Bodzabie Vrs Yaw [2022] GHAHC 84 (21 December 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HO – VOLTA REGION A. D. 2022 CORAM: CHARITY A. ASEM (MRS.), J. SUIT NO. E12/71/2022 DATE: 21ST DECEMBER, 2022 ZIKPUITOR BODZABIE (ZIKPUITOR OF TSRIFU STOOL) SUBSTITUTED BY KWAME BODZABIE PLAINTIFF VRS. NANA YAW DEFENDANT IN THE MATTER OF AN APPLICATION UNDER ORDER 50 OF HIGH COURT CIVIL PROCEDURE RULES 2004 (C. I 47) THE REPUBLIC VRS. NANA YAW OF WUSUTA EX-PARTE: KWAME BODZABIE RESPONDENT APPLICANT JUDGEMENT The applicant herein invoked the jurisdiction of this court against the Respondent on a Motion for an Order for Committal for Contempt of Court under Order 50 of CI 47 of the High Court Civil Procedure Rules 2004. It is the case of the applicant that the District Court, Vakpo on the 22nd day of September 2020 under its hand gave an Interim Injunction restraining the defendant from dealing with the disputed land till final determination of the case. Please see Exhibit ‘2’ attached. Secondly, the defendant/respondent is aware of the said order and knows what to do and refrained from doing. Thirdly, that the respondent has willfully disobeyed the orders of the court, the conduct of the respondent is deliberate and calculated to ridicule the authority of the court and to undermine the smooth administration of justice. The facts leading to the above order Exhibit “2” is as a result of a legal tussle over a piece of land situate at Vakpo between the applicant and the respondent herein pending at the District Court, Vakpo. The relevant Exhibits are; Attached to the application are; Exhibit “1” - Exhibit “2” – Order for Interlocutory Injunction made on the 22/9/2020. Exhibit “3” – Brief record of proceeding from the District Court. Exhibit “4” – The Motion on Notice for Interlocutory Injunction filed at the trial court. Affidavit in support and a black and white photograph marked as Exhibit “DB1”. It should be explained that Exhibit “DB1” was the stage the building was when the restraining order was made in September 2020. Exhibit “5” – A photograph of structures (houses) and image of a foundation of a sought; in colour photograph. Counsel for applicant in his written address filed on the 8/06/2022, contended that for the respondent with full knowledge of Exhibit “2”, yet continued the construction work on the disputed site has amply demonstrated that respondent has indeed envised willful and intentional defiance of the lawful order of the District Court and is liable to be committed to Contempt. The respondent per his affidavit in opposition filed on the 14/11/2022 has denied flatly any wrong doing. According to him, he is not responsible for what appears in Exhibit “5”. That the applicant should have attached the names of the workmen to tell the court who they are working for. Further that in an application such as Contempt of Court the acts of the contemnor must be proved but not impute acts. He prayed the application be dismissed and the applicant mulcted in heavy cost. The Law of Contempt only exists to uphold and ensure effective administration of justice and not abuse. And it should be noted that when a contempt of court is committed whether in facia curiae or ex facia curiae, it is the duty of the court to deal with it in order to secure and protect the authority of the court. To secure conviction in an application such as the instant Contempt application the laws place a burden of strict proof of the charge against the respondent beyond all reasonable doubt. As contempt of court is a quasi-criminal in nature. It was held in the Case of Republic V. Nana Osei Bonsu II Mamponghene & 2 Ors. (2008) 14 GMRG 1 at page 13 holding 14 that, “To be guilty of Contempt of Court or the Contempt of Regional House of Chiefs, there must be conducts, actions or omissions on the part of the persons charged with the Contempt which turns to undermine the authority of the court or tribunal by interfering with process pending in the court or tribunal. Now with the guiding principles of the elements that constitute Contempt in the Case of Republic V. Sito I Ex-Parte Fourjour (2001-2002) SCGLR 322, I am satisfied that, there is an order requiring the respondent not to enter the land pending final determination of the case, Exhibit “2”. I am also satisfied that respondent is aware of the order and its terms not ambiguous. At least there is no indication from the affidavit to suggest he has no knowledge of Exhibit “2”. The outstanding issue is whether the applicant has shown that respondent has failed to comply with the terms of the order (Exhibit “2”) and that his disobedience is willful. And by the evidence offered by Counsel for applicant, can it be said that a prima facie case of contempt has been made out. ‘ In the case of In Re Effiduase Stool Affairs President of the National House of Chiefs & Ors. No. 2 Republic v. Numapaw Ex-Parte Ameyaw II No. 2 (1998-99) SCGLR 639 – It was held that; “Since Contempt is Quasi Criminal and the punishment for it might include a fine or imprisonment, the standard of proof required was proof beyond reasonable doubt. An applicant must therefore first make out a prima facie case of Contempt before the court could consider the defence put against it by the respondent.” The evidence in support of applicant’s case against the respondent is Exhibit “4” and Exhibit “5”. Now I have examined Exhibit “4”. According to applicant and his Counsel, the black and white picture depicts the stage of the construction when the court made the restraining order per Exhibit “2”. That Exhibit “5” is the new development being complained about. To be honest, I cannot see anything on exhibit “4” (DB1) the photograph is dark and I cannot make any sense of it. Exhibit “5” is a coloured photograph of a small portion of footage of a foundation of a sought. My observation of the photograph is that, it is undated, there is no indication where the image was taken from and so no probative value can be placed on Exhibit “5” also. The conclusion of the matter is that, the instant application was poorly prosecuted; as the applicant has not introduced any satisfactory evidence of willful disobedience against the respondent. I hold that the applicant failed to prove any offence against the respondent. It is held elsewhere that, “application for Contempt or Certiorari and the prayer for its grant must be carefully thought of and taken seriously by practitioners. Litigants must not cause their lawyers to jump at issues that are minor, trifle inconsequential irrelevant, or unimportant to push the court into delving into absurdity” The charge of contempt of court is a serious matter, capable of depriving an individual of his liberty, and conviction must only be based on strong and satisfactory evidence. Looking at the evidence in the instant application, I consider that Learned Counsel allowed himself to be pushed into presenting this rather frivolous application against the respondent thereby putting him to cost. I agree with respondent that, the case be dismissed and the applicant mulcted in heavy cost. From the record of proceedings, the respondent has made travel expenses from Vakpo to Ho on 7 occasions. He engaged the services of Counsel and made personal expenses. This court taking into consideration the above enters cost in the sum of GH¢5,000.00 in favour of respondent against the applicant. Respondent is hereby acquitted and discharged. GH¢5,000.00 cost awarded. Case is dismissed. (SGD.) CHARITY A. ASEM (MRS.) J. (JUSTICE OF THE HIGH COURT) PARTIES; APPLICANT – PRESENT. RESPONDENT - PRESENT LEGAL REPRESENTATION RAYMOND AKPATSA FOR THE APPLICANT – ABSENT. ERNEST DELA AKATE FOR THE RESPONDENT - ABSENT. jd* 7