REPUBLIC VRS. KUMOJI AND OTHERS,EX PARTE: KUMOJI (CR/0078/2025) [2025] GHAHC 5 (18 February 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, CRIMINAL COURT 4, HELD IN ACCRA ON TUESDAY, THE 18TH DAY OF FEBRUARY, 2025, BEFORE HER LADYSHIP, COMFORT KWASIWOR TASIAME, JUSTICE OF THE HIGH COURT. CASE NO.: CR/0078/2025 THE REPUBLIC VRS. 1. RAMATU KUMOJI – RESPONDENTS 2. DR ROBERT KUMOJI 3. YVONNE KUMOJI EX PARTE: DAVID KUMOJI - APPLICANT R U L I N G Applicant Filed the Motion on Notice for Committal of the Respondents for Contempt of court. Attached to the motion paper is the affidavit in support. Permit me to quote the relevant parts of the affidavit in support of the application. 1 | Page 1. That I commenced an Action against the 1st to the 29th Defendants/Respondents for reliefs as endorsed on the Writ of Summons and Statement of Claim and on the 15th day of January, 2024, the 30th and 31st Defendants caused their lawyers to file a motion for Joinder to be joined to the suit and the Joinder Application was granted by the Honorable Court. Attached for the perusal of the Court is “Exhibit A” which is a copy of the Joinder filed by the 2nd and 3rd Respondents. 2. That on the 21st day of August, 2024, I filed a further Amended Statement of Claim Pursuant to the Order of the Court dated 14th August, 2024 for the following reliefs, with a copy of the Amended Statement of Claim attached as “Exhibit B”: a. A Declaration that the plaintiff remains the owner in possession of the disputed property. b. A further Declaration that the Defendants have no interest in the disputed property. c. An order for recovery of possession of the portions of the property that has been trespassed upon by the Defendant on a particular date to be given by the Honorable Court. d. An Order by the Court declaring any Judgement given in respect of the property in issue without notice of Plaintiff as void due to the fact it was procured by fraud. e. Perpetual Injunction restraining the Defendants, their servants, agents, successors in title, assigns and whomsoever gains title through the Defendants, from setting foot onto the subject matter and laying claim to any piece thereof, f. Damages for trespass. g. Any other reliefs that the Honorable court deems fit and proper. 3. That whiles the matter is still subsisting, the 1st Respondent on or about 29th of August, 2024, sacked a tenant whom I had put in occupation in one of the properties I had constructed on the subject matter and demolished the building. 2 | Page 4. That the 1st Respondent also hired workers to break off portions of the property she destroyed leading to the destruction of the premises. 5. That I filed a Motion on Notice for Interlocutory Injunction and Preservation of Property against the 1st Defendant/Respondent on the 10th day of September, 2024. Attached and marked as “Exhibit C” is the motion on Notice for Interlocutory Injunction and Preservation of Property. 6. That on the 4th day of October, 2024, the Respondents demolished some shops constructed by me on the subject matter property and commenced with the construction of a wall around the property even though the Injunction Application is still pending. I have attached and marked as “Exhibit D Series” pictures of the acts of destruction by the Respondents on the property in dispute. 7. That I am advised by Counsel and verily believe same to be true that where a Motion on Notice for Interlocutory Injunction and Preservation of Property has been filed and served on a party, all persons must halt any works on the property until the Application has been heard and further orders has been given. RESPONDENTS FILED AFFIDAVIT IN OPPOSITION. 1. That I am advised by counsel and verily believe same to be true that for a person to be liable for contempt, that person should have disobeyed or disregarded an order of a court or conducted himself in a manner that interferes with the administration of justice. 2. That as a matter of fact, at the time of filing the present application, the Circuit Court had not made any order against the Respondents restraining them for doing any act or compelling them to do a specific act. 3. That the action complained about by the Applicant was within the rights of the 2nd and 3rd Respondents upon having obtained judgement from the High Court 3 | Page over the land in the case of DR. ROBERT KUMOJI & YVONNE KUMOJI VRS RV. ISSAC OTI BOATENG & 3 OTHERS (SUIT NO. LD/ 0246/2019). 4. That upon obtaining Judgement over the property from the High Court, the 2nd and 3rd Respondents commenced the reconstruction of the fence wall to recover possessions of the property pursuant to the orders of the High Court in the above-mentioned suit. 5. That the reconstruction of the demolished wall was act in enforcement of the Judgement of the High Court which granted the 2nd and 3rd Respondent an order for recovery of possession of disputed land. 6. That I am advised by Counsel and verily believe same to be true that an order or Judgement of a court (and for that matter the High Court) once made is binding unless and until has been set aside. 7. That I am further advised by my counsel and verily believe same to be true that the mere pendency of an application for interlocutory injunction does not constitute an order of a court restraining a party from his proprietary rights. 8. That assuming without admitting that the Respondents’ action was in contempt of court, I have been advised by counsel and verily believe same to be true that under the rules of court, the Applicant cannot cite the Respondents for contempt without serving them with a copy of the order of the court which Respondents have flouted together with a penal notice. LAW ON CONTEMPT OF COURT GENERALLY Contempt application is provided under Section 36(1) of the Courts Act, 1993(Act 459) which provides as follows: “The superior Courts of Judicature shall have the power to commit for contempt to themselves and all such powers as were vested in a court of record immediately before the coming into force of the Constitution in relation to contempt of Court.” The same provision is found in Article 126(2) of the 1992 Constitution. 4 | Page In the case of REPUBLIC v. HIGH COURT, ACCRA; EX PARTE LARYEA MENSAH [1998-99] SCGLR 360 at page 368 where 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.” In the relatively more recent judgment of the Supreme Court in the case of REPUBLIC v. BANK OF GHANA & 5 OTHERS EX PARTE BENJAMIN DUFFUOR (J4/34/2018 dated 6/6/2018) reported on ghalii.org as [2018] GHASC 37, His Lordship Baffoe-Bonnie JSC delivering the unanimous verdict of the Court held regarding the modes of Contempt which I would reproduce hereunder for want of a better method to express same: “To resolve these two issues, we must first of all understand what constitutes contempt of court. Contempt of court according to Oswald on Contempt of Court (3rd edition) may be said to be constituted by any conduct that tends to bring the authority and administration of the law into disrespect or disregard, or to interfere with or prejudice parties, litigants or their witnesses during the litigation. The law on contempt in Ghana seems to be settled. The courts in Ghana have over the years dealt with the issue of contempt of court in several instances. The law is quite tritely known that Contempt in general is quasi-criminal and requires proof beyond reasonable doubt to succeed against an alleged contemnor. (See the case of REPUBLIC v. SITO I EX PARTE FORDJOUR [2001-2002] SCGLR 322). In the case of Comet Products UK Ltd v. Hawkex Plastics Ltd [1971] 1 All E R 1141 at page 1143-1144, 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 5 | Page charges have always been applied to such proceedings. It must be proved with the same degree of satisfaction as in a criminal charge." Please see also REPUBLIC v. NII ACHIA II; EX PARTE JOSHUA NMAI ADDO [2015] 83 GMJ 13. A respondent to a contempt proceeding may be found guilty in many ways. The party may be found guilty of direct contempt or indirect contempt which may be proved in several ways depending on the facts of the case. The proof of direct contempt seems not to be as burdensome as proof of indirect contempt. In most cases of direct contempt such as insulting the judge or a party to a proceeding, or committing acts of violence in court, the judge has the advantage of having a firsthand view of the act constituting contempt. The opposite can be said of indirect contempt where the court will have to rely on the testimony of third parties to prove the offense of contempt. 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: • where a party willfully disobeys an order or judgment of a court, and • 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. In cases of willful disobedience of an order or judgment of the court, the following elements have to be established: 1. That there is a judgment or order requiring the contemnor to do or abstain from doing something; 6 | Page 2. 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. See the case of REPUBLIC V SITO I; EX PARTE FORDJOUR [2001-2002] SCGLR 322. In addition to the above three elements of contempt, where there is a pending application like an injunction, which has not been determined, any act that seeks to do the very thing or act which the application is seeking to prevent will also amount to contempt of court. Please see the case of REPUBLIC V. MOFFAT AND OTHERS, EX-PARTE ALLOTTEY [1971] 2 GLR 391. In the case of ARYEETEY V AGBOFU II AND ANOTHER [1994-95] GBR 250, the Supreme Court held at page 252 as follows: “The Applicants having been served with the application deliberately stole the march by doing the very act that the motion sought to restrain them while the motion was pending. Once the Applicants had become aware of the pendency of the motion, any conduct on their part that is likely to prejudice a fair hearing of the motion was tantamount to contempt of Court.” From the Respondents’ response, it is evident that, the Respondents are very much aware of the injunction application but decided to do the very act that the Application was seeking to restrain them from doing. If that is so, then their act is tantamount to contempt of court. However, learned counsel for the Respondent raised the issue of failure on the part of the Applicants to serve them with a penal notice. To this, learned counsel for the Applicants responded that the penal notice under Order 43 is in respect of Judgments, not committal for contempt of court. Order 50 of the High Court (Civil Procedure) Rules 2004 (C.I.47) under which this application was filed, Provides for Committal for contempt. Order 50 Rule 1 (1) provides 7 | Page “The power of the Court to punish for contempt of court may be exercised by an order of committal. Order 50 Rule 1(2) provides ‘Committal proceedings shall be commenced by an application to the Court. (3) The application shall be supported by an affidavit stating inter alia the grounds of the application. (4) Subject to sub-rule (5), the notice of motion, together with a copy of the affidavit in support of the application shall be served personally on the person sought to be committed.” Even though the Applicant filed this application under Order 50 Rule 1(2) of C.I. 47, this case falls under the principles of committal as articulated in REPUBLIC VRS HIGH COURT (COMMERCIAL DIVISION ACCRA), EX PARTE MILLICOM GHANA LIMITED & ORS; SUPERPHONE COMPANY LIMITED, INTERESTED PARTY (2009) SCGLR 41, where the court had granted an injunction restraining the defendant from interfering with or disrupting or operating in the plaintiff’s territory or in any way that undermines the plaintiff's business. The plaintiff had brought contempt committal application against defendant for disobeying this order of injunction of the court. Atuguba JSC (as he then was) summed up the position of the law as follows “As the applicant chose enforcement by means of committal, the relevant provision is, particularly on the facts of this case, order 43 rule 5(1) (b) (c) and 7(1) and (2) ...’’ Order 43 Rule 5 of the High Court Civil Procedure (Amendment) Rules, 2004, CI 47 provides “5. Enforcement of judgment to do or abstain from doing an act (1) Where (a) a person required by a judgement or order to do an act within a time specified in the judgement or order refuses or neglects to do it within that time or within that time as extended or reduced under Order 80 rule 4, or (b) A person 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 or more of the following means, (aa)… (bb) …or (cc) an order of committal against that person or, where that person is a body corporate, against any director or other officer’’. Order 43 Rule 7(1) and (2) provides: ‘’7(1). Service of copy of judgment before enforcement under rule 5 (1) In this rule, references to an order shall be construed as including references to a judgment. (2) Subject to Orders 21 rule 14 (2) and 22 rule 6 (3) and sub rule (6) of this 8 | Page rule, an order shall not be enforced under rule 5 unless (a) A copy of the order has been served personally on the person required to do or abstain from doing the act in question; and (b) In the case of an order requiring a person to do an act, the copy has been served before the expiration of the time within which the person was required to do the act. … (4) There shall be indorsed on the copy of an order served under this rule, a notice informing the person on whom the copy is served (a) in the case of service under sub rule (2), that if the person neglects to obey the order within the time specified in the order, or, if the order is to abstain from doing an act, and the person disobeys the order, the person is liable to process of execution; and (b) in the case of service under sub rule (3), that if the body corporate neglects to obey the order within the time specified or, if the order is to abstain from doing an act, and the body corporate disobeys the order, it is liable to process of execution.’’ Therefore, order 43, rules 5 and 7 of C.I. 47 has a mandatory requirement for the service of penal notice when an order, judgment or decision of the court has been flouted. In this instant case, the Applicant alleged that the Respondent having been served with the application for injunction from dealing with the land in dispute until the final determination of the matter, proceeded to do the very thing the application was seeking to prevent. This particular application does not fall under Order 43 where the Applicant has to meet the mandatory requirements of order 43, rules 5 and 7 of C.I. 47. The issuance of penal notice results from the order or Judgement having been granted. In this case, the injunction application having been granted, the order for the injunction has to be served on the Respondent with a penal notice. The Order has to be served on the Respondent and the Applicant has to indorse on the order a notice informing the Respondent that if he disobeys the order, he/she shall be liable to the process of execution. It is important to note that the indorsement of the penal notice is a necessary precondition for the enforcement of an order or judgment under order 43 rule 5 by way of committal. The facts of the case in REPUBLIC VRS HIGH COURT (COMMERCIAL DIVISION ACCRA), EX PARTE MILLICOM GHANA LIMITED & 9 | Page ORS; SUPERPHONE COMPANY LIMITED, INTERESTED PARTY (Supra) flowing from above, are different from the facts of the instant case. Exhibit C is the application for injunction. Applicant stated at paragraph 7 of the affidavit in support that, he filed the application for injunction on 10th September, 2024. That 2nd October, 2024 which was the return date, the court did not sit. The motion was adjourned to 16th October, 2024 and further adjourned to 12th November, 2024. That on 4th October, 2024, Respondent demolished some shops on the property when the Application was pending. Learned Counsel for the Respondents in his response stated that, Respondents got a judgement on the property in issue. He referred to Exhibit YK2 as attached to the Application in support and submitted that, assuming without admitting that the 2nd and 3rd respondents caused the said demolishing during the pendency of the said application, it is their case that injunction application, cannot be used as means of staying execution. It is on record that, Applicant herein was not part of the case that resulted in that suit that resulted into the judgement as attached. It is contempt of court, if one receives an application for injunction but goes ahead to deal with the property. Please see the case of ARYEETEY V AGBOFU II AND ANOTHER [Supra]–SC. Learned counsel for the Respondent also submitted that, the 2nd and 3rd Respondents were not served personally with the contempt application. By Order 7 of CI 47, motions for committal for contempt need to be served personally on the Respondents. On the docket is one proof of service indicating that the 1st Respondent was served with the motion paper and affidavit in support on 6th November, 2024. This application was mentioned on 18th December, 2024, 2nd Respondent was present whereas 1st and 3rd Respondents were absent. Learned Counsel, Isaac Aburam and Jemima Aggrey were present holding the brief of Eric Mensah Esquire for the Respondents. That means all the respondents were represented. The question is, did the 2nd and 3rd Respondents instruct the lawyers herein to represent them? If not, then it is against the ethics of the profession for the learned counsel for the Respondents who were not instructed by the 2nd and 3rd Respondents to file affidavit in opposition to the application for contempt and representing the 10 | Page Respondents in court, and now turns around to raise an issue with the fact that, some of the Respondents were not served. I think learned counsel is blowing cold and hot, approbating and reprobating. In view of that, I think the 2nd and 3rd Respondents were notified with the pendency of the application. The Learned counsel for the Respondents also submitted that copies of the application was posted on the disputed property, and they decided to consult a lawyer who filed documents on their behalf. The law allows for substituted service where personal service is impossible. I therefore hold that although 2nd and 3rd Respondents were not served personally, they were notified of the pendency of the application. It is my holding that, Respondent having had notice of the injunction application, though they had a judgement on same property, which judgement was delivered by a different court, Applicant herein was not part of the trial that culminated into judgement, should have waited for the order of the court before proceeding to execute the Judgement. The case before the Circuit Court is in respect of the same property. I hold that the Respondents are in contempt of Court. They knew that, there was an application for injunction, but they went ahead to deal with the property. The law is that, 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, commits contempt of court. Their defenses to the application are: 1. They were trying to execute their judgement, (2) 2nd and 3rd Respondents were not served personally with the contempt application and finally, penal notice was not attached to the order for injunction. I have seen that the parties embroiled in this case are relatives, thus, custodial sentences or heavy fines will not resolve their differences but will only deepen their differences. In view of that, they are cautioned and discharged. (SGD) COMFORT KWASIWOR TASIAME 11 | Page (JUSTICE OF THE HIGH COURT) COUNSEL: 1. SARAH KUSI FOR THE APPLICANT 2. ISAAC ABURAM LARTEY WITH MONALISA ASARE AND JOANA BINEY HOLDING BRIEF FOR ERIC MENSAH FOR 2ND AND 3RD RESPONDENTS REFERENCE: • DR. ROBERT KUMOJI & YVONNE KUMOJI VRS RV. ISSAC OTI BOATENG & 3 OTHERS (SUIT NO. LD/ 0246/2019). • REPUBLIC v. HIGH COURT, ACCRA; EX PARTE LARYEA MENSAH [1998- 99] SCGLR 360 • REPUBLIC v. BANK OF GHANA & 5 OTHERS EX PARTE BENJAMIN DUFFUOR (J4/34/2018 dated 6/6/2018) reported on ghalii.org as [2018] GHASC 37 • REPUBLIC v. SITO I EX PARTE FORDJOUR [2001-2002] SCGLR 322). • COMET PRODUCTS UK LTD V. HAWKEX PLASTICS LTD [1971] 1 ALL E R 1141 AT PAGE 1143-1144, CA • REPUBLIC v. NII ACHIA II; EX PARTE JOSHUA NMAI ADDO [2015] 83 GMJ 13. • REPUBLIC V MOFFAT; EX PARTE ALLOTEY [1971] 2 GLR 391. • REPUBLIC V SITO I; EX PARTE FORDJOUR [2001-2002] SCGLR 322. • REPUBLIC V. MOFFAT AND OTHERS, EX-PARTE ALLOTTEY [1971] 2 GLR 391. • ARYEETEY V AGBOFU II AND ANOTHER [1994-95] GBR 250. 12 | Page • REPUBLIC VRS HIGH COURT (COMMERCIAL DIVISION ACCRA), EX PARTE MILLICOM GHANA LIMITED & ORS; SUPERPHONE COMPANY LIMITED. • INTERESTED PARTY (2009) SCGLR 41 REPUBLIC VRS HIGH COURT (COMMERCIAL DIVISION ACCRA), EX PARTE MILLICOM GHANA LIMITED & ORS; SUPERPHONE COMPANY LIMITED, INTERESTED PARTY (Supra). • ARYEETEY V AGBOFU II AND ANOTHER [Supra]–SC. 13 | Page