IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT(COMMERCIAL DIVISION)
ACCRA - A.D 2016
NOWFIL S. LABA - (Plaintiff)
WISSAN AID LABA AND LATEX FORM RUBBER PRODUCTS LIMITED EX-PARTE: EX PARTE NOWFILL LABA - (Defendants)
DATE: 13TH JULY, 2016
SUIT NO: MISC/0064/2016
JUDGES: HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
1ST RESPONDENT REPRESENTED BY K. TAWIAH SASU
MINKAH-PREMO, ESQ WITH SOPHIA KORKOR, MS FOR APPLICANT
SARPONG ODAME, ESQ FOR KIMATHI KUENYEHIA, ESQ FOR 2ND – 5TH RESPONDENT
THADDEUS SORY, ESQ FOR 1ST RESPONDENT
The third in the trilogy of applications for committal for contempt has been bedevilled with two weightier preliminary legal points of law by Sory, Esq. The net effect of the two legal objections raised is for the action of Nowfill Laba citing the five respondents for contempt to be dismissed in limini without even the benefit of hearing the substantive submissions for the committal proceedings.
The first ground of the legal objection is that the application for contempt is incompetent in so far as the affidavit in support of the contempt application is irregular. Counsel contends that the contempt application launched under Order 50 of the High Court (Civil procedure) Rules, C. I 47 is not an interlocutory application but a substantive one and as long as it is a substantive application, the deponent of such an application must be the applicant who may depose to matters within his personal knowledge, information and belief. This he contends that rule 8 of Order 20 of C.I 47 does not allow applications that are not in the nature of being interlocutory for the deponent to be some other person other than the applicant.
The second leg of his preliminary objection is rooted under Order 43 Rule 5(1)(b) and (cc) of C. I. 47. Counsel then further argues that as Nowfill Laba complains of a violation of an order of the court, the said person in terms of Order 41 of C.I 47 ought to have drawn and entered the order of the court by the filing of the entry of the order failing which the order of the court is incapable of enforcement.
These two preliminary legal points raises formidable questions of law for the consideration of the court.
I intend to proceed with the second leg of the submission of learned counsel. I pose the question as an aid to help me in dealing with the second submission as to whether or not for a person to mount a contempt application founded upon an alleged order of the court that has been violated if it is necessary or it is a precondition for such order to have been entered in a form of the filing of entry of judgment before a contempt application can be grounded in court?
Order 43 Rule 5(1) and (cc) states as follows:
“5. (1) Where
(b) a person disobeys a judgment or order requiring the person to abstain from doing an act.
The judgment or order may subject to these Rules may be enforced by one or more of the following means
(cc) an order of committal against that person or, where that person is a body corporate, against any director or other officer”.
By this provision supra, counsel contends that the application for contempt is a form of execution of a judgment or order of a court within Order 43 rule 5 and ought to comply with Order 41 Rule 3 which also notes that in the case of any judgment, a form for the entry of judgment as prescribed in Forms 17 to l7F in the Schedule, shall as far as practicable be used.
Attractive though the submission appears, I am not enamoured and the reasons of the court are as follows: it has always been the rule both under C.I 47 and the old rules LN 140A that as far as contempt applications are concerned what is necessary for the applicant to demonstrate is that there had been an order of the court, that the respondent was aware, which the order the required him to do or refrain from doing an act. I wish to refer to cases both decided under LN 140A and C. I 47 to illustrate this position.
In REPUBLIC v HIGH COURT, ACCRA, EXPARTE LARYEA [1997-98] 2 GLR 1002, decided under
LN 140A, it was noted that a person commits contempt if he wilfully disobeys an order of the court to do an act or refrain from doing an act. Service of the order of the court is deemed to be even superfluous only if the respondent is aware of the order of the court. So in HELLAND vs. ALEXANDRA  GLR 758, Edusei, J (as he then was) held thus:
“actual service of a court’s order or the party alleged to have obeyed it was not essential if it was shown that he might have known or knew of the order”.
In the case of KONADU AGYEMANG RAWLINGS v K. BAAKO  GLR … it was the view of the Court of Appeal, per Essilfie-Bondzie and Sarpong JJA that:
“service of a court order on a party alleged to have disobeyed it was not very essential; if it was shown that he might have known of the order..”
If one may think that the requirement for knowledge of the order of the court, without more was sufficient to be cited for contempt was no longer a good law because they were decided under LN 140A, that may not be a good argument to canvass, as mere knowledge of the order of the court without more being sufficient for being cited for contempt has been maintained in cases decided under C.I 47. The Court of Appeal in REPUBLIC v OTUMFOUR BAIDOO BONSU XV; EX PARTE OSAHENE KATAKYIE BUSUMAKURA 111 (unreported) Suit No H1/205/08 dated 22/07/2010 wherein Appau JA (as he then was) noted as follows:
“It is trite law that in dealing with the offence of contempt of court…, the applicant is expected to establish or prove certain essential elements or prerequisites that constitute the offence. First, the applicant is required to prove that there is a judgment or an order requiring the contemnor to do or abstain from doing something. Second, it must be shown or demonstrated that the contemnor knew precisely what he was expected to do or abstain from doing. Thirdly it must be shown that the contemnor failed to comply with the terms of the judgment or order or that he had put up a conduct that was intended to undermine the authority of the court and fourthly, it must be established that the disobedience or failure to comply with the judgment or order of the court was wilful”
This decision under C.I 47 reiterates the essential requirements to be proved in a contempt application stated in REPUBLIC v NUMAPAU, EX PARTE AMEYAW II; [1999-2000] 1 GLR 183 which does not place any further yoke of requiring such an order to be entered in the form of entry of order. As long as the order is drawn up and brought to the knowledge of the person sought to be cited the statutory precondition is satisfied. On that basis the second leg of the preliminary objection is dismissed as not meritorious.
Now to the first leg of the submission: I concede that it is now trite that contempt application is not an interlocutory one but a substantive application in itself. Wood CJ emphasized this point in REPUBLIC v HIGH COURT; ACCRA; EX PARTE YALLEY [2007-2008] SCGLR 512 that:
“the position of contempt application is even plainer, it being a substantive matter standing on its own as a separate cause or matter…”
See also IN RE APPENTENG (DECD); REPUBLIC v HIGH COURT; ACCRA (COMMERCIAL DIVISION), EX PARTE APPENTENG  SCGLR 327.
Having found that contempt application is a substantive matter on its own the question then is can an affidavit in such a case be sworn to by a deponent who deposes to matters that are hearsay? For the deponent to the substantive application is one Felix Antwi, a law clerk in the law firm Menka-Premo & Co whose depositions are largely of matters that he claims have come to his knowledge through Nowfill Laba, the applicant. As to whether in such substantive application the applicant can proceed on such hearsay depositions is answered by Order 20 Rule 8 which states as follows:
“ 8. (1) An affidavit shall contain only facts that the deponent can prove, unless any provision of these Rules provides that it may contain a statement of information or belief or both.
(2) An affidavit sworn for the purpose of being used in interlocutory proceedings may contain a statement of information or belief or both with the source of the information and the grounds of the belief”.
Sory, Esq is right in claiming that if the application of Nowfill Laba was an interlocutory one, then the depositions made is permissible but being in the nature as it is in terms of being substantive application Order 20 Rule 8(2) do not permit the approach to the depositions made. The decision of MAHAMA v MOSHIE [1984-86] 2 GLR 798 is a case in point where the Court of Appeal held that the depositions of counsel was hearsay and as the application was not interlocutory, it was improper.
Having so found that the affidavit in support of the application is irregular should the court then strike out the affidavit and dismiss the substantive contempt in limini? Order 81 Rule 1 provides that non-compliance with the rules of court shall not render proceedings a nullity and this has been interpreted that virtually all irregularities are curable except jurisdictional matters, breach of statute or the Constitution. See DATE BAH JSC in REPUBLIC v HIGH COURT, EX PARTE ALLGATE CO. LTD (AMALGAMATED BANK LTD) INTERESTEED PARTY [2007-2008]SCGKR 1041; REPUBLIC v HIGH COURT, KOFORIDUA EX PARTE DR. KOFI ASARE (BABA JAMAL & OTHERS INTERESTED PARTIES) SCGLR 460.
Nonetheless, having made this point that all irregularities are curable save for jurisdictional matters, non-compliance with a statute or a constitutional provision, it is curious to note that the same Order
81 under rule 2 empowers a party to mount an application to set aside for irregularity any proceedings, any step taken in the proceedings or any document, judgment or order in it upon stated grounds.
I glean, therefore, that a discretion is vested in the court, anytime there is a proven irregularity to set aside proceedings for failure to comply with the rules of court. The Order 81 does not only end at rule 1 and rule 2 is intended to have effect. See the unreported decision of Marful Sau JA sitting as an additional High Court Judge in GHANA COMMERCIAL BANK v FARMERS SERVICES CO LTD. Suit No WBC/1/05 (Commercial Division).
In the exercise of my discretion I take cognizance of the quasi criminal nature of the substantive application which is intended to punish the alleged contemnors for violations of the court order. Being as it is, I think then that the rights of persons ought not to be jeopardized on the basis of application mounted on an irregular and defective affidavit.
I will accordingly strike out the affidavit in support of the substantive application as incompetent and having done so what it means is that the application for committal for contempt is mounted without any supporting affidavit which itself is fatal and contrary to order 50 Rule 1(3).
In the end the application of learned counsel, Sory, Esq succeeds on the basis of the submission that the contempt application is founded on irregular affidavit.
The substantive application is accordingly dismissed in limini.
In the further exercise of my discretion, I make no order as to cost.