REPUBLIC VRS. AFOAKWA AND ANOTHER , EX-PARTE OSEI (PA/0749/2022) [2024] GHAHC 482 (1 November 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE PROBATE AND ADMINISTRATION DIVISION I HELD IN ACCRA ON WEDNESDAY, THE 1ST DAY OF NOVEMBER, 2024 BEFORE HER LADYSHIP EUDORA CHRISTINA DADSON, JUSTICE OF THE HIGH COURT. ---------------------------------------------------------------------------------------------------------------- SUIT NO. PA/0749/2022 IN THE MATTER OF AN APPLICATION FOR COMMITTAL FOR CONTEMPT AND IN THE MATTER OF: THE REPUBLIC VRS 1. MAXWELL ODURO AFOAKWA HOUSE NO. NN20D, OBUASI 2. KWAKU GYIMAH KYEI - RESPONDENTS PLOT NO. L1 ST. FRANCIS STREET ACTKCCU HOUSE, ANAJI, TAKORADI EX-PARTE GRACE OSEI ERIC AKYIANU OPPONG ABIGAIL OPPONG-OFOSUHENE - APPLICANTS YVONNE OPPONG KWAKU SEKYER OPPONG ---------------------------------------------------------------------------------------------------------------- SUIT NO: PA/0749/2022 – THE REPUBLIC VS MAXWELL ODURO AFOAKWA & 1 OR – JUDGMENT Page 1 of 12 PARTIES: ABSENT COUNSEL: DERICK ADU-GYAMFI FOR ALFRED PAAPA DARKWAH FOR THE PLAINTIFFS/RESPONDENT/RESPONDENT PRESENT EMMANUEL OPARE FOR THE DEFENDANTS/APPLICANTS PRESENT --------------------------------------------------------------------------------------------------------------------- DECISION APPLICATION FOR COMMITTAL FOR CONTEMPT --------------------------------------------------------------------------------------------------------------------- [1] Introduction Contempt of Court is the only common law offence still known to our law, as same is saved by Article 19(12) of the 1992 Constitution and section 10 of the Criminal and other offences Act,1960 (Act 29). Unlike other countries where the offence is codified like the English Contempt of Court Act of 1981, ours is still case law. According to S.A Brobbey in his book on the Law of Chieftaincy in Ghana, page 466, the learned author and former Justice of the Supreme Court of Ghana said that: “In Ghana, the law of contempt is statutory. The theory, practice and procedure of the law of contempt are however based mainly on the English law of contempt. The statement that the law of contempt is statutory literally means that in this country no conduct can be punished for being in contempt of court unless there is a constitutional or statutory provision that sets up a forum for investigating and punishing it1. Black’s Law Dictionary 7th Edition, page 313 defines “contempt” as: 1. “The act or state of despising; condition of being despised. 1 Derick Adu-Gyamfi, Law & Practice, Relating to motions and affidavits in Ghana (with Precedents) Page 236 SUIT NO: PA/0749/2022 – THE REPUBLIC VS MAXWELL ODURO AFOAKWA & 1 OR – JUDGMENT Page 2 of 12 2. Conduct that defies the authority or dignity of a court or legislature”. According to the learned Author, Justice S.A. Brobbey in his invaluable book, The Law of Chieftaincy in Ghana, page 452 writing on contempt opined as follows: “in the simplest sense, contempt of court means any conduct that interferes with or undermines the administration of justice. This definition covers criminal as well as civil contempt.” Oswald on Contempt of Court, 3rd ed. at page 6 states as follows: “To speak generally, contempt of court 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 litigation”. Justice Ackah-Boafo HCJ (as he then was) opined in the unreported case of Republic versus Kamassah & 4 Others (Suit No: AP 227/2016 delivered on 11th October 2016 as follows: “In my respectful opinion, contempt of court is the big stick of civil litigation. Because of the serious nature of a contempt finding, a finding should be made sparingly and only in the clearest cut of cases. A direct intention to disobey a Court order or an act to prejudice a pending application is required and it ought to be a willful disregard of the order or prejudice the outcome of a pending suit in the Court”. [2] Background and affidavit evidence of the Applicants The Applicants filed a motion on 2nd September 2024 for an order of committal for contempt against the Respondents. The Applicant in a 15-paragraph affidavit in support deposed through one Jonathan Aryee of Gratia Law Consults states that the Applicants issued a Writ of Summons and Statement of Claim against the Defendants claiming the reliefs endorsed thereon. According to Deponent the defendants have incorporated a pseudo company with the name J.M.O Timbers and Sawmill Ltd which has Lawyer Kwaku Kye and the 1st SUIT NO: PA/0749/2022 – THE REPUBLIC VS MAXWELL ODURO AFOAKWA & 1 OR – JUDGMENT Page 3 of 12 Defendant/Respondent herein as directors to clandestinely takeover the activities and operations of the deceased’s company. The Will being challenged by the Applicants in this Court was prepared by the same Kwaku Gyimah Kye, 2nd Respondent herein. It is the case that an application for Administrator Pendente Lite was filed which was granted and it has come to the notice of the Applicants that contrary to the order of the Court, the defendants together with Lawyer Kwaku Kye were dissipating and falling timbers belonging to the deceased’s company (J.M.O. Timber and Sawmillers) which forms part of the estate of the deceased using the pseudo entity “J.M.O. Timbers and Sawmill Ltd. The Deponent states that: “That the defendants and Lawyer Kwaku Kye in wanton disregard for the order of this honourable court are dealing with and selling timber from the deceased’s estate. Attached and marked as “Exhibit D series” are copies of Forestry Commission Log Information forms on timber from the deceased’s estates and invoices issued by the forestry Commission to Respondents on behalf of JMO Timbers. That as recent as 2nd July 20224, the 1st Respondent, acting as the Managing Director of J.M.O. Timbers and Sawmill Ltd applied and paid for the renewal of Property Mark from the Forestry Commission, when by the ruling of this honourable court he had no right to do so. Attached and marked as Exhibit E series is a copy of the said letter and the receipt evidencing the payment of the Property Mark by the 1st Respondent”. [3] 1st Respondent affidavit in opposition The 1st Respondent opposed to the instant application filed 25-paragraph affidavit in opposition on 21st October 2024. According to 1st Respondent though a party to the substantive suit he only got to know that the Court had made an order appointing an administrator pendente lite to manage the Timber Concessions of the deceased as he was not served with the Order. SUIT NO: PA/0749/2022 – THE REPUBLIC VS MAXWELL ODURO AFOAKWA & 1 OR – JUDGMENT Page 4 of 12 According to 1st Respondent he does not engage in mining the said concessions and that portions of the concessions have been leased out to finance the funeral rite of the late Joseph Maxwell Yaw Oppong. The 1st Respondent states as follows: “That I had no official notice of any court order appointing an administrator pendente lite. As a result, I had no knowledge of the specific terms of the said order. That the Applicants know or ought to have known that I was not present in Court when the said order was made by the honourable Court and indeed had no knowledge thereof. That the lessees were working on the leased concessions in their own right. Paragraphs 17, 18 is devoted to the lack of authenticity of some of Applicants Exhibits from Lands Commission. That I am advised by Counsel and verily believe same to be true that for contempt of court to be established, it must be shown that the alleged contemnor had knowledge of the order of the court that order was clear and unambiguous, and the alleged contemnor wilfully disobeyed the order.” [4] 2nd Respondent affidavit in opposition The 2nd Respondent filed an affidavit in opposition on 2nd September 2024. The 2nd Respondent states that he was not a party to the substantive suit and only got to know that the Court made an order appointing an administrator pendente lite to manage the timber concessions of the deceased. The 2nd Respondent denies dissipating and felling timber because he is not a worker of J.M.O. Timbers and Sawmillers. The 2nd Respondent in paragraphs 13 to 19 of the affidavit in opposition states that he had not been served with the Court’s order and had no knowledge of the specific terms of the said order. He had no intention to disobey or disregard the orders of the Court. The Applicants have failed to establish any deliberate and wilful conduct attributable to 2nd Respondent to justify a finding of contempt. [5] Court’s Analysis and Opinion [5.1] So what constitutes contempt in Ghana? SUIT NO: PA/0749/2022 – THE REPUBLIC VS MAXWELL ODURO AFOAKWA & 1 OR – JUDGMENT Page 5 of 12 In R v SITO I; EX PARTE FORDJOUR (2001-2002) SCGLR 322 the Supreme Court gave the elements constituting the offence of contempt as that:- a) there should have been a judgment or order which required the contemnor to do or abstain from doing something; b) the contemnor knew what precisely he was expected to do or abstain from doing; and c) that he failed to comply with the terms of that judgment or the order and that his disobedience was willful. Also, in IN RE: EFFIDUASE STOOL AFFAIRS (No.2); EX PARTE AMEYAW II SUPRA Acquah JSC (as he then was) gave an apt summary of the definition of contempt. He said: “In brief, contempt is constituted by any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.” In the Supreme Court decision of THE REPUBLIC v. BANK OF GHANA & 5 OTHERS; EX PARTE BENJAMIN DUFFOUR [2018-2019] 1 GLR 445, the apex Court speaking through Baffoe-Bonnie, JSC stated that: “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 seem not to be as burdensome as proof of indirect contempt. In most cases 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”. His Lordship further stated after examining the standard of proof in a contempt proceeding that: “Contempt many be committed intentionally or unintentionally. It is no SUIT NO: PA/0749/2022 – THE REPUBLIC VS MAXWELL ODURO AFOAKWA & 1 OR – JUDGMENT Page 6 of 12 defence to a charge of contempt for a party to prove 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 defence 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. By definition and based on the principles articulated in the above cases, a person commits contempt of court if he has willfully and/or intentionally disobeyed an order of Court requiring him to do an act other than the payment of money or to abstain from doing some act. See also the Supreme Court case of REPUBLIC v. BOATENG & ODURO; EX PARTE AGYENIM-BOATENG & OTHERS [2009] SCGLR 154. To hold a party liable for contempt however, the rule is that the order sought to be enforced should be unambiguous and the party must be aware of the order and must be clearly understood by the party concerned. See also the case of R v. HIGH COURT ACCRA, EX PARTE LARYEA MENSAH (1998- 99) SCGLR 360. “In sum, therefore, any act or omission done to prejudice the fair trial or outcome of a case, or likely to bring the administration of justice into disrepute or interfere with any pending litigation and or to scandalize a court even after the trial of a case is contemptuous of the court. Also, wilfulness is required in the sense that the conduct alleged to be contemptuous must be deliberate SUIT NO: PA/0749/2022 – THE REPUBLIC VS MAXWELL ODURO AFOAKWA & 1 OR – JUDGMENT Page 7 of 12 and not accidental. Contempt of court therefore serves the primary function of protecting the sanctity and integrity of the court and court proceedings and it also serves to sustain the rule of law, a check on conduct that potentially renders civilized society vulnerable to the dynamics of a Hobbesian state of anarchy and chaos. I take the liberty to add that the feature of contempt does not serve the ends of judicial aggrandizement. Rather, it is a safeguard to ensure that might is not right. Without contempt as a Sword of Damocles, bullies in our society will run roughshod over the marginalised2.” [5.2] Burden of proof in Contempt Application Contempt of court is a quasi-criminal and the punishment for it may take various forms including a fine or imprisonment. The standard of proof required is that of proof beyond reasonable doubt. Thus in Re Bramblevale Ltd [1969] 3 All ER 1062 CA the appellant, the managing director of a company which had gone into liquidation, failed to comply with the registrar’s order calling on him to produce the company’s cash book and the creditor’s ledger. The High Court regarded the defendant’s explanation that the books had been soaked in petrol in the boot of his car, and had then found their way into a dustbin before the deadline for producing them as “a cock and bull story”. He was accordingly committed to prison for an indefinite time, the court evidently being of the opinion that the books were still in his possession. On appeal, the Court of Appeal regarded that conclusion as being based on “surmise rather than proof” and ordered for his immediate arrest. Winn LJ at page 1064 said: “…unless the guilt of the appellant was proved with such strictness of proof as is consistent with the test ‘beyond reasonable doubt’, or as Lord Denning, MR, has more than once put it, consistent with such as the court, with its responsibility, regards as consistent with the gravity of the charge – a charge which I personally prefer – the decision that he should be imprisoned for contempt of court cannot be sustained”. 2 Per Justice Ackah-Boafo J (as he then was) in the case of: The Republic v Kamal Penchstein In Re Contempt – Suit No: CR0253/2020 (Unreported):See the case of: The Republic vs Justice Hagan; Ex Parte: Kwadwo Kanpordina and Sarah Kanpordima, CR 1568/2018, 11TH April 2019 SUIT NO: PA/0749/2022 – THE REPUBLIC VS MAXWELL ODURO AFOAKWA & 1 OR – JUDGMENT Page 8 of 12 In the case of Kyereh v Kangah [1979] GLR 458 the Court held that “to obtain a committal order for contempt, the applicant must strictly prove beyond reasonable doubt that the respondents had willfully disobeyed and violated the court order.” In the Supreme Court case of Republic v Bank of Ghana, Ex parte Benjamin Duffuor [2018]123 GMJ 205 SC, the court per Baffoe-Bonnie JSC, stated as follows on the standard of proof in contempt proceedings as follows: “The standard of proof in contempt proceeding is well settled. Contempt of court is a quasi-criminal process which requires proof beyond reasonable doubt. This is so whether the act complained of is criminal contempt or civil contempt as was rightly stated in Commet Products UL Ltd v Hawkex Plastics Ltd [1971] 1 All ER 1141 CA where the court held that: “Although this a civil contempt, its 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.” [4.4] Whether the Applicants have met the onus to be successful Has the Applicants discharged the onus the law places on them? Justice Ackah-Boafo in the case of The Republic vs Justice Hagan; Ex Parte: Kwadwo Kanpordina and Sarah Kanpordima, CR 1568/2018, 11TH April 2019 opined on the concept of proof beyond reasonable doubt as follows: “The concept of proof beyond reasonable doubt is not an easy one to define because it is clearly more rigorous than the balance of probabilities standard applied generally in civil cases. The balance of probabilities requires a party who bears the onus to establish that the proposition he or she advances is “more likely than not”. In other words it is more probable or likely or better than 50/50 scenario. I wish to state that my statement above that because this is a quasi-criminal matter “the standard of proof is one beyond reasonable doubt” and more rigorous does not mean that it cannot be met. Indeed in my respectful opinion when the law speaks of reasonable doubt it is not a fanciful doubt. SUIT NO: PA/0749/2022 – THE REPUBLIC VS MAXWELL ODURO AFOAKWA & 1 OR – JUDGMENT Page 9 of 12 To paraphrase the Supreme Court of Canada in a case called R. v. VILLAROMAN, [2016] 1 SCR 1000, 2016 SCC 33 (CanLII) at p. 1023, “A reasonable doubt is a doubt based on ‘reason and common sense’; it is not ‘imaginary or frivolous’; it ‘does not involve proof to an absolute certainty’; and it is ‘logically connected to the evidence or absence of evidence’ (see also R. v. LIFCHUS, [1997] 3 SCR 320, 1997 CanLII 319 (SCC). In other words, the reasonable doubt threshold does not require a fantastical suspension of disbelief. It is a doubt that logically arises from the evidence, or the lack of evidence based on common sense and reason. The presumption of innocence along with the standard of proof beyond reasonable doubt required in a charge of contempt are important safeguards to ensure that no person should be deprived of his liberty or found guilty of the charge of contempt based on wrong or unproven facts in a free and democratic society.” In the case under consideration the Applicants contend that the Court made an order appointing an administrator pendente lite and the Respondents have flouted same by mining timber concessions or allowing others at their direction to do so. Both Respondents forcefully contend that they had no notice of the Court order as same has not been served on them. The Applicants’ Counsel in response to the lack of service on the Respondents contend that they had constructive notice of the court’s order because of depositions in respect of an Appeal filed by the Respondent’s Counsel. With the contending depositions on oath the burden is cast on the Applicants to prove their depositions beyond reasonable doubt. Were the Respondents served with the ruling of the Court, if so where is the proof of service? It is for these reasons that the Deponent has urged on the Court the conduct of the Respondents constitute contempt of the court since those conducts are not only meant to put the Court and administration of justice into disrepute but are also calculated to hinder and reduce the authority of the Court for which they should be committed to prison. SUIT NO: PA/0749/2022 – THE REPUBLIC VS MAXWELL ODURO AFOAKWA & 1 OR – JUDGMENT Page 10 of 12 The Applicant further contends that the blatant disregard for the orders of the court is contemptuous and the Respondent ought to be convicted. What further evidence did the Applicants provide that the Respondents were served with the ruling of this Court? Nothing! Taking constructive notice of the order will not suffice in this instance. As the Supreme Court per Anin Yeboah JSC (as he then was) stated in the case of Boamah & Ansah Sikatuo V. Amponsah [2012] 1 SCGLR 58 @ page 63-64 in a case where the affidavit evidence presented rival depositions and there were two equally possible situations, the apex Court stated: “The Court must be satisfied beyond all reasonable doubt that they had done so based solely on the affidavit evidence. There is no room for conjecture and evidence is required to be placed before the Court to enable it come to a decision on the matter. By evidence, we mean proof beyond reasonable doubt. We would add that it was not enough for the purposes of the application for contempt of court with which we are concerned in instant application, to have left the serious depositions of fact at large, as it was not possible to say which of the two versions of the matter was correct. In the absence of further evidence” I note that despite the paucity of affidavit evidence in support of the charge of contempt, the Applicants and Counsel have implored the Court to convict the Respondents by committing them to prison because their actions is calculated to hinder and reduce the authority of the Court and bring the administration of justice into disrepute. The Supreme Court has held in the case of Republic v High Court (Fast Track Division) Accra; Ex parte P P E Ltd & Paul Juric (Unique Trust Financial Services Ltd Interested Party) (2007-2008) SCGLR 188, the courts should be anxious to contain the power to punish for contempt, (which has been castigated as wide and arbitrary), within the narrowest possible confines in order to safeguard the fundamental constitutional right of the individual to liberty. SUIT NO: PA/0749/2022 – THE REPUBLIC VS MAXWELL ODURO AFOAKWA & 1 OR – JUDGMENT Page 11 of 12 With the greatest respect and with due deference to Counsel that is not the law. A conviction for contempt of Court cannot be based on such an inference, conjecture and speculation. [6] Conclusion Having evaluated the process filed, I am of the respectful opinion that the application filed by the Applicants “fell short of the basics” and therefore same ought to fail. The Applicants have failed to meet the evidential burden the law places on them. Consequently, the Application for Contempt is DISMISSED. In the result, I ACQUIT and DISCHARGE the two RESPONDENTS on the charge of Contempt of Court. But, no order as to cost. (SGD.) H/L EUDORA CHRISTINA DADSON (MRS) JUSTICE OF THE HIGH COURT SUIT NO: PA/0749/2022 – THE REPUBLIC VS MAXWELL ODURO AFOAKWA & 1 OR – JUDGMENT Page 12 of 12