The Republic V Ayeboafuor II V (C12/113/24) [2024] GHAHC 436 (11 December 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE ASHANTI REGION KUMASI HELD ON THURSDAY THE 5TH DAY OF DECEMBER,2024BEFORE HERLADYSHIP HANNAH TAYLOR(MRS) J. SUIT NO: C12/113/24 IN THE MATTER OF AN APPLICATION FOR AN ORDER FOR COMMITTAL FORCONTEMPT. THEREPUBLIC VRS. NANA SAASI AYEBOAFUORII -RESPONDENT FANKYENEBRA –SANTASI EX-PARTE DANIELCLIFFORDSARFO -APPLICANT (SUINGAS THE HEADOF THEEFFIKESIEM OYOKO, ABOHYEN ABAKOMAROYAL FAMILY OF MAMPONGTENG. H/NO. PLOT101BLOCK G, MAMPONGTENGROYAL FAMILYMAMPONGTENG __________________________________________ JUDGMENT _____________________________________________________ 1 The applicant prays for an order committing the respondent to prison for contempt of Court.It isthe claim ofthe applicant that respondentfor hisacts and oromission of; 1. Failing to stop his assigns, attorneys, workmen and persons claiming title or interest through him from entering on and continuing with construction activities on the disputed land, the subject matter of suit C1/105/23 despite service onhim ofanorderofinjunctionmade by this Honourable Court. 2. Instructing his assigns, workmen, attorneys and persons claiming title or interest through him to enter unto and undertake construction activities on the disputed land, the subject matter of Suit No. CI/105/23 despite service on him of an order ofinjunction made by this Honourable Court. By these failures, applicant contends that the respondent has brought the administration ofjustice into disrepute. The facts the applicant relies on to buttress his prayer as set in the affidavit in support is summarized hereafter. The applicant deposes that per an amended writ of summons and statement of claim per the Suit C1/105/23, an action commenced against the defendant, the applicant is seeking for a declaration that the beneficial interest in Plots numbered 13 and 15A Nana Nsiah Street as well as Plots 11 and 5 2nd Lane, Mamponteng are vested in applicants’ family, a declaration that respondent as defendant cannot dispossess the applicant’s family of their usufructuary interest in the 2 disputed land, recovery of possession and perpetual injunction restraining the respondent, his assigns, privies etc from interfering with applicant’s quiet enjoyment of thedisputed land and fromusing the saidland asaprivate burialground. The applicant then on 30th May, 2023 filed an application for an order for interlocutory injunction to restrain the respondent, his assigns, attorneys, hirelings, servants, workmen and all claiming through him from entering unto, alienating, undertaking construction activities, disposing off the disputed land till the final determination of the case asperthe copy ofthe applicationdisclosed asExhibit “A”. Subsequently, an order for interlocutory injunction was granted by the Court as prayed per the Exhibit “B”. Thereafter, one Francis Kwabena Opoku applied to be joined to the suit as the 2nd defendant claiming to be an assign of the respondent. A copy of the statement of defence filed by the said Francis Kwabena Opoku was disclosed as the Exhibit “C”. The order of interlocutory injunction has been served on the respondent per the affidavit of service, the Exhibit “D”. Yet with notice of the interlocutory injunction, the respondent has failed to stop or instruct his workmen, assigns, persons claiming title or interest through him including Francis Kwabena Opoku not to enter the disputed land or continue with the construction activities on the land as expressed in the order of this Court. 3 To show the activities being undertaken on the disputed land, applicant attached pictures marked as Exhibit “E”, “E1”, “E2”, “E3” and “E4” to his application. Concluding that the respondentis willfully defying the expressorderofthe Honourable Court and the same conduct constituting contempt of Court, he be punished in accordance withlaw. The respondent was served with the present application and hearing notice but failed to react to the application. With such notice but choosing not to attend Court, the Court proceededtoconsider theapplicant’sprayer. In the case of DR. PATRICIO AND EILEEN YOURI V. MRS. FAUSTINA ABOAGYE [2013] 67 GMJ 49,the aim and purpose ofthe law ofcontempt was held as “[T]o protect the integrity of the justice system and the right of an individual litigant to have justice effectively administered. To this end, punishment is imposed on persons found, by words or acts, to have impeded or interfered with the administration of justice, or to have created a substantial risk of the course of justice being seriously prejudiced or interfered with, ortohave otherwise scandalized the court.” In laying a charge of contempt of court against a person, a duty is cast on the applicant to prove the allegation beyond reasonable doubt. For section 13(1) of the Evidence Act 1975NRCD323provides: - 4 “In any civil or criminal action, the burden of persuasion as to the commission by a partyofacrime which is directly in issue requires proofbeyondareasonable doubt.” In discharging the burden placed on the applicant, he must prove the elements of contempt as outlined in the case of REPUBLIC V. SITO 1, EX-PARTE FORDJOUR [2001–2002]SCGLR 322asfollows: - (a) There must be a judgement or order requiring the contemnor to do or abstain fromdoing something. (b) It must be shown that the contemnor knows what precisely he is expected to door abstainfromdoing and (c) It must be shown that he failed to comply with the terms of the judgment or orderand thathis disobedience was willful” See also the case of REPUBLIC V. MICHAEL CONDUAH EX-PARTE SUPI GEORGE ASMAHCIVILAPPEALNO. J4/18/2012 DATED15TH AUGUST,2013. In this case, the Exhibit “B” constitute an order restraining the respondent, his agents, attorneys, assigns, hirelings, servants, workmen and all who claim title or interest through him from entering unto, alienating, undertaking construction activities, and disposing off the disputed land that is Plots number 13, 15A Nana Kwame Nsiah Street and Plotsnumber11and 5,2nd Lane Mampontengtill the finaldeterminationofthe suit. 5 The Exhibit “D” is a letter from the District Court Mamponteng forwarding an affidavit of service of the order of interlocutory granted on 10th of July, 2023. It is disclosed per the affidavit of service that the respondent was served with a copy of the Exhibit “B” on 1stAugust, 2023. From the Exhibit “B”, the lands for which the respondent was restrained with his agent, assigns, workmen and all claiming through him are described as Plots 13, 15A Nana Kwame Nsiah Street and Plots 11 and 5 2nd Lane, Mamponteng. They were restrained from entering, alienating, undertaking construction or disposing off the named Plots of land. The contents of the order of injunction is clear and admits no ambiguity and has also beenbroughtto thenotice ofthe respondent. The applicant tendered Exhibit “E” series which are pictures. The Exhibits “E” and “E1” show a gate which has been constructed. Exhibit “E1” discloses that the picture was taken with a digital camera in the year 2024. The Exhibit “E2” seems to show the same gateand the picture was takenon13thJanuary, 2024. The Exhibit “E3” taken on 20th December, 2023 shows a structure but does not disclose whetherthe gateshown inthe Exhibit “E”,“E1”and “E2”relate tosame. The Exhibit “E4” was taken on 8th December, 2023 and they show partitioned rooms probablybeing put up forshops. 6 There is no evidence to show which of the aforementioned plots in Exhibit “B” is being used for the construction. The Court is left to speculate on the particular plot which has beenenteredfor thedevelopment. I have also looked at the application for interlocutory injunction as presented to the Court as Exhibit “A” which had pictures marked as Exhibit “E”, ‘E1”, “E2”, “E3” and “E4”and tried torelate themtotheExhibits “E”series in thepresent application. In the Exhibit “E” series to the Exhibit “A”, applicant alleged the place was being preparedfor acemetery. I amunable to appreciate whether the structuresin Exhibit “E” series in the present application are for a cemetery. In any case, the order restrains entering andfurther development. What the Court has searched for is an answer to who is carrying out the development. According, to the applicant, respondent has failed to warn his assigns, workmen and persons claiming title from entering into the land and undertaking construction activities. The order per Exhibit “C” contains no duty for the respondent to warn his assigns, workmenorall personsclaiming throughhim. Respondent, his assigns, workmen and all claiming through him were equally restrained from entering and undertaking the development complained off. Therefore, if the applicant is convinced that an assign, workman, agent or any person claiming 7 throughthe respondentis undertaking the development ofany ofthe plotsthe orderfor interlocutory injunction relates, then it is the individual persons who will be liable for contempt. Their activity cannot be interpreted to mean that the respondent has failed to warn or instruct them from entering or undertaking development. From the applicant’s posture, it points to the fact that the respondent is not the one undertaking the development complained off but the personclaims interest throughhim. Contempt of court is quasi – criminal. It is for this reason that an applicant who has laid such charge against a respondent is to connect the respondent to the development and same must be proved beyond reasonable doubt, but not to assign a duty which is not borneby the orderofthe Court. Having woefully failed to connect the applicant to the development being undertaken, the applicant has failed to discharge the burden placed on him to prove his case beyond reasonable doubt. Accordingly,the applicationis dismissed. The respondent acquitted anddischarged. Noorderasto cost. 8 JUSTICEHANNAH TAYLOR(MRS) JUSTICEOF THE HIGH COURT LAWYERS DAVID OPPONG HOLDING THE BRIEF OF ISAAC CHRISTOPHER FOR THE APPLICANT 9