Republic Poku & 3 ORS (C12/91/23) [2024] GHAHC 435 (28 November 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE HELD IN THE ASHANTI REGION, KUMASI ON THURSDAY DAY THE 28TH DAY OF NOVEMBER, 2024 BEFORE HER LADYSHIP JUSTICE HANNAH TAYLOR (MRS). SUIT NO. C12/91/23 INTHEMATTER OF COMMITTALFOR CONTEMPTOF COURT AND INTHEMATTER OF THEREPUBLIC VRS. 1.KOFI POKU - RESPONDENTS 2.KWAKUFOSU EX-PARTE: 1. BEATRICEAPPIAHOFORI - APPLICANTS 2. ERICPARGGREYQUASHIE _____________________________________________________ JUDGMENT _____________________________________________________ The applicants do pray the court for an order of attachment and committal against the respondents for their willful, deliberate, disrespectful and contemptuous interference withthe administration ofjustice withimpurity. 1 The High Court, as asuperior Courtis vestedwith the power tocommit forcontempt to itselfunder Article 126(2)ofthe 1992ConstitutionofGhana which provides; “The Superior Courtsshall havethe power tocommit forcontempt tothemselves”. Also, the Courts Act of 1993, Act 459 provides per section 36 (1) that “the Superior Courtsofjudicature shallhave powerto commit forcontempt tothemselves.” The High Court [Civil Procedure] Rules 2004, CI 47 notably, emphasizes the power of the High Court to punish for contempt of Court and this power is to be exercised by an orderofcommittalper its Order50rule 1(1) which provides; - “The power of the Court to punish for contempt of Court may be exercised by an order ofcommittal.” Thus, under Order 50 of CI 47, the High Court does not attach, it commits contemnors. The Court in considering the prayer of the applicants looks at the supporting affidavit layingthe charge. AFFIDAVITIN SUPPORT Itis the applicants’ case that the respondentsin aCivil suit instituted by themagainst 1st applicant’s late husband, Sampson at the Circuit Court, Kumasi, the 1st applicant was 2 subsequently substituted for her deceased husband as one of the administrators of his estateand the 2nd applicant was also joined to thesuit asthe 2nddefendant. Upon an application by the respondents for an order for the interim preservation of H/No. 20 Block Y,” Bomso, the subject matter of the dispute and for the appointment of a Manager and Receiver to manage the said property and to deposit all rent paid into court, anorderwas granted directing the Regional Administratorofthe Judicial Service, toappoint anofficer ofthe Finance Department tomanage thesubject matterproperty. However, the respondents who prayed for the order have turned round to disregard the order by renting rooms in the said house. According to the applicants, the 1st respondent rented room No. 6 to a tenant and a report was made to the Court appointed Receiver Manager who issued a report. All efforts made by the Receiver Manager to have the 1st respondent to refund the rent advance takenfrom the tenant for same to be deposited in Court has been disregarded, frustrated and ignored with impunity. Having been advised by counsel and believing same to be true that respondents’ acts constitute contempt of Court, the present charge of contempt of Court has been laid to 3 ensure that those who defy the ordersofthe Courtdo not gofree and those who seekits protectiondo not losehope. AFFIDAVITIN OPPOSITION The respondents vehemently denied the charge laid against them per the affidavit in opposition filed. The gist of the response of the respondents is that the appointed receiver manager Mr. Yaw Karikari at all time material contacted them for information on the tenants to enable him conduct his duties. They attached Exhibit “KP1” as the list of tenants they presented to Mr. Yaw Karikari. Mr. Yaw Karikari on a number of occasions also permitted them to collect rent due tenants some of whom had attempted to vacate their rooms without making payments and handed over to him rent collected in his office together with the particulars of those tenants. To support this claim, the respondents provided the Exhibit “KP2” a receipt disclosing the payment of an amount collected as rent to which Mr. Yaw Karikari, the Receiver and Manager acknowledged receipt. This arrangement respondents deposed, continued till Mr. Yaw Karikari went ontransfer and Mr.Raymond Anyorigiya took overasReceiverManager. When Mr. Raymond Anyorigiya took over as Receiver Manager, the 2nd applicant started frequenting the house to cause trouble but when reports are made to Mr. RaymondAnyorigiya, healways brushed it aside. 4 They denied the allegations made against them as per the Exhibits “H” and “J”, reports written against them which they have no knowledge of and denied the contemptuous actslevelled against them. Fromthe affidavit evidence, the existence of aCircuit Courtorder appointing aReceiver Manager is not in doubt as the appointment is evidenced by the Exhibit “G”, the proceedingsof29th November,2021oftheCircuit Court. There is also no denial of knowledge of the appointment of a receiver by the respondents as they as plaintiffs then, brought the application for the appointment of a Receiverand Managerand same wasgranted by the Circuit Court. Furthermore, the parties are ad idem that Mr. Yaw Karikari was appointed as the Receiver and Manager and later Mr. Raymond Anyorigiya took over from him. It therefore, follows that from 29th day of November, 2021 it is the Receiver Manager who isin chargeofthe subject matterofthe suit. Orders of the Courts ought to be respected. In the case of REPUBLIC V. NANA KWAKU EX-PARTE REGISTRAR ASHANTI REGION HOUSE OF CHIEFS [1992 – 1993] GBR 862, per the holding 1, the Court of Appeal noted that “it would be chaotic 5 to allow persons to flout the orders of the Court with impunity and thus undermine the Court’s authority.That would endanger thedevelopment ofanorderly society.” Further, there is a bounden duty on all Courts to ensure that orders from any other Court are strictly complied with. In the case the case of LIZORI LTD V BOYE & SCHOOL OF DOMESTIC SCIENCE & CATERING [2013-2014] 2 SCGLR 889 AT 904, Bennin JSC emphasized that “Judicial comity dictates that the Courts operate as one entity to fight against disrespect and disregard to every Court’s decisions, however low orhighonthe judicialhierarchy.” In his book “Civil Procedure, A practical Approach” at page 600 S. Kwami Tetteh noted that “A “receiver is a term which is well known in the Court of Chancery, as meaning a person who receives rents or other income paying ascertained outgoings, but does not, ifI may say so, manage the propertyin the sense ofbuying orselling oranything of that kind.” Also, in Black’s Law Dictionary 10th Edition at page 1460, a receiver is defined as “a disinterested person appointed by a Court, or by a corporation or other person for the protection or collection of property that is the subject of diverse claims (for example, because it belongstoabankrupt oris otherwise being litigated)”. 6 In the circumstance that the receiver was appointed by the Court as per the Exhibit “G” thenthe receiver is acting as anofficer ofthe Court and the ordermust be respected and notbe disregarded by thecontesting partiesand their privies. In Halsbury’s Laws of England (3rd ed) vol. 8 at page 13 at paragraph 19, it is said of a receiveras follows: - “A receiver appointed by the Court is an officer of the Court and to interfere with him ordisturbhim in his capacity assuch is acontempt”. Interferences with the conduct of receivership would constitute contempt of Court. See the case of BROAD V. WICKAM (1831) 4 Sims 511 and page 601 of S. Kwami Tetteh’s booksupra. In the case of REPUBLIC V SACKER AND OTHERS; EX-PARTE SENIOR HIGH COURT REGISTRAR, ACCRA [1989 – 1990] 2 GLR 603, [1998-1990] GLRD 133 where the respondents therein despite the appointment of a Receiver and Manager took it uponthemselves tocollect rent onsome ofthe roomsupon charging themforcontempt, theCourtheld: - “a receiver appointed by the Court was an officer of the Court and to interfere with him ortodisturbhim inhis capacity assuch was acontempt”. 7 By definition, a person who commits contempt may be committed to prison or to pay a fine for willfully disobeying an order of Court requiring him to do any act other than the payment of money or to abstain from doing some act, and the order sought to be enforced should be unambiguous and must be clearly understood by the party concerned. The reason is that a Court will only punish as contempt, a willful breach of a clear Courtorderrequiring obedience toitsperformance. Therefore, disobedience which is found not to be willful cannot be punished. See REPUBLIC V. HIGH COURT ACCRA, EX-PARTE LARYEA MENSAH [1989 – 1999] SCGLR 360 and also AGYENIM BOATENG & 27 ORS V. S.K. BOATENG [2009] SCGLR154. The elements of contempt that ought to be established to support a charge of contempt of court has been outlined in the case of THE REPUBLIC V. SITO 1 EX-PARTE FORDJOUR [2001–2002]SCGLR 322areas follows: - a) There should be a judgment or order requiring the contemnor to do or abstain fromdoing something. b) It had to be shown that the contemnor knew what precisely he was expected to door abstainfromdoing. c) It had to be shown that he had failed or refused to comply with the terms of the judgementororderthatthe disobedience was willful. 8 With the knowledge of the appointment of a Receiver Manager the parties invariably are to refrain or abstain from the collection of rent or renting out rooms in the disputed property. With allegations levelled against the respondents, the Exhibit “H” and “J” being reports authored by Mr. Raymond Anyorigiya in his capacity as the Receiver Manager when he succeeded Mr. Yaw Karikari seek to buttress the claim. In Exhibit “H”RaymondAnyorigiya wrote in partasfollows: - “I took over the receivership from my former supervisor Mr. Yaw Karikari who is now on transfer to Sunyani in the Bono Region of the Republic of Ghana. My Lord, during the transition period a report was made to my former boss that Mr. Kofi Poku who is a party to the suit has rented room number six (6) out and pocketed the money without recourse to the office of the receiver. We visited the house to investigate the truthiness of the assessing (sic) from Mr. Quarshie who is also a party to the suit and the tenant in question confirmed to us that she rented the room from Mr. Kofi Poku in September, 2022atthe time when thehouse was in receivership. Subsequent to that, I made effort to invite Mr. Kofi Poku and his brother to enquire fromtheir side ofmatterbut alleffortshave proved futile.” In Exhibit “J” also authored by Raymond Anyorigiya, he wrote per the paragraphs 4 and 5as follows; - 9 “My lord with respect, one of the plaintiffs in the above suit came to my office with an envelope which I did not know what was inside, he told me that, he the plaintiff has rented out one of the rooms to a tenant and was bringing me the money for preservation. With respect, I told him that he should return the money to the owner since he the plaintiff had no locus standee (sic) to rent the room to anybody, if anything at all, it is courtthat haspower todo so.So,I rejected the envelope and he left my office.” The applicants’ Exhibits “H” and “J” suggest that it is only one of the plaintiffs therein who has rented out a room to a tenant during the existence of an order appointing a Receiverand Managerofthe disputed property. Exhibit “H” in particular points out Mr. Kofi Poku (1st Respondent) as the person who rented out one of the rooms. This suggests that there is no allegation against the 2nd respondent Kwaku Fosu. Contempt application, being quasi criminal, the applicants are required to prove the allegation made against each of the respondents. An allegation against oneofthe respondentscannot be stretchedto coverthe otherrespondent. It ought to be pointed out that with its quasi criminal character, attracting a punishment which might include a fine or imprisonment, the standard of proof is proof beyond reasonable doubt. Section 13 (1) of the Evidence Act, 1975, NRCD 323, provides that “in any Civil or Criminal action the burden of persuasion as to the commission of a party of acrime whichis directly inissue requires proofbeyond reasonable doubt.” 10 Thus, in the case of AGYENIM BOATENG & 27 V. S.K. BOATENG [2009] 154, Dotse JSC opined that “An applicant must, therefore first make out a prima facie case of contemptbefore the Courtconsidersthe defences put upby the respondents.” In this case however, no evidence has been offered against the 2nd respondent, however, the respondents’ owndepositions suggeststhatthoughthe orderforthe appointment of a Receiver Manager subsisted, they have been involved in the collection of rent on the directionofthe ReceiverManagerappointed, Mr.YawKarikari. The Receiver Managers, Mr. Yaw Karikari and Raymond Anyorigiya at the direction of the Court testified. Mr. Yaw Karikari testified as CW1. CW1 testified that he managed thedisputed propertyuponthe orderofthe Circuit Courtdated 29thNovember,2021. Undercrossexamination by applicants’ lawyer,CW1testified;- Q. So, I will be right to suggest to you that you never saw (sic) the assistance of any ofthe parties inthe performance ofyourduty asareceiver manager. A. Yes, my lady. Q. What will be your reaction to hear the respondents telling the court that you engaged, instructed, permitted and sought their assistance right from the beginning ofyourappointment asareceiver manager. A. Iwill say thatis alie. 11 When CW1 was being cross examined by the respondents’ lawyer he answered asfollows: - Q. The respondents have on numerous occasions brought you cash received from tenantswho were owing rent. Isthatnot correct? A. They brought me cash before, that is if they are coming to Adum and a tenant decides to give them cash to pay as rent. When they bring it I receive the money and issue the receipt in thename ofthetenant. Q. Before the respondents come to your office each time, they usually call you on phone toinformyouaboutwhy theyarecoming to your office. Isthat notcorrect? A. That iscorrect. Q. And where thereis any occurrence in thehouse in relationtotenant, they equally callyoutoinformyou. Isthatcorrect? A. Yes, it is. Q. And you also assigned them the task of monitoring the movement of tenants who owed rent and were planning or preparing to abscond. Is that not also correct. A. Idid notspecifically assignthemthat task. Q. You received information on numerous occasions on the movement of some tenants who owed rent and were planning or preparing to abscond from the respondents. 12 A. Yes, Idid. Under further cross examination CW1, disclosed that he gave his contact number to the 2ndrespondent andhe was receiving information fromthe respondents. Listening to CW1, the respondents do call him. Though he denied engaging, instructing, permitting or seeking their assistance in playing his role as Receiver Manager, he actually encouraged the respondents to collect rent which he received and even issued receipts in the name of the tenants. This means when respondents send him rent collected, he did not issue the receipt in the respondents’ names but the tenant’s name. Therefore,the Exhibit “KP2”acknowledging rent received froma tenant paid toCW1 in managing the disputed property paid through the respondents as active intermediaries betweenhim andthe tenantisprobable. RICHARD ANPORIGIYA testified as CW2. In his testimony he admitted authoring Exhibit “H” and “J” and he maintained when being cross examined by the applicants’ lawyer that respondents rented out room. It will be recalled that in both Exhibit “H” and “J” the charge of room renting was against onlyone personand thatis KofiPoku,the 1strespondent. Further,CW2 indicated under crossexaminationas follows: 13 Q. By your Exhibit “H” and “J” you were bringing them to the attention of the Circuit Court, toinquire intothe allegation. Is thatnotcorrect. A. That iscorrect. Q. So,hasthe Courtinquired into these allegations. A. Ihave not heardanything fromthe Court. Q. I am putting it to you that the content of both Exhibit “H” and “J” are mere allegations at thepoint and it will takethe Circuit Courtto prove the truthfulness orotherwise ofthese allegations. A. Iam thereceiver/manager so Iwrotewhat happened inthe matter. Q. Even though your report had no suit number, case title or recipient, was it meant forthe sitting Circuit Courtin thematter. A. Yes, because it wasthe Circuit Courtthatappointed me as receiver/manager” In Exhibit “J” the report only mentioned one of the plaintiffs as the one who gave out a room for renting. Exhibit “J” also discloses that the person brought the rent collected to theCW2 asthereceiver managerbut he stateshe rejected it. Exhibit “H” which mentioned Kofi Poku’s name as having collected rent is filed on 7th December, 2022 and Exhibit “J” was filed on 6th June, 2023. The complaint in Exhibit “J” related to the same complaint filed on 7th December, 2022 as it makes reference to the complaint filed on 7th December, 2022. No reason was offered for writing the Exhibit “J” 14 on the same subject. Considering how CW1 had dealt with the property under receivership with the respondents as earlier found, it would be expected that 1st respondent will reasonably believe that with CW2, the same relationship will continue. This view is strengthened by the fact that per Exhibit “J” the amount collected for renting a room as alleged was brought to CW2 but he alleges that he refused to accept same. This also refutesthe claimthat 1strespondent rented the room, keptthe rentand refused to account for same when requested to do so. In the words of CW2, whatever, he has put down is for the attention of the Circuit Court and the allegations has not been verified. As earlier noted, contempt of Court is punishable, where there is a willful disobedience ofthe Court order.Thus, noteveryact found tobe contrary tothe order ofthecourt will be punishable. In this case, allegations levelled against the respondents per the Exhibit “H” and “J” which form the fulcrum of the charge, is against only 1st respondent coupled with how the Receive/Manager Mr. Yaw Karikari relied on the respondents in the performance of his duty,asteptakenin thelike manner would notconstitute willfuldisobedience. From the record, the act complained of per Exhibit “H” took place in September, 2022, under the receivership of Mr. Yaw Karikari, for according to him, he left the region in 15 October, 2022. It was only after CW2 had taken over and had written a report per the Exhibit “H”and “J”that applicantsbroughttheir present application. In considering the totality of the evidence placed before the court, the step taken by 1st respondent will not amount to a willful disobedience likewise the act of collecting rent and paying same to the Receiver Mr. Yaw Karikari. The order for committal for contemptwill be denied. The respondentsarehereby acquitted and discharged. CostofGH¢3,000.00awarded foreach ofthe respondentsagainst the applicants. JUSTICEHANNAH TAYLOR(MRS) JUSTICEOF THE HIGH COURT LAWYERS IBRAHIMADAMS FORTHE APPLICANTS MAVISDOMALAE FOR THE RESPONDENTS. 16