REPUBLIC VRS. AMARTEY EX PARTE: AMARTEY (CR/0392/2024) [2024] GHAHC 438 (24 September 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, CRIMINAL COURT 4, HELD IN ACCRA ON TUESDAY, THE 24TH DAY OF SEPTEMBER, 2024, BEFORE HER LADYSHIP JUSTICE COMFORT KWASIWOR TASIAME, JUSTICE OF THE HIGH COURT. (SITTING AS A RELIEVING JUDGE). CASE NO. CR/0392/2024 THE REPUBLIC VRS ROSE KORKOR AMARTEY – RESPONDENT EX PARTE: FELIX KWASI AMARTEY - APPLICANT PARTIES: RESPONDENT – PRESENT APPLICANT -ABSENT _____________________________________________________________ RULING This is an application brought for and on behalf of the Applicants seeking an order committing the Respondent to prison for contempt of court. Attached to the application is an affidavit in support. Permit me to quote the relevant portions of the affidavit in support. “4. That I instituted a suit against the Respondent for the ownership and 1 | P age possession of my property located at New Giida, adjoining New Fadama-Accra and known as H/No. 21 Sisili-Street, GAS-395-2929 at the Circuit Court, Accra on the 3rd day of October, 2023. 5. That in the course of the suit, I filed a motion on notice for an order for interlocutory injunction on 7th day of December, 2023. 7. That the court subsequently gave an order to the Respondent, her agents, assigns, restraining them from interfering with the land, the subject matter of this suit until final determination of the matter. 10. That even after the order for interlocutory injunction was granted against the Respondent in December, 2023, she continued to engage in construction on the land and further expansion of the property. Respondent filed an affidavit in opposition. Permit me to quote relevant portions of the affidavit. 6. That paragraph 6 of the affidavit is admitted. However, Respondent say in explanation that at the time the said motion was ripe for hearing I had newly engaged a lawyer who needed time to study the file and respond to the injunction application filed by the Applicant at the Circuit Court against me but all the same and in the absence of my counsel the Court granted the application without my lawyer’s involvement at the hearing. CONTEMPT OF COURT GENERALLY The power of the courts to commit Respondents for Contempt of court 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: 2 | P age “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. 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. 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 3 | P age 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." 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: 4 | P age 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. Please see the case of REPUBLIC V MOFFAT AND OTHERS, EX-PARTE ALLOTTEY [1971] 2GLR 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.” My duty in now to determine whether or not the Applicant has proved the ingredients of contempt against the Respondent. 1. Whether or not there was a judgement or order of the court requiring requesting the Respondent to do or abstain from doing an act. Applicant attached Exhibit A. It is an order of the Circuit Court. It is titled “Order of Interlocutory Injunction”. This order states in part “It is further ordered that the 5 | P age Defendant, her assigns and agents are restrained from interfering with the land the subject matter of the suit situate at Giida adjoining New Fadama-Accra also known as H/No. 21 Sisili Street, GA-395-2929 until the final determination of the suit. So, the order restrained the Respondent herein from continuing with work on the property in issue. I hold that, there is an order restraining the Respondent from interfering with the property in issue. 2. Whether or not the Respondent knows what precisely he is expected to do or restrained from doing. In the affidavit in opposition, the Respondent admitted paragraph 6 of the Applicants affidavit in support. This paragraph 6 states “That the Honourable Circuit Court granted the motion on notice for an order for interlocutory injunction on the 7th day of December, 2023.”. However, Respondent say in explanation that at the time the said motion was ripe for hearing, she had newly engaged a lawyer who needed time to study the file and respond to the injunction application filed by the Applicant at the Circuit Court against her. She stated further that but in the absence of her counsel the Court granted the application without her lawyer’s involvement at the hearing. This means the Respondent understood that the court granted injunction. The explanation by the Respondent that, her lawyer was absent when the order was given is not a defence to the contempt application. There was no appeal against that ruling of the Circuit Court. That means that the order still stands good. After the grant in December, 2023, if the Respondent and her lawyer were minded, they could have filed an application to set aside the order of Honourable Circuit Court or appeal against the order which they did not do. It is my holding that the Respondent knows what exactly she is not supposed to do. 3. Whether or not the Respondent failed to comply with the terms of the Order. Applicant attached Exhibit B as the ongoing development on the property in issue. 6 | P age However, in Exhibit B, there seems to be a property roofed and pupils in the room. The property has no windows or doors. At paragraph 10 of the affidavit in support, Applicant stated after the interlocutory injunction was granted, Respondent continued to engage in construction on the land and further expansion. Exhibit B attached as the ongoing developments on the land. At paragraph 7 of the affidavit in opposition, Respondent stated that she stopped developments on the land before the writ was filed. Respondent’s denial of that fact by the Applicant means that the Applicant must produce further evidence to support the fact that the respondent continued the construction after the order was given by the learned trial judge. The Applicant can succeed in this area by providing the court with pictures of workers on the property after the order of injunction was granted by the Circuit Court or provide the court with the state of the property at the date of the injunction order and pictures after the order was granted. However, the learned counsel for the Applicant was unable to produce any further evidence. Applicant provided pictures to prove that the private school is still being run on the property after the order for injunction was granted by the Circuit Court. Respondent went further to explain that the court did not place injunction on the operation of the private school on the property. A cursory look at the order Exhibit A, shows that the order did not affect the operation of the private school on the property. With the above explanations, I am of the view that, the Applicant was not able to prove that the Respondent disobeyed a lawful order of the Court. In view of that, this application fails and same is hereby dismissed. Cost of Three Thousand Ghana Cedis. (SGD) COMFORT KWASIWOR TASIAME 7 | P age (JUSTICE OF THE HIGH COURT) COUNSEL: 1. ANN MARIE BOADU HOLDING BRIEF FOR LINDA AMPOMAH ABOAH FOR APPLICANT 2. FRANCIS MENSAH WENDLE FOR THE RESPONDENT REFERENCE: • 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). • REPUBLIC v. NII ACHIA II; EX PARTE JOSHUA NMAI ADDO [2015] 83 GMJ 13. • Comet Products UK Ltd v. Hawkex Plastics Ltd [1971] 1 All E R 1141 at page 1143-1144, CA. • 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] 2GLR 391. • ARYEETEY V AGBOFU II AND ANOTHER [1994-95] GBR 250. 8 | P age 9 | P age