REPUBLIC VRS SACKEY & 5 OTHERS (H1/200/2020) [2021] GHACA 46 (27 May 2021)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL DIVISION) ACCRA – GHANA CORAM: SIR DENNIS D. ADJEI JA P. BRIGHT MENSAH JA JENNIFER DODOO JA PRESIDING SUIT NO. H1/200/2020 27TH MAY 2021 THE REPUBLIC vs 1. EMMANUEL SACKEY (REV) 2. RITA N. O. ARYEH 3. JOSEPH KWAKUPOME SACKEY 4. DORIS O. SACKEY 5. JACOB SACKEY ALL OF H/NO. BS22/18 PRA CLOSE NORTH KANESHIE, ACCRA 6. ADUSA KROBEA H/NO. B22/6 NEW ACHIMOTA ACCRA … RESPONDENTS/APPELLANTS EXPARTE BANK OF GHANA … APPLICANT/RESPONDENT ============================================================================== BRIGHT MENSAH JA: JUDGMENT This instant appeal has been launched against the ruling of the High Court, Accra upholding contempt application/proceedings brought against the respondents/appellants herein. It is noted on record that on 06/02/2019, the applicant/respondent herein, the Bank of Ghana, filed in the lower court, an originating motion on notice in an application for committal of contempt of court premised under Order 50 r 1 of the High Court (Civil Procedure) Rules, 2004 (CI 47), against the respondents/appellants. The grounds for the application are on account of averments contained in the affidavit supporting the motion. See: pp 1-10 of the record of appeal [roa]. Exhibits attached to the supporting affidavit also appear on pp 11`- 106 [roa]. The respondents/appellants herein except 4th respondent, vehemently opposed the application which they did by filing affidavits in opposition. See: pp 107-114; 206-218; 219-220; 221-222; and 233-234 [roa] respectively. The 4th respondent did filed no affidavit in opposition. From the available evidence on record, the 6th respondent/appellant, Adusa Krobea was subjected to cross-examination based on the averments deposed to in his affidavit in opposition. At the close of the cross-examination, the learned trial judge ordered the parties to file their written submissions which they complied with. In the final analysis, the court below held all the respondents/appellants in contempt, convicted them and accordingly imposed on them, various fines. It is against the ruling of the lower court appearing on pp 284- 304 [roa] that the respondents/appellants have mounted the instant appeal on a number of grounds. See: pp 305–306 [roa]. The case of the applicant: As verified from its affidavit accompanying the motion, applicant/respondent alleges that it is the owner of a parcel of land acquired from the Hanson-Sackey Family of which the 1st – 5th respondents/appellants are members. It is their case that the sale and purchase agreement of the disputed land was reduced into writing, whereby in June 1975 the family conveyed the said land, the subject matter of the contempt proceedings, to the applicant/ respondent. According to them, prior to instituting the contempt proceedings, they have been in undisturbed possession of the land for over thirty (30) years; built some houses thereon for use by its staff and have permitted some artisans to ply their trades on the vacant portions. It is the case of the applicant/respondent that the 6th respondent/appellant has however in recent times, been laying adverse claim to undeveloped portions of the land as a result of which he took an action against the applicant/respondent. In that land suit numbered FAL/69/13 according to the deponent of the affidavit, the 6th respondent/respondent sued the Bank of Ghana and 17 other defendants but the suit was struck out, apparently because he did not pursue it. However, he followed it with another suit No. FAL/288/2015 in the year, 2015 but as against the Bank of Ghana only. According to the applicant/respondent, in suit No. FAL/69/13 the 3rd and 5th respondents/appellants together with three (3) other members of the Hanson Sackey family, acting for and on behalf of the said family, applied to join the case. In the affidavit accompanying the motion for joinder, the 5th respondent/appellant deposed and acknowledged that the applicant/ respondent, Bank of Ghana traced its root of title from the Hanson Sackey family. Nevertheless, he claimed that the land title certificate the applicant/ respondent holds in respect of the land was procured through fraud. Consequently, the 1st – 5th respondents/appellants commenced another suit No. LD/0629/2016 against some occupiers of the land but without notice to the applicant/respondent, Bank of Ghana and succeeded in obtaining a default judgment against them. The 1st – 5th respondents/appellants on the basis of the judgment then proceeded to enforce it against the occupiers of the other portion of the land that the applicant/respondent granted them. It is the case of the applicant/respondent that when it became aware of the default judgment at the execution stage, it took steps to initiate interpleader proceedings against the 1st – 5th respondents/appellants. However, regardless of the notice of claim and interpleader proceedings served on the respondents/appellants, the respondents/appellants disregarded same and continued to build on the land. In the result, the applicant/respondent on 24/01/2018, filed an application for interlocutory injunction pending the final determination of the interpleader suit. The application was granted by the High Court presided over by E. K. Mensah, J on 31/05/2018. According to the applicant/respondent, notwithstanding the grant of the inter-locutory application and notice thereof served on the respondents/ appellants, they continued to build on the land with impunity. That accounts for initiating the contempt proceedings herein, the applicant/respondent explained. The case of the respondents: The respondents/appellants except the 4th respondent filed various affidavits in opposition, denying the claim of the applicant/respondent. The 6th respondent/appellant in particular, filed a supplementary affidavit vehemently challenging the applicant/respondent’s assertion. The 6th respondent/appellant averred that he was not a party to that suit between the applicant and 1st – 5th respondents/appellants and that he holds a Land Title Certificate in respect of the land and on which he was carrying on building activities. The 1st – 5th respondents/appellants contended further that they obtained judgment from the High Court and the court though differently constituted, recovered the land for them. According to them, based on the said judgment they consented to the 6th respondent/appellant’s possession and building activities before the applicant/respondent filed its Notice of Claim. Furthermore, it is their case that the 6th respondent/appellant was not a party to a suit between them and the applicant/respondent in which the interlocutory injunction was granted. According to them, the 6th respondent/ appellant was on the land and carrying out his development on the strength of the Land Title Certificate he held in respect of the land. The 1st – 5th respondents/appellants denied that they ever put up any advertisement to sell any houses the 6th respondent/appellant built on the land. They claim that they are law abiding citizens and would not do anything to violate any injunction the court granted. On his part, the 6th respondent/appellant in particular he denied that he was ever served with any injunction order. He contended that he was not a party to the suit between the applicant/respondent and the 1st – 5th respondents/ appellants in which an injunction was allegedly granted and issued. According to him, he owns the land he is carrying on with development activities based on his Land Title Certificate. It was also his case that he traced his root of title to the land to Onamorokor Adain family of Accra and not from the 1st – 5th respondents’/appellants’ family. According to him, even before the 1st – 5th respondents/appellants obtained their judgment in 2017 he had laid claim to the disputed land and that it was not the Hansen Sackey Family that granted him the disputed land or allowed him access to it. it was his case therefore that he has not engaged in any contemptuous acts as the applicant/ respondent alleges. The contempt proceedings was therefore brought in bad faith, he insisted. Judgment of the lower court: The ruling of the lower court appears on pp 284-304 roa. In her judgment, the learned trial judge made a finding of fact that the order of injunction restraining the respondents from dealing with the disputed land, was explicit as to what the respondents were to do, that is to say that the construction on the land should have been halted. She held further that the 1st – 5th respondents ought to have stopped the 6th respondent from further developing the land pursuant to the grant of the injunction order. That, they failed to do, with the result that the injunction order was flouted with impunity, much to the detriment of the eventual outcome of the interpleader suit, the learned trial judge observed. The learned trial judge took it with pinch of salt and described as lame and disingenuous, the 1st – 5th respondents’ assertion that the 6th respondent developed the disputed land on the basis of a Land Title Certificate. She did explain that it was as a result of the 1st – 5th respondents going into execution in respect of the default judgment that accounted for the 6th respondent gaining access to the disputed land and developing it. This, in summary, is the basis for the lower court holding the respondents/ appellants in contempt. Grounds of appeal: As noted supra, it is the ruling of the lower court that the respondents/ appellants mounted the instant appeal on a number of grounds listed hereunder, namely that: a. The ruling of the court is contrary to the law of contempt of court. b. The trial court misdirected itself on what constitutes contempt of court. c. The trial court erred in convicting and sentencing the appellants for contempt. d. The sentencing of the respondents/appellants to different terms for the same offence is arbitrary and without any basis. e. Further grounds to be filed upon receipt of record of appeal. It is noted that the respondents/appellants with the leave of this court granted 27/02/2020, amended the notice of appeal to include 2 other grounds of appeal, namely: f. The learned trial judge failed and/or neglected her duty to do independent analysis of the respective cases put forward as required of her by law and lifted verbatim the address filed by the applicant’s Counsel. g. The learned trial judge failed or neglected to consider the case put forward to the respondents/appellants and ended up giving a ruling that is perverse, one sided and biased against the respondents. The respondents/appellants by this appeal pray this court to set aside their conviction and sentence. For purpose of convenience, we shall maintain the designation of the parties as the applicant/respondent and respondents/ appellants, respectively. Appeal is by way of rehearing the case: To begin with, an appeal is by way of rehearing the case. Statute and case law reinforce the principle that an appeal is by way of rehearing the case. Rule 8(1) of the Court of Appeal, C. I 19 provides that any appeal to the Court of Appeal shall be by way of re- hearing and shall be brought by a notice of appeal. The rule has been judicially interpreted in many cases to mean that the appellate court is enjoined by law to review the whole evidence on record and come to its own conclusion as to whether the findings of the lower court both on the law and facts were properly made and supportable. In R v High Court (General Jurisdiction 6); Exparte Attorney General (Exton Cubic – Interested Party (2020) DLSC 8755 the Supreme Court speaking through Anin-Yeboah JSC (as he then was) restated the principle thus: “Appeal is an application to a higher (appellate) court to correct an error which may be legal or factual. In Ghana, all civil appeals are by way of rehearing and the appellate court may subject the whole record to review and may even make new findings of facts in deciding the appeal.” This court in Kofi v Kumansah (1984-86) 1 GLR 116 @ 121 having adopted and applied the principle Webber C. J. espoused in Codjoe v. Kwatchey (1935) 2 W. A. C. A. 371, stated the law as follows: "The Appeal Court is not debarred however from coming to its own conclusion on the facts and where a judgment has been appealed from on the ground of the weight of evidence the Appeal Court can make up its own mind on the evidence; not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from overruling it if on full consideration it comes to the conclusion that the judgment is wrong…………………………………….…………” The settled rule, therefore, is that the appellate court is enjoined by law to scrutinize the evidence led on record and make its own assessment of the case as though it was the trial court. Where the court below comes to the right conclusion based on the evidence and the law, its judgment is not disturbed. On the other hand, it attracts being upset on appeal where the judgment is unsupportable by the facts and or the evidence. See: Nkrumah v Attaa (1972) 2 GLR 13 C/A. Before proceeding further to analyze the merits or otherwise of the instant appeal, it is appropriate to address a pertinent issue learned Counsel for the applicant/respondent has raised that significantly goes to the root of the appeal. Counsel has submitted that all the grounds of appeal are vague and do violate the law. Basing himself on the judicial authorities of FKA Co. Ltd & anr v Nii Ayikai Akramah II & 4 ors )2-16) 101 GMJ and Zambrama v Segbezi (1991) 2 GLR 221 as well as statute ie. Rule 8(6) of C. I 19, he did submit that the grounds of appeal were couched in such general terms and were so vague that they did not disclose any reasonable ground of appeal. Additionally, he chastised the respondents/appellants for alleging misdirection and/or error of law on the part of the learned trial judge in the grounds of appeal yet gave no particulars thereof. Consequently, Counsel has urged on this court to strike out those grounds of appeal, contending that the grounds are objectionable and inadmissible as they offend Rule 8(6) of C. I 19. Undoubtedly, there are obviously some deficiency with grounds (b) & (c) contained in the notice of appeal, for lack of particulars and clarity. We do therefore roundly agree with the submissions of Counsel for the applicant/respondent on this point. For, it is provided in Rule 8(4) of CI 19: “(4) Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated.” [emphasis underscored] It is also provided in Rule 8(6) of CI 19: “(6) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, except the general ground that the judgment is against the weight of the evidence; and any ground of appeal or any part of the appeal which is not permitted under this rule may be struck out by the Court of its own motion or on application by the respondent”. It is trite learning that where “shall” is used in any enactment or rule of procedure, satisfying that provision of the law or rule is imperative and not permissive. It cannot, therefore, be over-emphasized that since Rule 8(4) of CI 19 used the word “shall” it was mandatory for the respondents/ appellants to have supplied the particulars of the so- called error and or the misdirection the learned trial judge supposedly committed. For, the courts particularly the Supreme Court, have in many cases always frowned upon non- compliant of mandatory rules of the courts. In FKA Co. v Nii Tackie Amoah VI & ors (Civil Appeal No. J4/1/2016 dated 13/02016 (unreported) for eg., the Supreme Court speaking through Akamba JSC ruled, inter alia, as follows: “…… it is important to stress that the adjudication process thrives upon law which defines the scope of operation. It is trite to state for instance that nobody has an inherent right of appeal. The appeal process is the creature of law. Any initiative within the context of the adjudication process must be guided by the appropriate relevant provision, be it substantive law or procedural law. As courts, if we fail to enforce compliance with the rules of court, we would by that lapse be enforcing the failure of the adjudication process which we have sworn by our judicial oaths to uphold.” The Supreme Court in Ayikai v Okaidja III (2011) SC GLR 205 again reiterated that non- compliance with the rules of court result in fatal consequences as they not only constitute an irregularity but raise issues of a jurisdictional nature as to whether or not the jurisdiction of the court has by the irregularity been properly invoked. As a matter of emphasis, the settled law is that where the grounds of appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated in terms of Rule 8(4) of Court of Appeal Rules 1997 (C. I 19). This provision of the law has received judicial interpretation. The Court of Appeal in Zabrama v Segbedzi [1991] 2 GLR 221 held that to state in a notice of appeal that "the trial judge misdirected himself and gave an erroneous decision" without specifying how he misdirected himself, was against the rules and rendered such a ground of appeal inadmissible. The court speaking with unanimity through Kpegah JA (as he then was) opined pp 225- 226 of the Law Report as follows: “The implication of these rules is that an appellant, after specifying the part of the judgment or order complained of, must state what he alleged ought to have been found by the trial judge, or what error he had made in point of law. I do not think it meets the requirements of these rules to simply allege "misdirection" on the part of the trial judge. The require- ment is that the grounds stated in the notice of appeal must clearly and concisely indicate in what manner the trial judge misdirected himself either on the law or on the facts. To state in a notice of appeal that "the trial judge misdirected himself and gave an erroneous decision" without specifying how he misdirected himself is against the rules and renders such a ground of appeal inadmissible. The rationale is that a person who is brought to an appellate forum to maintain or defend a verdict or decision which he has got in his favour shall understand on what ground it is impugned.” [emphasis ours] See also: Alawiye v Agyekum [1984-86] 1 GLR 179 @ 184. Guided by the principles as discussed in the cases supra, we hold the respectful view that the respondents/appellants in the instant appeal having not particularized the error and misdirection the learned trial judge supposedly committed, those grounds of appeal hereinbefore referred to, sin against the mandatory provisions of Rule 8(4) of Court of Appeal Rules C. I 19 and therefore, void. Consequently, grounds (b) & (c) of the appeal are hereby struck out as non-conformable to the rules. That leads us to considering the other grounds. Grounds (a), (e), (f) & (g): We have decided to combine grounds (a), (e), (f) & (g) since the grounds principally speak to the same issue that is to say, the ruling of the lower court is contrary to the law of contempt of court. Submissions by Counsel for respondents/appellants: Learned Counsel for the respondents/appellants has submitted that the judgment/ruling cannot stand when examined against the settled law on contempt. Thus, this court is being called upon to quash the lower court’s judgment/ruling. Counsel first, has severely criticized the learned trial judge for not doing critical analysis of the respective case put forward by the parties but rather chose to lift verbatim the address of the lawyer for the applicant/respondent. We think this commentary is not only bogus and misconceived but unfair as we are of the respectful opinion that the learned judge on the contrary did a thorough analysis of the case and gave due consideration to the submissions filed by both lawyers. The learned judge for eg., reproduced the cross-examination the 6th respondent/appellant was subjected to, analyzed the evidence and applied the law rightly and correctly to the facts of the case and the evidence on record. Counsel for the respondents/appellants next argued that the development was being carried out by the 6th respondent who holds a Land Title Certificate and was not a party to an earlier suit between the applicant/respondent and 1st – 6th respondents/ appellants. He further referred to pp 27-31 roa and submitted that the 1st – 5th respondents/appellants had obtained judgment in respect of the disputed land from the High Court and the court had recovered the land for the 1st – 6th respondents/appellants. The family of the 1st – 5th respondents having obtained that judgment only consented to the 6th respondent/appellant’s possession. According to Counsel, those events took place before the applicant/respondent filed the Notice of Claim. But it isn’t ironic that the 1st – 5th respondents/appellants are approbating and reprobating at the same time? In one breadth they claim that the 6th respondent/appellant went into possession on the basis of his acquisition of the land from the Anamakor family pursuant to which he obtained a Land Title Certificate for it. However, in another breadth they claim it was on the basis of the judgment of the High Court they recovered against the occupiers of the land that accounted for they [1st – 5th respondents/appellants] giving their consent to the 6th respondent/appellant to be in possession and to carry out his development activities on the disputed land. It is also ridiculous for Counsel for the respondents/appellants to argue [pp 7 – 8 written submissions] that even before the 1st – 5th respondents/ appellants obtained that judgment, the 6th respondent/appellant had laid claim to the disputed land; that it was not the Hanson Sackey family represented by the 1st – 5th respondents/appellants that put him in possession or allowed him access to the disputed land. According to him, the 6th respondent/appellant dealt with the 1st – 5th respondents/appellants before the injunction order was made. Counsel [pp 9-10 of his written submissions] has argued that although the 6th respondent/appellant admitted carrying out the development activities on the land, no injunction order had been made against him to be fixed with contempt. He argued further: “…..[H]e [6th respondent] exhibited his land title certificate as proof that he owns the land. Therefore, even if the alleged injunction order was served on the 6th respondent/appellant by any means (which he denied anyway), since same was not addressed to him, and same did not bear his name or his address, he could not justifiably be punished for violating same…………………………………………………………..” This line of argument of Counsel implies that the 6th respondent/appellant without any injunction being made against him, could carry out his development activities. The argument is not only disingenuous and irrelevant but misleading and a dangerous proposition. The 6th respondent/ appellant’s name needs not be specifically mentioned in the injunction order to warrant he being fixed with contempt provided that there was undoubted evidence that he was working on the disputed land and the injunction order was brought to his attention. As the evidence established, he was also aware of the interpleader proceedings initiated by the applicant/respondent challenging his legitimacy as to title to the land. It is equally right to say, as was established in this case, it was the 1st – 5th respondents/appellant who put him in possession. Therefore, the 6th respondent/ appellant fell in the category of an agent or assign of the 1st – 5th respondent. The High Court in its order has restrained the 1st – 5th respondents, their agents, assigns and or anyone claiming through them from further developing the disputed land. The 6th respondent/appellant was thus bound by the injunction order notwithstanding that his name was not specifically spelt out in the order. Counsel has also referred us to a plethora of cases notably, R v High Court, Accra; Exparte: Laryea Mensah (1998-99) SCGLR 360; Kangah v Kyere (1979) GLR 458 and Agbleta v R (1977) 1 GLR 445 to submit that the applicant/respondent was unable to make a case of contempt against the respondents/appellants. On the question of sentence, he sought for balancing scales of justice when a court came to sentence convicted persons shown to have committed the same offence. He thus advocated that the disparity in the sentences imposed was a proper ground for appeal against sentence. In conclusion, it was his case that the case was brought mala fides and that the respondents/appellants never showed any disrespect for the authority of the court. Thus, the respondents/appellants should be entitled to acquittal and discharge. Reply by Counsel for applicant/respondent: Per contra, learned Counsel for the applicant/respondent has argued that the applicant/respondent was able to prove the guilt of the appellants beyond reasonable doubt. Counsel referred the court to p. 289 roa and stated his opinion that the learned trial judge rightly assessed the case each side presented and came to the factual conclusion that not only did appellants know of the existing injunction order prohibiting them from developing the disputed land but also that they continued to do so in defiance of the order through the agency of the 6th respondent/appellant who was at all material times aware of the said injunction order. Counsel referred the court to the decision of the Supreme Court in Mayor Agbleze & ors v The Attorney General & Electoral Commission and R v Gloria Akuffo & ors; Exparte: Mayor Agbleze & ors (2018) DLSC 3304 that explains that one of the main objectives of the offence of contempt was to protect the dignity of the court and the justice delivery machinery. In support of his submission that a case of contempt was made against the respondents/appellants, Counsel referred us to R v Sito 1; Exparte Fordjour (2001-2002) SCGLR 322 and the dictum of Atuguba JSC in Opoku v Libherr France SAS (2012) 1 SCGLR 159 in which case the learned judge had adopted and approved the dictum of Adade JSC in R v Mensa-Bonsu; Exparte: Attorney General (1995-96) 1 GLR 377. Counsel next referred the court to “Contempt of Court (1989) Clarendon Press, Oxford p. 3” in which the learned author, C. J Miller had propounded the law on contempt as follows: “Civil contempt of court exists, therefore, to provide the ultimate sanction against a person who refuses to comply with the order of a properly constituted court.” He concluded that all the ingredients of contempt were established against the respondents/appellants beyond reasonable doubt and that the learned trial judge did rightly convict the respondents/appellants of contempt. Counsel therefore advocated that the convicted should be upheld by this court. On the question of sentence, learned Counsel submitted that the respondents/appellants failed to demonstrate that in passing the sentences imposed by the court, the learned trial judge acted on wrong principles of law or considered facts which she ought not to have considered. He did submit again that sentence is a discretionary power bestowed on the court and that once a sentence was found not exceeding the statutory maximum, the appellate court ought not disturb it. In support, he relied on Banda v R (1985) 1 GLR 52 and Simons v Commissioner of Police (1963) 1 GLR 205. Counsel therefore invited this court to dismiss the appeal as lacking any merit. The Ghana law on contempt: It is trite learning that a charge or an allegation of contempt of court is quasi-criminal and for a person to be held in contempt his guilt ought to be proved beyond reasonable doubt. The power of the High Court to punish for contempt is provided for 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); 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 out the perimeters by which an applicant may move the court for an order for an attachment for contempt of court. It is pertinent to observe that Article 19 (Clause 11) of the 1992 Constitution provides and emphasizes that no person shall be convicted of a criminal offence unless the offence is defined and the penalty thereof is prescribed in a written law. Nevertheless, the same Constitution per 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. By reason that the act or omission constituent of the offence of contempt has not been so prescribed by legislation, Ghanaian courts unlike their British counterparts, have to resort to the case law to resolve any issue regarding contempt when confronted with one. Whereas Ghana has not taken steps to legislate on the law of contempt as regards offences constituting contempt, the United Kingdom from whom we borrowed our common law has taken the lead to enact “The Contempt of Court Act, 1981”. S 6 of the 1981 Contempt of Court Act preserves liability for contempt if intention to prejudice the administration of justice can be shown. So what constitutes contempt in Ghana? Before going into the merits or otherwise of this appeal, let me say a few words of my own on procedure adopted in the instant case. As is normal, the case commenced with a motion on notice, asking for certain reliefs to which reference has already been made. The parties sought to deal with these issues on affidavits. As the case progressed, it became apparent that the parties were not in agreement on some issues of fact raised in the averments contained in the affidavit in opposition the 6th respondent/ appellant filed. With leave of the court, therefore, Counsel for the applicant/ respondent was given the liberty to subject the 6th respondent/appellant to cross-examination on his averments contained in the affidavit in opposition. The procedure the trial court adopted was right and permissible under our rules of court and the substantive law of evidence. Indeed, in R v Korle Gonno District Magistrate Grade I; Exparte Ampomah (1993-94) 2 GLR 220 @ the Supreme Court speaking through Hayfron-Benjamin JSC stated the law as follows: “Order 38, r 1 of the High Court (Civil Procedure) Rules, 1 954 (LN 140A) not only permitted evidence to be given by affidavit at the hearing of any motion, petition or summons, but also empowered the High Court, on the application of either party, to order the attendance for cross-examination of any person making the affidavit. The court might in special circumstances also call persons other than the deponents on the hearing of a motion. Furthermore, section 68 of the Evidence Decree, 1975 (NRCD 323) permitted the court at any stage in any proceedings to call a witness. Accordingly, whether proceedings were being conducted on affidavit or oral evidence, the court was entitled to examine any person, whether a deponent or not.” We do therefore uphold the procedure the learned trial judge adopted in the instant case. Proceeding further, we need to remark that the law of contempt in Ghana is weather- beaten. The law has been discussed in several cases; the purpose and different forms of contempt. However, its basic function is to preserve the dignity of the court. In discussing the forms of contempt and its principal function, Adade JSC for eg., observed and ruled in R v Mensa-Bonsu & ors; Exparte: Attorney-General (1956-96) 1 GLR 377 @ as follows: “There are different forms of contempt. Underlying all of them, however, is one basic notion, that the roadways and highways of public justice should at all times be free from obstruction. Conduct which tends to create such an obstruction constitutes contempt. Thus interfering with witnesses or jurors; frightening off parties to litigation; refusing to answer questions in court; commenting on pending proceedings in such a manner as to prejudice the outcome; running down the courts and the judges; refusing to obey an order of a court any of these, if calculated to, or tend to, impede or obstruct the course of justice will constitute contempt. And conduct complained of therefore must be viewed and assessed against the backdrop of this basic principle.” [emphasis underscored] In R v Sito I; Exparte Fordjour (2001-2002) SCGLR 322 the Supreme Court gave yet another dimension to the definition of contempt. The 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. In In Re: Effiduase Stool Affairs (No.2); Exparte Ameyaw II (1998-1999) SCGLR 639 @ 660 that legal luminary, Acquah JSC (as he then was) gave an apt summary of what constitute contempt as follows: “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.” The law has also been stated that the courts shall not entertain any acts of willful blindness on the part of a contemnor. See: Western Hardwood Ent v West African Ent. [1998-99] SCGLR 12. Beyond the principle stated in the cases stated supra, we need to reiterate that any act or omission done ostensibly to prejudice the fair trial or outcome of a case even where no order has been made constitutes contempt of court. This legal reasoning finds expression in the case of R v Kofi Totobi Quakyi & ors - Civil Motion No. 45/94 delivered on 26/07/1994 (unreported) where the Supreme Court by a majority of 6:1 held that a superior court has jurisdiction to entertain contempt proceedings brought before it even though no order of the court has been interfered with. We have critically examined the affidavit evidence placed before the lower court, the cross examination of the 6th respondent/appellant, submissions of the lawyers on each side, as well as the judgment of the lower court and do hold the respectful view that the learned trial judge properly and rightly applied the law of contempt to the facts of the case. The judgment is sound and unimpeachable, having regard to the facts of the case and the oral evidence. It is therefore now clear that any conduct that tends to bring the authority and administration of justice into disrespect, disrepute or disregard and or to interfere with or prejudice parties, litigants or their witnesses is contempt of court. It has been stated that in its widest sense, anything that amounts to an improper interference with the due administration of justice constitutes a criminal contempt. In R v High Court Kumasi; Exparte Fosuhene (1989-90) 2 GLR 315 SC, FRANCIOS JSC held: “It is said that the object of the discipline enforced by the court in a case of contempt is not to vindicate the dignity of the court or the person of the judge, but to prevent un- due interference with the administration of justice ……… That rationale permits both the court and suitors to it to challenge any interference with its administration.” [emphasis highlighted] From the analysis of the available affidavit evidence and the cross-examination that the 6th respondent/appellant was subjected, it is not difficult to find in the instant case that the applicant/respondent filed a notice of claim culminating in interpleading proceedings. The applicant/respondent filed that to challenge title to the disputed land in a judgment the respondents/ appellants on the blind side of the applicant/respondent. The unchallenged evidence in the case is that the Bank of Ghana acquired a tract of land, the subject matter herein from the Hanson-Sackey family, the very family the 1st – 5th respondents belong to. it is also undisputed that the bank constructed a portion of the land for use by its members of staff and permitted some artisans to occupy the unused or undeveloped part to ply their trades thereon. So, to all intends and purposes, the applicant/respondent was unquestionably in effective possession of the disputed land. Then, sometime later, the respondents/appellants surreptitiously took action against some faceless persons allegedly occupying the land but without notice to the applicant/respondent. It is instructive to observe that in the application for interlocutory injunction granted on 31/05/2018, the court presided over by E. K Mensah J ordered that the plaintiffs/judgment/creditors/respondents [respondents/appellants herein] either by themselves or their agents, privies, assigns and all persons claiming through or under their authority are restrained from developing the land in dispute pending the determination of the notice of claim filed by the claimant/applicant [applicant/respondent]. The lower court made a finding of fact that the 6th respondent/appellant was put in possession by the 1st – 5th respondents/appellant having obtained a default judgment against the occupiers of the land but without notice to the applicant/respondent herein. That being the case, the 6th respondent/ appellant comes into the category of an agent or an assign of the 1st – 5th respondents/appellant. Significantly, the 6th respondent/appellant, per a proof of service by a Bailiff entrusted with service of the process, was duly served with a copy of the application for injunction. See: Exhibit BoG 13 p. 232 roa. Although the 6th respondent/appellant challenged that assertion that he was ever served with copy of the application, his answers under cross-examination [p. 248] gave him away as it became obvious that he was duly served and was lying to the court when he disputed that he was ever served. According to the Bailiff’s affidavit of service, the application was served on Adusa Krobea. In his answers to questions under cross- examination, the 6th respondent/appellant finally succumbed to the question that he was the one and the same person as Adusa Krobea Abubakari Kwaning as otherwise known as Frimpong. Significantly, regardless of the service of a copy of the application for interlocutory injunction on the 6th respondent/appellant, the construction activities on the disputed land continued. See: Exhibits BoG 8-10 [pp 94-106]. The evidence also established that the 6th respondent/appellant at a stage initiated a suit against the applicant/respondent together with other defendants ie Adusa Krobea v Bank of Ghana & 17 ors in respect of the same parcel of land. So, the 6th respondent/appellant’s assertion that he went unto the land by reason of his acquisition from another family and not from Hanson-Sackey Family is a moot point. Whether it was the Hanson-Sackey Family or Onamorokor Adain family that gave him access to the land, once it was established that he was on the disputed land developing it when he was served with the injunction application, it pales into insignificance the 1st – 5th respondents’/appellants’ denial that they put the 6th respondent/appellant on the disputed land. It cannot be overemphasized therefore that the learned trial judge was right in holding the 6th respondent/appellant in contempt. The lower court gave due consideration to the case of the respondents/appellants and that of the applicant/respondent as well. The lower court did effective analysis of the case, both on the facts and the law. It cannot be right for the respondents/ appellants to contend that the learned trial judge failed or neglected the case they put forward. In the result, these other grounds of appeal fail as unmeritorious and are hereby dismissed. On sentence, we are of the respectful opinion that the learned trial judge never violated any statute or any rule of law neither did she exceed her jurisdiction in imposing the sentences on the respondents/appellants. Admittedly, the sentences were different. On the authorities, imposing a sentence is discretionary and unless it was demonstrated that the sentence was unsupportable by the facts and the law or that the court exceeded the maximum sentence permitted by law, it cannot be rightly said the court did not exercise its discretion judicially. We hold in the instant case that the exercise of judicial discretion by the learned trial judge was appropriate, given the circumstances of the case and on the law. We have no good cause to disturb the judgment of the lower court. The appeal therefore fails for lack of merit and it is hereby dismissed in its entirety. Sgd P. BRIGHT MENSAH (JUSTICE OF APPEAL) CONCURRING ADJEI, J. A: I had the benefit of the draft judgment of my brother Philip Bright Mensah JA and I am in support of the reasoning and conclusion, however, I would like to discuss few matters in my own words. An appeal is a creature of statute and a person who files an appeal shall ensure that that person complies with the enactment creating the appeal together with the procedural laws of the court seised with appellate jurisdiction. Article 137 of the Constitution confers an appellate jurisdiction on the Court of Appeal to entertain appeals from the judgement of the High Court. Article 137 of the Constitution provides thus: “(1) The Court of Appeal shall have jurisdiction throughout Ghana to hear and determine, subject to the provisions of this Constitution, appeals from a judgment, decree or order of the High Court and Regional Tribunals and such other appellate jurisdiction as may be conferred on it by this Constitution or any other law. (2) Except as otherwise provided in this Constitution, an appeal shall lie as of right from a judgment, decree or order of the High Court and a Regional Tribunal to the Court of Appeal.” The constitutional provision above was restated verbatim by section 11 (1) & (2) of the Courts Act, 1993 (Act 459) and further conferred appellate jurisdiction on the Court of Appeal to entertain appeals from the Circuit Court in both interlocutory and final appeals. Interlocutory appeals are filed with the leave of the Circuit Court or with the leave of the Court of Appeal after the Circuit Court has refused to grant it. The Court of Appeal Rules, 1997 (C. I. 19) provides for time frame within which both final and interlocutory appeals from the High Court, Regional Tribunals and the Circuit Court to the Court of Appeal shall be filed and also addresses extension of time in final appeals to the Court of Appeal. Rule 8 of the Court of Appeal Rules, C. I.19 provides for the contents of a notice of appeal duly filed within the time frame provided by Rule 9 of C. I.19. Rules 8 sub rules (4)-(7) of the Court of Appeal Rules provides thus: “(4) Where the grounds of appeal allege misdirection or error of law, particulars of the misdirection or error shall be clearly stated. (5) The grounds of appeal shall set out concisely and under distinct heads the grounds on which the appellant intends to rely at the hearing of the appeal without an argument or a narrative and shall be numbered consecutively. (6) A ground which is vague or general in terms or which does not disclose a reasonable ground of appeal is not permitted, except the general ground that the judgment is against the weight of evidence. (7) A ground of appeal or a part of the appeal which is not permitted under subrule (6) may be struck out by the Court of its own motion or an application by the respondent.” The notice of appeal filed by the Respondents/Appellants who were convicted of contempt contains four grounds of appeal. The Applicant/Respondent has urged the Court to strike out grounds(a) (b) and (c) of the appeal as having being filed in clear violation of Rule 8 subrules (4) and (6) of the Court of Appeal Rules. The ground (b) of the appeal provides that the trial Court misdirected itself on what constitutes contempt. I find the ground of appeal vague and at the same time non-compliant with rule 8 subrule (4) of the Court of Appeal Rules, C. I. 19, that is, where an appellant who alleges an error of law or misdirection fails to provide the particulars of the error or misdirection and ground (b) of the appeal is not maintainable in law. The ground of appeal does not inform the Court either in tabulated form or description in the particulars of the misdirection being alleged and same is struck out. The Appellants in their ground (c) of the appeal alleged that the trial Court erred in convicting and sentencing the Appellants for contempt. The Appellants failed to provide for the particulars of the error committed by the trial Court to cloth this Court with jurisdiction to discuss and exercise its corrective powers over the ruling of the trial High Court properly pending before it on appeal. I further strike out ground (c) of the appeal for having being filed in clear violation of rule 8 subrule (4) of the Court of Appeal Rules, C. I. 19. The ground (a) of the appeal may be saved for determination as in substance suggests that the appeal is against the weight of evidence on record. This ground has been exhaustively discussed by my respected brother, Philip Bright Mensah JA, and I am satisfied that the Appellants woefully failed to demonstrate any error committed by the trial Court for this Court to correct same and further evaluate the evidence on record to arrive at a different conclusion. An appeal is by way of rehearing and this is provided by Rule 8 subrule (1) of the Court of Appeal Rules, C. I. 19. I have reheard the appeal and I am satisfied that no factual error was committed by the trial High Court for this Court to interfere with its decision. The law is settled that the omnibus ground of appeal may be used to resolve factual matters and to some extent some legal matters which will help resolve core factual matters under consideration. In the case of Owusu Domena v Amoah [2015-2016] 1 SCGLR 790, the Supreme Court following its previous decision in Attorney- General v Faroe Atlantic Co. Ltd [2005-2006] SCGLR 271 settled the position of the law with respect to matters which could be discussed and resolved under the omnibus ground of appeal. I am satisfied that the Appellants failed to fault the trial Judge on her evaluation of the evidence and the applicable laws used to determine the evidence and same is dismissed as unmeritorious. The ground (d) of the appeal is against the discretion exercised by the trial Judge in imposing different sentences on the Appellants. The trite law is that an appeal filed against a discretion shall not succeed unless it is proved that the trial judge exercised her discretion capriciously or arbitrary. In contempt like criminal conviction, a court of law in imposing appropriate sentence is required to take into consideration aggravated and mitigated factors. A person who treats a speaking order of a court of competent jurisdiction with contempt and fails to be remorseful is likely to get a stiffer sentence than the other convict who demonstrate remorsefulness. A court of competent jurisdiction in imposing appropriate sentences in contempt matters is not under any obligation to impose the same sentence but must take into account mitigating and aggravating factors. From the evidence on record, the 6th Appellant after having been served with the order for injunction deliberately and willfully disobeyed it by proceeding to develop the land for which the injunction relates. The 6th Appellant deserves stiffer sentence than the 1st-5th Appellants. The 1st-5th Appellants knew of the injunctive order but failed to stop their agent; the 6th Appellant herein from developing the land covered by an injunction. The Appellants failed to demonstrate that the trial Court exercised its discretion arbitrarily, capriciously or exceeded its jurisdiction and ground (d) of the appeal shall be dismissed as unmeritorious. The appeal is unmeritorious and same is dismissed in its entirety. sgd DENNIS D. ADJEI (JUSTICE OF APPEAL) sgd I also agree JENNIFER DODOO (JUSTICE OF APPEAL) COUNSEL PAUL K. BOAKYE FOR RESPONDENT/APPELLANT GYAN OSMAN FOR APPELLANT 32