REPUBLIC VRS. MARTEY EX PARTE: OFORI (D16/22/2023) [2024] GHAHC 499 (10 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE SOMANYA, EASTERN REGION. HELD ON WEDNESDAY 10TH JULY, 2024. BEFORE HIS LORDSHIP JUSTICE FREDERICK A.W.K. NAWURAH, JUSTICE OF THE HIGH COURT. SUIT NO. D16/22/2023 IN THE MATTER OF APPLICATION FOR COMMITTAL FOR CONTEMPT OF COURT AND IN THE MATTER OF THE REPUBLIC v. EMMANUEL MARTEY EX PARTE: REBECCA OFORI (APPLICANT) JUDGMENT This application is brought under Order 50 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), praying the Court to commit the Respondent herein to prison for contempt of court. The rule in question reads as follows: Committal for contempt 1 1. (1) The power of the Court to punish for contempt of court may be exercised by an order of committal. (2) Committal proceedings shall be commenced by an application to the Court. (3) The application shall be supported by an affidavit stating inter alia the grounds of the application. (4) Subject to subrule (5), the notice of motion, together with a copy of the affidavit in support of the application shall be served personally on the person sought to be committed. (5) Without prejudice to its power under Order 7 rule 6 the Court may dispense with service of the notice of motion if it thinks it just to do so. Paragraphs 27 to 31 and paragraph 39 of the affidavit in support of the Applicant’s application contains the grounds for the application. In the main, the Applicant’s complaint is that the Respondent has taken the law into his own hands by continuing with his construction project on the land in dispute contrary to an order by the Somanya District Court restraining him, his assigns, privies, workmen, etc., from continuing with the said construction project on the land until final determination of the substantive suit before the Somanya District Court. It the Applicant’s case that the conduct exhibited by the Respondent “interferes with the administration of justice or impedes or perverts the course of justice.” The Law on Contempt of Court: 2 It is well established that any conduct, which tends to bring the authority and administration of the law into disrepute or to interfere with any pending litigation is contempt of court. In Republic v. High Court, Accra; Ex parte Laryea Mensah [1998-99] SCGLR 360, at page 368 of the report, The Supreme Court defined 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..." Thus any conduct, which tends to bring the authority and administration of the law into disrepute or to interfere with any pending litigation is contempt of court. The essential elements of the offence of contempt were set out by the Supreme Court in the celebrated case of Republic v. Sito I; Ex Parte Fordjour [2001-2002] SCGLR 322 at page 337 as follows: i. there must be a judgment or order requiring the contemnor to do or abstain from doing something; ii. it must be shown that the contemnor knows precisely what he is expected to do or abstain from doing; iii. it must be shown that he failed to comply with the terms of the judgment or order; and iv. that his disobedience is willful”. 3 Contempt of court is an offence of a criminal character and a contemnor may be sent to prison for it. The law therefore requires that it must be strictly proved beyond reasonable doubt that the Respondent has wilfully disobeyed or violated the order of the Court. One of the best known principles on proof of civil contempt was summed up by Lord Denning in Cornet Products UK Ltd v Hawkex Plastics Ltd. [1971] 1 All ER 1141 at 1143-1144, CA 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” In the case of Deepsea Division of National Union of Seamen and Others v. Trades Union Congress of Ghana and Others [1982-83] GLR 941 the Supreme Court held that the Court would only punish as contempt a breach of injunction if it was satisfied that the breach of the injunction had been proved beyond reasonable doubt. In the case of Republic v. Boateng & Oduro; Ex Parte Agyenim-Boateng & Others (2009) SCGLR 154 at 162, Dotse JSC delivering the ruling of the Court stated as follows: “An Applicant must therefore adduce sufficient evidence documentary or oral to establish the essential elements of the offence of contempt. An Applicant who fails to meet the required standard of proof beyond reasonable doubt must fail in his quest to have a contemnor convicted of contempt”. See also the case of Boamah & Ansah Sikatuo v. Amponsah (2012) 1 SCGLR 58. The law is also trite that contempt of Court, being quasi-criminal in nature, the Applicant, as in all criminal trials, must first make out a prima facie case of contempt against the 4 Respondent before the Court can turn to consider the defences put up. See: In Re Effiduase Stool Affairs (No. 2); Republic v. Numapau, President of the National House of Chiefs; Ex Parte Ameyaw II (No. 2) [1998-99] SCGLR 639. It must be noted that, in contempt applications such as this one, where the Respondent has fully denied the Applicant’s allegations and put the Applicant to strict proof, 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. In this case, the Applicant only made allegations of acts of contempt against the Respondent in her affidavit in support without more. Even though the Applicant has attached picture evidence of the Respondent’s alleged acts of contempt to her supporting affidavit, it is evident that, beyond the general allegations that the Respondent was continuing the development of his projects on the land in dispute, she completely failed to properly describe in what manner particular the construction allegedly taking place was being done so as to give the Court a clear indication of the exact nature and details of the offences committed. The Applicant’s Exhibits “RO11” and “RO11A”, which are supposed to depict the development of the land by the Respondent during the pendency of the interim injunction, do not in any way show in what manner particular the said structures have changed since the interim injunction was made. Then again, the Applicant’s Exhibits “RO12” and “RO13” series are pictures that were taken after the interim injunction had expired after the ten-day period, and therefore they are of no relevance to this application. The Applicant did not also take the opportunity to testify to those allegations in court but expected the Court to infer the guilt or liability of the Respondent from the bare 5 allegations without more. These lapses in procedure and evidence on the part of the Applicant, in my view, are fatal to her case. The standard of proof in contempt cases is proof beyond reasonable doubt. Thus, it was not enough for the purposes of the instant application for contempt of Court for the Applicant to have left the serious depositions of facts at large, as it is not possible to say which of the two versions of the matter are correct. In the absence of detailed evidence, it would be erroneous for a trial Court to purport, for no reason whatsoever appearing from the record, to accept the case of the Applicant who has not satisfied the evidential burden of proof. In the case of Republic v. Boateng & Oduro; Ex Parte Agyenim-Boateng & Others 2009 SCGLR 154 at 162, Dotse JSC delivering the ruling of the Court stated as follows: “An Applicant must therefore adduce sufficient evidence documentary or oral to establish the essential elements of the offence of contempt. An Applicant who fails to meet the required standard of proof beyond reasonable doubt must fail in his quest to have a contemnor convicted of contempt”. Given that the Respondent had completely denied the allegations of contempt in his affidavit in opposition, it was incumbent on the Applicant to insist on going into the witness box with witnesses to testify in proof of her assertions. Merely relying on bare assertions in her affidavit, without more, was fatal to her case. This procedure, in my view, did not constitute sufficient proof of the contempt alleged against the Respondent. The circumstance, it seems, does not even establish prima facie proof, let alone proof beyond reasonable doubt, as to justify the consideration of the Respondent’s response in the matter. 6 I have no hesitation in finding on the affidavit filed that not only was it hopelessly bad for evidence pertaining to criminal prosecutions such as in contempt applications, but that the Applicant failed to make out a prima facie case of contempt. Nothing has been put before me in near satisfaction of the burden of proof. Thus, there is nothing to show any tendency towards deliberate willfulness to undermine the injunction orders of the Somanya District Court which, in any case, has long expired. In the light of this finding it will be futile to pronounce on whether the Respondent provided a satisfactory defence to the charge of contempt. What I have said, is to my mind sufficient to dispose of the contempt proceedings against the Respondent. As the evidence before me is insufficient to prove that the Respondent is in contempt, I would dismiss the application. The application for a committal order against the Respondent for contempt therefore fails and the same is dismissed with five thousand Ghana Cedis (GH¢5,000.00) costs in favour of the Respondent. DECISION: Application dismissed. (SGD.) H/L JUSTICE FREDERICK A.W.K. NAWURAH. (JUSTICE OF THE HIGH COURT) Counsel: ▪ Clarke Noyoru Esq. for Applicant 7 ▪ Benjamin Servor Esq. for Respondent ▪ 8