THE REPUBLIC vs NANA DONKOR MANIANOR & KINGSLEY-ASARE KWAKYE ,EXPARTE AWUKU MANTE A.KA. KWASI AWUKU
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (GENERAL JURISDICTION)
    ACCRA - A.D 2018
THE REPUBLIC - (Plaintiff)
NANA DONKOR MANIANOR AND KINGSLEY ASARE KWAKYE
EX PARTE AWUKU MANTE A.K.A KWASI AWUKU

DATE:  9 TH NOVEMBER, 2018
CIVIL APPEAL NO:  CR/275/17
JUDGES:  HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
LAWYERS:  JULIUS ASINYO, ESQ FOR ARCHIE DANSO, ESQ FOR RESPONDENTS
KIN HUSSEIN, ESQ FOR APPLICANT
RULING

 

Applicant has mounted this application under Order 50 of the High Court (Civil Procedure) Rules, C. I. 47 praying for an order of committal for contempt against the two Respondents. Upon an oral motion to hear evidence by counsel for Applicant, I acceded to the request. This caused inordinate delay and I had to vacate my order for oral evidence.

 

The affidavit evidence adduced vindicated the vacation of my order for oral evidence as that would not have added anything at all save to increase expense and waste more precious time of the court. The grounds upon which the application has been launched can be gleaned from the affidavit and the supplementary affidavits that accompanied the application. Applicant claim that 1st Respondent instituted an action against him in Suit No FAL/623/14 for which he contested the claim of 1st Respondent in that suit.

 

With 2nd Respondent having been appointed by 1st Respondent as his attorney the suit which was a land matter commenced at the District Court, Mampong ended at the High Court, Koforidua. In the said suit, according to the Applicant, 1st Respondent applied for interlocutory injunction to restrain him but same was dismissedby the High Court. It is further deposed that 1st Respondent in the said land suit executed terms of settlement by which he committed to vacating the subject matter of the Applicant’s counterclaim and by perpetual injunction restrained himself, his agents, workmen, assigns and land guards from entering the land described in the terms of settlement.

 

Applicant further continue that the terms of settlement was filed at the High Court and that 2nd Respondent has full knowledge of the terms of settlement and the order of the High Court dismissing 1st Respondent’s application for interlocutory injunction. That whiles the matter was still pending in court, Respondents have gone to a portion of the land described in the counter claim as having been adjudged in the terms of settlement in favour of Applicant. Upon a complaint made to the Dodowa Police, according to the Applicant, 2nd Respondent claim that he only graded about 40 acres of the land by virtue of a power of attorney granted him by 1st Respondent.

 

There has also been an allegation that 2nd Respondent did not only grade the land but that it was done with land guards which he used to invade the land and that with the pendency of the matter in court, the actions of the Respondents makes mockery of justice and has prejudiced the pendency of this suit. And besides, the Respondents have proceeded to sell portions of the land in dispute to third parties which amount to contemptuous conduct as administration of justice has been brought into disrepute and hence the application for committal. Respondents have opposed the application for committal and in the affidavit in opposition deposed to by the 1st Respondent he claim that 2nd Respondent has never been his agent. He contends that an attempt by the Applicant to have the terms of settlement adopted by the Koforidua High Court failed when the court was made aware of the circumstances under which the terms of settlement was procured. He rather intimates that it is the Applicant who has sold portions of the land by situating land guards on the land. 1st Respondent accuse the Applicant for being responsible for the grading of the land and working on the subject matter.

 

Contempt applications being a quasi-criminal trial the Applicant is under duty to prove its case beyond reasonable doubt. See IN RE EFFIDUASE STOOL AFFAIRS; REPUBLIC v. ODURO

NUMAPAU, PRESIDENT OF THE NATIONAL HOUSE OF CHIEFS & OTHERS; EX –PARTE AMEYAW II (NO.2),(1998-99) SCGLR 639 wherein the Supreme Court noted on the standard as follows that:

“Since contempt of court is quasi criminal and 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”

See also REPUBLIC v HIGH COURT; EX PARTE JOSHUA NMAI ADDO [2015] 83 G.M.J 7 @13.

 

Black’s Law dictionary (8th Ed defines) contempt as:

“Contempt is a disregard of, or disobedience to, the rules or orders of a legislative or judicial body, or an interruption of its proceedings by disorderly behavior or insolent language, in its presence or so near thereto as to disturb the proceedings or to impair the respect due to such a body.”

Merriam-Webster’s Dictionary of Law on the hand defines contempt of court as follows:

“wilful disobedience or open disrespect of the orders, authority, or   dignity of a court or a Judge acting in a judicial capacity by disruptive      language or conduct or by failure to obey the court’s orders”.

 

In RE EFFIDUASE STOOL AFFAIRS (NO.2) supra the Supreme Court noted as follows when it set out the kinds of contempt known to the law that:

‘’Civil contempt are those quasi-contempt which consist in the failure to do something which the party is ordered by the court to do for the benefit or advantage of another party to the proceedings before the court, while criminal contempts are acts done in disrespect of the court or its process, or which obstruct the administration of justice or tend to bring the court into disrespect.’’

In terms of punishment for contempt upon conviction, Halbury’s Laws of England, 4th Ed. Vol. 10 paragraph 87 @ 5 also states as follows:

“Criminal contempt of court is punishable by a fine or by an order to give security for good behaviour. Civil contempt of court is punishable by way of committal or by way of sequestration. The writ of sequestration though in its nature a process for dealing with contempt is a form of civil execution and is not applicable to criminal contempt… Civil contempt may also be punished with a fine or an injunction may be granted against the contemnor”.

 

The application before me is one in the nature of civil contempt. In the case of REPUBLIC v SITO; EX PARTE FORDJOUR [2001 – 2002] SCGLR 322 the court noted the following to be the ingredients of civil contempt: that one there must be a judgment or order requiring the contemnor to do or abstain from doing something, two it must be shown that the contemnor knows what precisely he is expected to do or abstain from doing; three, it must be shown that he failed to comply with the terms of the judgment or order and four that his disobedience is willful.

See also OPOKU v LIBHERR FRANCE SAS [2012] 1 SCGLR 159 @162. It is also trite that a conduct by a party that is prejudicial to a pending matter before the court or a conduct that is prejudicial to the res litiga may also amount to contempt. See REPUBLIC v AKENTEN II; EX PARTE YANKYERA [1993-94] 1 GLR 246 CA; REPUBLIC v TOTOBI QUAKYI C/M 45/94 dated 26/7/94. Going by the factors spelt out in Ex Parte Sito supra has those factors been met? First did the Applicant demonstrate that there has been an order of the court and that the Respondents are fully aware of the order of the court restraining them or compelling them to do an act? What Applicant exhibited as the gravamen of his action is Ex ‘E’. It is the terms of settlement which appears to have been signed by the Applicant and the 1st Respondent and their respective lawyers. This was filed and supposed to have been adopted by the High Court, Koforidua to bring finality to the litigation over the lands between the parties. There is no evidence that this terms of settlement was ever adopted by the High Court. If it had been adopted by the court then that would have become a consent judgment of the court. And it was mainly due to its non-adoption that the parties are still battling in court.

 

In that respect I find that there is no order of the High Court restraining the Respondent or his agents from doing an act for which it can be said that the Respondents have flouted and order of the court. Not even one requirement in Ex Parte Fordjour has been proved before me. As contempt may not only be a disobedience to an order of the court but any conduct that may be prejudicial to a pending action; can it again be said that the Respondents have behaved in a manner that is prejudicial to the action before the court? The burden is on the Applicant to discharge by showing how a conduct of the Respondent has prejudiced the pending action at the Koforidua High

Court. Applicant claim that 2nd Respondent on the instructions of 1st Respondent has sent land guards to the land, graded it and is selling portions to third parties. 1st Respondent has denied the claim and also accused Applicant of the same conduct. The lands in contention is over seventy- seven acres of land. As to which part the Respondent has graded and sent land guards to protect in the face of the denial, has not satisfactorily been shown to the court. And such a claim cannot be determined without a proper site plan showing that the portion alleged to have been graded form part of the res litiga. And further evidence that it is the Respondents who are responsible for that conduct. Contempt proceedings is not to be resorted to lightly by a litigant and the burden expected to be discharged by Applicant has woefully not been proven.

 

I can only re-echo the words of Lord Goddard which was repeated by Lord Tucker and cited with approval by Sophia Akuffo JSC (as she then was) in the IN RE OWNERS OF THE STATION; MONTIE FM; SALIFU MAASE @ MUGABE & OTHERS J8/108/2016 dated 27th July, 2016 at page 10 of the Ruling that:

“In lzuora v R (1953) 13 WACA 313 at 316, PC Lord Tucker delivering the judgment of the Board of the

Privy Council said:

"… it is desirable to bear in mind what was said in the judgment of the Board delivered by Lord Goddard in the case of Parashuram Detaram Shamdasani v The King-Emperor [1945] A.C. 214 at 270] where these words are to be found: 'Their Lordships would once again emphasize, what has often been said before, that this summary power of punishing for contempt should be used sparingly and only in serious cases. It is a power which a Court must of necessity possess; its usefulness depends on the wisdom and restraint with which it is exercised…”

 

I find the charge not proved and hereby acquit the Respondents of the charge against them. I find it just to award cost of GH¢2,000.00 in favour of each of the Respondents to cover for the expenditure incurred in defending this charge.

 

 

 

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