Republic Vrs Odei [2022] GHAHC 51 (26 October 2022)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE WINNEBA, CENTRAL REGION OF GHANA HELD ON WEDNESDAY, THE 26TH DAY OF OCTOBER, 2022, BEFORE HIS LORDSHIP, JUSTICE ABOAGYE TANDOH, HIGH COURT JUDGE. THE REPUBLIC VS. ISAAC ODEI EX PARTE: SUIT NO. E12/022/2022 … RESPONDENT DANIEL OPARE ASIEDU PER JOSHUA APPEKEY … APPLICANT JUDGMENT Before me is an application for an order to commit the Respondent to prison for Contempt of court pursuant to Order 50 rule 1, 2, 3 of C. I 47. For the avoidance of doubt, Order 50 rule 1, 2 and 3 of C. I 47 states: Committal for contempt 1. (1) The power of the Court to punish for contempt of court may be exercised by an order of committal. (2) Committal proceedings shall be commenced by an application to the Court. (3) The application shall be supported by an affidavit stating inter alia the grounds of the application. See also Section 36(1) of act 459, (1993) According to the Applicant, on the 18th day of March 2016 he instituted an action at the High Court (Commercial Division), Cape Coast against the Respondent (1st Defendant) and Christ Academy Ltd (2nd Defendant) therein claiming among others, for the following reliefs:- a) A declaration that Plaintiff having acquired 60% shareholding of Mr. Osae Kwafo in the 2nd Defendant entity is the majority shareholder of the 2nd Defendant. b) A further declaration that as the majority shareholder of the 2nd defendant the Plaintiff is entitled to appoint the head teacher and other management staff of the 2nd defendant. c) An order directed at 1st Defendant to render a comprehensive account on his dealings with the business of the 2nd Defendant since September 2013 since he usurped the position of Head Teacher of 2nd Defendant from Mr. Osae Kwafo till date of handover. d) An order directed at the 1st Defendant to hand over the management of the 2nd Defendant to the Plaintiff (See attached herewith a copy of the writ of summons and statement of claim marked EXHIBIT “A”) The Applicant stated that on the 28th day of June 2021 the High Court presided over by His Lordship Emmanuel Kofi Diaba J. entered judgment after full trial in favor of the Applicant herein. (Find attached herewith a copy of the Judgment marked as EXHIBIT “B” series). According to the Applicant, he filed an Entry of Judgment on the 16th day of August 2021 and same was duly served on the Respondent. (See attached herewith a copy of the Entry of Judgment and Proof of Service of same marked as EXHIBIT “C”) The Applicant averred that Mr Joshua Appekey his Lawful Attorney was appointed as the new Head teacher of the Christ Academy Limited by the Board of Directors of the School. (Find attached herewith a copy of my Letter of Appointment marked as EXHIBIT “D”). Thereafter, the applicant said he went to the school and introduced him personally to one Mr. Wisdom Gettor who claimed to be the new Head Teacher of the School appointed by the Respondent. According to the Applicant, he told Mr. Gettor to inform the Respondent that his Lawful Attorney Mr. Joshua Appekey was standing by to take over the headship of the school pursuant to the order of the High Court. According to the Applicant, on the 29th day of October 2021 he called the Respondent on phone and asked him when he was going to handover the management of the school to him but he was very hostile saying that the school was not a partnership to be handed over to him.(See attached herewith a copy of call log marked as EXHIBIT “E” series) The Applicant averred that he wrote to the Respondent through his Lawyer to inform him of his appointment as the new Head teacher and requested that Respondent hands over the management of the school to him which letter he delivered personally to the Respondent but he refused to hand over to him. (Find attached herewith a copy of the letter marked as EXHIBIT “F”) Thereafter, he said he met the Respondent at the school and requested that he hands over to him but he flatly refused to do so. According to the Applicant, since the 15th day of October when he appointed a Head Teacher for Christ Academy Limited, he has been to the school on daily basis hoping that the Respondent will initiate steps to handover the management of the school to him but to no avail. The Applicant averred that the Respondent by his conduct has disrespected the court, obstructed the administration of Justice, and undermined the authority of the court by willfully refusing to obey the Order of the Court to handover the management of Christ Academy Limited to the Applicant among others. According to the Applicant, the Respondent is in gross contempt of this Honourable court and ought to be punished severely to serve as a warning to other likeminded persons, their assigns, servants among others. In his affidavit in opposition to the application, the Respondent averred that the deponent lacks the capacity to swear to the application in support and same shall be raised as preliminary legal objection. It is the case of the Respondent that the deponent described as “True and Lawful Attorney” must exhibit a power of attorney which in this case there is none, so with the absent of same cannot depose to the affidavit in support. However, the Respondent admitted paragraphs 3, 4, and 5 of the affidavit in support of the motion. The Respondent further denied paragraph 6 of the affidavit in support of the application and stated that being the member of the board, he had no invitation to a board meeting where an appointment of a headmaster of the school became an agenda and the said attorney or deponent was appointed as headmaster. The Respondent denied paragraphs 7, 8 and 9 and raised issue with Exhibit E especially one Mr Kwafio whose name appeared on the exhibit. In the case of REPUBLIC VRS. SITO I; EX-PARTE: FORDJOUR1 the Supreme established that in an application for contempt, the burden of proof is be beyond reasonable doubt just as in a criminal discourse. The party can only be shown to be 1 (2001-2002) SCGLR 322 guilty if there is an order or judgment of which he is aware that requires him to do or abstain from doing a particular thing In deciding this application one way or the other, it is important to examine the alleged conduct of the Respondent being complained of within the perspective of the law of contempt. The law is trite that any conduct that constitutes disobedience to an order of court or the Court’s processes amounts to contempt of court. Oswald on “CONTEMPT OF COURT” 2ND EDITION page 6 states of contempt of court in the following words: “…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 litigation” In his recent academic work on the “LAW OF CHIEFTAINCY IN GHANA INCORPORATING CUSTOMARY ARBITRATION, CONTEMPT OF COURT AND JUDICIAL REVIEW” S. A. Brobbey (JSC) at page 460 stated as follows: “An act or omission will amount to contempt of court if it tends to lower the authority of the court or to pre - empt or forestall the outcome and thus undermine the power of the court to determine the case as it deems fit”. The rationale for relief when contempt is brought to the attention of the Court by an Applicant is to ensure that orders of the Court are enforced and the sanctity of its processes are not unlawfully abused. ALDRIDGE, EADY & SMITH ON CONTEMPT 2ND EDITION 1999states at paragraphs 12 to 15 at page 736 as follows: “It is obvious that any civilized society depends upon the authority and effectiveness of orders made in its court. There is thus a public interest in seeing that orders are enforced. Civil Contempt cannot be considered therefore merely as a means by which individual litigants can enforce orders in their favour. The court has an interest on behalf of the community at large in ensuring that orders are not disobeyed at the option of one party or even both”. Further Lord Diplock in AG VRS. TIMES NEWSPAPER LTD.2 said as follows: “The provision of such a system for the administration of justice by the courts of law and the maintenance of public confidence in it are essential, if citizens are to live together in peaceful association with one another”. It is always the duty of the Applicant to prove his case in a quasi-criminal action such as Contempt beyond reasonable doubt because a mere allegation without concrete prove is insufficient. In the Supreme Court case of IN RE EFFIDUASE STOOL AFFAIRS (NO. 2) REPUBLIC VRS. NUMAPAU PRESIDENT OF THE NATIONAL HOUSE OF CHIEFS; EX-PARTE: AMEYAW III (NO. 2)3 “Since contempt of court was quasi criminal and the punishment for it might include a fine or imprisonment, the standard of proof required was beyond reasonable doubt. An Applicant must therefore first make out a prama facie case of contempt before the court could consider the defences put up by the Respondents”. At page 666 of the report, the Supreme Court in elaborating the principle further stated that: 2 (1973) 3AERpage 54 3 (1998 – 99) SCGLR 639 Holding 2). “...in this regard, an admission or proof of the factual allegation does not imply an admission of liability in contempt, as it would still be the burden of the Applicant to establish that the said actual allegations constitute contempt”. The Supreme Court per the case of IN RE EFFIDUASE STOOL AFFAIRS (NO. 2) REPUBLIC VRS. NUMAPAU PRESIDENT OF THE NATIONAL HOUSE OF CHIEFS; EX-PARTE: AMEYAW III ( SUPRA) buttresses the provisions of SECTION 13(1) OF THE EVIDENCE ACT,4 which provides 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 a reasonable doubt”. For the avoidance of doubt, the orders of the court in this judgment including an injunction order states thus: a) A declaration that Plaintiff having acquired 60% shareholding of Mr. Osae Kwafo in the 2nd Defendant entity is the majority shareholder of the 2nd Defendant. b) A further declaration that as the majority shareholder of the 2nd defendant the Plaintiff is entitled to appoint the head teacher and other management staff of the 2nd defendant. c) An order directed at 1st Defendant to render a comprehensive account on his dealings with the business of the 2nd Defendant since September 2013 since he usurped the position of Head Teacher of 2nd Defendant from Mr. Osae Kwafo till date of handover. 4 1975 (NRCD 323) d) An order directed at the 1st Defendant to hand over the management of the 2nd Defendant to the Plaintiff. The key issue worth considering is whether or not the Respondent by his conduct obstructed the course of justice and in so doing brought the administration of justice into disrepute? It is not in doubt that the orders of the court duly came to the notice of the Respondent. Also the orders of the court, was so explicit that no further explanation was required for compliance. From the affidavit evidence on record, the reluctance of the Respondent to comply with the court was obvious. Instead of seeking to purge himself, by virtue of the charges and evidence adduced, all that the Respondent per the legal submission for and on behalf of the Respondent was to dwell on capacity and technicalities in a quasi – criminal offense governed by the rules of court and criminal law. Contrary to what the Respondent to believe, the power of attorney issued to the Applicant’s Attorney was dated October 21st 2022 prior to issuing the contempt action per Exhibit G. Exhibit G which was duly adopted and admitted. Also, exhibit G came to the notice of the Respondent prior to filing his address, and did not object to same only to do so in his legal submission. From the foregoing, it is trite that the court’s quest to do justice is paramount and same cannot be frustrated by technicalities as being advanced for and on behalf of the Respondent. It is also trite that the court a court can suo moto amend the capacity if a party in order to do substantial justice. In the case of OBENG & OTHERS V. ASSEMBLIES OF GOD CHURCH, GHANA [2010] SCGLR 300 at 323-324 the Supreme Court per pages 323 – 324 sated thus: “ The last issue to be determined in this appeal is the issue of want of capacity and whether it was proper for the Court of Appeal to have amended the capacity of the plaintiff’s in order to cloth them with capacity to maintain the action. We find that as a fact that, the plaintiffs commenced this action as follow; “ Assemblies of God, Church, Ghana per the Executive Presbytery, Headquarters Building H/No. c. 500/J Avenor, Accra” We also, find that this tittle is not different from the address that the defendants used in their letter exhibits BB to the plaintiffs. This means that, the defendants themselves were dealing with an Executive Presbytery of the Assemblies of God Church, Ghana. And at page 324 of the report, the Supreme court continued thus:: In this Court, we take the view that since the Courts exist to do substantial justice, it would be manifestly unjust to non-suit the plaintiffs because the added ‘Executive Presbytery” to their names on the writ of summons. Courts must strive to prevent to avoid ambush litigation, by resorting and looking more at the substance than at the form. On the facts once the plaintiff church had been registered as a corporate entity under the Religious Bodies (Registration) Law, 1989(PNDCL221), the plaintiffs cannot be denied the capacity which they have already have. We agree that there are plethora of legal authorities to support an amendment of a party on appeal in order to do substantial justice in the case. See cases like: GHANA PORTS AND HARBOURS AUTHORITY VRS. ISSOUFOU5 where the Supreme Court held (as stated in holding (1) that: “.... The court has a duty to ensure that justice in cases before them and should not let that duty be circumvented by mere technicalities. Since the power to make amendments (page 325) to the capacities of a party rested in the inherent jurisdiction of the courts, the courts could, when the issue was raised either in the trail court any time after judgment was delivered or in the 5 (1993-94) 1 GLR24, SC appellant court on the application of a party to the suit, orally or otherwise, grant such amendments as were necessary to meet the justice of the case”. See also the book, the Law as Decided by the Superior Courts in Ghana by the Learned author, Fred Obikyere. From the foregoing, I find that the Respondent was aware of the orders of the court including an injunction order to hand over the management of the 2nd Defendant therein but willfully ignored, obstructed the course of justice and disobeyed the order and continued to manage the school( 2nd therein) even though restrained by the court not to do so. SEE: REPUBLIC VRS. SITO I; EX-PARTE: FORDJOUR (SUPRA) From the foregoing, I find as a fact and hold that the Respondent failed to raise a doubt as to the case of the Applicant to warrant an acquittal. SEE Section 13(2) of the Evidence Act, 1975 (NRCD 323). I have considered the totality of the affidavits evidence adduced, the Plethora of authorities and the ensuing legal arguments for and on behalf of the respective parties and the applicable law and I hold that the Applicant led evidence beyond reasonable doubt to establish the guilt of the Respondent of contempt of court. CONCLUSION Upon consideration of the totality of the evidence before this court, as well as the legal submissions for and on behalf of the respective parties, the Respondent willfully obstructed the course of justice and disobeyed the orders of the court without any just cause and thereby brought the name of the court into disrepute and ridicule. Accordingly, the Respondent aver in the violation of the court’s order which order he knows of restraining him, his agents assigns, workmen, privies or whom so ever from holding himself out as the head teacher of Christ Academy the 2nd Defendant therein. The Respondent is therefore found to be in contempt of the court and he is accordingly convicted. In sentencing, the court took into consideration the plan for mitigation by Counsel Frank Sagoe and Counsel Theophilous Adepodju also taken into consideration is the contemnor Conduct that warrants deterred sentence. The contemnor is sentenced to three (3) days in custody and a fine of three hundred (300) least penalty units in default additional fourteen (14) days imprisonment. (SGD). JUSTICE ABOAGYE TANDOH HIGH COURT JUDGE. COUNSEL MR. SAMUEL AMANKWAH, FOR THE APPLICANT. MR. FRANK SAGOE HOLDING THE BRIEF OF MR. ESUA TAKYI, FOR THE RESPONDENT. /MK/ 11