APPLICATION FOR COMMITTAL FOR CONTEMPT

i. Introduction:

[1] This matter was originally scheduled for Thursday, November 22, 2018. On the said day however, the Respondents did not attend Court. The issued Bench Warrants but same were later rescinded when the Respondents came to Court at about 2pm with their Counsel.

I start this decision with a quote of Lord Byron (1788-1824) a rather flamboyant former member of the British House of Lords. He is credited with the statement that: “He who holds no Laws in awe, He must perish by the Law”. Put simply, ordinarily, the law must be obeyed, no matter the circumstances.

[2] The learned (and one of the respected jurists in the Common Law tradition) Lord Denning MR in the case of BRADBURY v. ENFIELD LONDON BOROUGH COUNCIL [1967] 1 W.L.R. 1311 @ 1324 stated:

“Even if chaos should result, still the law must be obeyed”.

[3] Contempt of Court is the mechanism which the law provides for the protection of the authority of the court from improper interference. Contempt arises in many ways but includes a breach of a court order, an attempt to obstruct the administration of justice, a deliberate attack upon the integrity of a court or a judge that interferes with proceedings, or some other form of conduct not foreseeable. Contempt of court is part of a court's inherent jurisdiction and, as it is not precisely prescribed or enacted, should be exercised with scrupulous care and only when the circumstances are clear and beyond reasonable doubt.

[4] The power of the High Court to punish for contempt is provided in Articles 19(12) and 126 of the 1992 Republican Constitution of Ghana, and re-enacted in S 36 of the Courts Act, 1993 (Act  459) as amended; S10 of the Criminal Offences Act, 1960 (Act 29) and Order 50 of the High Court (Civil Procedure) Rules, 2004 (CI 47). Order 50 of CI 47 sets the parameters by which an Applicant may move the court for an order for an attachment for contempt of court.

[5] There is no codified legislation in Ghana that defines the act or omission that constitute the offence of contempt unlike the United Kingdom Contempt of Court Act. Ghanaian courts therefore resort to case law to resolve any issue regarding contempt when confronted with one.

[6] A succinct and frequently quoted definition of contempt is found in R v SITO I; EX PARTE FORDJOUR, where the Supreme Court offered the following as constituting the offence of contempt:

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.

[7] Also, in IN RE: EFFIDUASE STOOL AFFAIRS (No.2); EX PARTE AMEYAW II (1998-1999) SCGLR 639 at 660 Justice Acquah (as he then was) offered the following definition of contempt. He opined that:

“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.”

[8] Generally and based on the law, it is roundly agreed upon by the authorities that contempt of court being quasi-criminal, the standard of proof required is proof beyond reasonable doubt. See KANGAH v. KYERE (1979) GLR 458 and EX PARTE LARYEA MENSAH (1998-99) SCGLR 360. 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.

[9] 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 a Hobbesian state of anarchy and chaos

ii. The Instant Application:

[10] By a Motion on Notice filed in this court on 11/07/2018 by the Applicant prays for “an order attaching the Respondents herein for CONTEMPT OF COURT”. Before outlining the issues raised in the instant contempt application, it is appropriate to provide the background of the case.

iii. Background, Affidavit Evidence and Position of the Parties:

[11] The facts of this case are free from complexity. The Applicant accuses the Respondents of refusing to comply with the Terms of Settlement duly executed by the Brown and Briandt families which became part of the judgment of this Court. Specifically the Applicant refers to the clause which states “the Brown and Briandt families are part of the descendants of the ten children of Christian Briandt and that none of the two families can claim exclusive ownership of the Blogordo house”. The statement is clause 4 of Terms of Settlement signed in an earlier suit between the parties.

[12] The Applicant describes himself as the head of the family of Osu Blogrodo, Accra. He is also describes the 1st Respondent as the head of the Brown family of Osu and the 2nd Respondent is described as the cousin of the 1st Respondent. The case of the Applicant is that he was the Plaintiff in the High Court case with Suit Number FAL/310/13 and the 1st Respondent was the Defendant in the matter. According to the Applicant after a full trial the Court presided over by Anthony Oppong, J on November 16, 2016 delivered its judgment. A copy of the judgment was attached as Exhibit “VB1” to the application and it is the anchor on which the instant application is built.

[13] The case of the Applicant is that the Court in its judgment referred to an earlier consent judgment entered by His Lordship K. Amissah-Koomson, J which was tendered at the trial as Exhibit “K”. The Applicant also relies on the statement at page 5 paragraph 3 of the Judgment of Oppong J in this application. The Statement provides that:

“It is the considered view that by virtue of Exhibit “L”, Exhibit “K” assumed a solemn contractual agreement between the parties and their privies and for that matter none of them could resile from or renege on it at will, especially in the absence of any proven vitiating factor. In other words Exhibit “K” is binding on the parties as a judgment of a Court of competent jurisdiction and the Court reserves the legal right to enforce it as it would enforce any other judgment of the Court”.

The Terms of Settlement referred to as Exhibit K together with the statement of Oppong J above are the anchor of the Applicant’s case. The question is would the anchor hold after my analysis?

[14] The Applicant’s Counsel in moving the Court relied on all of depositions contained in the supporting affidavit and exhibits and submitted that per the Terms of Settlement adopted by the Court none of the parties is permitted to prevent the other side from laying their dead in the family house, being the Blogordo house. In this case Counsel submitted that a member of the family one, Alfred Christian Bossman Briandt passed on recently and was to be laid in state at the Blogordo house as agreed to per the Terms of Settlement and confirmed by Oppong J’s judgment. According to the Applicant the 2nd Respondent prevented the undertakers in the company of one Willie Briandt from going to the room in which they planned to prepare to lay the corpse in state.

[15] Learned Counsel relying on the affidavit deposition reiterated that consequently, the family elder Willie Braindt called the 1st Respondent but he again told him that the room would not be opened to them. The Applicant contends that the corpse of the deceased was taken to the Blogordo house from the mortuary but the “Respondents again refused to allow the body to be laid in the room designated for the laying family members”. The Applicant says the 2nd Respondent locked the door and “indicated that he will not open same for the body to by to be laid in”. A photograph of a room with door locked was exhibited as Exhibit “VB4”. The Applicant further says that even though the Respondents were reminded of the judgment of the Court they still refused to open the said door.

[16] The Applicant contends that he sent his family elders to the Osu Police Station to lodge a complaint and though a Police Commander summoned the Respondents and after a meeting directed the Respondents to go and open the door they still refused to comply. The circumstances of the Applicant’s further contentions are well deposed in paragraphs 17 to 23 of the affidavit in support of the application.

[17] The Applicant further contends through Counsel’s submission that the Respondents take the position that the Applicant refused to bring to them a drink for libation hence their refusal to allow them to enter the house. Counsel submitted that, this decision clearly undermines the Court’s authority because the judgment was clear in its terms and meaning. According to Mr. Tetteh there is nothing in the judgment that requires that a drink should be presented before a body is to be laid in state at the Blogordo house.

[18] The Applicant’s counsel further submitted by citing the Supreme Court case of R v HIGH COURT EX PARTE AFODA (2001-2002) SCGLR 768 and submitted that if the Respondent’s position is accepted it shall lead to chaos in the society. This is because according to counsel the tenor and the generality of the Respondents’ affidavit rather justifies and explains their action. In effect, it is the contention of the Applicant’s Counsel that the Respondents do not deny what they are accused of doing, rather they justify same. Based on all of the above learned Counsel submitted that the Respondents’ actions are contumacious and prayed the Court to commit them both for contempt of court.

[19] However, in a 21 paragraph affidavit in opposition sworn to by the Respondents jointly they contend that they have done nothing wrong to warrant their committal for contempt. According to them the application is incompetent and ought to be dismissed. The Respondents confirm that the 1st Respondent is the lawful Head of the Brown family of Osu Blogordo in Accra. They also say that the 2nd Respondent is a member of the Brown family.

[20] According to the Respondents “it is not true that the 2nd Respondent prevented the undertakers in the company of Willie Briandt, an elder of the family from going into the room”. It is their case that when Willie Briandt called the 1st Respondent, he was informed that “he had to bring a bottle of Schnapp or Casttlebridge gin for libation as tradition demands before the room would be opened for him”. The Respondents say “the applicant is aware of this tradition because when a body is being ushered into the family house and the dead body is to be laid in state custom demands that a bottle of Schnapp or Castlebridge gin is given to the Head of the Brown family to pour libation”.

[21] The Respondents further have deposed that “a letter addressed to the Head of the Briandt family and dated 12th July 2017, he was reminded of the need for a provision of drink for pouring libation when ushering a dead body to the funeral house on the passing of Mrs. Korsah”. A copy of the letter was attached as Exhibit “Flab 1”. They Respondents denied that it was the 2nd Respondent who locked the door as contended by the Applicant.

[22] The Respondents confirmed that when the Applicant called the 1st Respondent he told him to bring a bottle of Schnapp or Castlebridge gin in accordance with custom. The 1st Respondent further said at the meeting with the Osu Police Commander “we informed the police of our custom for the need for a drink to pour libation before a dead body is brought to the house and the room opened”. According to the Respondents the Police told the “Applicant and his family elders to comply because this is an age long custom that has been adhered to and that all over the country libation is poured before a dead body is ushered into a house”.

[23] The Respondents end their affidavit by deposing that “the Applicant was not allowed to enter the house because he did not adhere to the age long custom which was stated in the Terms of Settlement adopted by the Court as judgment and affirmed by Justice Anthony Oppong J in his judgment…in suit No. FAL 310/13”. They therefore prayed the Court to dismiss the application.

[24] Responding to the application, learned Counsel for the Respondents first submitted that she is opposed to the application. Counsel then rehashed the facts as contained in the Applicant’s affidavit in support of the application with the exhibits and then submitted that the judgment by Oppong J recognized that libation should be poured. According to Counsel this Court must find out what the custom is in regards to who provides the drink for the libation.

[25] According to Ms. Duma Aidoo the “under no circumstances should anyone be prevented from entering the family house to lay their dead” means, provided the one follows custom. Based on the facts of this case, it is the opinion of Counsel that because the Applicant refused to provide the drink for the libation the Respondents did no wrong and they have not disobeyed the judgment and/or any order and therefore the application should be dismissed. To that extent, Counsel submitted that the Applicant has woefully failed to prove beyond reasonable doubt the Respondents’ guilt and therefore the application should be dismissed.

iv. Opinion of the Court & Analysis:

[26] Undoubtedly, this case is in a very narrow compass. The issue turns on:

i) whether the Respondents’ behavior undermined the authority of the Court; and

ii.) whether the conduct of the Respondent is willful.

[27] It is roundly agreed upon by the authorities that contempt of court being quasi-criminal, the standard of proof required is proof beyond reasonable doubt. See KANGAH V. KYERE SUPRA and EX PARTE LARYEA MENSAH SUPRA.

[29] The presumption of innocence along with the standard of proof beyond reasonable doubt required in a charge of contempt are important safeguards to ensure that no person should be deprived of his liberty or found guilty of the charge of contempt based on wrong facts in a free and democratic society.

[30] Osei Hwere J. (as he then was) in the case of R v. BEKOE & ORS; EX PARTE ADJEI (1982-83) 1 GLR 91 opined after considering the nature of contempt and the policy rationale for the strict proof of same that because civil contempt conviction might entail imprisonment, 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.

[31] I note that the bone of contention in this application is whether or not the Respondents’ admission that they refused the Applicant and his elders entry into the Blogordo house at Osu to lay in state the late Alfred Christian Bossman Briandt (deceased) because he refused to provide a Schnapp or Castlebridge drink for libation undermined the Court’s authority pursuant to the Judgment of Oppong J.

[32] Guided by the legal principles so enumerated supra, I shall apply myself to the parameters so set and to determine as to whether or not the Respondents/Contemnors herein has indeed committed a willful contempt.

[33] Before considering the issues stated above in this application, I wish to state that my statement above that because this is a quasi-criminal matter “the standard of proof is one beyond reasonable doubt” and more rigorous does not mean that it cannot be met. Indeed in my respectful opinion when the law speaks of reasonable doubt it is not a fanciful doubt. To paraphrase the Supreme Court of Canada in a case called R. v. VILLAROMAN, [2016] 1 SCR 1000, 2016 SCC 33 (CanLII) at p. 1023, “A reasonable doubt is a doubt based on ‘reason and common sense’; it is not ‘imaginary or frivolous’; it ‘does not involve proof to an absolute certainty’; and it is ‘logically connected to the evidence or absence of evidence’ (see also R. v. LIFCHUS, [1997] 3 SCR 320, 1997 CanLII 319 (SCC). In other words, the reasonable doubt threshold does not require a fantastical suspension of disbelief. It is a doubt that logically arises from the evidence, or the lack of evidence based on common sense and reason.

[34] Now, dealing with the issues set out above, it is significant to note that the Respondents admit that they did not allow the Applicant to enter the Blogordo house because they demanded a drink for libation but he refused to provide same. Their Counsel in her submission also admitted same and said the under no circumstances should anyone be prevented from entering the family house means “provided the one follows custom”.

[35] I have looked at the entire application, the exhibits and also heard from Counsel. With the greatest respect to the Respondents and their Counsel, the letter dated July 12, 2017 based on which the Respondents say they refused the Applicant’s entry to the family house together with the submission of Counsel to my mind are not sustainable because they are affront to common sense and literally illegal based on the facts of this case. To leave no one in doubt I hereby state the clauses of the Terms of Settlement stated in the judgment of Oppong J. It is found at page 4 of the judgment and it states as follows:

“TERMS OF SETTLEMENT

PLEASE TAKE NOTICE that the parties herein have settled the aforesaid case (Suit No BFA 59/2006) out of Court on the following terms and conditions:

1. Whenever the need arises to return paraphernalia regalia etc presently in the possession of the Brown family it shall do so to the Osu Mantse and not the Briandt family.

2. That the inscription “BROWN FAMILY HOUSE” shall be removed completely from the Blogordo house and no inscription shall be written in its stead

3. In consonance with custom the Brown family shall not prevent the Briandt family from entering the Blogordo house to perform funerals and other ceremonies.

4. That the Brown and Briandt families are part of the descendants of the ten children of Christian Briandt and that none of the two families can claim exclusive ownership of the Blogordo house”.

[36] In the opinion of the Court the above Terms of Settlement speak in plaintive language that they admit to no ambiguity. The words are crystal clear and do not give anybody the right to import other meanings to them as Counsel for the Respondent submitted.

[37] I note that Respondents’ Counsel’s based her submission on the concluding part of the judgment where His Lordship Oppong J stated “It is further declared that it is in accord with Ghanaian custom at large and Ga custom in particular that libation must be poured before any funeral ceremony for the dead whether or not residing at the funeral house prior to the demise”. According to Ms. Aidoo the above statement means that the Respondents were right to demand that a drink be provided for libation.

[38] The Court’s simple response is that the argument is misplaced because the Applicant plaint is not about the pouring of libation or lack thereof but the refusal of the Respondents to allow him and the Briandts from entering the Blogordo house. That clearly is against the plain words of the Terms of Settlement. The 1st Respondent as the head of family has the prerogative to pour the libation but it is not the responsibility of the Applicant to provide him with a drink be it Schnapps, Castlebidge, Alomo Bitters or soft drinks. Nor does it preclude access to the burial party in this case.

[39] In the opinion of the Court the 1st Respondent’s letter dated July 12, 2017 was a self-help tactic which clearly undermined the Court’s authority and interfered with the administration of justice. Per the Terms of Settlement the Court made very clear and specific orders requiring the Respondents to abstain from preventing the Briandt family from entering the Blogordo house. There is no indication that the Respondents herein did not understand the Terms of Settlement the Brown family willingly signed. Consequently, since the Respondents were fully aware of and clearly understood the orders given by the court and never complained nor protested that “the Briandt entry to the house should be subject to them buying a drink for libation”, it was clear from the tenor of the letter, Exhibit “FLAB1” that the Respondents never intended to respect and obey the judgment. Accordingly, the Applicant has not only made out a prima facie case of contempt against the Respondents but also proved his case beyond reasonable doubt. Accordingly, the respondent would be attached for contempt and I shall therefore answer and resolve the first question posed above against the Respondents.

[40] Further, I also have no hesitation to conclude that the Respondents’ action was wilfull. To my mind, the admission that they did not allow the Applicant and other elders of the Briandt family from entering the Blogordo house speaks for itself. Also, the fact that the Respondents still refused to comply even after the Osu Police Commander became involved further shows the intransigent position of the Respondents that they have scant respect for the rule of law. Their explanation and position in this case to my mind is flawed and without any legal basis. It is my finding that the Respondents adopted tactics to re-write the Terms of Settlement and the judgment of the Court and therefore this Court should condemn them in no uncertain terms. It was a well-orchestrated plan by the Respondents to undermine the Court’s authority and same was therefore wilfull and flagrant of the Court’s authority. The court also takes into account that the circumstances must have been traumatic for the burial party which was bereaved and sought to bring closure to their bereavement. This was the worst time to deny access to a site of grieving and paying of last respects.

v. Conclusion & Disposition:

[41] I wish to reiterate to the Respondents that a finding of Contempt of court strikes at the very heart of the administration of justice because as was held many years ago “Contempt of Court" is well known in the vocabulary of the law. It is also well known that it is not a phrase to be taken literally in any sense of being concerned with protection of the personal dignity of the Judge. It is rather a sanction to serve the administration of justice in the public interest.

[42] Based on all of the above I hold the respectful view that a case of contempt has been properly made against the Respondent/Contemnor herein both under common law and statute, that is S.13(1) of NRCD 323. Consequently, I hold the Respondents in contempt of court and CONVICT them accordingly.

[42] The Court has taken the circumstances of this case into consideration and the apology rendered by learned Counsel for the Respondents together with the ages of the Respondents. The Court is informed that the 1st Respondent is almost 90 years old and the 2nd Respondent is 68 years old. My first inclination was that a fine will not send out the right message given the belligerent and contumacious attitude of the Respondents in this matter. However, upon further reflection and taking into consideration the ages of the Respondents, I shall impose a fine of GH¢1,000 against each Respondent; in default they will each serve 7 days in jail.

[43] Also, Cost of GH¢1,500 is taken against the Respondents. Should same be paid, GH¢1,000 of same shall be paid to the Applicant to help him offset part of the expenses he incurred in filing the application. Accordingly Ordered.