S v Eland International Ghana Ltd (CR/0021/2025) [2025] GHAHC 137 (10 March 2025)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON MONDAY THE 10TH DAY OF MARCH 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/0021/2025 THE REPUBLIC VRS ELAND INTERNATIONAL GHANA LTD RESPONDENT QUARCOO LANE 8 AIRPORT RESIDENTIAL AREA EXPARTE MORENO TRADING LTD APPLICANT C134/2 MOMOTSE AVENUE ADABRAKA- ACCRA JUDGMENT 1 I find it appropriate to commence this Judgment with the words of Lord Morris in the case of Attorney-General v Times Newspaper Ltd [1974] AC 273 @ 302, HL where the Learned Judge stated, "in an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interest of the community, it is imperative that the authority of the courts should not be imperiled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed, it is not because those charged with the responsibilities of administering justice are concerned for their own dignity: it is because the very structure of ordered life is at risk if the recognized courts of the land are so flouted that their authority wanes and is supplanted” 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 9th day of October 2024, the Applicant herein, prays the Court to commit the Respondent herein, to prison for contempt of Court. The basis of the prayer as set out in the affidavit in support filed on the 9th of October 2024 and the supplementary affidavit filed on the 11th December 2024 is that, the Respondent has by his act of interfering with the subject property of the suits in the Achimota District Court and the High Court (General Jurisdiction Division 11) has interfered with the administration of justice. 2 The Respondent opposed the Application per an affidavit in opposition filed on the 12th day of November 2024 and a supplementary affidavit filed on the 27th day of December 2024. THE CASE OF THE APPLICANT Per its Affidavits deposed to by Gilbert Nartey who described himself as the Administrator of the applicant stating the basis of the Application and the affidavit evidence in support of same, it was deposed in substance that, on 16th January 2023, the Applicant entered into a five-year Tenancy Agreement with the Respondent to rent premises at Achimota Neoplan for its business. The tenancy agreement was exhibited and marked as "EXHIBIT A". It was deposed that prior to the end of the first year of tenancy, the Respondent requested the Applicant to renegotiate the rent and particularly in United States dollars to which the Applicant refused. Exhibited and marked as "EXHIBIT B Series" are the request and refusal letters. They added that when the Respondent failed to get the Applicant to renegotiate rent, the Respondent then contrived a complaint at the Rent Control Office, Adentan Municipal which they alleged was outside the municipality of the location of the premises that they the Applicant had not paid rent for the first year (2023) of occupation. The rent summons was exhibited and marked as "EXHIBIT C". They deposed further that notwithstanding the lack of jurisdiction of the particular rent officer, the rent officer found that the rent had been paid but without any legal basis determined that the Applicant should be ejected because it has refused to renegotiate rent with the Respondent in US Dollars. The determination of the rent officer was exhibited and marked as "EXHIBIT D". The applicant’s case continued that dissatisfied with the determination of the rent officer, they invoked the supervisory jurisdiction of this Court by way of judicial review 3 on 23rd May 2024, to quash the said determination of the Principal Rent Manager, Adentan Municipal which said application they stated is pending. The copy of the filed motion paper was marked and exhibited as Exhibit E. They added that the Respondent was served with the application for Judicial Review and pursuant to the service, one Ernest Koranteng, Esq., of Addo Asiedu & Co with a director of the Respondent attended the last hearing as representing the Respondent in the suit. They deposed further that on 22nd July 2024, the High Court adjourned the suit sine die to enable the respondent file their responses and thereafter the suit was to take its normal course. The applicant stated that despite the service of the Application for Judicial Review on both the Principal Rent Manager, Adentan Municipal and the Respondent herein, the Respondent instigated and or procured the Principal Rent Manager, whose decision is the subject matter of certiorari application, to file enforcement proceedings in the District Court, Achimota against the Applicant herein. The enforcement process was exhibited and marked as "EXHIBIT F". The Applicant deposed that they caused to be filed a Motion on Notice for Stay of Proceedings pending the determination of the Certiorari application in the High Court (General Jurisdiction Division 11). They exhibited and marked as "EXHIBT G” the Motion for Stay of Proceedings. They added that the Respondent participated in the hearings at the District Court, Achimota and as of filing this instant application the District Court, Achimota is yet to determine the stay of proceedings. Their case continued that during the pendency of both proceedings in this Honourable Court and the District Court, Achimota, and without prejudice to the pending suits, the Respondent attempted settlement of the dispute with the Applicant, but settlement broke down. They exhibited and marked as "EXHIBIT H" the letter from the Respondent’s lawyer stating failure of settlement. 4 Their case is that from 17th September 2024 to date of filing this application, the Respondent embarked on systematic and concerted intimidation and cohesion to induce the Applicant to quit the premises when both the High Court and the District Court are yet to make determination whether it should be ejected from the premises. They recounted that the officials of Respondent removed the electrical clips of wires fastened to the wall which power their refrigerating containers ("Refab containers"). Thereafter, Respondent's Lawyer and other officials of the Respondent threatened subsequently to cut the electricity supply to the containers for the frozen food items inside them to spoil. They exhibited and marked as "EXHIBIT J" a picture of the wall showing the holes which the clips made on the wall. They said that on 25th September 2024, the Respondent again locked the main gate to the premises to restrict the Applicant’s access to the premises and refused to furnish duplicate keys to Applicant an act which they state was intentional to curtail the Applicant's ability to load and offload its food items which is its business and for which purpose rented the warehouse. They exhibited and marked as "EXHIBIT K" a picture of the locked gate. Their contention is that the Respondent's action of removing the electrical clips on the wall and locking the main entrance to the warehouse when it could not get the Applicant to settle the suit with it amounts to interfering with the subject-matter of the suits and interference with the administration of justice. The applicant added that the officials of the Respondent have arrogantly stated that the company would bear whatever financial consequences it causes to the Applicant pending the determination of the various suits and as such they believe that no amount of fine will deter the officers of Respondent except committal to prison. THE DEFENCE OF THE RESPONDENT 5 According to the respondent, a former employee of the respondent on his own volition entered into a Tenancy Agreement with the Applicant on 16th January, 2023 for the rental of a warehouse space measuring six hundred and ten (610) square meters and following the dismissal of the said former employee, they sought to regularize the Tenancy Agreement, which was fraught with irregularities, including but not limited to the manner in which it was executed. The respondent alleged that the irregularities were fundamental to the Agreement, and failure to regularize the same could lead to its termination pursuant to the terms of the Tenancy Agreement. A copy of the termination letter from the Respondent to the Applicant is attached and marked as "Exhibit EIGL 01"). The respondent continued that as a result of the Applicant's refusal for the said Tenancy Agreement to be regularized, the respondent lodged a formal complaint with the Rent Manager of Adentan Municipality who had jurisdiction to hear the said complaint, as they alleged that the Okaikwei North Municipal Assembly, where the Respondent's property is located, does not have a Rent Control office. A letter from the Municipal Assembly is attached and marked as "Exhibit EIGL 02". They added further that during the hearing of the said complaint by the Rent Manager, Gilbert Nartey, the Administrator of the applicant company who is also the deponent to the Applicant's Affidavit in Support of this instant application, at all material times subjected himself to the said hearing and, at his request, caused a witness to be invited to support their case without objecting to the jurisdiction of the Rent Manager, Adentan. The Respondent contends further that upon the full and final determination of the complaint by the Rent Manager and filing of the Rent Control referral letter with the Registry of the District Court for enforcement, the Applicant dissatisfied with the recommendation of the Rent Manager filed an Application for Judicial Review at the High Court to quash the recommendations of the Rent Manager which the Respondent 6 vehemently opposed and which was dismissed by the court. The Respondent contends further that the Applicant's application for Judicial Review did not operate as stay of proceedings as sought to be espoused by the Applicant. The Respondent deposed that at all material times, the Respondent has ensured that all tenants, including the Applicant, occupying portions of its property comply with the covenants stipulated in their respective Tenancy Agreements and that contrary to the covenants of the Tenancy Agreements, the Applicant has failed to maintain the cleanliness of the premises, repair broken walls caused by the Applicant's vehicle, remove exposed electrical cables and control the chaotic use of the property by trucks owned by the Applicant. Pictures were attached and marked as "Exhibit EIGL 03" series. Their case continued that despite several notices issued to the Applicant to exposed electrical cables from the walls of the Respondent’s office space, no action has been taken and that, no official or lawyer acting on behalf of the Respondent has threatened to disconnect exposed electrical cables. They added that their management has, through written correspondence, reiterated its concerns regarding the removal of these exposed electrical cables by certain deadlines, warning that failure to do so would lead to the disconnection of the cables due to the danger they pose to life and property. They exhibited copies of correspondence marked as "Exhibit EIGL 06 Series". They contend that neither the Respondent’s nor its representatives have acted in any way that interfere with the subject matter of the suit or its administration and that their efforts are solely focused on ensuring that no tenant's activities pose a danger, inconvenience, or chaos to them or other tenants. They deposed further that their actions are not in any way disrespectful of the authority of the High Court or the District Court, but rather aim to protect and preserve the very property the Applicant seeks to maintain as its 7 warehouse and that pendency of the suit before the courts does not restrain them from managing and controlling the property, especially where the activities of certain tenants, particularly the Applicant, pose a threat to life and property. They add further that the Respondent’s management of the property is essential, as the Applicant's activities are dangerous to both lives and the property and therefore, the pendency of the application for stay of proceedings, which has already been determined, does not prevent them from continuing its managerial duties. They stated further that they have at all material times, granted the Applicant unrestricted access to their warehouse during business hours. They state however that due to the chaotic and unguided nature of the Applicant's activities, management notified the Applicant through Mr. Gilbert Nartey that the warehouse would be locked at the close of business and opened again at 5:30 am the following day, with the keys kept in custody of its security personnel. They attached Records of vehicle ingress and egress, including times and descriptions of activities, marked as "Exhibit EIGL 05. They state that, neither the Respondent nor its representatives have removed any electrical clips from the Respondent’s walls, nor have any actions taken by them that interfere with the subject matter of the suit or its administration and that their efforts are solely focused on ensuring that no tenant's activities pose a danger, inconvenience, or chaos to them or other tenants. They deposed that the respondent’s management of the property is essential, as the Applicant's activities are dangerous to both lives and the property. Therefore, the pendency of the then application for Judicial Review which has already been determined, did not prevent them from continuing its managerial and administrative duties in relation to its property and that the managerial and administrative duties of the Respondent, as exercised by its representatives, did not prejudice the pending suit. 8 They contend that their managerial and administrative functions do not amount to contempt of this Court and that to them management should be encouraged and commended for their efforts to maintain order, safety, and the proper condition of the property. They denied also that any of its officers has arrogantly stated at any material time that the Applicant would bear the financial consequences of its actions and that the value of the property housing the Applicant's warehouse is equally significant as the products distributed by the Applicant and that should the status quo of the property be maintained, the Respondent risks witnessing a collapse or fire destroying the property. The court gave orders for the filing of written submissions on the 11th of December 2024 after the supplementary affidavit in support filed pursuant to leave of court granted had been filed. The respondent following the service of the supplementary affidavit in support on it proceeded to file a supplementary affidavit in opposition on the 27th of December without leave of court. The said process having been filed without leave of court is hereby struck out. This court will proceed to determine the application with the properly filed process and the submissions of counsel filed. 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 9 “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, “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 10 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 defence. In the instant case, the Applicant’s application is that, the Respondent herein should be committed to prison for contempt of Court because firstly the respondent removed the electrical clips of wires fastened to the wall which power Applicant’s refrigerating containers units (refab containers). It was alleged further that Respondent’s lawyers and other officials of the Respondent threatened subsequently to cut the electricity supply to the containers for the frozen food items inside them to spoil. Secondly the further alleged acts of the respondent which, to the applicant are contemptuous are that the Respondent locked the main gate to the premises to restrict the Applicant’s access to the premises and refused to furnish duplicate keys to the applicant and to them this was intention to curtail the applicant’s ability to load and offload its food items which its business and for which purpose the warehouse was rented. 11 Thirdly the applicant contends that the respondent poured a tipper truck of chippings just at the entrance of the applicant’s refrigerating container units to close off access. Per the authorities, there is no doubt that, a person or an institution can by his acts be found guilty of contempt if it is established that, he had acted in such a manner that is calculated or intended to prejudice the outcome of the proceedings or obstruct the course of justice. 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 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.” 12 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. The affidavit evidence available to the court is that the certiorari application before the High Court General Jurisdiction as well as the application before the District Court for stay of proceedings pending the hearing of the certiorari application are all pending and are all with respect to the same subject matter. With regards to the first allegation that the respondent removed the electrical clips, the respondent in response denied this and rather asserted that the applicant has contrary to the covenants of the tenancy agreement failed to maintain the cleanliness of the premises, remove exposed electrical cables among others and as a result they had to in several notices bring to the attention of the applicant the exposed electrical cables from the respondent’s office space. They alleged that the applicant has failed to take no action whatsoever however they have not threatened to disconnect the exposed cables. In the written submissions of counsel for the Respondent filed on the 14th of January 2025, it was contended that the applicant has failed to produce credible evidence to show that the clips were removed by the officials of the respondent. The means through which the applicant sought to prove their assertions with regards to the removal of the electrical clips was exhibit J. Exhibit J is a picture of some metals on a part of the wall. This picture is not enough basis for the court to conclude that the Respondent removed electrical clips of wires fastened to the wall. With regards to the allegation of the locked gate to the property, the evidence presented to the court was a picture of a gate locked. However, the respondent has produced records of vehicle ingress and egress including times and description of activities as 13 exhibit EIGL 05. I have perused through same and found that contrary to the assertions of the applicant, they had access to the property at all times of the day and night. The third contention is the pouring of a tipper truck load of chippings at the entrance of the Applicant’s refrigerator container units to close off access. They stated that they cleared the entrance of their refrigerator container units to create access and a week after clearing the pathways, the respondent again poured truckload of sand to close off the applicant’s access to the container units. According to the applicant, these acts occurred on the 1st of November 2024 and also a week after the clearing while this application was pending, and the respondent had filed its affidavit in opposition. Contempt partakes of the nature of a criminal charge for which a respondent may be liable to a term of imprisonment. See Re Bramblevale Ltd (1969) 3 All E.R. 1062, Republic v Bekoe and Others Ex Parte Adjei (1982-83) GLR 91 As in criminal matters, the acts for which a person stands before the court must be made known so as a proper defence can be built and structured. In this instance, the motion paper and the supporting affidavits are the pointers for the respondent to know what the contention of the applicant is for a proper defence to be built. Therefore, the complaints in the supplementary affidavit of matters occurring after the filing of the application cannot be the subject of this application as the Respondent obviously did not have the opportunity to respond to same. Since the application was filed on the 9th of October 2024, it suggests that as at the said date, the Respondent had done the acts as set out in the affidavit in support of the application which acts to the mind of the applicant is contemptuous of the court. Considering the fact that, the acts set out in the supplementary affidavit as alleged happened after the filing of the application for 14 contempt, they could not have been the basis for which the contempt application was initiated. In terms of Order 50 Rule 3(3) 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 for committal of contempt of court. The applicant not having proved sufficiently the acts alleged of the court will dismiss the application and same is accordingly dismissed. COUNSEL: NELSON ATANGA AYAMDO WITH PATRICK GBAGONAH FOR THE APPLICANT PRESENT ERNEST KORANTENG FOR THE RESPONDENT PRESENT PARTIES: OWUSU ABOAGYE REPRESENTS APPLICANT EPHRAIM TANDOH REPRESENTS RESPONDENT SGD MARY M.E YANZUH J. JUSTICE OF THE HIGH COURT 15