearance against the 1st Defendant. I rely on the averments in the affidavit in support.

 

BY COURT:

 

Having regard to the nature of the reliefs sought by Plaintiffs against the 1st Defendant and the fact that 1st Defendant has not entered appearance to the writ, interlocutory judgment is hereby entered against the 1st Defendant in favour of the Plaintiffs.

 

Counsel for the Plaintiffs is to cause a notice of entry of interlocutory judgment to be served on the 1st Defendant.

 

The Registrar is to fix date for Plaintiffs to prove their claim against the 1st Defendant.

 

Signed – Barbara Tetteh-Charway J, (Mrs) Justice of the High Court”

 

 

 

[41] Counsel for the Plaintiffs then went ahead to draft, file and serve the following document based on the above notes of the Court.

 

“ENTRY OF JUDGMENT

 

DATED AND ENTERED THIS 3RD DAY OF MAY 2018

 

THIS ACTION having on the 3rd day of May, 2018 been heard on motion on notice for judgment in Appearance by Her Ladyship Justice Barbara Tetteh-Charway (Mrs) High Court Judge and the said judge having entered judgment against the 1st Defendant herein,

 

IT IS this day adjudged against the 1st Defendant as follows:

 

a) An order restraining the defendants from unlawfully demolishing the livelihood of the Plaintiffs being the shop

 

b) Perpetual injunction restraining the Defendant their agents and assigns from interfering or dealing with the Plaintiffs shop in any shape or form

 

c) Damages for harassment and emotional distress

 

d) Cost including legal fees

 

DATED AT ACA LAW            CONSULT, EQUITY CHAMBERS, 7            ADEMBRA ROAD, CANTONMENTS, ACCRA THIS 13TH DAY OF SEPTEMBER, 2018”.

 

It is the above that the Applicant herein contends he served on the Respondents and which they have willfully disobeyed and has thus cited them for contempt.

 

 

 

[42] Now, did the Court give a judgment based on which an Entry of Judgment had to be drafted and served? In the instant application, there is no dispute that the Court order was for the Plaintiffs to serve an Interlocutory Judgment and not an Entry of Judgment. So where did the reliefs stated on the entry of judgment come from? The Applicant did not attach the original writ of summons to enable the Court to make a comparison as to the reliefs endorsed thereon and therefore I can only speculate that what is stated on the “Entry of Judgment” are the reliefs endorsed on the writ. The onus is on the Applicant to justify that the entry of judgment served represent the order made by the Court otherwise it becomes a self-serving notice of Counsel but not from the Court. To my mind based on the materials filed, the Applicant is clearly guilty of non-compliance of the Court order and therefore the document titled “Entry of Judgment” is self-serving. What then is the legal effect of this non- compliance with the order the Court made?

 

 

 

[43] In OPPONG v ATTORNEY-GENERAL & ORS. [2000] SCGLR 275, where the Plaintiff purported to invoke the original jurisdiction of the Supreme Court under Articles 2 (1) (b) and 130 of the 1992 Constitution, as well as under rule 45 of the Supreme Court Rules, 1996 (CI. 16), by filing an affidavit verifying the act and particulars and also the statement of the Plaintiff’s case on 14th September, 1999 without a writ but filed a writ on the 30th September, 1999, the Court, per Bamford- Addo JSC made this important point that:

 

“Many a time litigants and their Counsel have taken the rules of procedure lightly and ignored them altogether as if those rules were made in vain and without any purpose…”

 

In that case the rule 45 (1) provided that:

 

“Except as otherwise provided in these Rules, an action brought to invoke the original jurisdiction of the Court shall be commenced by a writ in the Form 27 set out in part III of the Schedule to these Rules which shall be signed by the Plaintiff or his Counsel.”

 

The Supreme Court at page 277 said:

 

Since the requirements in rule 45 (1) of the Supreme Court Rules, 1996 (CI.16), were not complied with by the Plaintiff, no action having been initiated by a writ, the other documents, that is, an affidavit and a statement of case filed 14th September, 1996, were therefore of no consequence and same is null and void.”

 

 

 

[44] I have referred to the above case just to make the point that if a party fails to comply with the rules of Court or as in this case the failure of the Applicant to comply with what the Court ordered to be done, the non-compliance has consequences. This is so especially, as this application is one of contempt and the Applicant is required to prove beyond reasonable doubt the guilt of the Respondents. To that extent, I respectfully disagree with Counsel for the Applicant who submitted at the oral hearing that because she served the Respondents with the “Entry of Judgment” even if it was not competent because that was not what the Court ordered, the Respondents had a duty to obey.

 

 

 

[45] In my respectful view one must not lose sight of the fact that an application founded on no known rule of law or procedure or an order not made by a Court of competent jurisdiction is no application at all. The judicial process demands that a judge make a decision within the framework of relevant legal rules and procedure. Sitting as a judge, I must look at the process filed and served and ask myself whether it is clothed with legality with regards to what was ordered by the Court within the rules of court and principles of law and procedure. If that was lacking, then that application is not only baseless but void. And if it was baseless and void, then to my mind a contempt conviction ought not be based on such an order to punish anyone.

 

 

 

[46] The above analysis notwithstanding, even if the entry of judgment served was proper, there is also the aspect of lack of service of a penal notice on the Respondents as well. 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.

 

(3) Subject as stated, an order requiring a body corporate to do or abstain from doing an act shall not be enforced as provided in rule 5 sub-rule (1) paragraph (bb) or (cc) unless

 

(a) a copy of the order has also been served personally on the officer against whose property leave is sought to issue a writ of sequestration or against whom an order of committal is sought;

 

 

 

[47] In the instant case even if the entry of judgment was a good order of the Court, which I have found was not, in addition to the service of same, by the rule 7 (2) (a) and (4) (a), the Applicant was mandated to indorse on the order so made on May 3, 2018, a notice informing the Respondents that if they disobey the order they shall be liable to the process of execution. 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 Respondents ought to have been served with copies 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.

 

 

 

viii. Conclusion & Disposition:

 

[48] Based on 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. Upon a deep introspection of the facts and careful consideration of the issue raised in this application I hold the respectful view that taking all of the evidence as a whole, I am simply unable to convince myself that the Applicant has made out a case of contempt based on the law against the Respondents. The order on which the application was founded was not what the Court ordered and the precondition for the enforcement of same was also not complied with.

 

 

 

[49] But with all that said, I cannot conclude this decision without commenting on the actions or inactions of the 2nd and 3rd Respondents with regards to how they exercised their powers as an Assembly and as the political head respectively. This application has failed mainly to my mind due to how the Applicant and Counsel proceeded with same but not because the 2nd and 3rd Respondents did no wrong. Clearly some diligence was required on the part of Counsel as the moving party but same fell short in this case.

 

 

 

[50] In my respectful opinion, from the 2rd and 3rd Respondents’ own affidavit filed it is clear that they conceded demolishing the Applicant’s shop but in my opinion the cardinal principles of equality and equity were ignored in this case. To be blunt, the Assembly headed by Mr. Boye Laryea in investigating the so-called complaint was not even-handed in dealing with the Applicant. The Applicant’s contention that the Assembly protected people whose shops are closer to him against his interest in my view has some air of reality to it. Why was it that it was only the Applicant’s shop which was demolished but not others if indeed the real motive was that it obstructed the N1 Highway?

 

 

 

[51] All of us, as public servants are under legal obligation under Article 23[4] of the Constitution to act fairly and reasonably when dealing with the public and citizens of this Republic in a civil way. It should be reiterated that there is the need for public servants to ensure that values that are fundamental to our nascent democratic society – liberty, the rule of law and the principles of fundamental justice that lie at the heart of the Ghanaian legal and constitutional order are not undermined.

 

 

 

[52] I think that as a country with a history of abuse of constitutional rights of citizens by persons in uniform and those with authority who loved to “show citizens where power lies”, at this time of our democratic dispensation political leaders and people with power are expected to discharge their duties in accordance with due process and the law. I make these comments not as a matter of condemnation but in my capacity as a judge alive to the function of the judiciary in a democracy. If the rule of law functions well, it benefits all including the political leaders and appointees, law enforcement officers and the judiciary. The Courts, as representatives of the community, cannot be seen to condone such blatant and unequal application of powers where based on a complaint a shop is demolished in the wee hours of the morning without notice, as the affidavit evidence has revealed occurred in this case. The only way the court can effectively distance itself from that conduct is by commenting on same and trusts that it shall not be repeated.

 

 

 

[52]    Overall, based on the law and the evidence in the instant case, I am satisfied that the guilt of   the Respondents have not been proved beyond reasonable doubt. In the result, I ACQUIT and DISCHARGE the Respondents on the charge of Contempt of Court. Based on the facts as articulated above, I make no order as to Costs against the Applicant in this case.