Republic Vrs Bosompem and Others [2022] GHAHC 43 (19 December 2022)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE WINNEBA, HELD ON MONDAY THE 19TH DAY OF DECEMBER, 2022, BEFORE HIS LORDSHIP, JUSTICE ABOAGYE TANDOH, HIGH COURT JUDGE. THE REPUBLIC VS. SUIT NO. E12/054/2020 1. KWESI BOSOMPEM ----- RESPONDENTS 2. NANA OSEI a.k.a RAPHAEL ATTOH ARMAH EX PARTE: YAW DANKWAH AGYEKUM ------ APPLICANT ______________________________________________________ JUDGMENT The Applicant on the 14th day of May, 2020 filed an application for an order to commit the Respondents to prison for Contempt of court pursuant to ORDER 50 RULE 1 OF THE HIGH COURT (CIVIL PROCEDURE) RULES OF (C. I 47). It is the case of the Applicant Yaw Dankwah Agyekum, that on the 31st day of July, 2019 he filed a suit against the Respondents in this Honourable Court in the matter of YAW DANKWAH AGYEKUM VS KWESI BOSOMPEM & ANOTHER per Exhibit ‘1’. As a result of which the Respondents filed their respective appearance on the 19th day of August, 2019 per Exhibit ‘2’.’ The Applicant further averred that after appearance had been filed by Respondents, the Respondents started developing the land in dispute to change the character of the land and to overreach the decision of the Court per Exhibit 3. The Applicant also averred that, on the 3rd day of April, 2020, he filed an Application for interlocutory Injunction against the Respondents to restrain them from developing the subject matter during the pendency of the matter per Exhibit 4. According to the Applicant, a search conducted at the Registry of this Court on the 7th of May, 2020 indicated that the Respondents were served with the application for the Interlocutory Injunction on the 7th day of April, 2020 per See Exhibit 5. The Applicant stated that at the time of service of the application for the Interlocutory Injunction on the Respondents, the level of development by the Respondents on the disputed land as shown in Exhibit 4. The Applicant averred that in spite of the application for the Interlocutory Injunction being served on them, pending and having knowledge of the pendency of same, the Respondents in flagrant disregard of the application for the Interlocutory Injunction are speedily continuing the development of the subject matter per Exhibit 6. In a supplementary affidavit filed on the 26th day of October, 2020 and 11th day of October, 2021, the Applicant attached two exhibits to demonstrate the extent of further development being done by the Respondents per Exhibit SUP ‘1’, Exhibit SUP ‘2’ and Exhibit SUP ‘3’. Though the Applicant should have labelled his exhibits by letters but same is adopted especially when the Respondents does not conflict with that of Respondent in any way. According to the Applicant, the conduct of the Respondents was wilful, and calculated to bring the administration of justice into disrepute and in flagrant disregard to the law and judicial processes of the Republic of Ghana. The Applicant then prayed for an order committing the Respondents into prison for contempt of court. The 1st Respondent in his affidavit in opposition denied the allegation. The 1st Respondent averred that per paragraph 19 of the Statement of Claim of the Plaintiff/Applicant, he averred that “on May 2019 the Plaintiff visited the land to find that the 2nd Defendant has trespassed unto the land and trying to develop same”. According to the 1st Respondent, he indicated in his Statement of Defence to the substantive matter that one Francis Hagan offered to sell the plot of land in issue to him at the negotiated price of GH₵1,800.00 and he made a payment of GH¢ 1,200. 00. The 1st Respondent stated that the Plaintiff/Applicant showed interest in the plot and paid GH₵1,000.00 to him but further to that, the said Francis Hagan re-entered the land when Plaintiff/Applicant failed to pay the outstanding for onward transmission to Francis Hagan. According to the 1st Respondent, the said Francis Hagan returned the GH₵1,200.00 after which he sold the plot of land to 2nd Defendant who claimed ownership per the 2nd Defendant therein and the 2nd Respondent herein. The 1st Respondent denied developing the Plaintiff/Applicant’s land because he has no interest in the land in issue neither was he served with the injunction application. The 1st Respondent said it was the 2nd Respondent who is claiming ownership of the land and developing same. He then denied having done any act wilfully to undermine the authority of the Court. The 2nd Respondent in denying the allegation in his affidavit in opposition corroborated the evidence of the 1st Respondent and claimed ownership of the land. The 1st Respondent said in his Statement of Defence he intimated that he acquired the plot of land through Francis Hagan, a Ghanaian ordinarily resident outside the Jurisdiction. The 2nd Respondent averred that among others, he intimated in his Statement of Defence that as evidence of sale and transfer, the said Francis Hagan surrendered a Head lease executed between the Allodial owners of the land and his good-self dated 25th February, 2015, a copy is annexed as Exhibit A. That the stool since regularized his acquisition as in Exhibit B, which is stamped as LVD. That upon acquisition of the land he started development therein, which the Plaintiff/Applicant destroyed in March 2015. According to the 2nd Respondent, in order to divert the perennial flow of rain water through his plot he constructed the foundation and drainage, after filling the land with trips of sand. The 2nd Respondent further stated that he was not served with any injunction application or order. The 2nd Respondent said the Applicant’s Exhibit 3 has long been completed before the institution of the writ. The 2nd Respondent further averred that with advent of the rains the portion in Applicant’s Exhibit 6 was raised to block the use of the uncompleted platform to protect lives, especially children. And that the raised portion was completed before end of March, 2020, and not after notice of Application for Interlocution had been filed at the Registry. According to the 2nd Respondent, he has not done any act wilfully to undermine the authority of the Honourable Court and that he has also not done any act which has the tendency of bringing the Judicial System into disrepute or ridicule. The 2nd Respondent added that the committal application lacks merit. In the case of REPUBLIC V SITO I; EX-PARTE: FORDJOUR (2001-2002) SCGLR 322 the Supreme established that in an application for contempt, the burden of proof is proof beyond reasonable doubt just as in a criminal discourse. ___________ ¹ (2001-2002) SCGLR 322 The party can only be shown to be 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. However, in the case of THE REPUBLIC V MOFFAT; EX – PARTE ALLOTEY [1971] 2 GLR, 391 also quoted for and on behalf of the Applicant, the court alluded to two types of intentional contempt and held thus: 1. Where a party wilfully disobeys an order or judgment of court. 2. Where a party knowing that 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. Also in the case of the REPUBLIC V BANK OF GHANA AND 5 ORS EX – PARTE BENJAMIN DUFFOUR, CIVIL APPEAL NO. J4/34/2018 DATED 6TH JUNE, 2018 (unreported) at pages 10-11 the Supreme Court stated thus: “The judicial power of Ghana by article 125(3) of the 1992 Constitution has been vested in the Judiciary. This power cannot be fettered by any person, agency or organ including the President and Parliament. Any conduct that contravenes this provision is clearly unconstitutional and as such null and void. When a court is seized with Jurisdiction to hear a matter, nothing should be done to usurp the Judicial power that has been vested in the court by the constitution of Ghana. __________ ²[1971] 2 GLR, 391. In effect, the state of affairs before the court was seized with the matter must be preserved until the court delivers its judgment. This is so whether or not the court has granted an order to preserve the status quo or not. A party to the proceedings will be in contempt if he engages in an act subsequent to the filing of the case, which will have the effect of interfering with the fair of the case or undermine the administration of justice. The conduct must be one which has the effect of prejudging the case even before a judgment is given.” The Sito (Supra) case provides for the contempt of court when one violates the express orders of the court or judgment whilst the Moffat (Supra) case as well as that of Bank of Ghana (Supra) has to do with a conduct on the part of a party that undermines, interferes the administration of justice or bring same into disrepute. The court therefore under the circumstance has a duty to examine the evidence adduced before to ascertain whether or not the conduct of the party in issue per the evidence beyond reasonable doubt has brought the administration into disrepute. Indeed, contempt being a quasi-criminal charge requires the standard of proof beyond reasonable doubt to ground a conviction. See Sections 13(1) of the Evidence Act, 1975, NRCD 323. In the instant case before this court, I critically examined the affidavit evidence adduced before me and observed that the Respondents were engaged in developing the land whilst the matter was pending before this court. What the Respondents were seeking to justify their conduct was the fact that the 2nd Respondent re- acquired the land after the Applicant failed to complete for the payment of the land. According to the 1st Respondent, the 2nd claimed ownership and was the one developing the land and that he was not developing the land. The conduct of the Respondents relying on the alleged ownership for a matter before the court obstructs justice whether or not there was a restraining order. This is because among the reliefs being sought in the substantive matter before this court is declaration of title thereby challenging the title or ownership of the 2nd Respondent. It is therefore the more reason why the Respondents were to patiently wait for the courts determination one way or the other before engaging any activity on the land in dispute. Also I find the 1st Respondent as an active participant in the development that ensue when he sought to portray that the Applicant had lost the land for his failure to make full payment to him when he could have patiently waited for the court’s pronouncement to that effect or otherwise That notwithstanding, were the Respondents duly served with the Injunction application. It fact the failure on the part of the Applicant to serve the Respondents with the injunction application fatal to his case if that us so established. However, a search report conduct at the Registry of this court per Exhibit 5 clearly shows that the Respondents were duly served. Therefore, whether there was an express of the court or otherwise, it was the duty of the parties to refrain from acts and conducts that has the tendency to obstruct the course of justice as that can bring the administration of justice into disrepute and ridicule. See: REPUBLIC V MOFFAT ; EX – PARTE ALLOTEY (SUPRA). From the foregoing and upon consideration of the evidence adduced, and the law, the Applicant established the case of contempt against the Respondents beyond reasonable doubt and are accordingly each liable for contempt and I commit them (convict) to prison. CONCLUSION Upon consideration of the affidavit evidence adduced before me, the legal submission for and on behalf of the Applicant who only saw the need to file a legal submission as well as applicable law, the Applicant led evidence beyond reasonable doubt to establish that the 1st and 2nd Respondents each is liable for contempt which I hold as fact and convict each one of them. In sentencing, the court took into consideration the contemnor disrespect to the court couple with their failure to show remorse in anyway, it is therefore necessary to give a sentence that is deterrent enough to avoid such occurrences in future. Accordingly, the contemnor are each sentenced to prison for one (1) month in hard labour. Bench warrant is issued against the 1st and 2nd Contemnor or Respondent for them to commence their respective sentences. JUSTICE ABOAGYE TANDOH HIGH COURT JUDGE (SGD) COUNSEL MR. VICTOR YANKSON Esq, WITH KOBBY NDOM Esq, FOR THE APPLICANT. MR. FREDERICK SELBY Esq, FOR THE RESPONDENTS (ABSENT) 10