THE REPUBLIC vs. NII OBODAI ADDAI IV EX PARTE: LA DADEKOTOPON YOUTH ASSOCIATION
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (GENERAL JURISDICTION DIVISION, COURT 6)
    ACCRA - A.D 2016
THE REPUBLIC - (Plaintiff)
NII OBODAI ADDAI IV EX PARTE: LA DADEKOTOPON YOUTH ASSOCIATION - (Defendant)

DATE:  14TH DECEMBER, 2016
SUIT NO:  CR/817/2016
JUDGES:  JUSTICE KWEKU T. ACKAAH-BOAFO
LAWYERS:  MS. LAWRENCIA ADIKA FOR APPLICANT
MR. AMON KOTEI FOR RESPONDENT
DECISION

APPLICATION FOR COMMITTAL FOR CONTEMPT

 

Introduction:

[1] 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.

 

[2] It is instructive to note that Article 19 Clause 11 of the 1992 Constitution provides 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. However, the same Constitution, Article 19(12) empowers the court to punish for contempt notwithstanding that the act or omission constituting it is not defined in a written law and the penalty thereof not so prescribed.

 

[3] Further, it is instructive to observe that there is no codified legislation in Ghana that defines the act or omission that constitute the offence of contempt. It therefore sounds to reason that  Ghanaian courts resort to case law to resolve any issue regarding contempt when confronted with one.

And so what constitutes contempt in Ghana?

 

[4] In R v Sito I; Ex Parte Fordjour (2001-2002) SCGLR 322 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.

 

[5] 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.”

 

[6] By definition, a person commits contempt if he has willfully disobeyed an order of Court requiring him to do an act other than the payment of money or to abstain from doing some act. 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

 

[7] Further, 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 Supra. 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.

 

Background:

[8] Upon a Motion on Notice filed in this registry on November 9, 2016 the Applicant Association seeks an order of this court committing the Respondent cited herein for contempt as per the grounds set out in the accompanying affidavit. The thrust of the application as premised on the averments contained in the supporting affidavit is that the Applicant Association, the umbrella association of all associations in La, instituted an action against the La Mantse, Nii Kpobi Tettey Tsuru II and 19 others in Suit No. BC 832/2012. According to the Applicants judgment was entered in their favour and the Defendants were injuncted from the management of the La Beach. In their stead, an Interim Management Committee (IMC) which had been appointed was approved by the Court to manage the La beach.

 

[9] It is the case of the Applicant Association that despite the fact that all the Defendants were injuncted from the management of the La beach and ordered not to interfere with the work of the IMC by an order of this Court differently constituted the 2nd Defendant (William Odoi Cornarl) in that suit, filed a motion to withdraw the mandate of the IMC and to account. According to the Applicants the motion was dismissed and the Defendants together with the Respondent herein were reprimanded by the Court.

 

[10] Additionally, it is the case of the Applicant and it was averred in paragraphs 21, 22 and 23 of the accompanying affidavit filed with the Motion that when the Defendants failed to withdraw the mandate of the IMC, the said William Odoi Cornarl gave authority to the Respondent herein, who is not one of the 20 Defendants the Court injuncted to file an application to withdraw the mandate of the Chairman of the IMC. According to the Applicant, in his sworn affidavit dated July 29, 2015 to the application, the Respondent herein “asked the same Court that injuncted the 2nd Defendant and others to restore the mandate of the 2nd Defendant”. The Applicant says the 2nd Defendant who gave the present Respondent the authority was cited for contempt and was convicted of the charge and committed to prison.

 

[11] Based on all of the above, it is the case of the Applicant that the Respondent has at all times been privy to all the proceedings and is aware of the pending appeal in respect of the case but in his bid to circumvent the orders of the Court “goes about to lease the beach to others, hiding behind the notion of not being a party to the action and files motions to withdraw the mandate of the IMC, contrary to the orders of the Court as well as signing the documents leasing the beach to Belgians”.

 

[12] However, in an affidavit in opposition sworn to by the Respondent herein he denies granting leases to persons at the La Beach Resort including Belgians. The Respondent averred that the Applicant’s Exhibit 7 dated November 23, 2013 is “a mere report of a three-man oversight committee appointed by the La Traditional Council to review and make recommendations on a proposal placed before the council by a Belgian firm that had expressed interest in the La Beach”.

 

[13] The Respondent has averred that [in the affidavit in opposition] at the time he served on the three man Committee, the judgment which granted the IMC mandate to manage the La Beach was not in existence. According to him the judgment was granted on October 21, 2014 long after the three-man committee’s report and therefore that Committee could not have acted contrary to the said judgment. Finally, according to the Respondent the instant application is brought in utter bad faith because even though the Applicant Association made references to leases signed, not “a single deed of Lease” is attached to the application.

 

Arguments of Counsel in support of Application:

[14] Having been permitted to move her application, learned Counsel for the Applicant, Lawrencia Adika relied heavily on the averments as contained in the accompanying affidavit as well as the exhibits attached to the motion paper. In relaying the facts of the case, learned Counsel gave the historical background of the case and argued most forcefully that despite the clarity of Exhibit 8, that is the judgment of Abada J, and in particular page 21 paragraph 4 which injuncted all the Defendants, the Respondent herein filed Exhibit 14 the affidavit in support of the motion to withdraw the Chairman of the IMC. In particular, Counsel identified and referred to paragraph 4 of the affidavit as the most offending of all the averments and the foundation for the instant application.

 

[15] Learned Counsel also referred to Exhibit 7 and submitted that the Respondent was a signatory of that report which sought to give La Pleasure Beach to a Belgian investor. According to learned counsel this was whilst the original case was pending in court. In the view of learned counsel, the combined effect of been a signatory to Exhibit 7 and also deposing to Exhibit 14 whilst been aware of the Court’s judgment is that the Respondent is in clear and willful contempt, having breached the terms of the judgment of this court delivered on the 21st day of October, 2014. Counsel therefore prayed the Court to grant the application and convict the Respondent of the charge.

 

Arguments of Counsel in opposition:

[16] In response, the Respondent Counsel, Mr. Amon-Kotei has equally argued that the Respondent has not committed any contempt as he has never disrespected any order of the Court. The Respondent submitted that the gravamen of the application is that the Respondent is granting leases to persons interested in the La Pleasure Beach and reference is made to Exhibit 7. Counsel submitted that it is only a bald allegation because no lease is attached to the application to support the allegation. Further, Counsel submitted that the Applicant’s case is highly contradictory because even though it is contended that Exhibit 7 was signed during the pendency of the original suit, same was not brought to the attention of the Court before the judgment was delivered in October 2014. According to Counsel therefore, to have brought same up now is an afterthought.

 

[17] It was further submitted and explained by counsel that that Exhibit 14, the affidavit of the Respondent to a motion was linked up to Abada J judgment because the IMC were acting contrary to the judgment and the Respondent wanted a review of the judgment as a result. Accordingly, learned Counsel has strongly urged on the court to dismiss the contempt proceedings as lacking any merit.

 

Opinion of the court

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

Whether the alleged conduct of the Respondent is willful and has brought the integrity of the justice system into disrepute?

 

[18] I need not repeat case law cited above that confirms Contempt as being quasi-criminal in the Common Law traditional context. It is provided in S.13(1) of the Evidence Act, 1975 (NRCD 323) 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.

 

[19] Giving the rationale for the standard of proof being proof beyond reasonable doubt, Osei Hwere J (as he then was) postulated in R v Bekoe & ors; Exparte Adjei (1982-83) 1 GLR 91 that a civil contempt partook of the nature of a criminal charge because conviction might entail imprisonment. Consequently, the principle was quite clear that where a person was charged with contempt of court, his guilt should be proved with that same strictness as required in a criminal trial that is, a proof beyond reasonable doubt.

 

[20] In an unreported case delivered by this Court in Suit No: AP 227/2016 titled Republic versus Kamassah & 4 Others on October 11, 2016, I dealt with a question not very different from the one posed above as that was also a case of contempt. I said at paragraph 34 of the decision as follows:

In my respectful opinion, contempt of court is the big stick of civil litigation. Because of the serious nature of a contempt finding, a finding should be made sparingly and only in the clearest cut of cases. A direct intention to disobey a Court order or an act to prejudice a pending application is required and it ought to be a willful disregard of the order or prejudice the outcome of a pending suit in the Court. With that said, it is essential for the proper administration of justice that a clear message is sent to litigants that the Court process cannot and will not be frustrated when a clearest cut case is established and a penalty imposed.

 

[21] As I understand the Applicant’s case, the pith and substance of the application are on two main grounds and they are; first that whilst the original lawsuit was pending the Respondent co- signed a report which sought to give La Pleasure Beach to a Belgian investor and is also granting leases to persons interested in the La Pleasure Beach. The second ground is that the Respondent deposed to an affidavit in support of a motion to withdraw the mandate of the IMC this Court differently constituted approved when he was aware that the Court had injuncted the La Mantse and 19 others including the individuals whose authority he deposed to the affidavit.

 

[22] To appreciate the issue raised in the instant application in its proper context, it is prudent to reproduce the alleged offending paragraph 4 of the affidavit, Exhibit 14.

 

“That I also have the authority and consent of the 2nd, 3rd and 5th Defendants to depose to this affidavit, the contents of which are within my personal knowledge unless otherwise stated”.

 

According to the Applicants, the Respondent happens to be privy to all the proceedings and was very much aware that the 2nd Defendant in particular and others had been injucted by the Court but he nevertheless prayed the Court to restore the 2nd Defendant’s mandate. To the Applicant Association therefore his behavior is contumacious and ought to be punished.

 

[23] To reiterate, on general principle, a person commits contempt if he willfully disobeys an order of a court or maliciously interferes with court proceedings or does anything to prejudice the outcome of a case. And a conduct ought to be sufficiently egregious to warrant the stigma associated with a criminal conviction. Inadvertence or poor judgment without a further finding of subsequent wilful or deliberate conduct intended to frustrate, or capable of frustrating, the administration of justice, does not constitute contempt in my respectful view.

 

[24] I have critically studied and scrutinized the motion paper and the affidavit evidence filed in this case, both in support of, and as against the contempt application. I have equally given active consideration to the viva voce arguments of both counsel. Upon a deep introspection of the facts and careful consideration of the issue raised in this application I hold the respectful view that taking all of the evidence as a whole, I am simply not persuaded that the charge of contempt, if at all, has been sufficiently made against the Respondent based on the facts.

 

[25] Based on the evidence. Firstly, I have no difficulty in dismissing the Applicant’s averment and contention that the Respondent in an attempt to circumvent the orders of the Court is granting leases to people interested in the La Beach. I wholly endorse the submission of the Respondent’s counsel that it is a bald assertion without any proof. No lease was exhibited to the Court to support the allegation. And with regards to the three-man committee report, if indeed the Applicant believes that it undermined the authority of the Court because it was during the pendency of the original suit why did it not bring it to the attention of the Court at the time? Why now and why wait for three years after the report was authored and two years after the Court’s judgment to institute this action?

 

[26] With regards to the Applicant’s other ground for citing the Respondent for contempt, again it is my conclusion that it is much ado about nothing. It is not disputed that the Respondent herein was not a party in the earlier suit and he has not been injuncted by this Court. As he deposed to in the affidavit he is the Mankralo and a member of the La Traditional Council and it is in that capacity that he deposed to the affidavit asking the Court to vary and or review its earlier decision. With utmost deference to the Applicant and Counsel, going to Court is every citizen’s right and exercising that fundamental right cannot be contumacious no matter how egregious the relief sought. In any case, the Court found the application unworthy and without merit and dismissed same.

 

[27] Also, the evidence put before me is that the 2nd Defendant in the earlier suit, William Odoi Cornarl was cited and convicted of contempt in respect of the same authority given to the Respondent herein. Again, if the Applicant Association truly believes that the Respondent is privy to the Court orders and an agent of Mr. Cornarl why did they not join him in that application for contempt? I note that it is the same Daniel Maale Nai, the deponent of the affidavit supporting this application who was the same deponent of the affidavit in that application as well. It seems to me that this is a clear case where the Court’s contempt power is being used by the Applicant Association as a sword against their adversaries. However, litigants ought to know that the denial of liberty resulting from conviction for contempt ought to be effected only in accordance with the principles of fundamental justice and not at the whim of a bitter litigant. 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.

 

[28] I am of the strongest view that contempt proceeding is inappropriate and inapplicable to the situation presented in the instant case at bar. To reiterate the principle laid down above, to establish contempt the Applicant must prove beyond a reasonable doubt that the Respondent defied or disobeyed a court order in a public way, with intent, knowledge or recklessness as to the fact that the public disobedience will tend to depreciate the authority of the court. There must be a clear and cogent evidence to prove that the Respondent has done something to affect and undermine the authority and sanctity of the Court order or judgment and that his action is prejudicial and has willfully and flagrantly disrespected the Court. That is not the case at all as presented by the Applicants.

 

[29] The parties in this case ought to know that historically bitter conflicts between groups of the same community with the aim of protecting the interest of their people tore at the very fabric of society whose interest they desire to protect. And they ought to be mindful that the unrestrained use of the Court’s contempt powers in matters involving groups of the same community may give rise to the perception that the courts are biased in favour of one group against the other. And if that perception persists, the courts will no longer be seen as impartial arbiters but as adjuncts or allies used by one group to intimidate another.

 

[30] As the Supreme Court counseled in the case of Opoku v Libherr France SAS & Another [2012] 1 SCGLR 159 the courts should be anxious to contain the power to punish for contempt of court, (which has been castigated as wide and arbitrary), within the narrowest possible confines in order to safeguard the fundamental constitutional right of the individual to liberty

 

[31] Finally, I cannot end this ruling without re-echoing the wise words of Mr. Justice Cromwell of the Supreme Court of Canada in the case of Carey v Laiken, 2015 SCC 17 (CanLII), at paragraph 36 where he noted:

 

“If contempt is found too easily, a court's outrage might be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect"...

 

In this case I hold firmly that it is appropriate to heed the advise of our apex Court and that of Canada, a common-law jurisdiction and I adopt same.

 

[32] Overall, based on the law and the evidence in the instant case, I am satisfied that the guilt of the Respondent has not been proved beyond reasonable doubt. In the result, I acquit and discharge the Respondent on the charge of Contempt of Court. Ordinarily, this would have been an appropriate case to award punitive cost against the Applicants. However, in the interest of unity for and among the people of La and to foster peaceful co-existence, I make no order as to Costs.