THE REPUBLIC vs. NOWFIL S. LABA AND RICHARD LABA EX-PARTE: WISSAM AID LABA
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT(COMMERCIAL DIVISION)
    ACCRA - A.D 2016
THE REPUBLIC - (Plaintiff)
NOWFIL S. LABA AND RICHARD LABA EX-PARTE: WISSAM AID LABA - (Defendants)

DATE:  5TH JULY, 2016
SUIT NO:  MISC/0061/2016
JUDGES:  HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
LAWYERS: 
RULING

This is the second in a trilogy of applications seeking orders of the court for committal for contempt. The first was before Asiedu J. where on the 17th of June, 2016 the respondents were committed for contempt. The applicant again seeks another order for committal for contempt of the respondents in what he terms as conduct on the part of the respondents that has brought the administration of justice into disrepute. The third application is also before me wherein the respondents herein have also cited the applicant and others for contempt.

 

In an application mounted by the 1st Respondent on the 8th of September, 2015 in suit No  MISC/68/15 against A.S. Laba, deceased, and who was subsequently substituted by an order of the court, though, Nowfill Laba, the 1st respondent herein vehemently dispute this claim, the 1st respondent sought for an order for what he terms as a just and equitable winding up of Latex Foam Company.

 

The court, differently constituted subsequently granted an application for injunction for the maintenance of the status quo pending the determination of the substantive suit for the winding up of the company in terms of the following:

 

Making any disposition of the shares in the Company to any other party pending the commencement of winding up

 

Taking any actions, steps or passing any resolution terminating the 1st respondent [A. S. Laba] as chairman of the Board of directors or the applicant or the applicant as managing Director of the company

 

Taking any actions, steps or passing any resolution disposing of any property or undertaking of the Company save the stock in trade and such incidentals as required in the ordinary course of business of the Company.

Taking any actions, steps or passing any resolution interfering with the role, functions as played by the 1st Respondent and the Applicant respectively in the ordinary course of business of the Company.

 

Changing any signature mandates or any of the Bank accounts of the Company

 

Louis Abi Habib will be restrained from assuming from assthe office of directorship and holding himself out as a director of the Company

 

Wissam Laba will be restrained from assuming the office of directorship and holding himself out as a director of the Company

 

Neither party can exercise any of the collective powers of the Board of Directors to the exclusion of the other.

 

2nd Respondent was appointed by the 1st respondent subsequent to this injunctive relief granted by the court presided over by Jennifer Dodoo J. (Mrs.) as a director of the Company. And that 2nd Respondent consented to be so appointed such. That indeed formed the basis of the first application for committal for contempt where Asiedu J. committed the Respondents for contempt holding that “the conduct of the respondents was a clear and deliberate breach of the order of the court and consequently contemptuous of the court”.

 

The Applicant still not appeased and satisfied by the conviction of the Respondents for contempt has hurled them before this court complaining that the 2nd Respondent fully aware during the pendency of the application for contempt before Asiedu J. was still illegally acting as a Director of the Company. And that among some of the acts was a letter 2nd Respondent has signed questioning the Company Secretary’s authority in obeying the orders of the court.

 

Respondents claim that no order had been breached as whatever actions taken by 1st Respondent was in compliance with section 180 of the Companies Act, Act 179 in order to ensure that the directors of the Company did not at any particular point in time fall below two.

 

What then is the law on contempt of court?

 

The scope of contempt had been set out in the case of REPUBLIC v HIGH COURT; EX PARTE LARYEA MENSAH [1997-98] 2 GLR 1002 as follows:

 

“a person commits contempt and might be committed for contempt to prison for wilfully disobeying an order of a court requiring him to do any act other than the payment of money or to obtain from doing some act. The order sough to be enforced should however be unambiguous and had to be clearly understood by the parties concerned, for the court would only punish as contempt a wilful breach of a clear court order requiring obedience to its performance”.

 

The above description of contempt does not cover the whole spectrum of contempt as disobedience to even a void or voidable orders of the court could amount to contempt as void orders of a Superior Court are binding until set aside by a court of competent jurisdiction. See the case of REPUBLIC v HIGH COURT, ACCRA; EXPARTE AFODA [2000-2002] SCGLR 768 wherein their Lordship noted as follows:

 

“… the fact that an order of or considered void or erroneous should not give a party who is affected by  the order, or to whom the process is directed, the slightest encouragement to disobey it, and when cited for contempt, only to turn round to justify the said disobedience by the fact that the order ought not to have been made or the process issued in the first place. The proper thing is to obey or sue for a declaration to that effect or apply to have it set aside”.

 

Clearly then, Asiedu J. has correctly found the Respondents to be in contempt of court and sentenced them to the payment of a fine as way of purging themselves of their contemptuous conduct. Having so found the respondents for contempt what again is it that the respondents are accused of to have done to amount to another cause for contempt proceedings?

 

Kuenyehia, Esq. claim that during the pendency of the application before Asiedu J. the 2nd Respondent action of authoring Ex W10, a letter amount to another act of contempt and that the application which was before Asiedu J. was not an injunction; nonetheless its effect was to operate as an injunction to restrain the Respondents. Besides the accusations levelled against the 1st respondent before Asiedu J. what other thing is he accused of doing again to amount to another charge of contempt? I was shown nothing. Learned counsel for applicants claim that by the time the letter authored by 2nd respondent came into his custody they had already argued the application and were awaiting the ruling of Commercial Court 1 and hence the need to file another contempt application.

 

It is trite that contempt being a quasi-criminal offence attracts all the rules that are similarly applied to criminal trials. And it is trite that in criminal trials an accused ought not to be given repetitive doses of criminal trials. Taylor J. (as he then was) emphasised this fact in the case of LUCIEN v REPUBLIC [1977] 1 GLR 351 where a dismissed School teacher was tried, convicted for stealing school properties including books and clock. He had earlier been convicted in relation to other items of the school. On appeal against the second conviction, Taylor J. deprecated such behaviour on the part of prosecution as oppressive in the following words:

 

“It was oppressive in a case (such as in the instant case) where all the crimes could be dealt with together, for a person suspected of crimes to be subjected to repeated criminal trials. It would be proper in the circumstances of the case to take other charges into consideration and impose one composite sentence so as to obviate the necessity of incessantly prosecuting the appellant… on obtaining conviction, the court with the concurrence of the appellant would be asked to take the outstanding charges into consideration. This is the way to handle such cases…”

 

In the civil law rule as correctly pointed out by Menka Premo, Esq is known as the rule in

HENDERSON v HENDERSON wherein Wigram Vc (1843) Hare 114 stated it as follows

 

“ where a given matter becomes the subject matter of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires a party to the litigation to bring forward the whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest but which was not brought forward only because they have from negligence, inadvertence or even accident omitted part of their case”.

 

See also the judgment of Amissah JA in the case of FOLI & ANOR v ATTA [1976] 1 GLR 194-203 where the court held among others that this specie of estoppel covered not only matters which were dealt with in the previous judgement but also those as well which ought to have been brought up then but which were not.

 

It is the opinion of the court that the claim of the Applicant of further acts of contempt by 2nd Respondent could have conveniently been brought to the attention of Asiedu J. before or even after delivery of his ruling and that could have been taken into consideration in the appropriate sentence to exact against the 2nd Respondent. Or in the alternative after the conviction, the better course was for the Applicant to have withdrawn this application if he had already filed it. As noted supra, I am even unable to identify the specific complaint against the 1st Respondent in this application after his conviction before Justice Asiedu.

 

From the above I find this second application for committal for contempt superfluous and needless and cannot subject the Respondents to repetitive convictions as that will be oppressive. Save for a caveat I will issue that flowing from the conviction of Asiedu J. they ought not to behave in such way as to demonstrate that they have purged themselves of the contempt, I find them not guilty and dismiss this application.

 

 

I will make no order as to cost.

 

 

 

(SGD.)                                       ERIC K. BAFFOUR, ESQ. JUSTICE OF THE HIGH COURT