REPUBLIC VRS. AKANYACHAB , EX PARTE: ADDO (CR/453/2019) [2024] GHAHC 462 (22 October 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, CRIMINAL COURT 4, HELD IN ACCRA ON TUESDAY, THE 22ND DAY OF OCTOBER, 2024 BEFORE HER LADYSHIP JUSTICE COMFORT KWASIWOR TASIAME, JUSTICE OF THE HIGH COURT. CASE NO.: CR/453/2019 THE REPUBLIC VRS. MRS AKANYACHAB (A.K.A MADAM GRACE AMEGAH) - RESPONDENT EX PARTE: PATIENCE ADDO - APPLICANT PARTIES: ABSENT JUDGEMENT This is an application brought for and on behalf of the Applicants seeking for an order for committal for contempt of court of the Respondent. Applicant attached an affidavit in support of the Application. Permit me to quote some relevant points of the affidavit in support. “That on the 23/11/2017 the Accra Circuit Court presided over by H/H Malike Awo Woanyah Dey (as she then was) ordered a writ of possession to issue against the 1 | P age Respondent herein. That on the 6th September, 2018 the court duly attached the property in execution of the judgement entered in favour of the applicant in Suit No. C1/146/08. That prior to attachment of the property in execution, the entry of the judgement was served on the occupants including the Respondent who was an occupant on the 24th August, 2018. That in utter disregard and disrespect of the court’s attachment of the property, the Respondent has broken the fi-fa, replaced the gate and doors and forcibly let herself and her agents back into the property in defiance of the court order, notwithstanding the court’s attachment of the property in execution. That …conduct of the Respondent is taking the law into her hands to re-enter the attached property without a court order amounts to contempt of Court. Respondent filed an affidavit in opposition on 16/8/2019. She asserted as follows; 3. … that I am not and have never been Mrs. Akanyachab and neither am I madam Grace Amegah. 5. That I live at House No. 2, Nii Annan Street, West Legon, Accra which belongs to Mr. Alexander Abraham Akanyachab. 12. That I am a lawful occupant of No. 2 Nii Annan Street, West Legon, Accra, having been put there by the owner thereof Mr. Alexander Abraham Akanyachab. 14. That I have not broken any court padlock nor installed a new gate. 17. That on 6th September, 2018, certain persons in the company of policemen forcibly entered the house and threw out the occupants and their belongings. 19. That we were told that action of those persons and policemen was as a result of a court case in the Circuit Court between one Patience Addo and one Mr. Offei. 21. That Mr. Joseph Azar Akanyachab also informed us that he has filed a case in the High Court to recover the house. 22. That I am aware that Mr. Alexander Abraham Akanyachab on 21/11/2018 obtained an order of injunction upon an application on notice against Madam Patience Addo and Mr. Offei from carrying out any demolition of the property pending the hearing and determination of the High Court case. 23. …per same order of interlocutory injunction, the High Court revoked the order carried out purporting to eject 2 | P age or throw us out of the house pending the hearing and determination of the suit before the High Court. 25. That we were restored into occupation of the property following that order of the High Court. 26. That Applicant is aware of the pending High Court case and has even entered conditional appearance to the Writ of Summons and Statement of Claim in the case filed before the High Court. Pursuant to leave granted by this court, Respondent filed supplementary affidavit in opposition to the application for committal for contempt of court. Permit me to quote some relevant parts of the supplementary affidavit in opposition. “6. That it is not true that the Applicant was never served with an application for an interlocutory injunction. 7. That on 25th October, 2018, this court granted the Plaintiff in suit No. LD/0025/19. Alexander Abraham Akanyachab’s Application for the substituted service of the Writ of summons, Statement of Claim and motion on notice for interlocutory injunction together with the order for substituted service on the 1st Defendant, Patience Addo who is the Applicant in this suit. 9. The modes of service as stated in the order for substituted service was accordingly done by the bailiff entrusted with the processes. (Attached as Exhibits 1 is order for leave to issue writ of possession, writ of possession, Exhibit 2 is Entry of Judgement, 3 is writ of summons, 4 official search to show that execution has been levied, 5 is pictures showing that the gate of the house in show and police vehicle at the premises et cetera). THE LAW AND THIS CASE 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). On the burden/standard of proof in contempt of court, please see REPUBLIC v. NII ACHIA II; EX PARTE JOSHUA NMAI ADDO [2015] 83 GMJ 13. 3 | P age 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. In the case of In Re Effiduase Stool Affairs (No. 2); Republic v Numapau, President of the National House of Chiefs and others; Ex parte Ameyaw II (No. 2) [1998-99] SCGLR 639, in holding 1, the court held as follows: “(1) Per Acquah JSC, Sophia Akuffo JSC concurring: contempt of court was constituted by any act or conduct that tended to bring the authority and administration of the law into disrespect or disregard or to interfere with, or prejudice parties, litigants, or their witnesses in respect of pending proceedings. And contempt of court might be classified either as direct and indirect or civil and criminal. Direct contempts were those committed in the immediate view and presence of the court (such as insulting language or acts of violence) or so near the presence of the court as to 4 | P age obstruct or interrupt the due and orderly course of proceedings. Indirect or constructive contempts were those arising from matters not occurring in or near the presence of the court, but which tended to obstruct or defeat the administration of justice, such as failure or refusal of a party to obey a lawful order, injunction or decree of the court laying upon him a duty of action or forbearance. Civil contempts were those quasi-contempts consisting in failure to do something which the party was ordered by the court to do for the benefit or advantage of another party to pending proceedings, while criminal contempts were acts done in respect of the court or its process or which obstructed the administration of justice or tended to bring the court into disrespect.” 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 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. 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 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." 5 | P age It is now my duty to determine the application one way or the other. To constitute contempt, it must be proved that the disobedience was a willful breach of a court’s order which requires the party to do or abstain from doing something. This is because, it is not an absolute offence. Therefore, the intentional act of a Respondent must be proved. YOURI v ABOAGYE [2013] 67 GMJ 49 CA In the case of REPUBLIC v SITO 1; EX PARTE FORDJOUR, [2001-2002] SCGLR 322 the Supreme Court set down the ingredients which have to be proved in contempt as follows: - a. There must be a judgment or an order requiring the contemnor to do or abstain from doing something. b. It must be shown that the contemnor knows what precisely he is expected to do or abstain from doing. c. It must be shown that he failed to comply with the terms of the judgment or the order and that his disobedience was willful. See also, THE REPUBLIC v AFEWU & ANOR; EX PARTE TAKORADI FLOUR MILLS AND ANOTHER [2018] 121 GMJ 210 CA REPUBLIC v CONDUAH, EX PARTE: AABA [2013-2014] 2 SCGLR 1032 Let me add that in a situation 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. See: REPUBLIC v MOFFAT AND OTHERS, EX PARTE ALLOTEY [1971] 2 GLR 391 6 | P age In the case of ARYEETEY v AGBOFU II AND ANOTHER [1994-1995] GBR 250, the Supreme Court held at page 252 as follows: “The Applicants having been served with the application deliberately stole the match by doing the very act that the motion is 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.” Coming back to the instant application, from Exhibit ‘1’ which is attached to the Applicant’s application, the Applicant was the Plaintiff in Suit No. C1/146/2008 which has given birth to this application. The Respondent was one of the occupants of the house in issue. The suit was in respect of the house which the Respondent is occupying currently. Exhibit 2 is the entry of judgement. The entry of Judgement states “It is hereby decreed that Plaintiff doeth recover from the Defendant as follows: (a) All that piece or parcel of land situate and being at West Legon sharing boundaries with the vendors land and abutting the main gutter measuring approximately 0.23 acres. (b) Perpetual injunction restraining Defendant, his agents and assigns from either building or construction or do anything to that piece of land the subject matter of dispute. (c) An order for recovery of possession or demolition of whatever structure that has been done by the Defendant. (d) Cost of GH¢500.00. Proof of the elements of contempt of Court requires that, there must be a judgment or an order requiring the contemnor to do or abstain from doing something. Applicant exhibited entry of Judgement as above Exhibit 2. Exhibit 2 granted the land in issue to the 7 | P age Applicant. It also granted Perpetual injunction restraining Defendant, his agents, assigns from either building or constructing or to do anything to that piece of land the subject matter of dispute. In addition, this writ of possession was granted to the Applicant. Execution was levied on 6th September, 2018 as stated in Exhibit 4. The Respondent in her affidavit in opposition stated that on the “6th September, 2018, certain persons in the company of policemen forcibly entered the house and threw out the occupants and their belongings.” Even though execution was levied and occupants thrown out, Respondent continues to reside in the house. Applicant stated that, after execution was levied, Respondent returned to the house and as in her affidavit in opposition she continues to live in the disputed house. In the supplementary affidavit in opposition filed on 19th August, 2024, Respondent deposed to the fact that she lives in House No. 2, Nii Annan Street, West Legon. This is the disputed property which was granted to the Applicant. The Respondent admits in his affidavit in opposition that she is still in occupation of the house which the court gave Judgement on to the Applicant, granted possession to the Applicant and levied execution on. In the case of IN RE: ASERE STOOL; NIKOI OLAI AMONTIA IV (SUBSTITUTED BY TAFO AMON II) V AKOTIA OWORSIKA III (SUBSTITUTED BY LARYEA AYIKU III) [2005-2006] SCGLR 637 at 651 it was held as follows: “Where the adversary of a party has admitted a fact advantageous to the cause of that party, what better evidence does the party need to establish that fact than by relying on his own admission. This is really an estoppel by conduct. It is a rule whereby a party is precluded from denying the existence of some state of facts which he had formerly asserted.” The defence of the Respondent is that she is not Mrs. Akanyachab, the person whose name was put on the Application though she received the application. This court had 8 | P age already ruled that since she received the Application for contempt of court, she was in occupation of the house in issue before the bailiff came, she was also served with the entry of Judgement, she knew the application was intended or meant for her. Respondent also asserted that, after the execution was levied, one Mr. Akanyachab filed writ of summons and motion on notice for Interlocutory Injunction which has been served on the Applicant herein. Exhibit GA 14 is the Order for substituted Service whiles Exhibit GA15 is the proof of Service. Exhibit GA 14 is dated 25th October, 2018. The execution was levied on 6th September, 2018. Which means that the Respondent was removed from the house before the injunction was served. The order for Interlocutory injunction is dated 21st November, 2018. It is Exhibit GA 11. The order for injunction indicated that the judgment has been set aside. The order stated in part “It is further directed that any order carried out purporting to eject or throw out the occupant of the said house as part of the execution Order be revoked pending the final determination of the suit filed before this court. Exhibit GA 11 was granted after listening to only the Respondent’s counsel herein. The application was served by Substituted service as earlier stated. The address on the writ of possession for the Applicants is same as stated in the writ of summons and the Substituted service and proof showed that the Applicants herein had been served. That being the case, I am of the firm view that since there is an order from a court of competent jurisdiction setting aside the order of execution, the Respondent did not disrespect the order of the trial Court by going back into the disputed property. In view of that, this application fails and is hereby dismissed. (SGD) H/L COMFORT KWASIWOR TASIAME (JUSTICE OF THE HIGH COURT) 9 | P age COUNSEL: 1. PHILEMON PIERSON PRAH HOLDING BRIEF FOR CHRISTOPHER KING FOR APPLICANT 2. NANA KYEKYE DARKO WITH HENRY OTOO, JOSEPH ACQUAH AND JOHN AJET-NASAM HOLDING BRIEF FOR A. A. SOMUAH ASAMOAH FOR RESPONDENT REFERENCE ▪ REPUBLIC v. SITO I EX PARTE FORDJOUR [2001-2002] SCGLR 322). ▪ REPUBLIC v. NII ACHIA II; EX PARTE JOSHUA NMAI ADDO [2015] 83 GMJ 13. ▪ 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, ▪ In Re Effiduase Stool Affairs (No. 2); Republic v Numapau, President of the National House of Chiefs and others; Ex parte Ameyaw II (No. 2) [1998-99] SCGLR 639, in holding 1, ▪ Comet Products UK Ltd v. Hawkex Plastics Ltd [1971] 1 All E R 1141 at page 1143- 1144, CA. ▪ YOURI v ABOAGYE [2013] 67 GMJ 49 CA ▪ In the case of REPUBLIC v SITO 1; EX PARTE FORDJOUR, [2001-2002] SCGLR 322 ▪ THE REPUBLIC v AFEWU & ANOR; EX PARTE TAKORADI FLOUR MILLS AND ANOTHER [2018] 121 GMJ 210 CA ▪ REPUBLIC v CONDUAH, EX PARTE: AABA [2013-2014] 2 SCGLR 1032 10 | P age ▪ REPUBLIC v MOFFAT AND OTHERS, EX PARTE ALLOTEY [1971] 2 GLR 391 ▪ ARYEETEY v AGBOFU II AND ANOTHER [1994-1995] GBR 250, ▪ IN RE: ASERE STOOL; NIKOI OLAI AMONTIA IV (SUBSTITUTED BY TAFO AMON II) V AKOTIA OWORSIKA III (SUBSTITUTED BY LARYEA AYIKU III) [2005-2006] SCGLR 637 at 651 11 | P age