REPUBLIC VRS. QUAYNOR AND ANOTHER, EX PARTE: AKOTO (CR/0307/2019) [2024] GHAHC 442 (14 November 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, CRIMINAL COURT 4, HELD IN ACCRA ON THURSDAY, THE 14TH DAY OF NOVEMBER, 2024 BEFORE HER LADYSHIP JUSTICE COMFORT KWASIWOR TASIAME, JUSTICE OF THE HIGH COURT. CASE NO.: CR/0307/2019 THE REPUBLIC VRS. 1. NUNOO QUAYNOR - RESPONDENTS 2. BISHOP EX PARTE: - LAWRENCE ASAMANI AKOTO - APPLICANT PARTIES: RESPONDENTS – ABSENT APPLICANT – PRESENT COUNSEL: J. A. LAKAI FOR THE APPLICANT – PRESENT MICHAEL DZAKPASU HOLDING BRIEF FOR CHRISTOPHER LARTEY FOR 2ND RESPONDENT - PRESENT RULING 1 | P age This contempt application was filed before the High Court differently constituted on 25/2/2019 and transferred to this court by the Honourable Chief Justice on 11th January, 2024. Per the application, the Applicant alleged as follows; that on 31/08/2018 he caused a writ of summons and statement of claim to be issued and served on the Respondent. That on 19/10/2018 Applicant caused a motion on notice for interlocutory injunction to be filed seeking an order to restrain the Defendants from interfering with the Plaintiff’s land pending the determination of the suit. That although the Respondents were duly served with the said motion paper and the supporting affidavit for interlocutory injunction, the Respondents ignored the said court processes and continued to work on the land with impunity. That despite the pendency of the suit, on the 12th day of February, 2019 the Respondents surged on the land with about ten land guards under whose protection the Respondents put workers on the land to work and this continued on the 13th, 14th, 15th and 16th of February, 2019. (12). That I am advised by Counsel and verily believe the same to be true that the conduct of the Respondents amounts to a gross disrespect of the Honorable Court and its processes and procedures and willfully calculated to bring the administration of justice into disrepute and punishable as contempt. 13, That the impunity and gross disrespect with which the Respondents have acted, it is my prayer that the Respondents should be made to purge themselves of their contempt in manner which teaches the Respondents that they are not above the law and in a manner which protects the dignity of the Court by; i. An order directed at the Respondents to demolish the structures erected on the Land and to remove the debris thereof within 21 days of the order. ii. An order directed at the Respondents to remove all the sand and stone and other building materials willfully deposited on the Land. 2 | P age iii. An order that the Respondents sign bonds to never enter any portion of the Applicant’s Land pending the determination of the suit. iv. Pay a punitive fine for contempt or go to prison or both. v. Compensate the Applicant. vi. Pay and bear the costs of this application together with solicitor’s costs. PRELIMINARY ISSUES The 2nd Respondent, Bishop who gave his name in court as Bishop Bernard Sallah of Action Chapel was served with the writ of summons on 2nd April, 2019. On the 4th April, 2019 when this matter came on for hearing, one Lawyer Maxwell Kpodo holding brief for Christopher Koka for the 1st Respondent was in court but complained having been short served. And that 1st Respondent was absent because he was not served personally. When the matter was transferred to this court, hearing notices were served on learned counsel for the 1st Respondent on the 13th and 27th March, 2024. Hearing notice was also served on learned counsel for the 2nd Respondent on the 20th February, 2024. Both counsel for the Respondents failed to appear before the court. On the 26th April, 2024 when this matter came on again for hearing, learned counsel for the Applicant submitted that, he was told that lawyers for the respondent refused service because according to them, they are no longer representing the Respondents. Learned counsel for the Applicant therefore filed a motion for a substituted service to serve the Respondents. Same was granted on 21st June, 2024 for 14 days. The bailiffs proved service. The documents were posted on the structures in dispute and the Notice Boards of the High Courts. In addition, 1st Respondent was served through WhatsApp number 0244937048 which was delivered and seen on 1st July, 2024 at 10:32am. On the 1st of August, 2024, one Lawyer Christopher Lartey wrote to the Registrar of this court, stating that he is the lawyer for the 2nd Respondent. Learned counsel for the 2nd Respondent demanded the copies of the Application and exhibits. 3 | P age However, on the 26th July, 2024 the application for contempt was moved and adjourned to 15th August, 2024 for Ruling. No Affidavit in opposition was filed. Whether or not learned counsel for the 1st Respondent who appeared for the 1st Respondent on the 4th April, 2024 is still in the matter. From the record of proceedings, on the 4th of April, 2019 one Maxwell Kpodo held brief for Christopher Koka for 1st Respondent was present. Learned counsel for the 1st Respondent did not file any document as in affidavit in opposition. Hearing notice was served on the chambers for the continuation of the matter but learned counsel and the 1st Respondent did not appear before the court. Order 75 Rule 2 provides that “Unless and until a change or a discharge of a lawyer under 1 (1) or (2) is notified in accordance with Rule 3, the former lawyer shall subject to rules 5 and 6, be considered the lawyer of the party until the conclusion of the matter in the Court. Learned counsel for the 1st Respondent did not notify the court that he is no longer in the matter. He also might not have communicated with the 1st Respondent that the matter was coming on for hearing. Apart, from that, learned counsel for the Applicant filed substituted service to appraise the Respondents that the matter was to be heard. 1st Respondent in addition to the substituted service was served through his WhatsApp number 0244937048 but they all failed to respond to the application and to come before the court. However, attempt to serve the 2nd Respondent, Bishop failed and the reason given by the Bailiff for proof of non-service on the 2nd of May, 2024 was that, “I was informed that, the defendant is out of the Country therefore I returned the process to the docket.” It is therefore my ruling on the preliminary issue that the 1st Respondent was notified about the matter but he chose to ignore the court. The rule of natural justice and for that matter the audi Alteram Partem requires that, a party 4 | P age ought to have reasonable notice of the case he has to meet and ought to be given the opportunity to make his statement in explanation of any question and answer any arguments put forward against it.” In the case of the 1st Respondent it is the ruling of this court that he decided to waive his right to be heard. The principle of law is that, the rules of Natural Justice can be waived; Please see the case of Bilson v. Apaloo [1981] GLR 24, SC” 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. 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; 5 | P age “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 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 depending on the facts of the case in several ways. 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 6 | P age 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; 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 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. 7 | P age 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 SC 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.” This case was adjourned to 16th September, 2024 for ruling. On the 28th August, 2024, learned counsel for the 2nd Respondent filed an Application to arrest the Ruling and pray for an order to file an affidavit in opposition. The court granted the application to file affidavit in opposition. The affidavit in opposition was not filed within time. It was filed 15th October, 2024. Rules of court are made to be obeyed. Since this case takes a nature of a criminal case, I will adopt the affidavit in opposition and consider it as having been filed since same was filed and placed on the docket before the ruling. The following portions of the filed affidavit in opposition are relevant to the issues for determination of the contempt application. Paragraph “10. The 2nd Respondent acquired the land the subject matter leading to this contempt Application sometime in 2009 and same was registered in 2015 and the 2nd Respondent has been in undisputed possession till the Applicant instituted an action at the Lands Court. 11. That when 2nd Respondent commenced development on the Land that the Applicant issued a writ and subsequently filed an injunction application and since then the 2nd Respondent has since not continued the development on the land. 13. … exhibits D and E series were both taken before the injunction application was filed and served on the 2nd Respondent through his solicitor on the 15th of February, 2019. Attached is a search indicating the date of the service of the 8 | P age Injunction application. 14. … contempt application was not served on the 2nd Respondent until recently posted on the disputed property by substituted service sometime in July, 2024. 16. That the Applicant has even failed to pursue the substantive matter it filed against the 2nd Respondent and the suit titled Lawrence Asamani Akoto v. Quaynor & Anor (Suit No. LD/0997/2013) exhibit 3 is a copy of the search indicating the suit was struck out on the 3rd of July, 2021 and same has since not been relisted. 22. That the 2nd Respondent left the Jurisdiction on the 7th of February, 2019, so it is unclear how the Applicant claims per exhibit E series that on the 14th and 16th of February, 2019 work was being carried out on the disputed land. Exhibit 4 is visa of the Respondent. Exhibits attached to the Affidavit in opposition are: Exhibit 1- Land Certificate dated 27th January, 2022, Exhibit 2 a search result indicating that there is no indication on the docket that 2nd Defendants had been served with the Interlocutory Injunction. It also indicates that the suit was struck out on 3/7/2021. Exhibit 3 is another search conducted 22/3/2019. This search indicates that 2nd Defendant was served with the Interlocutory Injunction on 15/2/2019. That the Interlocutory Injunction was granted by the court on 18/2/2019. Exhibit 4 is a portion of passport indicating embankment from Kotoka International Airport on February, 7, 2019. However, since contempt applications must be proved beyond reasonable doubts, I will like to go through the documents filed by the Applicant to find out whether he has proved the elements of contempt against the Respondent. Exhibit A is the writ of summons filed on 31/8/2018. In exhibit A, Plaintiff prayed the court for a perpetual injunction restraining the Defendants from trespassing on the Plaintiff’s land. Exhibit B is the Entry of Conditional Appearance by Messrs Adeeku, Koka & Associates for 1st Defendant filed on 4/12/18. And 2nd Respondent also entered appearance through same lawyers as 1st 9 | P age respondent. Exhibit C is the motion on notice for interlocutory injunction filed on 19/10/18 to be moved on Thursday 1st November, 2018. Exhibit D is a picture of the alleged plot of land dated 29/08/2018. Exhibit E is another picture dated 16/2/2019 allegedly taken at the site. The motion on notice for interlocutory injunction was filed on 19/10/18. By 19/10/2018, by then the house in issue was at footing level. By 16/2/2019, there was filling done and house got to window level. Definitely, the Respondents tried to overreach the court by going on with the construction when there is a writ praying the court for injunction and a motion on notice for an injunction. Learned counsel for the Applicant did not file any order stating that, the 2nd Respondent was served with the application for injunction. However, 2nd Respondent’s exhibit 3 which is a search conducted at the Registry of the High Court indicates that the 2nd Respondent was served with the Interlocutory injunction on 15/2/2019. 2nd Respondent contested that the pictures as in Exhibit E series that Exhibit D bore dates the picture was taken automatically embossed on the face of the picture. However, on exhibit E, the dates the pictures were taken were hand-written in pen. And that it is not true that after he was served with the Application for injunction he went on to do any work on the property in issue. Applicant did not controvert this assertion by the 2nd Respondent. Exhibit E series indicates that, by 14th and 15th February, 2019 work was being carried out. However, the exhibit dated 14th February, 2019 shows some workers on the property and 16th February shows that the construction had reached the window level which is far beyond the level of the building as at the time the writ of summons was filed on 31/8/2018 as borne by exhibit D. This court is unable to tell whether or not on the 15th February, 2024 when the motion on notice for injunction was served on the 2nd Respondent he caused his agents to do any further work on the property. I am saying this because, Exhibit E dated 16th February, 2019 only showed the level of the building. I am therefore of the view that, the Applicant has not been able to prove that 10 | P age the 2nd Respondent willfully disobeyed the orders of the court. Please it is worthy of note that, there is no order of injunction before this court. Though filed application for an injunction which was ignored by a respondent will suffice as contempt of court earlier discussed, the application was served on the 2nd Respondent on the 15/2/2019 whiles exhibit E series showed people working on the land on the 14th February, 2019 a day before the application was served on the 2nd Respondent. I am of the view that, the 1st Respondent who was served with the Application for injunction and represented by his lawyers on the 11th March, 2019 and again served by substituted service after his lawyers rejected the service of the hearing notices is convicted as charged. With exception of Applicant’s numerous prayers, this court can only grant one that is (i)Pay a punitive fine for contempt or go to prison or both. The remaining ones cannot be granted by this court because this is just an application and evidence was not taken to determine who is the rightful owner of the property in issue for the Court to grant any of the following prayers. Thus; i. An order directed at the Respondents to demolish the structures erected on the Land and to remove the debris thereof within 21 days of the order. ii. An order directed at the Respondents to remove all the sand and stone and other building materials willfully deposited on the Land. iii. An order that the Respondents sign bonds to never enter any portion of the Applicant’s Land pending the determination of the suit. iv. Compensate the Applicant. v. Pay and bear the costs of this application together with solicitor’s costs. The 1st Respondent is hereby sentenced to a fine of One thousand penalty units and in default, one-month imprisonment. Bench warrant is to be issued for the arrest of 1st 11 | P age Respondent. The 2nd Respondent is not liable because the Applicant did not prove the elements of the offence against him beyond reasonable doubts. (SGD) H/L COMFORT KWASIWOR TASIAME (JUSTICE OF THE HIGH COURT) REFERENCE ▪ Bilson v. Apaloo [1981] GLR 24, SC” ▪ Section 36(1) of the Courts Act, 1993(Act 459) ▪ Article 126(2) of the 1992 Constitution. ▪ REPUBLIC v. HIGH COURT, ACCRA; EX PARTE LARYEA MENSAH [1998-99] SCGLR 360 at page 368 ▪ 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 | P age 13 | P age