The Republic Vrs Ackuayi & Another and Torgbui Duklui Attipoe V & Another [2022] GHAHC 62 (31 October 2022)

IN THE HIGH COURT OF JUSTICE, HELD IN SOGAKOPE ON MONDAY THE 31ST DAY OF OCTOBER, 2022 BEFORE HER LADYSHIP JUSTICE DOREEN G. BOAKYE- AGYEI (MRS.) JUSTICE OF THE HIGH COURT ========================================================================= SUIT NO: E13/71/2022 THE REPUBLIC -VRS- 1. 2. NORFELI ACKUAYI FRANCIS SUSUAWU EX-PARTE 1. TORGBUI DUKLUI ATTIPOE V 2. AGBENYEFIA ATTIPOE ==================================================== PARTIES: APPLICANTS REPRESENTED BY GORDEN ATTIPOE RESPONDENT PRESENT COUNSEL: DR. JOE ATTIPOE, ESQ., COUNSEL FOR APPLICANTS MR. JERRY JOHN KOFI ASIEDU, ESQ., LED BY MR. JUSTICE KWAKU SALLAH, ESQ., COUNSEL FOR RESPONDENTS - - PRESENT PRESENT ========================================================= ~ 1 ~ JUDGMENT =========================================================== INTRODUCTION The Applicants filed the instant application seeking to have Respondents committed for Contempt of Court. On 17th April, 2019, three Plaintiffs issued a Writ of Summons and a Statement of Claim against the 1st Respondent herein and 5 other persons at the High Court, Sogakope, claiming the reliefs endorsed therein. The case was titled Torgbui Duklu Attipoe V Vrs: Norfeli Ackuayi & 5 Ors with Suit number E1/24/2019. The Writ of Summons and the Statement of Claim were subsequently amended by the joinder of some other Defendants, the amended Writ of Summons and Statement of Claim were attached marked Exhibit AA “1” and Exhibit AA “1A” respectively. The 1st Respondent herein is the 1st Defendant in the aforesaid case. On 2nd May, 2022 the Honourable Court granted an Order of Interlocutory Injunction restraining both parties, their agents and assigns from interfering in any manner whatsoever with the land the subject matter of the dispute and building thereon pending final determination of the suit, the said order of Interlocutory Injunction attached marked Exhibit AA ‘2’ It is the case of Applicants that despite the pendency of the case and the grant of the Order of Interlocutory Injunction the Respondents unlawfully entered the land with building materials, erected corner pillars and commenced building activities. That when 2nd Respondent was told of the pendency of the Court case, he said it was the 1st Respondent who sold the land to him and that 1st Respondent assured him that he can build on the land. Also that pursuant to the assurance given to 2nd Respondent by 1st Respondent, corner pillars were erected on the land under the supervision of the 1st Respondent. That Respondents also evinced the intention to commence other building activities by bringing workers onto the land. ~ 2 ~ It is Applicants further case that on 25th April, 2022, 1st Respondent was on the land and was captured with one of the workers mixing cement and sand on the land in preparation for building activities. Attached were pictures of the Respondents’ activities on the land showing the corner pillars and the 1st Respondent and one of the workers on the land marked Exhibit AA “3” series according to Applicants. That 1st Respondent as the 1st Defendant in the substantive case is aware of the pendency of the case and the grant of the Order of the Interlocutory Injunction. Also that 1st Respondent was in Court when the Court granted the Order for Interlocutory Injunction and 1st Respondent who regarded the Order for Interlocutory Injunction as a form of a personal victory unlawfully posted copies of the Order in the Anyako Township and on Plaintiffs’ structure on the land in dispute. Against the 2nd Respondent, Applicants case is that he is also aware of the pendency of the case titled Torgbui Duklu Attipoe V Vrs Norfeli Ackuayi & 5 Ors supra and the fact that the Honourable Court has granted an Order of Interlocutory injunction. That the conduct of the Respondents in entering the land, erecting corner pillars, digging a foundation and proceeding to commence building activities on the land knowing that there is an Order of Interlocutory Injunction and that the case is pending is contemptuous as it amounts to an interference in the administration of justice. That the conduct of the Respondents is highly detestable, wilful and intentional and thereby constitutes contempt of Court as the conduct of the Respondents is intended to scandalize the Courts by eroding public confidence in the Courts thereby weakening and impairing the authority of the Court. Again that the conduct of the Respondents constitutes a show of wanton and utter disregard and disrespect for the Orders of the Court and Respondents ought to be severely punished by incarceration. Finally that the conduct of the Respondents has interfered with and has brought the authority and administration of the law into disrepute. ~ 3 ~ The grounds upon which the Application is brought are as follows: a. Engaging in conducts in utter disregard of the pendency of the case and the Order of Interlocutory Injunction. b. Wilfully and intentionally disobeying the orders of the Court. c. Wilfully and intentionally interfering in the administration of justice. 1st Respondent in this application deposed that he had not done and will not knowingly or willfully do anything which will bring the authority, integrity and repute of this Honourable Court or the administration of justice into disrepute. Paragraphs 4, 5, 6, 8 and 9 were admitted by him. In response to paragraphs 11 and 12 he stated that the development exhibited by the Applicants as Exhibits AA”3”, AA”3A” and AA”3B” are not on the disputed land. That the Applicants came to Court claiming the land endorsed on the Writ of Summons and the Statement of Claim and the Applicants upon filing the Writ of Summons and the Statement of Claim filed on application for interlocutory injunction which resulted in Exhibit AA’2’ attached to the instant application. 1st Respondent contends that attached to the Applicants’ application for injunction was a Site Plan showing the land the Applicants were claiming in this Court to be their land. He attached and marked as Exhibit A the said Site Plan in verification. That the parties decided to attempt settlement and procured a Composite Plan to be drawn which Composite Plan shows clearly where the land the Plaintiffs are claiming lies. He also attached and marked as Exhibit B a copy of the Composite Plan in verification. 1st Respondent submits that as can be seen from the Composite Plan the land the Applicants are claiming as per their Site Plan starts from within the fenced property indicated in there as “Fenced property for Eli Attipoe “and extends towards Anyako. That the development as shown in Exhibits AA”3”, AA”3A” and AA”3B” fall outside what is indicated as “Fenced property for Eli Attipoe “to the Abor side. He attached and ~ 4 ~ marked as Exhibit C a copy of a picture which shows the development the Applicants are complaining about in relation to the “Fenced property for Eli Attipoe”. That based on the forgoing the application for contempt is without merit and he prays that same should be dismissed with punitive cost in his favour to defray his legal cost which the Applicants’ needlessly put him to. 2nd Respondent in this application also deposed that he had not done and will not knowingly or willfully do anything which will bring the authority, integrity and repute of this Honourable Court or the administration of justice into disrepute. He denied paragraphs 11 and 12 of the affidavit in support of the instant application. He contends that he was not even working together with the 1st Respondent as the land he was working on only shares boundary with the Gbeckor family land to the Abor side and the land is not part of the subject matter in Court. Also that the application for contempt is without merit and he prays that same be dismissed with punitive cost to defray his legal cost which the Applicants caused him to incur needlessly. The law is quite tritely known that Contempt is quasi criminal and requires the following elements which must be proved beyond reasonable doubt to succeed against an alleged contemnor per the case of The REPUBLIC V. SITO I EX PARTE FORDJOUR (2001-2002) SCGLR 322) 1. There must be a judgment or order requiring the contemnor to do or abstain from doing something; 2. It must be shown that the contemnor knows what precisely he is expected to do or abstain from doing, and 3. It must be shown that he failed to comply with the terms of the judgment or order and that his disobedience is willful. ~ 5 ~ In the case REPUBLIC V. HIGH COURT, ACCRA; EX PARTE LARYEA MENSAH (1998-99) SCGLR 360 at page 368 the Court explained contempt of court as follows: “By definition, a person commits contempt and may be committed to prison for willfully disobeying an order of court requiring him to do any act other than the payment of money or abstain from doing some act; and the order sought to be enforced should be unambiguous and must be clearly understood by the parties concerned:. There is yet another form of contempt of court which has to do with the alleged contemnor attempting to or actually overreaching the court in such a manner as to prejudice the outcome of a case which is pending before a court, or generally scandalizing the court or doing anything to bring it into disrepute. Thus in the case of REPUBLIC V. MENSA-BONSU & OTHERS; EX PARTE ATTORNEY-GENERAL (1995-96) 1 GLR 377@403, the learned jurist Adade JSC stated; “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 tends 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.” In the case of the DEEPSEA DIVISION OF THE NATIONAL UNION OF SEAMEN AND OTHERS V. TRADES UNION CONGRESS OF GHANA AND OTHERS (1982- 83) GLR 941, it was held that the court would only punish as contempt a breach of injunction if it was satisfied that the terms of the injunction were clear and unambiguous, that the defendant had proper notice of the terms and that the breach of the injunction ~ 6 ~ had been proved beyond reasonable doubt. Where the disobedience was unintentional or accidental, the court would not issue a writ for attachment. See also THE REPUBLIC V. BEKOE AND OTHERS; EX PARTE ADJEI (1982-83) GLR 91, where it was also held that it was a legitimate defence to a charge of contempt that the person charged had had no notice of the order; a person could not be guilty of an order of the court of which he had had no notice. The applicant had failed to satisfy the court that all the respondents had notice of the order of the Judicial Committee prior to the date of the alleged contempt, either because they were present in court when the interim orders were made or that they were subsequently served on them. Although, on the evidence, the respondents were represented by counsel before the committee, in matters of contempt, which would deprive the liberty of a subject, actual, but not imputed, notice of the specific terms of the orders must be proved. Thus in the case REPUBLIC V. MICHAEL CONDUAH; EX PARTE SUPI GEORGE ASMAH; Civil Appeal No. J4/28/2012 date 15th August 2013, unreported, the Supreme Court held that “the High Court had acted without jurisdiction in the first place and accordingly vacated the order it had made over ten years earlier. However, the court held that as long as that decision had not been set aside the applicant had no reason to disobey it and so allowed the conviction for contempt to stand. The standard of proof in contempt proceeding is well settled. Contempt of Court is a quasi-criminal process which requires proof beyond reasonable doubt. This is so whether the act complained of is Criminal contempt or Civil Contempt as was rightly stated in COMET PRODUCTS UK LTD V. HAWKEX PLASTICS LTD [1971] 1 A E R 1141 at page 1143, CA The Court in that case held as follows: “Although this is a civil contempt, it partakes of the nature of a criminal charge. The Defendant is liable to be punished for it. He may be sent to prison. The rules as to criminal charges have always been applied ~ 7 ~ to such proceedings. It must be proved with the same degree of satisfaction as in a criminal charge. The view that contempt of Court requires proof beyond reasonable doubt was rehashed in the case of AKELE V COFFIE AND ANOTHER AND AKELE V OKINE AND ANOTHER (CONSOLIDATED [1979] GLR 84-90. It was held that: “In order to establish contempt of Court even when it was not criminal contempt but civil contempt, there must be proof beyond reasonable doubt that a contempt of Court had indeed been committed. Contempt of Court may be committed intentionally or unintentionally. It is no defense to a charge of Contempt for a party to prove that he did not intend to commit contempt of Court. In REPUBLIC V MOFFAT; EX PARTE ALLOTEY [1971] 2 GLR 391, it was held that it was no defense for a party facing attachment for contempt to swear to an affidavit deposing that he did not intend to commit contempt of Court. Intentional contempt may arise in two ways: a. where a party willfully disobeys an order or judgment of a Court, and b. where a party knowing a case is sub judice, engages in an act or omission which tends to prejudice or interfere with the fair trial of the case despite the absence of an Order of the Court In cases of willful disobedience of an Order or judgment of the Court, the following elements have to be established: That there is a judgment or order requiring the contemnor to do or abstain from doing something; b. That the contemptnor knows what precisely he is expected to do or abstain from doing and c. it must be shown that he failed to comply with the terms of the judgment or order and that his disobedience is willful. See the case of REPUBLIC V SITO 1; EXPARTE FORDJOUR (2001) SCGLR 322. In that case, His Lordship T. K. ADZOE stated as follows: “The type of contempt charged against the Appellant involves wilful disobedience to the judge or order, or other processes of a Court; it must import a demand to do or abstain from doing something. A refusal to ~ 8 ~ comply with that demand of the Court is what constitutes the offence of contempt which the Courts consider as an obstruction to the fair administration of justice and also an affront to the dignity of the Court. The offence interferes with the administration of justice because it in effect denies a party his right to enjoy the benefits of the judgment or Order; it is an affront to the dignity of the Court in this sense that it is viewed as an act deliberately contrived to undermine the authority of, and respect for, the Court. And the law treats it as a quasi – criminal offence to vindicate the cause of justice. Some degree of fault or misconduct must be established against the contemnor to show that his disobedience was willful. Also in REPUBLIC V HIGH COURT ACCRA; EX PARTE LARYEA MENSAH [1998/99] SCGLR 360, the Supreme Court held that for an act of a party to amount to contempt of Court, it must be established that he has been guilty of a willful disobedience or to have violated a specific order of a Court. On 25th April 2022, 1st Respondent was on the land and was captured with one of the workers mixing cement and sand on the land in preparation for building activities. Applicants exhibited pictures of the Respondents' activities on the land showing the corner pillars and the 1st Respondent and one of the workers on the land marked Exhibit AA "3' series. Exhibits AA '3B' and AA "3C' dated 26th April 2022 are pictures of a foundation erected on the land by the Respondents. Exhibits C1, C2 and C3 dated 26th May 2022 attached to the affidavit in opposition filed by the 1st Respondent are pictures showing a completed and a roofed building. Applicants filed the instant application on 27th April 2022. What this means is that after the Respondents were served with the application at the time the building was at the foundation stage, Respondents instead of putting a halt to their building activity, proceeded to complete and roofed the building. Respondents should have stopped their activities on the land out of respect for the Court, ~ 9 ~ especially where the instant application is an application for contempt in respect of the very activity Respondents are engaged in on the land in dispute. The bold and brazen unapologetic argument of the 1st Respondents is that he decided to continue the building activities on the land because where he is building is not on the disputed land. This is confirmed by paragraphs 6, 7, 8, 9, 10, 11, 12 and 13 of his affidavit in opposition. 2nd Respondent also appears to take the same position as shown by paragraph 7 of his affidavit in opposition. He states that he was not working with 1st Respondent per paragraph 6 of the affidavit in opposition. 1st Respondent attached Exhibit 'B' which he says is a Composite Plan on the lands claimed by the parties. Exhibit B' does not support his argument that the new building constructed on the land falls outside the land claimed by the Applicants. According to Exhibit 'A' which is the 1946 Site Plan of the Applicants, the land bordering Applicants' land on the north (Abor side) belongs to the Takpadze and Wotordzor family. The 6th Defendant in Exhibit AA '1' and AA '2', the Writ of Summons and Statement of Claim, is Esi Ahor, who joined the case on behalf of the Takpadze family and who filed a counterclaim in respect of the said land. The Court has yet to determine whether or not the land bordering Applicants' land on the north (Abor side) is part of the land in dispute. The case of the Applicants' is that the interlocutory injunction is about the land in dispute which includes the lands being claimed by the various parties. It is the case of the Applicants that Respondents constructed the building on a portion of the land, which belongs to the Applicants' family, part of the land in dispute. In any case, the law frowns upon any reference to statements or events that took place during a failed attempt to settle a matter. In the case of COMMISSIONER OF POLICE VRS SEM (1962) 2 GLR 77 AT PAGE 81, the Supreme Court speaking through Adumua- Bossman J. S. C, referred to the statement of Coussey J (as he then was) in the unreported ~ 10 ~ case of DAVIES VRS KOFI KUMA (3 WACA), 15 January 1952, as follows: “it is a settled general policy of the law that nothing which might have taken place during negotiations for the settlement of a dispute between parties, should afterwards, if the negotiations fail and the dispute has to be tried and decided on its merits, be used by a trial judge to prejudice either party'. Paragraphs 10, 11, 12, and 13 of the 1st Respondents affidavit in opposition together with the attached Exhibit "B' which made references to the failed attempt to settle the case will be ignored by the Court. There is no doubt that there is a pending case at the High Court, Sogakope, involving the Applicants and the 1st Respondent and others. It is also not in dispute that the Court made an Order of Interlocutory Injunction on 2nd May 2022 restraining the parties from entering into the disputed land or continuing any further development or activity on the land. The Order of Interlocutory Injunction is attached to the application and marked Exhibit AA “2” and by Exhibit AA "2', Respondents are to abstain from entering into the disputed land or continuing any further development or activity on the land There is no doubt that that Respondents especially the 1st Respondent knows that they are restrained from entering into the disputed land or continuing any further development or activity on the land. In the affidavit in opposition filed by the, 1st Respondent, it is clear that he knows that they are not supposed to enter into the disputed land or continue any further development or activity on the land. It is clear that 1st Respondent who is the 1st Defendant in the substantive case is aware of the pendency of the case and the grant of the order of interlocutory injunction as 1st Respondent was in Court when the Court granted the Order for Interlocutory Injunction. 2nd Respondent was also probably aware of the pendency of the case titled Torgbui Duklui Attipoe V & Anor vrs Norfeli Ackuayi & 5 Ors and the fact that the Honourable Court has granted an Order of Interlocutory Injunction. The conduct of the 1st Respondent in entering the land, erecting corner pillars, digging a foundation and proceeding to build on the land ~ 11 ~ knowing that there is an Order of Interlocutory Injunction and that the case is pending is contemptuous as it amounts to an interference in the administration of justice in the candid and considered opinion of the Court. The conduct of the 1st Respondents is wilful and that constitutes contempt. In LUGUTERAH V NORTHERN ENGINEERING CO. LTD (1980) GLR 62, "willful disobedience was defined as 'not being accidental or unintentional. The intentional element is therefore required to establish the element of mens rea on the part of the Respondents. The learned author Justice S. A. Brobbey in his book "The Law of Chieftainey in Ghana' at page 493, stated thus: "the disobedience must, therefore, be a conscious disobedience of the order of the court, or at any rate turning a blind eye to it' In BAAH V BAAH (1973) 2 GLR 8, executors who refused to pay money as ordered by the court were held to be in contempt. In DOMBO V NARH (1970) CC 64, the Court of Appeal opined as follows that "in determining whether any action amounts to contempt of court, the test is: has the act complained of interfered or tended to interfere with the due administration of justice? According to the learned author Justice S. A. Brobbey in his book (supra) at page 487 'civil contempt is an act or omission which amounts to disobedience of an order or process of a court in a civil case. This kind of contempt is said to prejudice the administration of justice in a particular cause or matter before the court. The sanction for civil contempt is often intended to be coercive. In practice, civil contempt is often employed for the benefit of the person entitled to the order and therefore involves a private injury; it nevertheless has a criminal element in that disobedience of a court order such as injunction may result in committal for imprisonment, especially where the disobedience is flagrant, or where the contempt is committed in contumacious circumstances. ~ 12 ~ According to Order 43 rule 5 (1) (b) of the High Court (Civil Procedure) Rules, 2004, (C. I. 47) an application for committal for contempt can be brought against 'a person who disobeys a judgment or order requiring the person to abstain from doing an act, the judgment or order may subject to these Rules be enforced by one of the following means.... (cc) an order of committal against that person or,..... I shall conclude this Ruling by a reproduction of part of an observation made by His Lordship Justice Kpegah JSC in the case of OSEI KWADWO II V. THE REPUBLIC (2007- 2008) 1148 at page 1172; “…This court cannot be oblivious to the social problems confronting this country now. It is in one word, indiscipline and in a few words disrespect for the law from the top of the pyramid to its base. I think the courts must step in now to save this country from the fate of the biblical Sodom and Gomorra and send a clear message to the citizenry that the law maybe an ass but certainly is a respecter of none….” The Court finds that 1st Respondent is in contempt of Court and convicts him accordingly. The Court sentences him to a fine of GHC5000 in default three months IHL custodial sentence will be imposed. In respect of 2nd Respondent, even though it was probable that he was aware of the Restraint Order, this was not proved beyond reasonable doubt. It was not also demonstrated that he was working with or under the instruction of 1st Respondent. He will thus be acquitted and discharged. The Court cautions him that through this contempt proceedings, he has become aware of the Injunction order in place and he should be guided by same in his future conduct. [SGD] H/L JUSTICE DOREEN G. BOAKYE-AGYEI MRS. ESQ. JUSTICE OF THE HIGH COURT ~ 13 ~ CASES CITED REPUBLIC V. SITO I EX PARTE FORDJOUR (2001-2002) SCGLR 322) REPUBLIC V. HIGH COURT, ACCRA; EX PARTE LARYEA MENSAH (1998-99) SCGLR 360 REPUBLIC V. MENSA-BONSU & OTHERS; EX PARTE ATTORNEY-GENREAL (1995-96) 1 GLR 377@403 DEEPSEA DIVISION OF THE NATIONAL UNION OF SEAMEN AND OTHERS V. TRADES UNION CONGRESS OF GHANA AND OTHERS (1982-83) GLR 941 THE REPUBLIC V. BEKOE AND OTHERS; EX PARTE ADJEI (1982-83) GLR 91 REPUBLIC V. MICHAEL CONDUAH; EX PARTE SUPI GEORGE ASMAH; Civil Appeal No. J4/28/2012 date 15th August 2013, COMET PRODUCTS UK LTD V. HAWKEX PLASTICS LTD [1971] 1 E R 1141 at page 1143, CA AKELE V COFFIE AND ANOTHER AND AKELE V OKINE AND ANOTHER (CONSOLIDATED [1979] GLR 84-90. REPUBLIC V MOFFAT; EX PARTE ALLOTEY [1971] 2 GLR 391 OSEI KWADWO II V. THE REPUBLIC (2007-2008) 1148 at page 1172 COMMISSIONER OF POLICE VRS SEM (1962) 2 GLR 77 AT PAGE 81 DAVIES VRS KOFI KUMA (3 WACA), 15 January 1952 LUGUTERAH V NORTHERN ENGINEERING CO. LTD (1980) GLR 62 BAAH V BAAH (1973) 2 GLR 8 ~ 14 ~ DOMBO V NARH (1970) CC 64, ~ 15 ~