Adu-Boahen v Galenor (CR/0115/2025) [2025] GHAHC 152 (12 May 2025)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON MONDAY THE 12TH DAY OF MAY 2025 BEFORE HER LADYSHIP JUSTICE MARY M.E YANZUH, JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SITTING AT CRIMINAL COURT THREE (3) ========================================================================= SUIT NO: CR/0115/2025 THE REPUBLIC VRS MELODY GALENOR RESPONDENT UNNUMBERED HOUSE LABADI WIRELESS-ACCRA OR OLIVE GARDENS AU VILLAGE, ACCRA EX PARTE: COLLINS ADU-BOAHEN APPLICANT LABADI-ACCRA JUDGMENT 1 The power to punish for contempt is a judicial whip entrusted to the custodian of the justice delivery system to correct members of the public who by their actions or words deliberately seek to undermine administration of justice as noted in the case of Parashuram Detaram Sham Dasani Vrs. The King Emperor per Lord God dard [1945] AC 214. Per an application filed on the 26th day of November 2024, the Applicant herein, prays the Court to commit the Respondent herein, for contempt of Court. The basis of the prayer is set out in the affidavit in support of the originating motion filed on the 26th of November 2024, the supplementary affidavit filed on the 13th day of January 2025 and the further supplementary affidavit in support filed on the 7th of March 2025. The application and the supplementary affidavits were served on the Respondent through substituted service as per the orders of the court as personal service was not possible. The written submissions filed on the 18th of March 2025 was also served on the Respondent via substituted service. THE CASE OF THE APPLICANT According to the applicant, the Respondent instituted a matrimonial suit in the District Court La entitled Suit No. G/LA/DG/A4/95/23 titled Melody Galenor v. Collins Adu- Boahen. He deposed that there is a three (3) year old child by name Chereen Obasima Adu - Boahene between him and the Respondent. He states that sometime around August 2022, the Respondent, without any notice to him, left the matrimonial home to an unknown place, together with the child and failed to show him where she lived. As a result the only place he could see or have access to the child was when she attended school. He added that in the course of the suit at the District Court, he got to know that the child was living with the 2 Respondent's alleged Auntie by name, Auntie Becky, under the Respondent's instructions. He said that when the Respondent realized that he had gotten to know where the child lived and knowing that the school was the only place he could see the child, the Respondent arbitrarily withdrew the child from the school she attended and proceeded to make the child stay at home from 21st May 2024 till the end of the last academic term. He deposed that he accordingly applied to the court for an interlocutory order of custody for the child and reasonable access to the Respondent. The District Court upon hearing the application proceeded to make the following orders on the 7th of October 2024 "... but since the Applicant is the father of the said child, I hereby grant him reasonable access to their daughter in the following manner, he is to go for their daughter three times in a month every Friday after school and is to return her to school the following Monday” He stated further that on that same 7th October, 2024, the District Magistrate also ordered that the Respondent goes with him to the new school of the child and introduce him to them as the father of the child. This was done reluctantly by the Respondent, after she had thrown tantrums at him and his lawyer. And in furtherance of the order, his lawyer wrote a letter to the new school in that regard, so as to allow him access, whenever he comes to pick the child from school. His assertion is that since 7th October, 2024 that the order was made, the Respondent has deployed all means to deny him access to the child, either by not sending the child to school at all, or picking the child early on Fridays to pre-empt his access to her after school, thereby defeating the order of the District Court. He stated that for instance, on the 11th of October which was the Friday after the order was made, he went to the school to pick the child, only to be told that the child did not attend school that day. He followed up to the house where the child lives, on Saturday the 12th of October, 2024 to find out what had happened and immediately the child saw him and she was coming close to me, a relative of the 3 Respondent pulled the child back into the room, to prevent her from coming close to me, and the child started crying, and whilst he was waiting in the house, the said relative made some phone calls and another relative of the Respondent came to whisk the child away in a car, without any regard for his presence there. He continued that in order to deny him access, the Respondent deliberately did not send the child to school between the period of 11th October and 31st October thus denying him access to the child for the entire Month of October 2024, contrary to the order of the District Court. He continued that the Respondent's conduct was reported to the District Court when the parties went to Court again on Friday 15th November 2024, wherein the Magistrate cautioned the Respondent on her conduct and the consequences of same, and further ordered that he goes for the child that day, since it was a Friday. He stated that the Respondent after Court on Friday, 1st November, 2024, just at the entrance to the Court room, started throwing tantrums at his lawyer, insulting her and even using threatening words on her and on his part, she did same and even stated that he should go and have another child, and kept insulting him until the Police guarding the Court sacked her from the Court premises. He continued further to recount various instances where the Respondent had refused him access to the child. He therefore filed this application. His contention is that the conduct of the Respondent is deliberate disrespect to the Court, having regard to her full knowledge of the order which was delivered in her presence, as well as the caution given her by the District Magistrate and in the circumstances of the Respondent assaulting the Rule of Law as though there is no consequence for her wilful disobedience to the Court, he prays the Court to convict the Respondent for Contempt of Court and sentence her appropriately, to serve as a deterrent. 4 THE LAW AND ITS APPLICATION TO THE INSTANT CASE The laws on contempt, from it types, standard of proof and its essential ingredients are well established by case law. In the case of IN RE EFFIDUASE STOOL AFFAIRS (NO.2); REPUBLIC VRS NUMAPAU, PRESIDENT OF THE NATIONAL HOUSE OF CHIEFS; EX-PARTE AMEYAW II (N0.2), (1998-99) SCGLR 639, the Supreme Court held that “Contempt of court may be classified either as direct and indirect or as civil and criminal. Direct contempt’s are those committed in the immediate view and presence of the court (such as insulting language or acts of violence) or so near the presence of the court as to obstruct or interrupt the due and orderly course of proceedings. Indirect (or constructive) contempt’s are those which arise from matters not occurring in or near the presence of the court, but which tend to obstruct or defeat the administration of justice, and the term is chiefly used with reference to the failure or refusal of a party to obey a lawful order, injunction, or decree of the court laying upon him a duty of action or forbearance. Civil contempts are those quasi contempts which consist in the failure to do something which the party is ordered by the court to do for the benefit or advantage of another party to the proceedings before the court, while criminal contempts are acts done in disrespect of the court or its process or which obstruct the administration of justice or tend to bring the court into disrespect.” What is however certain from the authorities is that, no matter how one classifies contempt, that is whether Direct or Indirect, Civil or Criminal, the central objective is the need to protect the dignity and authority of the Court and to ensure that, the path of justice was set free from obstruction. To this end, it was held in the case of OPOKU VRS. LIBHERR FRANCE SAS & ANOTHER (2012) 1 SCGLR by the Supreme Court per Atuguba JSC at page 160 that, 5 “it was well-settled that there were different forms of contempt. Underlying all of them, however, was one basic notion, that the path of public justice should at all times be free from obstruction. Conduct which tended to create such an obstruction would constitute 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 the court - any of those, if calculated to, or tend to, impede or obstruct the course of justice would constitute contempt.” Since contempt is so manifold in its aspect, it is always important that, in an application citing a person for contempt, the basis or grounds of the contempt is set out clearly. This is the reason why Order 50 rule (1) (3) of C.I. 47, (as amended) provides that, the application shall be supported by an affidavit stating inter alia the grounds of the application. This enables the Court to know the very act which the person is alleged to have done that undermines the dignity and authority of the court or interferes with the path of justice. It also enables the person accused of committing the contemptuous act to know the nature of the accusation so as to be able to prepare his defense. In the instant case, the applicant has demonstrated that there was an order of the District Magistrate ordering the Respondent to grant him reasonable access to the child and further stipulating the days in the month that he is to be granted access. Since the Applicant is the one accusing the Respondent of wrongdoing, he had the burden to prove that assertion in line with section 15(1) of the Evidence Act, 1975, Act 323 which 6 provides that “unless and until it is shifted, the party claiming that a person is guilty of crime or wrongdoing has the burden of persuasion on that issue”. In contempt applications such as the instant one, the burden of proof is beyond reasonable doubt as stated in cases including the Republic vrs Osei Bonsu II, Mamponghene & Others; Ex-Parte Amadie & Buor, (2007-2008) SCGLR 566 and REPUBLIC v. BEKOE AND OTHERS; EX PARTE ADJEI [1982-83] GLR 91 where it was held that “the principle of law was quite clear that where a person was charged with contempt of court, his guilt should be proved with the same strictness as required in a criminal trial, i.e. proof beyond reasonable doubt. In the result, the onus of proof lay on the applicant and the one charged could not be compelled to give evidence against his will, although where an affidavit was used in evidence, the court had discretion under the rules of court to order the deponent to be cross-examined upon it.” The applicants having set out the alleged contemptuous acts of the respondent, it is their bounden duty to prove same with the same strictness as in criminal trials that is proof beyond reasonable doubt. In the case of REP V. SITO 1; EX-PARTE FORDJOUR, (2001- 2002) SCGLR 322 the Supreme Court summarized the ingredients that an applicant for contempt of court in the nature as the present case must prove in order to succeed as follows: • There must be a judgment or order requiring the contemnor to do or abstain from doing something. 7 • It must be shown that the contemnor knows what precisely he is expected to do or abstain from doing and; • It must be shown that he failed to comply with the terms of the judgment or order and that his disobedience is willful. The order of the court was annexed to the application as exhibit F wherein the District Magistrate ordered that the Applicant is to have reasonable access to the child who was in the custody of the Respondent. Also the fact that the Respondent has notice of the said order is clear from the affidavit evidence presented to the court. That is because the Respondent was present in court when the order was given and was even ordered by the District Magistrate to go with the appellant to the new school of the child to introduce him as the father to them, an order she complied with reluctantly. That apart, exhibit F which is the record of proceedings for the day indicates that the parties were present. In the case of AGBLETA vrs THE REPUBLIC [1977] 1 GLR 445, CA it was held that “in an application to commit for contempt therefore, the Court must be satisfied, upon the affidavit evidence, that the person sought to be committed was aware of the order and with such knowledge willfully or deliberately chose to disregard it or prevent its execution. Thus in REPUBLIC vrs ALHASSAN, EX PARTE ABBEY [1989-90] 1 GLR 139 at 145, the Court held that for these to be contempt, it must be shown by the affidavit evidence that there was service of the judgment, order or process to be enforced and that there was a default. It further held that the burden was on the applicant to prove this otherwise he fails since in its view, to enforce an order against a party which is not aware of it will breach the audi alterem partem rule. Thus, once it can be proven that the Respondent was in Court on the day the Order was given, he is deemed to have knowledge of the Order.” 8 The affidavit evidence also shows that the Respondent has failed to comply with the orders of the court and her disobedience is wilful. The result of the foregoing is that the application for contempt succeeds. A warrant of this court is hereby issued for the Respondent to be brought before this court on the next adjourned date for punishment. PARTIES: APPLICANT PRESENT RESPONDENT ABSENT COUNSEL: SHERITA MANU WITH AGYABENG AKRASI FOR THE APPLICANT PRESENT NO LEGAL REPRESENTATION FOR THE RESPONDENT MARY M.E YANZUH J. JUSTICE OF THE HIGH COURT 9