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 undermine and attenuate 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.

[3] Black’s Law Dictionary 8^th 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 (7^th 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.”

[4] The Applicant has mounted this application under Order 50 of the High Court (Civil Procedure) Rules, C.I. 47 seeking an order of committal for contempt against the Respondents. The grounds for the application have been catalogued in the supporting affidavit and the later supplementary affidavit that accompanied the application.

ii. Background & Affidavit Evidence of the Application:

[5] The Applicant’s accuses the Respondents for failing to respect the judgment of this Court differently constituted. The Applicant’s contention articulated in the affidavit in support of the application filed on October 19, 2018 is that by an amended writ of summons filed on the 10^th day of January, 2018 she prayed the Court for certain judicial reliefs including:

a) A declaration that the Plaintiff is entitled to be allocated a house by the Defendant under the Staff Housing Scheme of the Defendant Company.

b) A declaration that the Plaintiff or the beneficiaries of the Estate of the late Francis Atta-Affram are entitled to continue to stay in House No. A168/19 also known as H/No. A 232 Dansoman Estate, Accra until such time that a house is allocated to Plaintiff by Defendant under the Staff Housing Scheme.

c) An order compelling Defendant to allocate H/No. A168/19 also known as H/No. A232 Dansoman Estate to Plaintiff.

d) Perpetual injunction restraining the Defendant either by itself, servant, agents and/or privies from intermeddling with the Plaintiff’s peaceful enjoyment of H/No. A168/19 also known as H/No. A232, Dansoman.

A copy of the Writ of Summons is attached as Exhibit A.

[6] According to the Applicant after a full blown trial on the 12^th day of July, 2018 the court entered judgment in her favour as the Plaintiff. A copy of the judgment is attached and marked as Exhibit C. It is the case of the Applicant that the Entry of Judgment was filed on 3^rd August 2018 and same was served on the State Housing Company on 16^th day of August, 2018. A copy of the Entry of Judgment was attached as Exhibit D and the Proof of Service was also attached as Exhibit “E”. It is the case of the Applicant that the 1st Respondent, as head of the State Housing Company, was aware of the service of the entry of judgment. The Applicant says she applied for leave to issue writ of possession and same was granted by the court. A copy of the order granting leave to enter into possession was also attached as Exhibit F.

[7] According to the Applicant with the assistance of the Accra Regional Police, the Sheriff of this court put her in possession on Monday the 24^th day of September 2018 at about 10:100 A.M. It is the case of the Applicant that soon after she was put into possession in the house “the 1^st, 2^nd and 3^rd Respondents caused the State Housing Company Armed Task Force to invade the house and angrily removed the Applicant’s belongings and placed them outside the house”. It is the further case of the Applicant that “upon their arrival the Task Force led by the 3^rd Respondent were shown the order for writ of possession but disregarded same”.

[8] The Applicant contends that she informed her counsel who in turn informed the Accra Regional Police, the Sheriff and Registrar of this court. The Applicant says “the Police were enraged by the Respondents’ blatant disregard for the orders of the court or due process and sent Police reinforcement to the house and placed Plaintiff/Applicant back into possession at about 3pm the same day”. The Applicant has further deposed that “the Sheriff and Police padlocked all rooms in the house and its gate and keys were handed over to the sheriff to be deposited with the Registrar of this court the reason being to ensure that the Applicant, a 74 year old widow, was not again traumatized at night by the task force who had earlier in the day violently packed out her belongings”.

[9] According to the Applicant “at about 7.00 P.M. that evening the Respondents, for a second time, ordered the State Housing Task Force to return to the premises, broke all locks on the rooms and gate of the house”. The Applicant says the following day, being the 25^th day of September, 2018 she reported the matter to Chief Superintendent Kwasi Ofori the Operations Commander of the Ghana Police Service, the Accra Regional Commander George Alex Mensah the Sheriff and Registrar of the Land Court”.

[10] It is the further case of the Applicant that “the 1^st Respondent as head of State Housing Company and 2^nd Respondent as its Operations Manager deployed State Housing Task Force headed by the 3^rd Respondent to challenge and willfully disobey the orders of the court”. The Applicant has also attached a certified copy of the Sheriff’s Certificate of Execution or Report on the execution exercise as Exhibit G.

[11] The Applicant has further deposed that “that all attempts at restraining Respondents and State Housing Task Force to abide by the order of the court and seek redress, if any, from the same law courts by Plaintiff the Sheriff and Police Officers were blatantly ignored as members of the Task Force slapped by-standers and reiterated that whatever number of times execution is levied they would ensure that Plaintiff is not put into possession.

[12] According to the Applicant “the conduct of the Respondents have undermined and ridiculed the administration of justice, law and order in the country and put same into disrepute, disregard and scorn” and should be punished for their contumacious behavior because as “high-ranking officials of a public institution, a creature of statute, they ought to know better and respect the orders of the courts of the land but not arrogate to themselves such despicable powers”. The Applicant has prayed the court based on all of the above to commit and punish the Respondents for contempt of court to serve as a deterrent to other high ranking officials and the general public for committing contempt of court.

iii. The Affidavit Evidence of the Respondents:

[13] The Respondents who are opposed to the application have filed affidavits in opposition. I note that the 1st and 2nd Respondent filed a joint affidavit deposed to by the 1st Respondent. The 3rd Respondent filed his own affidavit to answer to the allegations. The 1st Respondent has deposed that he is the Managing Director and the 2nd Respondent is the Estate Manager of the State Housing Company Limited (SHC). He has denied that as officials of the SHC they have engaged in any contemptuous act.

[14] It is deposed at paragraph 3 and 4 that “we have no knowledge about the matters deposed to at paragraphs 12, 13, 15, 16, 17, 18, 20 and 22 of the Affidavit in Support and shall put the Applicant to strict proof of the averments”. They have also deposed that “that we categorically deny paragraphs 14, 19, 21, 23, 24, 25, 26 and 27 of the Affidavit in Support and shall put the Applicant to strict proof of the allegations made therein”.

[15] According to the 1st and 2nd Respondents “after the judgment and the service of the Entry of Judgment on the SHC, the company was advised by its lawyer to comply with the orders of the Honourable Court in allocating another house to the Applicant herein as by then House No. A232 Dansoman Estates had already been allocated to the Ablekuma West Municipal Assembly”. According to the deponent Mr. Ampofo Appiah “with dispatch the SHC allocated a house to the Applicant herein by a letter dated 14^th September, 2018 which allocation the Applicant declined in a letter dated 20^th September, 2018; we attached a copy each of the said letters herewith marked as Exhibits “SHC 1” and “SHC 2” respectively”.

[16] At paragraph 7 of the affidavit, Mr. Ampofo-Appiah has deposed that “after the family of Mr. Affram was removed from the disputed property, prior to the conclusion of the case and delivery of the judgment, Exhibit “C” herein, the SHC received an application from the Honourable Member of Parliament for Ablekuma West Constituency on behalf of the Ablekuma West Municipal Assembly dated 1st March, 2018 seeking an allocation of a property to be used as office by the Ablekuma West Municipal Assembly and we attach a copy of the said letter herewith marked as Exhibit “SHC 3”. According to the 1st Respondent, by a letter dated 12^th March, 2018 the SHC allocated the disputed property to the said Municipal Assembly subject to terms contained in the said letter. A copy was attached as Exhibit “SHC 4”.

[17] It is the case of the 1st and 2nd Respondents “that in a letter dated 15th March, 2018; the Member of Parliament for Ablekuma West wrote to SHC accepting the offer of the disputed house for use of offices of the Ablekuma West Assembly”. A copy of the letter has been attached as Exhibit “SHC 5”. Mr. Ampofo Appiah says “the SHC received part payment for the allocation of the disputed property to the Ablekuma West Municipal Assembly after which the said property was handed to the said Assembly and they since have been in occupation to the best of our knowledge” The 1st and 2nd Respondents have attached a copy of the letter forwarding the said payment as well as the receipt issued to the Ablekuma West Municipal Assembly by the SHC as Exhibits “SHC 6” and “SHC 7”.

[18] The further case of the 1st and 2nd Respondents is that “it is inaccurate for the Applicant to create the impression that we have done anything to bring the administration of justice into disrepute after the service of Entry of Judgment on the SHC or after the delivery of the said judgment for that matter. That we were never aware at the time of allocating the disputed property to the Ablekuma West Municipal Assembly or thereafter that the said property was the subject of an order for recovery of possession or that the SHC was ordered to allocate only that property to the Applicant herein”.

[19] It is further deposed that “since the said property was occupied by the said Ablekuma West Municipal Assembly the SHC for which we work had no immediate right or interest in the property to warrant and deployment of the SHC Task Force and same was never deployed by us or the SHC for that matter”.

[20] The 1st and 2nd Respondents have further deposed that they were Tamale in the Northern Region on an official assignment from the 23^rd to 25^th of September, 2018 and were not in Accra or anywhere near the disputed property and therefore they could not have disobeyed the Court order A copy of their travel itinerary was attached as Exhibit “SHC 8”.

[21] It is also the case of the Respondent that the “order for recovery of possession of the disputed property was never served on the SHC or on us and we have not deliberately acted contrary to any such orders. That we are law abiding public officers and will not willingly do anything to undermine the administration of justice but in the event the Honourable Court holds the view that anything done by us or the SHC for that matter was in contempt of the Court in respect of this mater we unreservedly apologize to the Honourable Court”.

[22] The 3rd Respondent on his part says he is the head of the State Housing Company Limited’s (SHC) Task Force. According to him he has been served with the Application seeking an order of this Court to commit and punish him for contempt of Court and he is opposed to it. He like the 1st and 2nd Respondents have also denied knowledge of paragraph 7 to 13, 16, 17, 18, 20 and 22 of the Affidavit in Support and further deny paragraphs 14, 15, 19, 21, 23, 24, 25, 26, and 27. He also said he would put the Applicant to strict proof.

[23] It is the case of Mr. Jacob Beecheam that “around 24^th of September, 2018 I got information that there was some disturbance within the SHC Estates at Dansoman, Accra. I attended personally to ascertain what the issue was and realized that there were a lot of Police Officers on the premises together with officers of the Ablekuma West Municipal Assembly, the occupants of House No. A 232, within the SHC Dansoman Estates. That upon enquiry I was informed that some persons had attempted to forcefully takeover the offices of the said Ablekuma West Municipal Assembly, being House No. A 232, and officers of the said Municipal Assembly resisted leading to the presence of the Police who were in charge of the situation.

[24] According to the 3rd Respondent, being a law enforcement issue and there being no role for the SHC Task Force he left the scene. He has also averred that “to my knowledge the said Task Force was never deployed and it did not attend the scene let alone engage in any of the acts being alleged by the Applicant herein”. He has also deposed that “I did not receive an order to deploy the Task Force nor did the Task Force attend House No. A 232, Dansoman on the said date; and had the Task Force even attended and embarked on any unlawful conduct as being alleged the members would been duly arrested by the Police Officers then present”.

[25] Mr. Beecheam has further deposed that “to my knowledge the property in issue had been occupied by the Ablekuma West Municipal Assembly and I am not aware of any court orders evicting them from the said property nor am I aware that they had resisted the enforcement of a court order. That the SHC Task Force never broke any locks nor removed belongings of the Applicant as being alleged by the Applicant or at all as the Task Force was not present at the scene”. According to him, he is a law abiding public officer and will not willingly do anything to undermine the administration of justice; but in the event the honourable Court holds the view that anything done by me or the SHC for that matter was in contempt of the Court in respect of this matter I unreservedly apologize to the Honourable Court”.

iv. Applicant’s Supplementary Affidavit:

[26] The Court notes that the Applicant filed a further 18 paragraph supplementary affidavit to rebut the depositions contained in the affidavit in opposition by the 1st and 2nd Respondents and a separate 11 paragraph affidavit in answer to the 3rd Respondent. The Court notes that both supplementary affidavits were filed without the Court’s leave but same were adopted by the Court to form part of the record. Generally, most of the depositions were reiteration of the original affidavit.

[27] The Applicant averred in the Supplementary Affidavit that she had been in occupation of H/No. 168/19 also known as H/No. A 232 Dansoman Estate for over 30 years and was still in occupation until December, 2016 when the 1^st, 2^nd and 3^rd Respondents employer, the State Housing Company unlawfully evicted her and the family.

[28] It is also deposed that the Applicant went to Court to demand H/No. 168/19 also known as H/No. A232, Dansoman, for that reason the purported sale of that house to an Assembly or whosoever clearly manifests Respondents’ willful disregard and disrespect for whatever outcome awaited the State Housing Company in the matter before the court. According to the Applicant, the Respondents “misled this court differently constituted, into thinking that SHC required the house in dispute for its own use only to be heard now that it sold that house to another person. A copy of the submissions of Counsel for Respondents employer in deceit of the court is marked Exhibit H”.

[29] The Applicant has also deposed that “indeed, the next house to the Applicant’s was recently sold to Mr. Robert Francis Gandhi Kumah retired Senior Staff of State Housing Company in 2013 A.D and the justice and equity of the matter demanded that the Applicant’s husband or Estate be allocated the same house he had stayed in and which his widow, the Applicant continues to stay in with the family for more than 20 years after his demise”,

[30] Also, the Applicant says “the Applicant applied for H/No. 168/19 also known as H/No. A232, Dansoman in an application for writ of possession filed on 24^th day of August, 2018 and the court granted same on 28^th day of August, 2018 long before the SHC made an offer for a house in Liberia Camp on 14^th day of September, 2018 which was marked Exhibit F in my previous affidavit. According to the Applicant “a house in Liberia Camp does not fall under houses under Senior Staff Housing Scheme which were built in South Odorkor and Dansoman with a previous House allocated to Applicant’s husband at South Odorkor but sold to a private person upon completion in a raw deal”. The other contentions of the Applicant are contained in the Supplementary affidavits filed. Based on all of the above it is the case of the Applicant that the Respondents should be committed for Contempt of Court and punished.

v. Counsel Submission:

[31] In moving the application learned Counsel for the Applicant relied on such cases as

REPUBLIC v. JEHU-APPIAH AND OTHERS; EX PARTE FORSON [1981] GLR 398, REPUBLIC v MOFFAT; EX PARTE ALLOTEY [1971] 2 GLR 391 and the recent Supreme Court unreported case of THE REPUBLIC v. BANK OF GHANA & 5 OTHERS; EX PARTE BENJAMIN DUFFOUR Civil Appeal No. J4/34/2018 Delivered on June 6, 2018 to submit that the application is based on two main grounds one of which is what happened on September 24, 2018 because the subject matter of this Court’s judgment was interfered with. Counsel further submitted by rehashing the facts of the earlier suit and said in the original writ of summons filed one of the reliefs prayed for was for the Plaintiff to live in the house, the subject matter of the suit. According to Counsel that was what the Plaintiff got from the Court.

[32] Learned Counsel further submitted that in the affidavit in opposition filed, the Respondents say that they disposed of the property in March 2018 even though the judgment was in July 2018. According to Counsel that admission is contemptuous. Counsel reasoned that as the 1st Respondent (M.D.) and the 2nd Respondent the Allocations Manager who was always in Court during the trial and indeed did testify for the Defendant therein, the SHC had no right to do what they did at the time the matter was still pending. According to Counsel that singular act of the Respondents undermined the Court’s authority and over-reached the Court.

[33] The Applicant’s counsel further submitted that the action of the Respondents in removing the Applicant after she was put in possession by officers of the Court and the police was contemptuous as their behavior was willful. Counsel referred to a deposition in the affidavit by which a member of the task force is alleged to have said that if the Applicant is put in possession 10 times she will be removed 10 times to submit that the Respondents do not respect the orders of the Court. According to learned Counsel, the SHC is a creature of statute and therefore it should not be allowed through its officers to disobey the orders of the Court. Based on all of the above, Counsel submitted that the Respondents’ actions are contumacious and prayed the Court to commit the Respondents them for contempt of court.

[34] Responding to the application, learned Counsel for the Respondents first referred the Court to Exhibit “C” being the judgment of the Court. Counsel submitted that there is nowhere that title or possession was decreed in the Applicant. Counsel specifically referred Orders “C” and “F”. According to learned Counsel the order made by the Court was that the house which is the subject matter of the suit could only be given if no other estate could be allocated. Counsel referred to the oft cited case of R v SITO I; EX PARTE FORDJOUR (2001-2002) SCGLR 322 to submit that none of the Respondents were served with the writ of possession. Furthermore, learned Counsel submitted that on the day the Respondents are alleged to have failed to comply with the Court order being September 24, 2018 the 1st and 2nd Respondents were not in Accra as evidenced by Exhibit “8”.

[35] Further, Mr. Nutsukpui submitted that because the Applicant has made the allegation she has the onus to prove that the Respondents disobeyed the orders of the Court. Counsel cited and relied on

REPUBLIC v. CONDUAH; EX PARTE AABA (Substituted by) ASMAH [2013-2014] 2 SCGLR 1032 Holding 3 of the head notes and REPUBLC v. AXHIA II (ACHIAMAN MANTSE); EX PARTE ADDO & QUARTEY-PAPAFIO [2015-2016] 1 SCGLR 350 Holding 1.

[36] On the second leg of the application, Counsel submitted that the entity which disposed of the property is distinct from the Respondents. Counsel referred to Section 139 of Act 179 to buttress the submission. According to Counsel, the conduct complained of must first be established against the Company before the operating minds can be attached. In this case Counsel submitted that the SHC ought to have been attached first but same was not done.

[37] Finally, learned Counsel submitted that it seems the real intention/reason behind the instant application is that the Applicant wants a particular house contrary to the orders of the Court and so the application should be dismissed. Counsel ended his submission by apologizing on behalf of the Respondents and submitted that should the Court find them guilty it should temper justice with mercy.

vi. So what constitutes contempt in Ghana?

[38] Having laid out the cases of the parties in the application, I start my analysis by considering what constitutes contempt in Ghana? In R v SITO I; EX PARTE FORDJOUR SUPRA 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.

[39] 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.”

[40] In the recent unreported decision of the Supreme Court titled THE REPUBLIC v. BANK OF GHANA & 5 OTHERS; EX PARTE BENJAMIN DUFFOUR SUPRA 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”.

[41] 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”

[42] By definition therefore 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.

[43] 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

[44] 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 weak.

vii. Opinion of the Court & Analysis:

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

i) whether the allegations against the Respondents are proven and if so

 whether their alleged behavior undermined the authority of the Court and was willful.

[46] 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.

[47] Section 13(1) of the Evidence Act, NRCD 323 also provides that “In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt”.

[48] 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.

[49] The bone of contention in this application is whether or not the Respondents’ have flouted the orders made by the Court in the judgment of July 2018 and/or whether the Respondents undermined the authority of the Court when the 1st and 2nd Respondents admit they disposed of the property during the pendency of the suit and thus over-reached and undermined the Court’s authority.

[50] 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 Respondent/Contemnor herein has indeed committed a willful contempt.

[51] Before considering the issues stated above in this application, I wish to state and re-echo an opinion I stated few years ago that the use of the Court’s contempt powers should not be an obsession by litigants to settle personal scores. Contempt is against the Court and not the hurt or feelings of litigants[ii]. To that extent I wish to state that the instant application is not an avenue to re-litigate the ownership of House No. A168/19 also known as H/No. A 232 Dansoman Estate, Accra. I am only called upon to determine whether the Respondents have disobeyed the Court order and/or overreached the Court before the Judgment of July 2018.

[52] Having heard the affidavit evidence I wish to state the order of my Learned Brother Asare-Nyarko, J dated 12 July, 2018. The orders are as follows:

a) The Court declares that the Plaintiff is entitled to be allocated a house by the defendant under the Staff Housing Scheme of the Defendant Company.

b) The Court Declares that the Plaintiff or beneficiaries of the estate of Francis Atta-Affram are entitled to stay in House No. 168/19 also known as H/No A 232 Dansoman Estates, Accra until such time as a house is allocated to the Plaintiff by Defendant under the Staff Housing Scheme.

c) The Court further orders the Defendant to allocate H/No.. 168/19 also known as H/No. A 232 Dansoman to Plaintiff if the Defendant cannot allocate any other house to the Plaintiff and the children of the late Atta-Affram.(emphasis mine)

d) The Court grants a perpetual injunction restraining the Defendant either by itself, servants, agents and/or privies from intermeddling with the Plaintiff’s peaceful enjoyment of House No. 168/19 also known as H/No A 232 Dansoman.

e) On Plaintiff’s claim (e) the Court orders the defendant not to place impediments in the way of the beneficiaries of the late Mr. Atta-Affram being paid the retiring benefits of the former husband either by conduct or by inaction.

f) The Court orders the sale of post duty post housing number No. 168/19, also known as H/No. A 232 Dansoman to the Plaintiff and the children of the late Mr. Atta-Affram per the service conditions of Senior Staff of the defendant if the defendant cannot allocate any other house to the Plaintiff.

g) The claim for the payment of retiring benefits of Francis Atta-Affram to the beneficiaries of the estate by the defendant is dismissed”.

[53] The Respondents concede that they were aware of the judgment and were served with the Entry of Judgment. Thy have averred that they took immediate steps to implement the orders of the Court. By Exhibit 1, the SHC by a letter dated September 14, 2018 allocated SHC House No. 3 Royal Palm Close Budumburam Estates to the Applicant. The letter was written by Edward Yaw Awuah, Estate Manager. The Applicant was to accept the offer within 15 days upon receipt of the letter. Per Exhibit 2, Counsel for the Applicant rejected the offer by a letter dated September 20, 2018. Counsel stated that “the family of Mr. Atta-Affram (deceased), having lived in H/No 168/19 also known as H/No A 232, Dansoman, Accra for over 31 years would prefer to remain in that house by the effluxion of time”. By that letter the Applicant.

[54] Clearly, from the orders made it is difficult for this Court to fault the Respondents for non-compliance. Indeed, the Court’s orders in regards to the Applicant’s family remaining in the Dansoman House was anchored on conditions which included “if the defendant cannot allocate any other house to the Plaintiff”.

[55] I note however, that in this application the issue is whether the Respondents disrespected the order of possession later issued by the Court on August 28, 2018 and also whether the Task Force of the SHC dispossessed the Applicant. The Respondents have totally denied the allegation and said they were never served with the Writ of Possession and also their task force did not remove the Applicant. The law is quite clear that where the opponent denies the averments the Applicant ought to lead further evidence to establish the fact of the allegation or contention.

[56] As the Supreme Court per Anin Yeboah JSC stated in the case of BOAMAH & ANSAH SIKATUO v. AMPONSAH [2012] 1 SCGLR 58 @ page 63-64 in a case where the affidavit evidence presented rival depositions and there were two equally possible situations, the apex Court stated “The Court must be satisfied beyond all reasonable doubt that they had done so based solely on the affidavit evidence. There is no room for conjecture and evidence is required to be placed before the Court to enable it come to a decision on the matter. By evidence, we mean proof beyond reasonable doubt. We would add that it was not enough for the purposes of the application for contempt of court with which we are concerned in instant application, to have left the serious depositions of fact at large, as it was not possible to say which of the two versions of the matter was correct. In the absence of further evidence”. In this case despite the denial of the Respondents the Applicant did not provide the Court with any further evidence of the service of the writ of possession.

[57] Also, apart from proving that the Order for writ of possession was served, it was incumbent upon the Applicant to endorse the order with the penal notice to make the order enforceable. By Rule 7 (2) (a) and (4) (a) of Order 43 of C.I. 47, the Applicant was mandated to indorse on the order so made on August 28 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 for writ of possession 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. Based on the above analysis, it is my finding that the first ground of the application fails.

[58] I now turn to the second leg of the application. Dealing with the issue of disposing of the subject matter property during the pendency of the suit, it is significant to note that the 1st and 2nd Respondents admit that the SHC which they are officers disposed of the property in March 2018 to the Ablekuma West Municipal Assembly. They have also not denied the fact that at the time the Court was making the orders of July 12, 2018 the property had been disposed of to the Ablekuma West Municipal Assembly but that fact was not disclosed to the Court. It is also not in doubt based on the materials filed that when the SHC resisted the Applicant’s initial application for interim injunction its position was for the Court not to grant same because the Company Staff needed the place to use. By Exhibit “H” Counsel wrote in her statement of case that “The premises, subject matter of the instant suit is a staff duty post, it has become rather unfortunate that some senior Staff of the Respondent Company have to travel all the way from Winneba whilst other have to travel from Nsawam to work to Ring Road West, Accra when the said house is occupied by the son of the Applicant and his wife who have rented the outer house…”

[59] My understanding is that the SHC needed the place for its staff who were commuting from Winneba and Nsawam. The above submission was in February 2016. So why was the property leased to a Municipal Assembly in March 2018? It is also to be noted that in the suit the Applicant sought for perpetual injunction as part of her reliefs. Therefore for the SHC through its officers, the 1st and 2nd Respondents to dispose of the property during the pendency of the suit clearly is not a trivial matter. Whilst looking at that issue I must state that I find a deposition made by the 1st Respondent to be scandalous and unacceptable, He deposed at paragraph 12 of the joint affidavit that: “we were never aware at the time of allocating the disputed property to the Ablekuma West Municipal Assembly or thereafter that the said property was the subject of an order for recovery of possession or that the SHC was ordered to allocate only that property to the Applicant herein”. The Court’s simple response is of course there was no order of writ of possession because the matter was still in Court and yet to be decided. Indeed it was sub judice. Period.

[60] With the greatest respect to the 1st and 2nd Respondents, the deposition is not sustainable because it is affront to common sense. In the opinion of the Court in so far as the Court had not determined the Plaintiff’s claim, the Defendant SHC’s action was a self-help step which clearly undermined and over-reached the Court’s authority and interfered with the administration of justice.

[61] Now, Counsel says by Section 139 it was the SHC that disposed of the property but not the Respondents. What does Section 139 of Act 179 say?

Section 139—Acts of the Company.

Any act of the members in general meeting, the board of directors, or a managing director while carrying on in the usual way the business of the company shall be treated as the act of the company itself; and accordingly the company shall be criminally and civilly liable therefor to the same extent as if it were a natural person:

Provided that,

(a) the company shall not incur civil liability to any person if that person had actual knowledge at the time of the transaction in question that the general meeting, board of directors, or managing director, as the case may be, had no power to act in the matter or had acted in an irregular manner or if, having regard to his position with, or relationship to, the company, he ought to have known of the absence of power or of the irregularity.

(b) if in fact a business is being carried on by the company, the company shall not escape liability for acts undertaken in connection therewith merely because the business in question was not among the businesses authorised by the company's Regulations.

[62] Having looked at the law the Court’s simple response is whilst it is true that officers and directors of a Company in the normal course of their duties may not incur personal liability in the absence of clear indications to the contrary and a Company also as a legal person cannot also be attached for willful disobedience, the law is that Officers of a Company can be attached for willful disobedience of a Court order.

[63] In DEEPSEA DIVISION OF NATIONAL UNION OF SEAMEN AND OTHERS v. TRADES UNION CONGRESS OF GHANA AND OTHERS [1982-83] GLR 941-951 per Cecilia Koranteng - Addow J it was held at Holding one that:

Any order against a corporation which was wilfully disobeyed might be enforced by attachment against the directors or officers of the corporation. The TUC was a limited liability body. The acting general secretary was an officer of the congress”.

[64] In this case there is that unimpeachable evidence that the 2nd Respondent was the one who always attended Court and did testify for the SHC. I also note that Mr. Edward Awuah was the one who acted for the SHC in its dealings with the Honourable Ursula Owusu and the Ablekuma West Municipal Assembly when he authored and signed Exhibit “4” dated March 12, 2018. He knew that the subject matter property was sub judice for after all the SHC was represented by Counsel. To my mind it would be improper for the Court to hold that the act is that of the SHC qua Company only and not the 1st and 2nd Respondents as its officers,

[65] The 1st Respondent as the Managing Director and 2nd Respondent as the Operations Manager can be held liable for the acts of the SHC based on the facts even though the SHC itself was not cited by the Applicant. As Senior Officers of the Company, they are the alter egos of the Company and therefore may be held liable for the acts of commission or omissions of the company. The law as stated above is that any order or in this case willful act against a body corporate may be enforced against its directors or officers.

[66] In bland terms as per the hackneyed case of SALOMON v. SALOMON & CO. LTD (1897) AC 22, the senior officers and controlling minds of the organization are the decision-makers of the organization who can be held liable in cases of criminality or quasi-criminality based on their contributions to impugned conduct. Else, the concept of incorporation becomes a mechanism for doing injustice and providing a shield for individual wrong-doing. In the instant case, the 1st and 2nd Respondent have filed an affidavit in opposition to the application to justify the act that this court has found to be willful. Based on the available evidence, there was an act of disobedience and therefore based on the second leg of the application I hereby find that the act of disposing of the property before the conclusion of the suit undermined the Court authority and indeed misled the Court to make orders which were in vain and indeed imprudent against the well-established rule that “Courts do not make orders in vain”.

[67] Further, I also have no hesitation to conclude that the 1st and 2nd Respondents’ action was willful. To my mind, they knew what they were doing when they disposed of the property before the matter was concluded and also failed to notify the Court. As stated above the deposition of Mr. Ampofo-Appiah at paragraph 12 of his affidavit is disingenuous and flawed. There is no air of reality to it because it is clearly an afterthought and I find it unworthy of consideration and belief and therefore I reject same. It is my finding that despite the denial, the SHC through the 1st and 2nd Respondents adopted a tactic of disposing off the property which to my mind was a well-orchestrated plan to end-run and undermine the Court’s authority and same was therefore a willful and flagrant of the Court’s authority.

v. Conclusion & Disposition:

[68] I wish to reiterate to the Respondents that a finding of Contempt of court transcends the dispute between litigants, it is one that 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.

[69] In the context of the circumstances of this case, I can only end my analysis by quoting Lord Byron (1788-1824) who is credited with the statement that “He who holds no Laws in awe, He must perish by the Law”.

[70] Based on all of the above I hold the respectful view that a case of contempt has been properly made against the 1st and 2nd Respondents/Contemnor herein both under common law and statute, that is S.13(1) of NRCD 323. Undoubtedly, the Applicant has met her onus of proving the 1st and 2nd Respondents’ guilt beyond reasonable doubt. Consequently, I hold the 1st and 2nd Respondent in contempt of court and CONVICT them accordingly. In view of my analysis based on the allegation of obstruction of the execution, I hereby ACQUIT the 3rd Respondent.

[71] In my respectful opinion depriving citizens of their liberty is not an easy or palatable choice for any judge particularly in contempt matters. However, this is a case in which there is a need to show that public officials are not above the law in their dealings with citizens. We must disabuse the popular imaginary of the notion that public officials can disregard the rule of law and then when the wheels of justice catch up with them, proffer an apology. For that matter, in this case, my initial inclination was that a fine will amount to a mere slap on the wrist of the Respondents and that incarceration is appropriate.

[72] However, having heard from both Counsel and considered the passionate apology rendered by learned Counsel for the Respondents and also taken into considered the circumstances of this case, I am of the opinion that the imposition of a heavy fine is appropriate; Consequently the Court imposes a fine of GH¢15, 000 each against the 1st and 2nd Respondents; in default each of them shall serve 21 days in jail. The fine when paid, GH¢10,000 out of the total of GH¢30,000 shall be paid out to the Applicant to help her offset part of her legal costs. No further Order as to Cost.