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

THE REPUBLIC - (Plaintiff)

vs.

MIDLANDS SAVINGS AND LOANS LTD AND OTHERS EX PARTE DAVID KWADWO ANIM - (Defendants)

RULING

---

 

“if the orders of the court can deliberately be set at naught by a litigant employing for her own personal advantage such means as were here resorted to and if indeed it be the case that she has to go unpunished for her contumacy, justice vanishes from the horizon and the law is brought into disrepute… in the memorable word of his honour Judge Curtis –Raleigh:” the law should not be seen to sit by limply while those who defy it go free and those who seek its protection lose hope”.

 

 

 

Per Atuguba JSC in IN RE KWABENG STOOL, REPUBLIC v BROWN; EX PARTE KARIKARI [2005-2006] SCGLR 35@41 and relying on the English authority of JENNISON v BAKER [1972] 1ALR 997 @1005-1006 CA.

 

Before me are two separate committal proceedings mounted under Order 50 of the High Court (Civil

 

Procedure) Rules, C.I. 47. In the first of the two applications filed on the 19^th of June, 2017 by David Kwadwo Anim he cites the Respondents – Midlands Savings and Loans Ltd, William Adjovu, Michael Adjovu and Roger Adjovu for acting in a manner that is contemptuous of the court. Whiles in the second application filed by Midland Savings and Loans Ltd against David Kwadwo Anim, the company has cited David Kwadwo Anim for contempt of court.

 

 

 

The court in its wisdom consolidated the two committal proceedings as they arise from common questions of law and fact. What has given rise to the two applications can be said to be a writ issued by Midlands Savings and Loans Ltd (hereinafter called Midlands) as Plaintiff on the 25^th of October, 2013 against David Anim as Defendant claiming the following reliefs: recovery of possession, mesne profit at the rate of Gh¢20,000 per month from 28^th October, 2013 until possession is delivered up, damages for breach of contract and legal cost. David Anim on the other hand counter claimed for declaration that an assignment of the  property made by the 2^nd Defendant (Le Baron Hotel) in favour of 1^st Defendant was for a limited purpose of satisfying the terms of the financial arrangement entered into between the parties in July, 2012, an order to Midlands to execute an MOU stating specifically the terms of the financial arrangement between the parties, an order directed at Midlands and 1^st and 2^nd Defendants (Le Baron Hotel) to the counter claim to render accounts to the Defendants of the period they took charge of Defendant’s business, special damages arising from breach of contract and Cost. According to Midlands, per an assignment in July, 2012 David Anim assigned all his interest in the property used to operate Le Baron Hotel Ltd to Midlands and as part of the arrangements it was the understanding between them that David Anim was to take steps to relocate the business of the hotel to another premises. With the failure of David Anim to abide by the terms, Midlands issued a writ for the reliefs supra.

 

 

 

Whilst the matter has not finally been determined it is clear that on the 24^th of March, 2016, Eric Baah J. in a ruling gave the following orders:

 

a. The Respondents [David Anim and Le Baron Hotel] are ordered to vacate the subject matter by 30^th of April, 2016 and deliver up possession to the Applicant.

 

b. The Applicant [Midlands] and the Respondents shall take an inventory of all things that have been damaged or suffered deterioration and which the Applicant needs to replace or renovate to make the place usable.

 

c. Both parties shall commission a joint valuer to value the works that ought to be effected on the property. Should there be disagreement, the Registrar shall make the appointment…

 

d. The Applicant shall then effect the necessary repairs and renovation and file the details of work and cost thereof with the court. This must be done within a maximum period of two (2) months.

 

e. The Applicant may then put the property to any profitable use and pay a monthly rent of GH¢10,000.00 into court effective 1^st August, 2016.

 

 

 

With this order of the court, in the first application before me, David Anim claim that the subject property, without any court order has been demolished by Midlands on the 18^th of May, 2017 under the directions of 2^nd to 4^th Respondents to the suit he initiated. And that when he was alerted as to the demolition, he quickly alerted the East Legon police who managed to temporarily halt the exercise. To David Anim notwithstanding furnishing a copy of the order of the court to the Police, the Police ordered the Respondents to proceed with the demolition.

 

 

 

To David Anim by demolishing the property the Respondents have “rendered nugatory, thereby interfering with the res litiga”. He continues in paragraphs 14, 15 and 16 as follows:

 

14. That I am advised and believe same to be true that the demolition of the subject matter property of this action during the pendency of the suit and done without an order of the court greatly interferes with the administration of justice.

 

15. That I am further advised by counsel and believe same to be true that any such conduct which tends to interfere with the administration of justice and prejudice same amounts to contempt of court.

 

16. That the Respondents by their conduct have demonstrated a clear disregard for the rules of the court and have exhibited conduct highly disrespectful of this honourable court”.

 

 

 

Was there demolition of the subject matter as David Anim has alleged. And if there was or anything that has been interpreted by David Anim as demolition by the Respondents to his application, would that be in contempt of the court? Instead of recounting the affidavit in opposition, I find it apt to also set out the facts in support of the application by Midlands against David Anim as that is also the basis of the affidavit in opposition to the latter’s application. In an application deposed to by Eric Ayittah, the head of recovery of Midlands Savings and Loans Ltd he also recited the writ issued by Midlands for the reliefs enumerated supra against David Anim. That an order for David Anim and Le Baron to pay into court a monthly sum of Gh¢10,000.00 made by Eric Baah J was not complied with and a motion to set it aside before Ocran J was also refused compelling an appeal before the Court of Appeal which also did not succeed. And in the face of the refusal to make the monthly payment, Midlands had to make another application for possession of the Le Baron hotel which said application was granted by the court for Le Baron Hotel to yield possession of the premises. T

 

 

 

o Midlands, there was another refusal to yield possession until June, 2016 when the property was stripped of its fixtures by David Anim leaving the property in dilapidated state that called for renovation to put the property in a tenantable state. To Midland whilst the renovation works were underway, David Anim made a false complaint at the East Legon Police station of having sighted unknown persons working on his property and needed assistance to apprehend them. Police acting on this instructions, proceeded to the property to arrest the workmen of Midlands and seized their working tools. To Midlands David Anim had no basis to claim that he did not know the men that were working there as he was fully aware of the order of the court. Besides, David Anim had visited the site with four armed men on 17^th of June, 2017 amidst firing of warning shots, threats of harm and death against the workmen of Midlands and ordering them to seize work. To Midlands, David Anim has blazingly taken the law into his own hands and is determined to have his own way no matter the orders of the court. And that by these various acts he has brought the integrity of the court into disrepute and contempt and calls for him to be punished by the court.

 

 

 

Merriam-Webster’s Dictionary of Law 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 his book Contempt of Court (2^nd Ed.)(1895) at page 6, Oswald states as follows:-

 

‘Contempt of Court may be said to be constituted by any conduct that tends to bring the authority and administration of the law into disrespect or disregard, or to interfere with or prejudice parties, litigants, or their witnesses during the litigation.’

 

 

 

In RE EFFIDUASE STOOL AFFAIRS (NO.2); REPUBLIC v. ODURO NUMAPAU, PRESIDENT OF THE NATIONAL HOUSE OF CHIEFS & OTHERS; EX –PARTE AMEYAW II (NO.2),(1998-99) SCGLR 639, the Supreme Court noted as follows when it set out the distinction between the two main types 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.’’

 

 

 

It is worthy of note that contempt is the only common law offence that has been maintained under our Constitution and statute laws. Article 126(2) of the Constitution, section 36 of the Courts Act, Act 459 and states this, thus making an exception to the provisions of article 19 (11) of the Constitution and section 8 of the Criminal and Other Offences Act, 1960, Act 29 that establishes the principle of nullum crimen, nulla poena sine lege praevia lege poenali and states that:

 

“No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law”.

 

See the case of TSATSU TSIKATA v ATTORNEY-GENERAL [2003-2004] SCGLR 1068.

 

 

 

The two applications before me are in the nature of civil contempt. Civil contempt consists in wilful disobedience to the orders, judgments decrees or directions of a court requiring a Respondent to do an act or refrain from doing an act. In civil contempt the order that is alleged to have been disobeyed should be clear. Indeed the ingredients that needs to be established in a civil contempt of this nature has been spelt out in the case of REPUBLIC v COURT OF APPEAL; EX PARTE SITO I [2001-2002] 1 GLR 319 @ 336-337 Adzoe JSC noted as follows:

 

“The type of contempt charged against the appellant involves willful disobedience to the judgment or order, or other process of a court; it must import a demand to do or abstain from doing something. A refusal to comply with that demand of the court is what constitutes the offence of contempt which the courts consider as an obstruction to the fair administration of justice and also as an affront to the dignity of the court. The offence interferes with the administration of justice because it in effect denies a party his right to enjoy the benefits of the judgment or order; … Some degree of fault or misconduct must be established against the contemnor to show that his disobedience was wilful. Indeed, three essential elements in the offence appear to be identified by the authorities, namely:

 

(1) There must be a judgment or order requiring the contemnor to do or abstain from doing something.

 

It must be shown that the contemnor knows what precisely he is expected to do or abstain from doing.

 

(3) It must be shown that he failed to comply with the terms of the judgment or order, and that his disobedience is wilful.

 

 

 

Starting from the standard of proof. There is no gainsaying in the fact that this is a quasi-criminal action and the standard of proof cast by law on the Applicants to prove their respective claims is one beyond reasonable doubt. In the case of COMET PRODUCTS UK LTD v HAWKES PLASTICS LTD

 

[1971] 1 ALLER 1141 @1143, Lord Denning that:

 

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

 

See also IN RE EFFIDUASE STOOL AFFAIRS supra, 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”

 

Section 13(1) of the Evidence Act, NRCD 323 states as follows:

 

‘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 a reasonable doubt’.

 

 

 

Having set out the law on contempt it is now my further duty to test each of the applications before me to find out if the criteria and standard of proof required by the law has been met. I first start with the application by David Anim: The 4^th Respondent to this application being Roger Adjovu in his affidavit in opposition states that besides being the uterine brother to the 2^nd and 3^rd Respondents, he has no connection at all with this case. He is not an employee of Midlands and his connection to be joined to the suit is his surname. The Applicant has conceded this fact and it appears that the surname of the 4^th Respondent to this application is what made the applicant to think that he could add the 4^th Respondent as a party to the suit. The application against 4^th Respondent is dismissed in limini as unfounded. As recounted supra the gravamen of the application of the applicant in suit no CR/450/2017 is that the 1^st Respondent has caused the demolition of the res litiga and that 2 and 3^rd Respondents as officers of 1^st Respondent company supervised the demolition which to Applicant is contemptuous of the court. As I have asked earlier, I do so again, was there demolition of Le Baron Hotel and even if there was would that amount to contempt of court? The submission or the factual basis raised in support of demolition of the Le Baron hotel was that parts of the swimming pool of the hotel has been demolished by the Respondents.

 

 

 

The order of Baah J stated among others that Midlands was to undertake renovation works at the hotel upon taking possession of same and Exhibits ‘A’, A1’, ‘B’ and ‘B1’ attached to the affidavit of Michael Tetteh Adjovu that shows the current stage of the hotel as at the 15^th of January, 2018 shows a far better renovated hotel than the one they took possession of. There is nothing to show that that the res litiga has been destroyed. Not a single ingredient of the elements of contempt spelt out in Ex Parte Sito was satisfied by David Anim in his application before the court. How would a party to a suit carrying out the orders of the court that had asked him to take possession of the subject matter, renovate same and collect rent and such a party carrying out the orders of the court amount to contempt? David Anim set out to cry wolf when there was no wolf at all in site. His application was completely frivolous, baseless and unfounded. I entertain no difficulty at all in dismissing same.

 

 

 

I now proceed to deal with the application in suit No CR/455/2017 by Midlands against David Anim. The Applicant recounts various incidents as the basis for citing the Respondent, David Anim for contempt. First it claims that Respondent on the 25^th of May, 2017, fully aware of the order of Baah J allowing Applicant to take possession of Le Baron hotel and having so taken possession, with its workers undertaking renovation works laid a false charge at the East Legon Police station that unknown persons have been sighted in his hotel and needed police assistance to repulse those intruders. And on that false charges Police invaded the site to stop the works, seize the working tools of Applicant’s workmen whiles its workmen were arrested and later granted bail. Extract from the police diary confirms this claim that indeed such a report was made by the Respondent against the Applicant and his workmen. Was there any reasonable and probable cause for such a report to have been made against the Applicant and his workmen? The answer is a big no. The Respondent had unsuccessfully appealed against an earlier order for the payment of monies every month given by Ocran J. And it was the refusal to comply with this payment that an order for the Applicant to take possession of the hotel was made.

 

 

 

On the 24^th of March, 2016 when Eric Baah ruled that Respondent should vacate the hotel in order for Applicant to take possession of the property, renovate same and put it to tenantable use by paying a monthly rent of Gh¢10,000.00 into court, the Respondent was ably represented in court by Daniel Ofosu Anim whiles Gary Nimako Marfo as lawyer for Respondent was also in court. It cannot therefore be correct that Respondent after vacating the property reluctantly on the orders of the court and same taken over by Applicant and its workers for renovation, he can turn round to claim that he did not know the persons that were in the property for him to make a complaint before the Police. David Anim was then not in possession and was fully aware that it was Midlands that had taken charge of the property. If indeed he was acting out of good faith and a concern to know who was undertaking the works, the first point of call would have been Midlands, who he well knew was in possession but not to make a report to the police. No wonder therefore that after its preliminary investigations, police did not find any substance to those allegations and gave the green light for the Applicant and its workmen to proceed with their renovations. With the order of Baah J. in force and Respondent fully aware of this order and making a charge of strangers in his house against Midlands, which I find to be false as he was aware of the presence of the Applicant and his workmen in the property, this constitutes a serious interference with the administration of justice.

 

 

 

As Respondent was attempting to render brutum fulmin the orders of a superior court which amounts to disobedience but with an aggravated degree of perverting the work of a state institution like the police on a trump up charge, when he fully knew that this was not true. David Anim set the police on a wild goose chase to apprehend criminals when in fact Midlands and its workers were complying with the orders of a court. How would carrying the orders of a court be a ground of complaint of the commission of an offence to the Police? This disobedience of the Respondent was also wilful. Willfulness connotes an act that is done on purpose or intentionally or knowingly and bring into being the mental element of mens rea that must be established to find a man guilty of an offence in criminal proceedings.

 

Stroub’s Judicial Dictionary of Words and Phrases (5^th ed) defines wilful as:

 

“Wilful … as used in courts of law, implies nothing blameable, but merely that the person of whose action or default the expression is used is a free agent and that what he has done arises from the spontaneous action of his will. It amounts to nothing more than this that he knows what he is doing, and he is a free agent”

 

RE YOUNG & HARTSON 31 CH D. 174.

 

See also Lord Goddard in LOMAS v PECK [1947] 2 ALL E.R 547 @575 that:

 

“If a man permits a thing to be done, it means that he gives permission for it to be done, and if a man gives permission for a thing to be done, he knows what is to be done or is being done, and if he knows that, it follows that it is wilful”

 

 

 

Willfulness which is embodied in discharging intent on the part of an accused is proved or derived from the overt acts and actions of a man. And in knowing the overt acts, the court relies on inference in proving willfulness as part of intent. This is what the court in the case of NYAMO v TARZAN TRANSPORT [1973] 1 GLR 8 noted when it comes to finding this mental element of a crime through the necessary inference to be drawn that:

 

“An inference in the legal sense on the other hand, is a deduction from the evidence and if it is a reasonable deduction it may have the validity of legal proof. The attribution of occurrence to a cause is always a matter of inference”.

 

Section 18(2) of the Evidence Act, NRCD 323 also states that:

 

“An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action”.

 

 

 

The necessary inference that can reasonably be drawn is that having failed to set aside the order of Baah J through the judicial process, the Respondent through the employment of the Police as a Trojan horse was attempting to achieve what he failed to accomplish by the use of the judicial process. There has also been allegations of the employment of four macho men to stop the work amidst firing of gun shots in a Rambo style operation reminiscent of Thomas Hobbes description of the state of nature in his work ‘The Leviathan’. I take note that in the affidavit in opposition filed on the 26^th of January, 2018, the serious allegation of the use of four men under paragraph 22 of the affidavit of Eric Ayittah was not even denied. What was denied was paragraph 23 of that affidavit in respect of a police complaint made subsequent to the alleged action of the macho men at the behest of Respondent.

 

 

 

I will therefore find as a fact that Respondent took the law into his own hands behaving like a war lord in a jungle in the comfort of unsophisticated lawless simpleton macho men, devoid of intellect and brains and using brute force to enforce their will. In dangerous times like this when such men are on the loose in our nation threatening our civilization and perilously intending to take us down the spiral road of disorder and anarchy, such an affront must be dealt with by the court. It devastates me that with such open defiance of an order of the court constituting a serious contempt of court, counsel for Respondent rather than cautioning his client has been audacious to have rather filed contempt against Midland. Respondent’s conduct meet all the criteria set out in a contempt application and I hereby convict him.

 

 

 

I have arrived this conclusion being mindful of the caution of Lord Goddard which was cited with approval by her Ladyship, Sophia Akuffo JSC (as she then was) in the case of IN RE OWNERS OF THE STATION; MONTIE FM; SALIFU MAASE @ MUGABE & OTHERS J8/108/2016 dated 27^th

 

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…”

 

 

 

SENTENCE

 

I take into consideration the seriousness of the conduct of the contemnor. The deception and employment of the Police to subvert an order of the court and the employment of misdirected and unemployed young men to threaten innocent people and the need to send the right signal that the laws of this nation would not countenanced such behaviour and balance it against the plea of alocutus put in by his lawyer that he is not well, and sentence the Respondent David Kwadwo Anim to a fine of four hundred penalty units. In lieu of the payment of the fine to two weeks imprisonment without hard labour.