Board of Trustees of the Presbyterian Church Berekum v Asomah (C10/052/2024) [2025] GHAHC 172 (11 July 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURTOF JUSTICE, COMMERCIAL DIVISION “B” (GENERAL JURISDICTION) HELD AT SUNYANI ON FRIDAY THE 11TH DAY OF JULY, 2025 BEFORE HER LADYSHIP JUSTICE JOYCE BOAHEN, HIGH COURTJUDGE SUIT NO. C10/052/2024 INTHEMATTER OF ANAPPLICATIONFOR COMMITALFORCONTEMPT AND INTHEMATTER OF THEREPUBLIC VS. ABDUL AZIZ ASOMAH OF BEREKUM RESPONDENT EXPARTE; BOARDOF TRUSTEES OF THE PRESBYTERIANCHURCH BEREKUM APPLICANT (PERITSRESIDENTMINISTER BEREKUM) 1 JUDGMENT Applicant represented by Joseph MensahDiawuo, Senior Presbyter Respondent present RomeoAsante Nimo holding brief ofAlexanderAmponsah fortheApplicant Felix Obiri Boahenappearsforthe Respondent THEAPPLICANT This is for judgment on an application by the Applicant filed on 2nd May, 2024 praying the Court to commit the Respondent for contempt for willfully conducting himself in a manner intended to interfere with the administration of justice, for willful conduct exhibited to undermine the administration of justice and to prejudice the determination of a writ the Applicant issued against him before the Court and that the Respondent exhibited conduct subjecting the administration of justice to public ridicule and loss of confidence of the public in the administration of justice. According to the Applicant, when the writ was served on the Respondent he stayed away from the disputed plot and stopped developing it. That to the surprise of the Applicant and its elders the Respondent trespassed unto theundeveloped portions ofthe plotby constructing anew 2 structure up to roofing level. Considering the act of the Respondent as contemptuous theApplicant caused his lawyertoapply foran orderofinterlocutoryinjunction. The Applicant attached the writ of summons as exhibit “A” and the application for interlocutory injunction as exhibit “B”. According to the Applicant, the application for interlocutory injunction was served on the Respondent but he failed to file an affidavit in opposition to it. The Applicant’s case is that despite the fact that the Respondent was served with the application for interlocutory injunction which seeks to restrain the Respondent from interfering with the disputed plot, the Respondent out of disrespect and flagrant disregard to the Court processes went ahead to improve the nature of the existing building structure by fixing burglar proofs, pipes and constructing a manhole. TheApplicant attached photographs to show the improvement ofthe building structure by the Respondent as exhibits “C” and “D” all dated January and April 2024 respectively to establish the point that all those events happened after the Applicant issued the writ ofsummons on18thAugust, 2023. Regarding exhibit “D” the said improvement happened after the motion on notice for interlocutory injunction was filed on 13th March, 2024. The motion seeks for an order of the Court to restrain the Defendant Respondent, his agents, assigns, labourers, workmen, etc. from entering or in any other way interfering with the disputed Plot No. 64 Block C Sector 3 Berekum. The Applicant’s case is that the Respondent upon being served with the motion on notice for interlocutory injunction willfully defied the said 3 process without any justifiable cause and therefore the Respondent must be convicted for contempt and committed to prison to serveas example to prospective contemnorsin orderto protectthe administration ofjustice and topreservethe integrity ofthe Courts. THERESPONDENT The Respondent admitted in his affidavit in opposition that the Applicant issued a writ of summons against him for the reliefs endorsed on it. He further admitted that when the writ was served on him he stayed away from the disputed plot and stopped developing it. He denied the Applicant’s claim that he trespassed unto the land and developed it to roofing level. He intimated that he had already built his house before the Applicant initiated the civil action against him. The Respondent further denied that the application for interlocutory injunction was served on him and stated that he had not conducted himself in a manner that amounts to contempt of court for which reason he should be committed toprison. He thereforeopposedthe application. COUNSEL FORTHE APPLICANT Counsel for the Applicant noted in his written submission in support of the application that although the Respondent was served with the application for interlocutory injunction, to restrain him from interfering with the disputed plot, he proceeded in 4 flagrant disregard to the Court process to improve the existing building. He fixed burglar proof, plumbing pipes and constructed a manhole for a septic tank against the injunction application which intended to restrain him from doing further works on the building on the plot in dispute. According to Counsel, the action of the Respondent after having knowledge of the pendency of the Court action continued with improvement ofthe disputed land and that the said action ofthe Respondent is likely to affect the fair trial of the case pending before the Court. It will prejudice the Court and hamper the fair administration of justice which is tantamount to contempt of Court and its processes. The Respondent’s actions according to Counsel has brought the administration of justice to disrepute and public ridicule and that the Respondent must be punished by being committed to prison for his deliberate and willful refusal to respect Courtprocess. COUNSEL FORRESPONDENT Counsel noted that the Respondent denied the Applicant’s assertion that he has been served with the application for an order of interlocutory injunction. According to Counsel the underlying principle for bringing an application for committal for contempt is that the Respondent has intentionally and willfully disobeyed an order of the Court or that the Respondent knowing that the application is pending in Court engages in an act or omission to prejudice or interfere with the fair trial of the case despite the absence of an order of the Court. It is Counsel’s contention that the 5 Applicant failed to show or demonstrate that the Respondent was served with the application for interlocutory injunction on a particular date. According to Counsel, among the documents the Applicant attached to its affidavit in support there is no search document or any document proving service of the application for interlocutory injunction on the Respondent. The Respondent denied that the Applicant served the application on him and for that matter theApplicant was obliged to prove service of the applicationonthe Respondentbeyond reasonable doubt. Counsel argued that one of the requirements for a Respondent to be committed for contempt is the Respondent’s personal knowledge of the application. However, the Applicant failed toprovebeyond reasonable doubtthat the Respondentwas aware of the pendency of the application. The Court granted the Applicant leave to file supplementary affidavit to rebut the Respondent’s denial of service of the application for interlocutory injunction on him but theApplicant waived the opportunity and failed to file any. Counsel noted that the Applicant’s claim that the Respondent was aware of the application for interlocutory injunction is a mere assertion because the Applicant even admits that the Respondent did not file affidavit in opposition to the application. This according to Counsel confirms the fact that the Respondent was not aware of the application. The Applicant’s case must therefore fail in the circumstance because it failed to prove beyond reasonable doubt that the Respondent was aware of the 6 application and yet willfully and intentionally disobeyed the process. Counsel therefore prayedthe Courttorefuse the application. BYCOURT; In the case of Republic v. Sito; Ex Parte Fordjour [2001 – 2002] Supreme Court of Ghana LawReport (SCGLR) 322in holding (1) theSupreme Court held asfollows; “the essential elements for the offence of contempt of court are; (i)there must be a judgment or order requiring the contemnor to do or abstain from doing something. (ii)it must be shown that the contemnor knows what precisely he is expected to do or abstain from doing. And (iii)it must be shown that he failed to comply with the terms of the judgment or order and that his disobedienceis willful. Aryeetey vs. Agbosu II and Another [1994] Ghana Bar Report (GBR) 250, the Supreme Courtheld frompage252as follows; “the applicants, having been served with the application deliberately stole the match by doing the very act that the motion sought to restrain. While the motion was pending, it was disrespectful to the Ga Traditional Council for the first applicant to install the second applicant. Once the applicants had become aware of the pendency of the motion, any conduct on their part that was likely to prejudice a fair hearing of the motion was tantamount to contempt.” 7 It is trite law that since contempt of court is a quasi - criminal matter and of a serious nature, a finding should be made sparingly and only in the clearest cut ofcases.Adirect intention to disobey a court order or an act to prejudice pending application is required. It ought to be willful disregard of the order or prejudice the outcome of a pending suit. In the case of Boamah and Ansah Sikatuo v. Amponsah [2012] 1 SCGLR Page 58 at 59 theCourtheld asfollows; “the basic principle regarding the standard of proof for the offence of contempt of court was well - settled. Since contempt of court was quasi - criminal and the punishment for it might take various forms, including a fine or imprisonment, the standard of proof required was that of proof beyond reasonable doubt…” Withreference to the authorities cited supra, the offence ofcontempt of courtis aquasi - criminal offence and therefore the standard of proof required to establish it is very high. The standard of proof is proof beyond reasonable doubt which must be established strictly. From the affidavit evidence of the parties, the main issue that arises for the Court’sdeterminationis whetheror notthe Respondent wasservedwith theApplicant’s application for an order for interlocutory injunction and whether the Respondent is aware of what the application seeks to restrain him from doing.Although theApplicant did not attach proof of service of the writ of summons and statement of claim issued against the Respondent on 18th August 2023, it is not disputed that the Respondent had notice of the said writ because the Respondent admitted that he was served with the 8 writ. Itis also not disputed thatafter the Respondent wasserved with thewrit he stayed away from the disputed plot and stopped developing it because theApplicant made the allegationand the Respondent admitted it. The Court is of the view that the Respondent by restraining himself upon service of the writ of summons, did so to wait for an order from the Court to restrain him. Therefore, the writ of summons served on the Respondent, simpliciter is not enough to restrain him from developing the disputed plot and the Applicant is fully aware of this fact. That is why the Applicant and its elders followed up, upon being surprised about alleged further development of the land by the Respondent, filed an application for an order of interlocutory injunction to restrain the Respondent which in the Court’s view is a very positive step. However, among the processes filed and documents attached by the Applicant, there is no proof of service of the application for interlocutory injunction on the Respondent. That is why the Respondent had not filed an affidavit in opposition to the application. Suffice it to say that it did not dawn on the Applicant to attach proof of service or a search report from the registry of the Court to show that the Respondent wasservedwith theapplication. However, on 18th November, 2024 when the case was mentioned the Court gave the Applicant opportunity to file supplementary affidavit in support upon being served with the Respondent’s affidavit in opposition if it wishes to do so. The Court gave this order against the backdrop that application for contempt is strictly determined on 9 affidavit evidence per Order 50 rule 1 (1), (2) and (3) and rule 1 sub rule 3 (3) of the High Court(Civil Procedure) Rules, 2004(C.I 47); “1. (1) The power of the Court to punish for contempt of court may be exercised by an order of committal. (2)Committal proceedings shallbe commencedby an application tothe Court. (3) The application shall be supported by an affidavit stating inter alia the grounds of the application.’ Rule1sub rule3(3) “3(3) Without prejudice to the powers of the Court under Order 16 rule 7 no grounds except the grounds set out in the affidavit in support of the motion shall be relied upon at the hearing of an application for an order of committal”, unless apartypraysthe Courtfor leavetocall witnesses. However, theApplicant did not find the need to file supplementary affidavit in support especially, to attach proof of service of the application for an order of interlocutory injunction on the Respondent. Upon the Applicant’s failure to do so, per the affidavit evidence before the Court, the Respondent was not served with the application for interlocutory injunction and therefore he cannot be said to have knowledge of the application and what the application seeks to restrain him from doing. Notice of 10 proceedings to parties in law is a very fundamental requirement which if a party fails to establish, nullifies all proceedings against a party who was not served. The application for interlocutory injunction has been filed and it is pending but it has not been served on the Respondent so he cannot be bound by it. No Court in Ghana, from the Supreme Court to the District Court or any Court in the world at large can proceed against a party who has not been given notice of the proceedings or a process filed without the proceedings being declared a nullity. If any Court does that, it would amount to violating the rules of natural justice otherwise known as the “audi alteram partem” rule. This Court is not inclined to proceed against the Respondent having found that he was not served with the application for interlocutory injunction. Should this Court venture to do so, it would result in an appeal against its decision which would be nullified by the appellate Court. Since the gravamen of the Applicant’s case is that the Respondent was served with motion on notice for interlocutory injunction and the Court found that the Respondent was not served with the process, the Court cannot do otherwise. This is because you cannot build something on nothing and expect it to stand, it will definitely fall because a building without foundation will fall. Once there is no proof of service of the application on the Respondent to establish his knowledge of the application and what the application seeks to restrain him from doing, it can be concluded that the Applicant failed to establish beyond reasonable doubt that the Respondent had exhibited conduct which amounts to contempt of Court. In the Court’s considered view 11 therefore, the service of the writ of summons on the Respondent and the attachment of photographs to show further developments made by the Respondent on the disputed property is not enough without proof of service of the motion on notice for interlocutoryinjunctionontheRespondent to establishproofbeyond reasonable doubt. In the light of the foregoing, the Court holds a maximum conviction that the Applicant failed to establish beyond reasonable doubt that the Respondent defied the Court process, which is the Motion on Notice for Interlocutory Injunction filed on 13th March, 2024 for which reason he should be committed to prison. For the foregoing reasons, the Court is of a fervent view that the Applicant failed to establish a charge of contempt of Court against the Respondent. A charge of contempt of Court has therefore not been made out against the Respondent. In the circumstance, the Respondent is hereby discharged of the charge of contempt of Court levelled against him. The Court dispenseswith cost. (SGD) JUSTICEJOYCE BOAHEN HIGHCOURTJUDGE 11TH JULY2025 12